06/14/2006: DHS/ICE Proposed Rule on Safe-Harbor Procedures for Employers Receiving a No-Match Letter

• The Bureau of Immigration and Customs Enforcement proposes to amend the regulations relating to the unlawful hiring or continued employment of unauthorized aliens. The amended regulation describes the legal obligations of an employer, under current immigration law, when the employer receives a no-match letter from the Social Security Administration or the Department of Homeland Security. It also describes ``safe-harbor'' procedures that the employer can follow in response to such a letter and thereby be certain that DHS will not find that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United
  States. The proposed rule adds two more examples of situations that may lead to a finding that an employer had such constructive knowledge to the current regulation's definition of ``knowing.'' These additional examples involve an employer's failure to take reasonable steps in response to either of two events:
  • (1) The employer receives written notice from the Social Security Administration (SSA) that the combination of name and social security account number submitted to SSA for an employee does not match agency records; or
  • (2) the employer receives written notice from the Department of Homeland Security (DHS) that the immigration-status or employment-authorization documentation
    presented or referenced by the employee in completing Form I-9 was not assigned to the employee according to DHS records. (Form I-9 is retained by the employer and made available to DHS investigators on request, such as during an audit.)
  • The proposed rule also states that whether DHS will actually find that an employer had constructive knowledge that an employee was an unauthorized alien in a situation
    described in any of the regulation's examples will depend on the totality of relevant circumstances. The ``safe-harbor'' procedures include attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee's identity and employment authorization through a specified process.
• DATES: Written comments must be submitted on or before August 14, 2006.

06/14/2006: AILA Reports Anti-Immigrant Calls to Congress Outnumbers Pro-CIR at 400:1

• AILA has reported that immigration restrictionists are flooding Congressional phone lines and email inboxes with angry demands that their Senators and Representatives vote against any legislation that provides a path to citizenship for undocumented immigrants. Their calls for an enforcement-only immigration policy are reportedly louder and more aggressive than ever and there are 400 of them for every 1 call from proimmigrants. AILA is concerned that the 400 to 1 intensity of the opposition to comprehensive immigration reform (S. 2611) is expected to crescendo into the November elections, making it a likely voting issue at the polls.
• Considering the fact that most seats in the House are up for grab in the November election, these anti-immigration forces pose a powerful threat and road block to meaningful enactment of comprehensive immigration reform legislation.
• These anti-immigration forces also appear to use a strategy to weaken the pro-immigration forces by inducing the immigrant community more and more divided between the legal and illegal immigrant communities and pushing them further and further antagonistic each other by spreading rumors that illegal immigrants would take away employment-based immigrant quota from the legal immigrants and the legal immigrant community should oppose the comprehensive immigration reform legislation as passed by the Senate. "Divide and Conquer" strategy appears to work for these immigration restrictionists.

06/14/2006: USCIS Announcement to Issue RFE for Pending Fiancee Petitions

• We reported earlier that the USCIS requested the visa posts and the National Visa Center to return the approved Fiancee Petitions to correct the USCIS' violation of the law that requires collection of criminal history of the U.S. petitioners. The USCIS has just announced that it would issue "Request for Evidence" to the petitioners of pending fiancee petitions for the identical purposes. The current Fiancee petition form is defective in that it does collect the petitioner's criminal history information and the USCIS is scheduled to publish a new revised form within June 2006. The number of RFE which the USCIS needs to issue is reportedly over 10,000. Fiancee Petition (I-129F) waiters should watch for their mails of USCIS Request for Evidence.

06/14/2006: El Salvador TPS Designation Extension & EAD Extension Notice to be Published on 06/15/2006

06/13/2006: Notice to the Attorney Matthew Oh Clients

• Mr. Oh has not been available for the last few days for the family emergency. This is likely to continue for the next few days. We apologize for the inconvenience this may have caused you.

06/13/2006: Service Centers June 13, 2006 Processing Times Report

• See homepage.

06/13/2006: July 2006 Visa Bulletin

• RETROGRESSION OF FAMILY F2A CUT-OFF DATE:For July, it has been necessary to retrogress the F1 and F2A cut-off dates. This has been done in an effort to hold the issuance levels within the applicable annual numerical limits for the affected categories.
• IMMIGRANT VISA AVAILABILITY DURING THE REMAINDER OF FY-2006: Readers are reminded that during the summer months, with immigrant visa number use approaching the annual limits for the year, the supply of numbers remaining for use is limited. Thus, cut-off date advances could slow or stop, and monthly allocations decrease. Additional retrogression of cut-off dates such as those experienced for July are possible. Readers should not assume visa availability until the cut-off dates are announced.

06/13/2006: Proposed Form I-515A to Allow Students to Enter W/O Documents for 30 Days

• The USCIS intends to allow an F, M, or J alien who is without documentation for entry into the United States to enter temporarily for a 30-day period. To extend the authorized duration of the visit, the F, M, and J, the alien must obtain the required documents and submit them to the Student and Exchange Visitor Program (SEVP) office within the 30-day period using the form I-515A. The public has a comment period until July 17, 2006 before the USCIS finalizes the immigration form.
  

06/11/2006: Welcome Address to Dr. William Carlson, Returning Chief of Office of Foreign Labor Certification

• Tomorrow, Monday, June 12, 2006, Dr. William Carlson who was the former Chief of Division of Foreign Labor Certification will return to the post and the current Interim Chief will be reassigned to another position. Dr. Carlson took over the Chief of DFLC during the time when DOL had a difficult mission and task of sipping through over one thousand comments to the proposed PERM regulation and finalization of the current PERM and BEC regulations. Additionally, he was instrumental in organizing the teams of PERM and BEC national centers and implementing the most challenging task of launching online filing system of PERM and transforming the old labor certfication into a national processing system in the name of BEC, all on March 28, 2005. Launching a reengineering system always involves some trials and errors, and the labor certification reengineering was no exception. Some faults in the initial computer decision matrix system produced massive denials of the initial applications. On the backlog reduction side, transformation of the traditional two-tier (State-Federal) labor certification into the national processing system experienced some pains and aches, causing delays in laying down the ground work for adjudication of the backlog labor certification cases. Immediately prior to his departure from the post in August 2005, he was successful in fixing the decision matrix problem and initiating the process of the final determination by the officials and not letting the machines alone to decide the applications. This was a tremendous achievement in bringing the PERM labor certification into a workable process and leading to the current successful management and operation of the PERM program with no serious faults. For the BECs, the pains have continued, but there is a sign that the BEC system is shaping up and moving into the proper operational mode. The sign is detected from the pace of recent processing of 45-day letters and adjudication of backlog cases. The consumers now see increased number of large white envelopes in their mail boxes. The process is expected to improve substantially when the BECs complete data entries at the end of June 2006. The consumers may experience a new chapter of backlog processing before the end of the year.
• Dr. Carlson is returning to the post to finish up the program which he initiated at a difficult time. We are confident that he will carry on the task successfully in the next 16 months, removing all the backlog cases of over 200,000. As the ground work will be completed in the PERM system and BEC system in the next couple of months, we wish to urge Dr. Carlson to initiate and improve the relationship with the consumers of the systems, which will help the agency to turn the system into a responsive and interactive process with the consumers. The first phase of this mission will include launch of online processing time report and case status checking system. We know that the reengineering plan included this phase of the strategic plan and we urge Dr. Carlson to intiate this phase of the reengineering as soon as possible after June 30, 2006. We hope that this online access to the labor certification process by the consumers can adopt a similar system which we currently see in the USCIS website in its regular report of processing times of different types of cases and online check of status of individual cases. Launch of such accessibility to the labor certification process may help in removing all the confusions the agency and consumers have been experiencing upto now. We do not see how this initiative can not be implemented after June 30, 2006 when the development of the national database for the labor certification should be completed by that time. The second phase should include streamlining the telephone communication process between the adjudicating officers and the consumers. The adjudication process should somehow be open to the consumers for efficient and effective management of the program and to pull up the feed backs from the consumers. It can eliminate the current time-consuming, and almost exclusive one-way communication from the agency to the consumer in writing without any proper channel for the consumers to respond and address to the questions and issues the adjudicators might have, either by telephone or fax or e-mail. We urge Dr. Carlson to open up the communication channel to consumers as soon as possible. We hope Dr. Carlson will be able to address some of these issues at the AILA Annual National Conference in San Antonio, Texas during June 21-24, 2006. This reporter will attend all the sessions that Dr. Carlson will be on the panel.
• Welcome back, Dr. Carlson.

06/10/2006: Surge of Citizenship Applications For Fear of Potential Enactment of Negative Immigration Reform Legislation

• Report indicates that driven by the fierce congressional debate over immigration, immigrants nationwide are applying for U.S. citizenship in record numbers or seeking to solidify their legal status in a move to protect themselves at a time of political uncertainty. The report indicates that many fear that laws could be strengthened, preventing them from becoming naturalized or from bringing relatives into the United States and others appear to be motivated by the chance to obtain more rights and boost their political clout through voting. Reportedly between January and April, immigrants filed 251,385 applications, an 18 percent increase from the same period last year, immigration officials said Thursday. They also reported a record surge in petitions to sponsor relatives for residency, also up 18 percent for the time period. For the full news report, please click here.
• Waning hope?

06/08/2006: We Welcome USCIS' Timely Release of H-1B Cap Exempt and Outstanding Researcher Guidance Memorandums

• We salute the leaders of USCIS for adopting liberal policies in these two "long-awaited" memorandums. The academic and research community are relieved from the pains and aches caused by unnecessarily narrow reading of the the statutes and regulations by the field offices including AAO. We wish to send our congratulations to the academic and research community.

06/07/2006: USCIS Released "Long-Awaited" Memorandum on 06/06/2006 for Guidance of Definition of "Permanent" Employment for Outstanding Researchers

• This memorandum also amended the Adjudicator's Field Manual liberalizing the definition of permanent employment offer requirement for Outstanding Researcher Petition. Until now, "permanent" employment is narrowly interpreted by the AAO and the Service Centers such that when the employment contract included "at will" term and the employment can be terminated with or without good cause, the petition has been denied. Since reality was that in most employment contract there was "at will" term language in it, the USCIS practice posed a serious threat to the recruitment of outstanding researchers and immigrant petitions. This memorandum gives a relief to the past painful bottleneck in the EB-12 Outstanding Researcher Petition. Read the Memorandum

06/07/2006: USCIS Released "Long-Awaited" Memorandum on 06/06/2006 for Guidance of H-1B Cap Exempt Petitions

• The FY 2007 H-1B cap reached on May 26, 2006. Now, increased attention is directed to the H-1B cap exempt opportunities under the AC 21 Act including Employment or Offer of Employment "at"; (1) Institution of Higher Education; (2) Nonprofit Entities Related or Affiliated with the Institution of Higher Education; and (3) Nonprofit Research Organization or Governmental Research Organization.
• Over the years, there have arisen various issues relating to the definition of the terms that affect the scope and parameter of the legislative intent of the AC 21 H-1B cap exempt provisions. These issues have remained in a grey area without the official guidance from the USCIS HQ. One particular issue that has remain a puzzle was whether the language "employment at" should include not only employment by the exempt entities but also employees of non-cap-exempt entity working at the cap exempt entity. This memorandum liberalizes the scope and the cap exempt workers include the employees of the cap exempt entities as well as the employees of a 3rd party entities who perform the job at the cap exempt entity. GOOD DEAL!
• Now, it is timely that the USCIS HQ released this memorandum to give guidance to the field offices and adjudicators on the definition and scope of the H-1B cap exempt. This memorandum interpretes the AC 21 H-1B cap exempt provisions more or less liberally, expanding increased opportunity for H-1B cap exempt jobs, particularly during the period of H-1B cap reach. People should read carefully the following two materials: Memorandum of June 6, 2006, including addendum on Revision of Adjudicator's Field Manual

06/07/2006: Advisory on FY 2007 U.S. Master or Higher Degree H-1B Cap Count

• The June 2, 2006 FY 2007 H-1B cap count for the U.S. master or higher degree 20,000 quota indicates that it had used less than 7,000 out of 20,000. This information may mislead some people to believe that there will be some period of time the 20,000 will be completely exhausted. However, the 20,000 numbers can run out faster than one expected because unlike the situation when 65,000 regular H-1B cap numbers were available and some of the U.S. master or higher degree cases took out the numbers not from 20,000 special pool but 65,000 regular H-1B pool following the USCIS general policy and practice, now all the U.S. master or higher degree applicants "will have to" exclusively rely on the special 20,000 numbers. Accordingly, it is anticipated that the 20,000 special numbers may run out fairly quickly and not in a matter of several months.

06/06/2006: DOL's New Initiative for Back-Wage Online Locator for Employees and Potential Immigration Fallout and Immigration Enforcement

• Beginning June 2006, the Employment Standards Administration, the wage and hour enforcement arm of the U.S. Department of Labor, launched an aggressive initiative to entice and induce the employees to check their employers' violation of wage and hour rules and backwage liability using an easy and simple online access named a locator. Unlike the U.S. citizens and the permanent residents, payment of prevailing wage or actual wage is a condition for the legal status of certain types of temporary worker aliens such as H-1 and H-2 aliens, and the claims and access to such backwage claim services may result in some fallouts in immigration proceedings beyond the monitary backwage claims. It is expected that this initiative will lead to the DOL's increased enforcement of violation of the labor condition applications or labor attestations for these visas. The employers should beware of the ESA's new initiatives and be more mindful of the compliance issues.

06/03/2006: House Hardliners Come Up With A Weapon to Block CIR Conference Committee

• Report indicates that the House hardliners who opposed the Senate-passed S. 2611 have come up with a weapon to block the House-Senate Conference Committee and the S.2611. The weapon they have hammered out involves a constitutional issue as to whether the provision in S. 2611 that requires guest worker applicants to "pay the back taxes" as condition for the legal status constitutes a federal government's measure to raise the revenue. These hardliners argue that the U.S. Constitution mandates that any legislation to raise revenue for the government must originate in the House and S. 2611 violated the U.S. Constitution by originating such legislative bill in the Senate. When the Congress returns on Monday, there will be a see-saw fight between the S. 2611 proponents and opponents on this legal technicality issue. One wonders how the House hardliners would defend their prior violations in the past in another legislations that involved such legal technicality issues. Besides, there is no clear definition as to whether such back-tax payment requirement indeed constitutes a revenue raising measure. Please stay tuned to this website to watch how this fight in the political arena will unfold!

06/03/2006: Return of Congress to Session on 06/05/2006 and Bush's Agenda to Support CIR

• The House has yet to agree to the Senate-House Conference Committee to resolve the differences in the Comprehensive Immigration Reform legislation. The Bush's rating remains very low, but this is the Republican House, Republican Senate, and Republican Administration. As such, the leadership of the President remains critically important to coordinate the Republican national policies and visions. On Thursday, June 1, 2006, the President appeared at the meeting of the U.S. Chamber of Commerce and made a speech to advocate importance of the CIR legislation. Unconfirmed sources indicate that as the Congress returns next week, Bush is expected to expand his campaign to drum up the public support for this legislation and to tone down anti-immigrationists in the House.
• The final product of the comprehensive immigration reform legislation may be substantially different from the current version of S. 2611 in many areas once the two Houses come to an agreement with compromises, but earlier resolution of the comprehensive immigration reform legislation is very important in that pending this legislation, the Congress' legislative activities on specific immigration issues including H-1B foreign workers have been and will remain "clogged." The nation cannot afford that. We hope that the President's leadership will help the nation to see resolution of the comprehensive immigration reform legislation at the earliest, regardless of the specifics in the final product, and to move on formulating and implementing certain specific national immigration issues and policies without any delays. In this regard, the procedure is as important as the substance when it comes to the comprehensive immigration reform legislation and we look forward to the President's leadership in leading the political leaders in the matter of procedures.

06/02/2006: Status of Service Centers' Processing of I-140/I-485

• Bi-Specialization Program is likely to create some delays and other problems at least at the initial stage for the two reasons: Reason 1: The concept of the two Service Centers specializing in either employment-based nonimmigrant proceedings (I-129) or employment-based immigrant proceedings (I-140/I-485) require shipment of half of the filings via overnight delivery services from the Service Center that receives the petitions/applications (Vermont Service Center in I-129 and Nebraska Service Center in I-140/I-485) to other Satelite Service Centers (California Service Center in I-129 and Texas Service Center in I-140/I-485). Technically, the filings will have to go through the double front-end or mail-room processsing. Obviously, there will arise some mishaps of losing or misplacing files and contractor mishandling cases at the front ends. In the case of I-140/I-485, Texas Service Center has just confirmed that the workloads are split half and half between the NSC and the TSC and the NSC ships incoming I-140/I-485 case filings to the TSC every other day via DHL. Even though there is no confirmation, probably same thing may be happening between the VSC and the CSC for I-129 filings. Physical shipments of these filings coast to coast or from the Northern border to the Southern border must involve a huge traffic everyday. Reason 2: Initial announcement of the USCIS Bi-Specialization Program gave impression that the program would just apply to the new cases after April 1, 2006 and the existing cases may be finished up by the Service Centers where people had filed their cases. However, the reality appears to be completely different. According to the TSC, it received 14,000 existing I-140/I-485 cases from the CSC and another 4,300 or 4,400 cases from the VSC. No wonder why I-140 processing and adjudication have witnessed slow-down lately. The TSC reports that it intends to complete these cases within 180 days from the date of filing, obviously to meet the target of Bush's six-month adjudication commitment, but people should not hold their breath yet. There is no information available about as to whether idential process is taking place for transfer of existing I-129 cases to either VSC or CSC. But educated guess is "probably not" in view of the short processing cycle in I-129 cases. This does not mean that the processing of existing I-129 cases by the NSC and the TSC is not affected by the reengineering of processing system. Report indicates that those resources within each of these two Service Centers that handled I-129 cases have been switched to the I-140/I-485 production lines in most cases. Without doubt, such transformation has affected the recent processing times of I-129 cases in these Service Centers.
• It appears that the Bi-Specialization reform is supposed to achieve its intended goal when the USCIS' another planned transformation of filing, processing, and adjudication system "electronically" materializes. Until that time, it is likely that the USCIS may continue to experience some unintended aches and pains of processing and adjudication of the employment-based petitions and applications, albeit limited to the transitional period. We hope the best for the USCIS.

06/01/2006: USCIS Announced Today H-1B Cap Reached 05/26/2006

05/30/2006: "Imminent" FY 2007 H-1B Cap Reach

• It is only the end of May 2006 and the FY 2007 (10/01/06-09/30/07) H-1B cap is anticipated to reach shortly - four months even before reaching the door-step of FY 2007! The 16-months vacuum in hiring of new H-1B workers will cause a tremendous damage to the high-end businesses in international competition. We urge the Congress to act quick on PACE Act or SKIL Act as separate from the Comprehensive Immigration Reform legislation process. Formality of legislation should not prevail over the substantive national strategic issues which are at the crossroad of collapse. The damage will be irreparable.

05/30/2006: Mexican Laser Visa Documentation Change Effective Today

• The State Department has published a final rule to bring a change in documentation requirement for the issuance of so-called "laser visas" for the Mexican nationals. Effective today, Mexican Citizens now must present a Mexican Federal passport as part of their laser visa application and must be eligible for a B-1 or B-2 temporary visitor visa in order to obtain a laser visa. It requires the presentation of Mexican Federal passports as a necessary condition for Mexican citizens applying for combined Border Crossing Cards (BCC) and B-1/B-2 visas (laser visas). It also removes the conditions under which certain beneficiaries of Immigration and Nationality Act 212(d)(3)(A) waivers of ineligibility could receive laser visas. Read the regulation for the details.
  

05/30/2006: Fate of CIR - Conference Compromise or Post November Midterm National Election, That is the Question.

• The CIR sailed through the Senate floor fairly peacefully last week. However, the process ahead is something which is a totally different matter. The gravity of the problem can be easily understood from the fact that allegedly all 435 seats in the House are up for grabs and a third of the Senate seats will be contested in the November midterm election. Each Senator represents the whole State, while each member of the House represents a small district in a city or county. For these reasons, the House members tend to represent a very narrow view for the broader "national" or "regional" issues than the Senators. The Senators and the Members of the House represent completely two different constituencies!
• Reportedly, the members of the House who have to be more conscious of the "grassroots" and "neighborhoods" in a small district are somewhat concerned with the Senate passed CIR because of the illegal immigration issues. The grassroots are more easily vulnerable to manipulation of the opinion by neighborhood or community leaders.
• The Senate leaders currently want to see no delays in the compromise process for the CIR, while the House leaders and members are reportedly struggling with the issue because of its potential deadly impact on their narrowly defined constituents. It is expected that there will be a lot of political process behind the scene during the next few weeks. From the immigrant community perspectives, the sooner, the better, for the CIR to survive before the midterm election. We will keep a close eye on the political process to detect which direction the wind will blow during the next few weeks. Please stay tuned.
  

05/28/2006: We Will Launch Review of S. 2611 as Amended in the Form of Q&A

• We will review S. 2611 as amended and passed on May 25, 2006, mostly focusing on the employment-based immigration issues. Believe it or not, the bill which the Senate passed on May 25, 2006 incorporates many benefits which have been introducted as separate bills, including PACE Act, SKIL Act, DREAM Act, etc, etc. It also includes reinstatement of "visa revalidation program" for the U.S. Department of State.
• We will randomly select the issues, issue-by-issue, in the form of Questions and Answers. Considering the fact that the full text of the final bill has yet to be made available, we ask the readers to bear with us and keep your patience. We will try to cover as many issues as possible. Please stay tuned.
  

05/27/2006: Here We Go! Federal Raids Target Immigrants in a National Effort to Pursue Deportation Ordered Illegal Aliens

• Report indicates that DHS immigration enforcement agents raid the doors of illegal aliens pretending as a police officer in Minneapolis-St. Paul Metropolitan Area. Even the Mayor and the Chief of Police in Minneapolis have raised a voice to protest such raids. Necessary but painful evil! Read on.

05/26/2006: H-1B Cap Count 05/25/2006: 49,034

• There are only about 9,000 left to reach the cap as of Thursday, May 25, 2006. The cap number is rapidly running out.

05/26/2006: Immigrants Rounded Up as New Legislation Passes the Senate and Likely Pumped Up

• There is a news report which indicates that the DHS was rounding up illegal aliens as the Senate was passing the legislation to give a relief to the undocumented aliens. In fact, this has been going on for quite a while to tone down the opposition of CIR by the conservatives and to sway the public opinion in favor of CIR. As the Congress moves into the second phase of political drama named "Conference Process," it is likely that Bush administration will pump up and publicize the immigration enforcement and border security actions to tone down the oppositions to CIR and to twist the arms of the middle-of-the-ground Republican mild anti-immigrationists in the House to accept the Senate passed CIR bill. The immigrant community should be alerted of the "necessary evil."
  

05/26/2006: Semi-Conductor Industry Association Hails Passage of S. 2611

• The Senate bill increases the annual cap on H-1B visas from 65,000 to 115,000, creates a market-based cap to allow for future increases if market condition warrant, and raises the green card cap to 650,000 for fiscal years 2007-2016. The bill also exempts from the H-1B cap for workers who have earned a masters or Ph.D degree in science, technology, engineering and math (STEM) and exempts from the green card cap those workers with masters and Ph.D STEM degrees who have worked in the U.S. for at least three years. The current limits on H-1B visas were reached in August 2005, preventing U.S. employers from utilizing H-1B visas to hire workers with critically needed advanced skills until October of 2006. According to figures supplied by the USCIS, by the end of this month we will also have a backlog that, absent an increase in the cap, will use all of next year's available H-1B visas by the end of the month!
• The SIA urges the Congress to quickly pass legislation to keep foreign-born, U.S. educated talent working for U.S. companies. Leadership in technology has been critical to driving economic growth, enhancing productivity, improving our standard of living, and ensuring national security. Leadership is not a birthright -- it must be earned, and it takes highly skilled scientists and engineers to earn leadership.

05/26/2006: Critical Role of House-Senate Conference Committee and Importance of Selection of the Conferees

• More than ever, in the Comprehensive Immigration Reform legislation, the role of the upcoming House-Senate Conference Committee will be critically important. Traditionally, once conference committee reaches an agreement, the floors of both Houses usually accepted the compromise report of the conference committee. It is thus critically important to learn who will be selected to the conference committee by each House. The key players in the selection are the Speaker of the House, the President of the Senate, Majority and Minority leaders in both Houses.
• In the Senate, the floor has already decided how the conferees from the Senate will be selected. It proposes to send conferees at the ratio of 14 from the House and 12 from the Senate. On the Senate side, all the conferees will be selected from the Judiciary Committee at the ratio of 7 from the Republicans and 5 from the Democrats. On the Republican side, the Majority leader will select the seven Republican conferees and the Minority leader will select the five Democrat conferees. Without doubt, the Democrats will select the hardcore supporters of the CIR, but it is unclear who the Majority leader Bill Frist will pick on the Republican side. He may attempt to balance between the hardcore supporters and the hardcore opponents within the party. We just wish that the hardcore Republican opponents who posed a roadblock to the today's passage of the bill in the Senate as revealed in the amendment and final roll calls do not take a dominant power on the Republican side of the Senate delegaton. Readers may want to know who these opponents are by checking the voting records of S. 2611.

05/26/2006: USCIS to Extend TPS Designation and Automatic Extension of EAD for One Year for El Salavadorans

05/26/2006: Immigration Statistics Report Released by DHS on 05/24/2006

• The DHS released various immigration statistics on May 24, 2006. This statistics reflect the situation at the end of March 2006.

05/25/2006: In re Jian An Wang, Decision of BIA, May 25, 2006

• Today, the Board of Immigration Appeals handed down a rule that EWI(Entered Without Inspection) alien is not eligible for I-485 application under the Chinese Student Protect Act of 1992 ("CSPA"), and those whose CSPA 485 application is denied on the ground of EWI is not allowed to amend or renew the I-485 application on the ground of 245(i) provision in the immigration proceedings. See 23 I&N Dec. 924 (BIA 2006), Interim Decision #3533.

05/25/2006: Statement of the President on the Occasion of Senate Passing CIR

05/25/2006: Senate Passed S. 2611 by 62:36!

• Please stay tuned for the summary of the final bill.
• Remember who voted for and against the bill. Record of votes. Thanks to Senator Norm Coleman (R) and Senator Mark Dayton (D) from Minnesota for their bi-partisan support of the Comprehensive Immigration Reform Act of 2006.

05/25/2006 5:30 p.m. (EST): The Last Amendment Voted

• The last amendment #4136 was just voted. Please stay tuned to this website for the result of S. 2611 roll calls tonight!

05/25/2006 5:00 p.m. (EST): Only One More Amendment to Vote Before the Roll Call for S. 2611

• The Senate was scheduled to vote S.2611 today after taking care of five more amendments (#4097, #4131, #4083, #4108, and #4136) today. They have already voted the first four amendments and the last amendment will be voted soon, and then the Senate floor will make roll call for S.2611, as amended.
• To get to this point, the Senate had to vote on almost 200 amendments! The Senators should take a good rest during the Memorial day weekend. Let's send hats off to the Senators for the job well done!

05/25/2006: An Amendment Relating to EB Immigration Passed Today

• The Senate passed today Bingaman amendment to limit the total number of EB aliens including spouses and children for the EB-based green cards be limited to 650,000 during any fiscal year. The original bill was to exempt the spouses and children of the EB immigrants from the numerical limitation and principal EB immigrants number was proposed to be 450,000. In a way, these two proposals remain intact, provided that the spouses and children can indirectly restrict the total EB numbers available for the EB immigrants and their spouses and children, but overall this amendment will add impressive numbers to the EB immigrant annual quota system.

05/25/2006: H-1B Cap Count of May 23, 2006

• Total received or approved: 45,150, meaning there are only 13,050 number available for the rest of FY 2007!

05/25/2006: DOL Foreign Labor Certification Chief Change Again on June 12, 2006

• Former Chief of DFLC, Dr. William Carlson, is returning to his previous position and the current acting Chief, John Beverly, will be transferred to another position. This shift in the leadership is expected to bring some changes in the labor certification practice and policy.

05/25/2006: Follow-Up of Substitution Elimination Rule-Making Process

• DOL's bi-weekly telephone conference with the stake-holders indicates that DOL received 489 comments in response to the "Proposed" rule to eliminate labor certification substitution. The number of comments were smaller than speculated. DOL declided to disclose the timeline of release of the final regulation of substitution elimination rule. Apparently the rule-making law requires that the decision should be made at least by April 2007.

05/24/2006: Senate Agreed to Motion to Cloture and Expected to Vote S. 2611, as Amended, Tomorrow, 05/25/2006

• This morning, the Senate agreed to motion to cloture, practically closing the debates by 73 Yeahs. It is thus likely that the "legal immigration" provisions in the S. 2611 will be voted by default practically without amendments. Passage of the bill is considered "given" in the tomorrow's roll call votes. Want to know who voted Yeah and who voted Nay for the motion to cloture" Click here.
• The specific schedule of the House-Senate Conference Committee has yet to be ironed out by the leaders of the House and the Senate after the Memorial day break. The real test of the survivability of S. 2611 lies ahead and it is expected that there will be some arm-twisting by the President. Please stay tuned.

05/24/2006: e-Filing of H-1B Temporarily Suspended and Unavailable

• According to the USCIS website, e-filing is unavailable and the petitioners must file H-1B petitions only in papers. As the FY 2007 H-1B cap approaches fast, the pending H-1B petitions proportionally are mounting in numbers. The May 19, 2006 cap count indicates that the USCIS approved only 6,934 petitions for FY 2007 with the start date of October 1, 2006, while the petitions which have been pending numbered at 35,942. There are no statistics available about the pending FY 2007 cap H-1B petitions with Premium Processing Request out of the total pending numbers. As the pace of pending numbers increases rapidly, the USCIS may suspend the Premium Processing Services for the H-1B petitions as their PPS resources to process within 15 days may face its limit. One of the federal register notices which the USCIS released yesterday made clear that the USCIS would suspend the PPS services when the numbers would reach their limit in resources. Without doubt, the employers may accelerate filing of new H-1B petitions from here on and no one can predict how soon the balance of the available FY 2007 cap numbers will be exhausted. Educated guess indicates that it may not take too long. During the weekend beginning from the evening of May 19 through the night of May 21, DOL/ETA labor certification and labor condition application systems were shut down for maintenance. Even Monday, the 22nd of May, the H-1B Labor Condition Application online filings were disrupted from time to time because of the technical difficulties of the online filing system. It is hoped that the H-1B employers do not create frenzy of filings in the next few days and experience a panicking situation. Please stay tuned.

05/23/2006: Service Centers May 22, 2006 Processing Times

• See homepage.

05/23/2006: Rising Hope of S. 2611 Passage in the Senate Thursday 05/25/2006

• As opponents in the Senate admitted their defeat, the hope is rising that the bill may pass as early as day after tomorrow in the Senate. Please stay tuned.

05/23/2006: H-1B Cap Count 05/19/2006= 15,324 Remaining

05/23/2006: New Premium Processing Procedures: Designation vs. Availability of the Services at a Given Time

• Apparently, today's USCIS federal notices of designation of certain types of employment-based proceedings for the extended Premium Processing Services have led some readers that the USCIS has started accepting the Premium Processing Request for these three types of cases from today. However, people will easily learn from these federal register publications that the availability of the services at a given time is supposed to be made public via the USCIS website, and until such notice is published or announced on the USCIS, the Premimum Processing Services will not be available for these three types of proceedings.

05/23/2006: USCIS Designates I-140, EB-Based I-539, EB-Based I-765 for Premium Processing Services

• USCIS designated, effective today, these legal proceedings to be eligible for the premium processing services. Unlike some previous information released through other sources, this designation does not indicate that the USCIS will suspend or terminate the concurrent I-140/I-485 filing. Good news. For the designation rule, please click here.
• USCIS also released another rule to inform the customers of the premium processing services that the services will be managed and operated flexibly and the USCIS will use its website to notify the public of the dates of availability of premium processing services. For this announcement, please click here.

05/22/2006: Senate to Call House-Senate Conference Committee after S. 2611 Passes in the Senate

• The Senate has decided to propose House-Senate Conference Committee once the pending S. 2611 passes in the Senate before Memorial Day at the ratio of 14:12. The 12 Senate conferees will be selected from the Senate Judiciary Committee at the ratio of 7 Republicans: 5 Democrats. The 7 Republican conferees will be seleted by the Senate Majority Leader, Bill Frist, and the 5 Democrat conferees will be selected by the Senate Minority Leader.
• It is time for the immigrant community to work with the Senate Majority and Minority Leaders and the members of the Judiciary Committee to advocate key immigration issues as they will determine the Senate conferees in the final conference committee process.

05/22/2006: USCIS Local District Offices Processing Times as of May 22, 2006

• See homepage.

05/22/2006: USCIS Recalls Fiancee Petitions With the Receipt Date on or after 03/06/2006

• The USCIS has erroneously approved fiancee petitions in violation of the new law named "International Marriage Broker Regulation(IMBRA)" which was signed by the President on January 5, 2006. For this reason, the USCIS has requested the visa posts to return the approved fiancee petitions with the receipt date of March 6, 2006 or later to the USCIS through the National Visa Center. This action is expected to cause a substantial day in the fiancee visa applications.
• The IMBRA established a 60-day deadline, March 5, 2006, for DHS to begin asking K-1 fiancé(e) petitioners for their criminal background information. DHS did not meet the deadline for collecting additional information. Some petitions filed after the deadline were approved in errorunder the old procedures and sent through the National Visa Center (NVC) to posts for processing. Approximately 1100 cases went to 95 IV posts. Posts are thus preparing to return these cases as quickly as possible to NVC.
• While most K-1 cases under the new IMBRA requirements were held at the service centers pending development of a new form I-129F, some cases were processed after March 5 using the old forms and procedures and sent to posts for processing. The DHS Service Center Operations (SCOPS) Unit of USCIS, Status/Family Branch requested that posts return to NVC all K-1 fiancee petitions with priority dates on or after March 6, 2006. For the details of the unexpected emergency actions of the USCIS and the visa posts on fiancee petitions and visa applications, please see DOS Cable of May 6, 2006.
  

05/21/2006 9:30 EST: DOL/ETA Website Works Again

05/21/2006: Monday Senate S.2611 Amendments Voting Schedules

• Senate will resume consideration of S. 2611, Comprehensive Immigration Reform Act, with a vote to occur at 5:30 p.m., on or in relation to Chambliss/Isakson Amendment No. 4009, to be followed by a vote on, or in relation to, Ensign/Graham Modified Amendment No. 4076.
  

05/19/2006: Senate Adjourned After 1:15 p.m. Today and No Record Votes on CIR

• Senate adjourned today and there will be no CIR debate and record votes until after 1:30 p.m. Monday, 05/22/2006. For the record votes, please visit our homepage.

05/19/2006: Opponent of Immigration Legislation Predicts its Passage by Next Week

• Report indicates that the chance of the Senate to pass CIR next week almost certain. By now, we know what amendments have been added to the bills on the Guest Worker Program and Legalization of the undocumented aliens. Once the most controversial issues are resolved, some amendments may or may not be introduced to the legal immigration bills. Please stay tuned.
  

05/18/2006: Senate Agreed to Motion to Table Sen. Kyl's Controvertial Amendment 3969

• This amendment makes temporary guestworkers (H-2C) ineligible for adjustment of status to a permanent resident in the United States. Senate today voted to lie this amendment on the table, effectively killing this amendment.

05/18/2006: H-1B Cap Count of 05/16/2006 Moved from 34,808 on 05/12/2006 to 39,445 in Four Days

• According to the cap count which the USCIS has just released today, in four days including Saturday and Sunday the number moved up 4,637. Consequently, as of May 16, 2006, there were only 18,755 numbers to reach the cap! What is going on?

05/18/2006: GAO Report of 05/18/2006 on the Status of J-1 Waivers by Foreign Physicians under the Conrad 30 Program

• Today, the GAO released its survey and report of the foreign physicians and the states' Conrad 30 program status and opinions. According to the report, GAO surveyed the 50 states, the District of Columbia, 3 U.S. insular areas--the 54 entities that are considered states for purposes of requesting J-1 visa waivers--and federal agencies about waivers they requested in fiscal years 2003-05. The use of J-1 visa waivers remains a major means of placing physicians in underserved areas of the United States. States and federal agencies reported requesting more than 1,000 waivers in each of the past 3 years. In contrast to a decade ago, states are now the primary source of waiver requests for physicians to practice in underserved areas, accounting for more than 90 percent of such waiver requests in fiscal year 2005. The number of waivers individual states requested that year, however, varied considerably. For example, about one-quarter of the states requested the maximum of 30 waivers, while slightly more than a quarter requested 10 or fewer. Regarding the annual limit on waivers, about 80 percent of the states--including many of those that requested the annual limit or close to it--reported the 30-waiver limit to be adequate for their needs. About 13 percent reported that this limit was less than adequate. Of the 44 states that did not always request the limit, 25 reported that they would be willing to have their unused waiver allotments redistributed, at least under certain circumstances. In contrast, another 14 states reported that they would not be willing to have their unused waiver allotments redistributed. These states cited concerns such as the possibility that physicians seeking waivers would wait until a redistribution period opened and apply to practice in preferred locations in other states.
• For the full report and relevant statistics, please click here.

05/17/2006: Labor Department Website Down Announcement

• The DOL-ETA has announced that the DOLETA website will be down Friday evening May 19th through the weekend until Monday May 22 for routine maintenance. Those who face deadline for filing the PERM applications should file before the evening of May 19.

05/16/2006: Comprehensive Immigration Reform Bill, S. 2611, Voting Activities and Results Today

• Senate had the four roll calls to vote on the CIR. All these votes were related to either Temporary Guest Worker Program or Legalization of Undocumented Aliens. Two votes involved motions to table and other two votes involved amendments.
  • (1) Motion to Table Rejected that attempted to reduce the number of Guest Workers (H-2C) nonimmigrants to 200,000 during each fiscal year.
  • (2) Motion to Table Agreed that proposed to prohibit aliens who are currently outside the U.S. from participating in the Guest Worker Program (H-2C). Accordingly, this amendment is practically killed. If this proposal is accepted, the aliens outside of the U.S. will be deprived of the H-2C visa program.
  • (3) One Amendment Agreed Today: To prohibit implementation of the Title IV (H-2C) and the Title VI (Adjustment) until the President determines that implementation of such titles will strengthen the national security of the U.S. Backlog reduction and legal immigration is Title V.
  • (4) One Amendment which practically attempted to kill the Guest Worker Program and Legalization Program was rejected by the Senate today. The amendment would have prohibited the granting of legal status, or adjustment of current status to individual who enters or entered the U.S. in violation of federal law unless the border security measures authorized under Title I and section 233 are fully completed and fully operational.
• Overall, from the perspectives of Guest Worker Program and Legalization of Illegal Aliens, the result was more or less positive. The Senate will continue the CIR debate throughout next week and today's floor actions have enhanced the optimism that the Senate may indeed pass the CIR before the Memorial Day. Read on.

05/16/2006: State Department 05/06/2006 Cable on Student Visa Processing

• As the new school year approaches soon, the U.S. Department of State issued a cable to the visa posts on May 6, 2006 to give a guidance for smooth processing of the visa applications. For instance, it advises the visa posts that when it comes to the immigrant intent which is primary reason for denial of nonimmigrant visas including F-1 student visa, the officer should just consider "immediate and near-term intent" and not the remote or long term intent. Another guidance indicates that once the school has issued I-20, the officers should not question the students' academic ability to complete school or financial ability to pay the schooling or preference and choice of specific school. It also advises to operate the current 90-day window period of time for application for school before admission to the U.S. more flexible and in some instances, the consulate may accept applications before 90-day window. For the details, read on.

05/16/2006: Quickly Running Out FY 2007 H-1B Cap Numbers - Balance of 23,192 as of May 12, 2006!

• The USCIS started receiving FY 2007 H-1B cap petitions only starting from April 1, 2006. However, according to the USCIS count of the usage of the cap numbers as of May 12, 2006, they have already received 34, 808. What this means is that for the FY 2007 H-1B cap numbers, we only have 23, 192 numbers available out of the total number of 58,000 cap number for the rest of FY 2007 (September 30, 2007). The annual cap is 65,000, but the USCIS is reserving the numbers over 58,000 for H-1B1 Free Trade Agreement cases.
• It is indeed scary. Should this pace continue, we wonder whether any cap numbers will be available after the end of June 2006 or even before the end of June! It is anticipated that because of the psychological factor, the employers may accelerate filing of the new FY 2007 cases within a month aggravating the situation. Currently, e-filing of H-1B petition is available. Since the cap count is made based on the "receipt" and not on the "adjudication," the employers that need the new H-1B employees before September 30, 2007 may use the e-filing to get the cases within the cap numbers.
• There are a few bills introduced in the Congress to adjust the annual H-1B cap numbers, but just as any other immigration bills, these bills are currently handled as part of the Comprehensive Immigration Reform in the Senate and became a hostage to the Comprehensive Immigration Reform debate.

05/15/2006: Labor Certification System Reengineering and Potential Impact on China EB-2 Visa Numbers in the Future

• June 2006 Visa Bulletin shows that the cut-off date for China EB-2 will move upto July 1, 2004. It was January 1, 2004 in May Bulletin. People will remember that the PERM labor certification system started on March 28, 2005 but BEC system started in October 2004. As affected by the transition from the old Regional processing system to BEC and afterwards to PERM system, the State labor certification offices (SWA) in 50 states and the six Regional offices started preparing transfer of files to BECs and practically halted processing of all the labor certification applications as early as August 2004. Besides, there are only limited number of cases of this period have been certified by the BECS, and most of the cases of these priority dates may have yet to be adjudicated by the BECs. Accordingly, statistically, the record may reflect that the number of labor certification applications that had been certified from September 2004 through May or June 2005 must have been extremely small. This raises one interesting question relating to the EB-2 cut-off date for China next several months. Considering the fact that a very small number of Chinese EB-2 can take out the EB-2 visa numbers during the next few months, common sense may dictate that the EB-2 number for China may continuously move ahead impressively even after June 2006, unless the State Department will have some unusual policy issues. Substitution of EB-2 labor certification may affect this process but may not affect the process drastically. This reporter wants to cross his fingers for the Chinese EB-2 professionals!

05/13/2006: Electronic Filing/Processing/Adjudication of USCIS as Reflected in the April 2006 Semi-Annual Rule-Making Agenda

• USCIS is restructuring its entire business processes to implement new procedures for the filing, processing, and adjudication of all benefit applications and petitions. USCIS is moving toward complete electronic filing and adjudication of benefits to streamline processing, modernize adjudications, and facilitate efficient and effective data collection and reporting.
• Timetable:
  • Proposed Regulation release on June 2006 with two months comment period
  • Target Final Rule enactment: November 2006
• The schedule can be changed.

05/12/2006: June 2006 Visa Bulletin

• India EB-3 moved to April 8, 2001 from March 1, 2001, but failed to pass the hill of April 30, 2001!
• China and Worldwide EB-3 moved up two months to July 1, 2001.
• EB-EW Other Workers are totally unavailable across the board.
• India EB-1 moved 6 months to January 1, 2006 and EB-2 remained at stand-still.
• China EB-1 moved one year to July 1, 2005 and EB-2 moved 6 months to July 1, 2004.
• EB-1 and EB-2 remain current for worldwide, including Mexico and Philippines.
• F-2A moved backward except Mexico and State Department predicts that F-2A number will further move backward in July 2006. What a pain for the spouses and children of permanent residents!!

05/12/2006: More on Scheduled Senate Debate of Comprehensive Immigration Reform Legislation Next Week

• The passage of the CIR in the Senate is reportedly almost assured. The question remains how much change we will see in the Senate's final bill. One of the agreements which the leaders of Republican and Democrat Senators reached as part of the deal involves the procedural matter that will allow "amendments" on the floor to the CIR proposal which the Senate almost passed when the Senators left for the Easter break in April, 2006. It is thus likely that there may be introduced a flurry of amendments on the floor and a fierce battle on these amendments. Accordingly, the liberal version of the Senate proposal may be substantially compromised before it is enacted into a law this year. We will see the first compromise in the Senate this month before the Senate passes its bill. The second compromise will take place during the Senate-House Conference Committee proceeding after May 2006. It is thus almost certain that the current CIR proposal in the Senate may be substantially toned down and compromised to accomodate the hawkish conservative Senators and members of the House. Read on for the news.
• Considering the fact that the Senate will procedurally open opportunities for the Senators to introduce amendments on the floor beginning from next week, this may be the last chance for the pro and con lobbysts to make their voices heard and reflected in the Senate's final bill. Such opportunity will include both legal and illegal immigration legislation in the CIR packet. The anti-immigrationists are already charging their batteries and intent to mobilize all of their forces to turn the tides of water in their favor. Stay tuned.

05/11/2006: Senate to Resume CIR Debate Next Week

• Report indicates that the Democrats and the Republicans have reached an agreement to start the debate on the Comprehensive Immigration Reform legislation. Stay tuned.

05/10/2006: Senate Leaders Are Pushed to Pick Up Comprehensive Immigration Reform Bill Starting This Week and Vote before Memorial Day

• Report indicates that the Senate leaders have been working on contentious parts of the comprehensive immigration reform proposal as separate from the whole bill to crack the logjam. For instance, Republican Sens. Jon Kyl of Arizona and Chuck Grassley of Iowa and Democrats Edward Kennedy of Massachusetts, Barack Obama of Illinois and Max Baucus of Montana formed a team to negotiate the Senate agreement on the employer sanctions for hiring illegal aliens, and successfully reached an agreement. We really hope that the Senate vote on this CIR before Memorial Day. For the news, please click here.

05/09/2006: FY 2007 H-1B Cap Number Moves Somewhat Faster Than Expected

• USCIS has just released the H-1B cap count as of April 28, the last week day of April, at 16,737. We initially estimated that the number might move approximately 15,000 a month. If the number continues to move in the same pace as April, 2006, the FY 2007 cap number can run out either before or early July at best. For the April 28, 2006 H-1B cap count, please visit our homepage.

05/09/2006: BS or MS Degree and Equivalence and NSC Position

• This has been a challenging issue for the NSC. Since all the I-140 petitions are filed with the NSC and at least the half of the cases will be adjudicated by the NSC, it is important to learn the NSC's positions on the following issues. According to the NSC Director, the following are the current positions of NSC:
  • Bachelor or Master degree must meet two requirement: One is the number of years in schools. Second is the specialty courses. From these standards, the NSC appears to take the following positions:
    • 12 years in elementary and high school + 3 year Bachelor of Science degree in India + 2 years of Post Graduate Diploma or Master degree = Not Equivalent to a Master's degree for the reason that generally 18 years in school is required for a master's degree. Since one of post graduate program is taken out for Bachelor's degree equivalency, it may not necessarily prove a master's degree, according to the NSC. Such background may likely be used to prove a bachelor's degree equivalency.
    • 12 years in elementary and high school + 3 year Bachelor of Science degree in India + 3 years of Post Graduate Diploma or Master degree= Master degree equivalent.
    • 13 years in elementary and high school in European countries + 3 year Bachelor of Science degree= Maybe equivalent to a Bachelors degree in the U.S.
    • Two 2-year degrees at the same level = Not equivalent to a Bachelor's degree. Accordingly, two AA degrees will not make a Bachelor's degree equivalent. The opinion may be different if the second 2-year program requires the first 2-year degree as prerequisite to the admission.
• NSC also confirms the following policies:
  • Alternative requirement of "MS + 1 year Experience or BS + 3 or 4 year Experience" in the Labor Certification = Not qualified for EB-2
  • Stand-alone BS + 5 years of progressive experience without the alternative requirement of MS in the Labor Certification = Qualified for EB-2.

05/09/2006: Traditional Practice of Filing Two I-140 Petitions Based on Same Labor Certification Under Review by USCIS HQ

• Traditionally, the USCIS has been allowing the employer to file EB-2 and EB-3 petitions using the same EB-2 labor certification approval. However, the NSC indicates that this policy is currently reviewed by the USCIS HQ and may be revisited with the potential consequences of termination of its traditional practice and policy. It is another bad news.
• Pending the policy changes, NSC will request the employer to chose one I-140 petition out of the two I-140 petitions and the second I-140 petition will be held in abeyance until the HQ policy is fixed. Bad news after bad news.
• Filing two I-140 petitions by the same employer using the two different labor certification applications: No problem. NSC will adjudicate both.

05/09/2006: Imporant Procedural Changes Forthcoming for I-140/I-485 Concurrent Filing and NIW

• The USCIS has been delaying the implementation of the premium processing services for I-140 immigrant petition proceedings. According to the AILA-Nebraska Service Center liaison report of April 19, 2006, the USCIS may announce the PPS program in May 2006. The NSC Director also confirmed that once the USCIS started implementing PPS for I-140 petition, it would accompany the following two critical changes:
  • Termination of I-140/I-485 Concurrent Filing
  • Shut-Out of NIW from PPS.
• Once the concurrent filing is terminated, it will cause a number of problems for EB-immigrants:
  • Those whose legal status would expire unless they were allowed to file I-140 and I-485 concurrently will fall out of status unless they are eligible for 245(k) benefit. PPS does not guarantee the decision in 15 days when the USCIS issues RFE. The 15-day requirement runs again only after they receive the response to the RFE. Sometims, RFE response can take months. Since unlawful presence or out-of-status clock will keep ticking during the period of I-140 petition adjudication, some people may lose the opportunity for filing I-485 forever.
  • EAD and Advance Parole applications are available only when they file I-485 application as they are ancillary proceedings to the I-485 applications. The termination of concurrent filing procedure will take away this privilege under the current concurrent filing system.
• Affect of Termination of Concurrent Filing and Unavailability of I-140 Premium Processing Services for NIW will be devastating. It practically takes away the current privilege of stopping out-of-status clock by concurrently filing I-485 as well as the privilege of applying EAD and Advance Parole. Worse yet, since the Premium Processing will not be available for the NIW I-140 petitions, it can take forever, particularly when RFE is involved. Please stay tuned.

05/09/2006: USCIS Today (May 2006 Edition)

05/08/2006: May 8, 2006 Service Centers Processing Times

• Please see the homepage.

05/07/2006: Ongoing Comprehensive Immigration Reform Legislation and Lessons from 1986 Immigration Reform

• This country witnessed another comprehensive immigration reform in 1986 under the name of Immigration Reform and Control Act (IRCA), legalizing en masse undocumented aliens. This legislation turned out to be a failure when it comes to the nation's policy on border security and immigration enforcement as 13 million undocumented aliens have flooded into this country during the 20-year period of time since the immigration reform. The IRCA failed to prevent flood of undocumented aliens and enforced immigration and the Congress should analyze carefully the sources of the failure and try to learn the lessons from the IRCA failure.
• One of key reasons reportedly lies with the IRCA's failure to expand avenues for "legal immigration" to meet the U.S. economy's continuing demand for workers. According to the Immigration Policy Center report, no amount of encorcement, either at the border or in the work place, can compensate for the inadequacy of existing legal limits on immigration to the U.S. Thus unless legal channels of immigration are revamped to accomodate the actual demand for immigration workers in the U.S., the border and immigration enforcement efforts will continue to be undermined by economic reality.
• The lesson from the failure of IRCA immigration reform is that the long term solution for the illegal immigration and the border/immigration enforcement lies with the adequate reform of the "legal" immigration system such that the system will provide adequate supply of the required workers to meet the market demand of the country's economy. However, unfortunately, the current comprehensive immigration reform debates in the Congress and the nation are indeed misdirected in that just as the IRCA, the reform debates are almost totally focused on the legalization of the undocumented aliens. The lessons from the IRCA clearly dictates that the comprehensive immigration reform should focus on "legal immigration reform" as the long-term and ultimate solutions to the illegal immigration problem. Even though there is a clear concensus in the Congress and in the public opinion that current legal immigration system has a serious flaw failing to meet the demands for the foreign workers, particularly high-end workers, the legal immigration reform including immigrant quota adjustment has benn placed in the back-seat of the "reform debate wagon." Unless the Congress quickly learns the lesson from the IRCA and redirects its focus to the right reform, "legal immigration," the Congress and the political leaders will repeat the same mistake and failure of the IRCA reform in 1986 and should politically pay price to the constituents for such mistakes and failures in the coming elections. In this regard, the study of May 2006 which has just been released by the Immigration Policy Center is very timely and there should be a massive campaign to educate the public and the political leaders with the importance of lessons to learn from IRCA. Read on.
• This does not change our strong support for both legal immigration reform and legalization of undocumented aliens. We just want to keep the record straight and call attention to the issues of legal immigration reform which deserves the center stage of the comprehensive immigration reform debates as the ultimate solutions for the nation's legal and illegal immigration problems.

05/05/2006: Key Political Players That Will Determine Fate of Comprehensive Immigration Reform (CIR) Legislation

• According to a leading observer of the American politics and immigration, the Republican leadership of the Senate feels that they have to open the bill up to amendments, presumably from more conservative Republicans who would try to water down some of these compromises and move it closer to the House bill, while the Democrats would not want it amended as politically the Democrats would have an incentive not to pass any legislation that accomodates too much the convervative position of the House and share the blame of the bad legislation with the Republicans and thus would rather like to use it as a campaign issue against the Republicans.
• Even if CIR passes the Senate, the gaps between the Senate bill and the House bill are enormous, and eventually the Senate and House Conference Committee will play a key role. However, under the Republican Congress, the Democrates have been shut out of conference committees between the House and Senate in the past, and they will be very wary of supporting a bill when they might get shut out of a very major conference on reconciling two very different bills.
• All in all, it all boils down to the November Midterm National Election politics. The dynamics of how all of these party politics will play out in the CIR legislation will eventually be affected by the public opinion as a swing vote between the conservatives and the Hispanic politics. Upcoming Senate action this month will play only a small part of the political process, which will be followed by more difficult uphill battle between the Republicans and the Democrats in reaching a compromise between the Senate pro-legalization bill and the House Sensenbrenner bill, both of which, as they stand now, are unacceptable in the public opinion and the party politics. Depending on towards which direction the compromise will lean, either party may play as a devil to kill the legislation. At this point, no one knows which point in the spectrum of compromise will meet the needs of both parties' political interests and lead to a successful conclusion of the compromise process. Because of the nature of the legal employment-based immigration reform, it will play a small role in the CIR legislation process, certainly not as a key player. In this regard, the employment-based immigrant community may take a back seat in this political drama and feel helpless until the curtain of the drama is pull down. That is where the legal immigrant community has been experiencing frustration and pains and aches, feeling impotent.
  

05/05/2006: DHS Immigration Statistics Reflect Continuing Reduction of Pending Immigration Benefits Cases

• The monthly immigration statistics which were released at the end of March 2006 indicates that the number of immigrant benefit cases which were pending reflected a continuing reduction, 27% less number of cases pending over the same period in 2005. It also show a negative statistics on the number of cases which have been denied. Denials increased almost 40% over the previous years. The report does not explain the details, but obviously the visa number retrogression would have affected the number of receipts and pending cases during the past one year. For the details, please visit the following links:
  • Inspections
    Southwest Border Apprehensions
    Immigration Benefits
    Naturalization Benefits
    Removals
    Asylum
    

05/05/2006: Cornyn "SKIL Bill" and Proposed Visa Revalidation Reinstatement

• The U.S. Department of State had renewed (revalidated) certain employment-based nonimmigrant visas in the passport through its office in Washington, D.C. for years and years until the program was terminated not too long ago for the alleged security reasons. We strongly opposed the termination of this program for the two reasons. One reason was that the people who were applying for the renewal of the nonimmigrant visa stamp in the passport had already gone through thorough security clearance. More importantly, the State Department alleged that the primary reasons for terminating the program was that they were not equipped to conduct "biometric" collection, but the USCIS was willing to lend assistance by providing the biometric collection for visa renewal on behalf of the State Deparment through its nationwide network of Administration Support Centers (Fingerprint Centers). Since termination of the visa revalidation program, people had to make thousands of miles of trip to apply for the renewal of the visas at the visa posts in their home countries, or worse yet, they decided not to make overseas trips at all for fear of the visa renewal delays and unpredictable visa denials.
• Sen. John Cornyn proposes in the SKIL bill to reinstate the visa revalidation program. We wholeheartedly support the Senator's proposed bill. It is indeed sad that this is the program that should not require a legislation and could be reinstated through the rule-making process of the State Department, but the Congress may have to force the agency to reinstate the program. The U.S. Department of State may have to come forward with the evidence of how the termination of the program helped the country from the potential terrorism within the United States. Otherwise, it could have been an act of paronoia of the program administrator.

05/04/2006: Section-by-Section Summary and Senate Floor Speech of Sen. Cornyn SKIL Bill, S. 2691

05/04/2006: Losers and Winners in Three Pending Employment-Based Immigration Reform Bills

• Currently, there are three legislative bills in the Senate that proposed favorable reform in the employment-based immigration system. One is Cornyn Bill, second is Senate Judiciary Committee bill, and third is Sen. Bill Frist bill. Believe it or not, each of these bills will produce winners and losers in the employment-based immigrant community as follows:

• 	Cornyn	Judiciary Comm	Bill Frist
  EB Annual Cap	290,000	450,000	290,000
  EB Cap Exempt (Advanced Degree)	STEM + US Degree in Non-STEM	STEM only	STEM only
  H-1B Cap Exempt for Advanced Degree	U.S. Degree only. including both STEM and Non-STEM	STEM only but both U.S. and foreign degree	STEM only but both U.S. and foreign degree
  20,000 Advanced Degree Special Numbers	Both U.S. degree and foreign degree	U.S. degree only	U.S. degree only

• [STEM=Science, Technology, Engineering, and Mathematics]
• Now, somebody will have to engage in mix and match job for the final legislation!

05/04/2006: Reported Backlash of "Day Without Immigrants"

• There are growing signs that the recent "Day Without Immigrants" has irritated the mainstream America and its backlash starts showing up in the public opinions.
• When it comes to the immigration reform, there are many critical and urgent issues which the nation should address to as soon as possible other than the issue of the relief for undocumented aliens. We realize that it is very important that the nation should resolve the issue of relief for 11 million undocumented aliens for all practical purposes including their contributions to the economy and their plight, but we cannot afford all other important immigration issues being held hostage to this single issue. We hope to see the Congress to come to conclusion on the so-called comprehensive immigration reform bill before the end of May 2006 and to move on to working on other critical immigration issues as swiftly as possible. The immigration reform legislation relating to PACE Act, immigrant quota system, per country limit, H-1B annual cap, and other non-controversial issues needs the Congress' and White House's actions as soon as possible. The country is facing a growing crisis in retaining and attracting foreign brains and cannot afford any further delays in enacting legislation to deal with this top priority policy business before too late. Resolution and conclusion of the current comprehensive immigration reform debate will open a door for the Congress to address these issues quickly as these issues are not controversial and draw a strong support from the public, not to mention the business community.
• We strongly support the comprehensive immigration reform legislation, but want to see its resolution as quickly as possible so that the Congress can move on to the other important immigration legislations.

05/04/2006: American Consulate in Delhi's Misleading Immigrant Visa Priority Date Report

• The American Consulate in New Delhi, India has been reporting erroneous priority dates from time to time. This is a serious matter in that it can cause unnecessary confusion in the immigrant community as well as other stakeholders. We urge the U.S. Department of State to investigate the root of the problem to make it sure that there is no wrongdoing involved. It is hoped that it is caused by typographical errors, but considering the patterns of misleading reports in the past, the U.S. Department of State should take the matter more seriously.

05/04/2006: Executive Business Meeting of Senate Judiciary Committee

• Today's full Senate Judiciary Committee executive business meeting does not appear to include the comprehensive immigration reform bill, according to the tentative agenda of the Judiciary Committee.

05/02/2006: Senator John Cornyn Introduced S.2691 for "Legal" Employment-Based Immigration Legislation

• Today, John Cornyn, Senator from Texas, introduced in the Senate S. 2691, Securing Knowledge Innovation and Leadership (SKIL) bill, which is similar to the legal employment-based immigration bills incorporated in the comprehensive immigration reform bills of Senator Bill Frist and Senator Alen Specter. These legal employment-based immigration bills are similar to the Education bill named PACE Act which is still pending in the Senate.
• Senator Cornyn strongly opposes the legalization of undocumented immigrants as opposed to the Senate Majority Leader Bill Frist and most of the Senators in the Senate Judiciary Committee. The compromised comprehensive immigration reform proposal faced strong challenge from Senator Cornyn before the bill collapsed in the Senate during the Easter break. Cornyn-Kyl bill and McCain-Kennedy has engaged in a fierce duel in the Senate Judiciary Committee and in the full Senate. The collision was marked by the legalization of illegal immigrants that are incorporated in the McCain-Kennedy bill.
• By introduction of S. 2691, Senator Cornyn practically joins the original Bill Frist bill that strongly supported legal immigration and strongly opposed legalization of illegal aliens by focusing on the border security and the immigration enforcement. Question remains whether the legal immigration bill can pass the Congress as separate from the Comprehensive Immigration Reform legislation. We are concerned that this bill may bring a further division between the legal immigrant community and the illegal immigrant community with the potential damaging consequences to both legal and illegal communities. We have maintained a tradition of strongly supporting legal employment-based immigration. We just hope that the legal and illegal reform legislation does not end up with the fate of S. 1932 as driven by the political forces using the traditional battle tactic of 'divide and conquer.' From the perspectives of the legal employment-based immigrant community, all of the pending bills support their interest and they will be least affected by whichever bill the Congress finally would pass. This is a time to unite and not a time to divide.

05/02/2006: Impact of Yesterday's "Day Without Immigrants" and Rallies Yet To Be Seen

• Reportedly yesterday's massive rallies and work/school boycotts were successful in calling attention to the undocumented aliens' contribution to the nation's economy and their plight. It was also successful in that it brought out to the streets not only undocumented aliens but also "legal" aliens, mending divisions and demonstraing the unified efforts.
• However, whether it was "politically" successful has yet to be seen. There have been mixed assessments in the media and political communities between the assessment of "backfire" vs. positive public opinion on the legalization of undocumented aliens. The result will be evidenced by the upcoming actions in the U.S. Senate and the U.S. House of Representatives during the next one or two months relating to the Comprehensive Immigration Reform legislation. The U.S. Senate may wrap up its action before the end of this month and the passage of the bill is assessed to be optimistic. The Senate Majority Leader, Bill Frist, has just announced on the CBS morning interview that the Comprehensive Immigration Reform bill will be marked-up for the Senate floor debate in two weeks from today. The real test will come in the House after the Senate action. Please stay tuned.

05/02/2006: Ongoing Immigration Files and Filing Automation Process and GAO Critiques

• As this website reported quite earlier, the USCIS had been reengineering its immigration benefits processing systems into automation system. In fact, the agency has been accelerating the process. According to the GAO report to the Congress, the USCIS relies on about 55 million paper-based files to adjudicate applications for immigration status and other benefits. Ensuring the currency and availability of these manual files, referred to as alien files, or A-Files, is a major challenge. To address this challenge, USCIS has initiated efforts, both long and near term, to automate the A-Files. The long-term effort is now being re-examined within the context of a larger USCIS organizational transformation initiative. In the near term, USCIS has begun a digitization program, which it estimates will cost about $190 million over an 8-year period to electronically scan existing paper files and store and share the scanned images. GAO was asked to determine whether USCIS was effectively managing its A-Files automation efforts.
• However, the GAO criticizes the USCIS that USCIS has not developed a plan governing how it will manage this program and its contractors, and it has not developed an evaluation plan for its ongoing digitization concept of operations pilot test, even though it has either awarded or plans to award contracts totaling about $20 million for this pilot. In addition, USCIS allegedly does not yet know which A-Files immigration forms will be scanned. Without a defined scope and adequate planning, this program is at risk of falling short of expectations. For the full report, please click here.
  
  

05/02/2006: Senate Judiciary Committee Schedules a Full Executive Business Meeting on May 4, 2006

04/30/2006: PERM Online Labor Certification Filing Site Down

• For some unknown reasons, the DOL PERM filing site was down all day today and employers could not file the applications. There may be some employers who had to file the applications today because of the expiration of some recruitments which the PERM regulation requires. DOL should consider some relief for such filers.

04/30/2006: Advisory for Substitution I-140 Filers Either Waiting Decision or On Appeal to AAO or Motion to Reopen/Reconsider

• The DOL is currently finalizing the rule-making process to eliminate the substitution of labor certifications. The proposed rule which has already been published in the federal register has a clause exempting those who obtained the "substitution approved" at the time of the release of the final regulation which they are currently working on. No one can predict the exact date when this final regulation will be published in the federal register.
• Under the current rule, there is no separate procedure for request for substitution of labor certification apart from the filing of I-140 petition for the new employee with the request to withdraw the pending or approved I-140 petition and substitute the alien beneficiary in the new I-140 petition proceeding. The employer's request for withdrawal of the pending I-140 petition or approved I-140 petition for the old employee is filed as part of the new I-140 petition filing on behalf of the new employee for the substitution. Accordingly, in this context, there is no separation decision which is issued by the USCIS for the approval of the substitutuion. The employers learn the approval of the substitution when they receive either denial or approval of the new substitution I-140 petitions.
• Unfortunately, the proposed substitution elimination rule does not elaborate or define "approved substitution." Because of the current USCIS practice making the decision of substitution approval as part of the decision of I-140 petition itself, there is a risk that the DOL and the USCIS may argue that "approved substitution" means "I-140 petition approval." Such interpretation will lead to devastating consequences to the aliens who's I-140 petition will be pending or on appeal to the AAO on other legal issues such as the employer's financial ability to pay the proffered wage at the time of release of the "final regulation" in that all these I-140 petitions will have to be denied because of elimination of the substitution. The damage will mount in the situation of concurrent I-140 and I-485 applications for the alien employees and their family members.
• It is thus prudent that the people whose substitution I-140 petitions are still pending consult their legal counsels to discuss strategies or options to avoid the potential deadly consequences.

04/30/2006: FY 2007 H-1B Cap Number Prediction

• In FY 2006 (10/01/2005 - 09/30/2006), the H-1B cap reached on August 10, 2005, approximately two months before reaching the start date of the FY 2006. Accordingly, for almost 14 months, the U.S. employers had to get by without the new foreign professional workers for more than a year. The usage of the FY 2006 H-1B cap number was approximately 15,000 a month.
• The USCIS FY 2007 H-1B cap count reflects that this fiscal year's usage more or less follows the suite of FY 2006, averaging approximately 15,000 a month. Unless some unexpected changes happen, it is thus expected that the number of 65,000 H-1B annual cap for FY 2007 (ending 09/30/2007) is expected to reach by the end or later part of July 2006. What this means is that unless the Congress passes a special legislation to raise the annual cap numbers, the U.S. employers will have to endure vacuum of 14 months or longer without recruiting new professional foreign workers until October 1, 2007.
• From the perspectives of the employers, their demand for the required foreign workers during the period of vacuum must have been met by AC 21 Act that made the H-1B workers who had reached the 6-year cap continuously available in large numbers thanks to the law that allowed H-1B extension either in one-year increment or even in three-year increment pending the labor certification or I-140 immigrant petition during the period of visa number retrogression. It is likely that the gap may again be filled by the AC 21 provisions.

04/28/2006: Bi-Specialization (140 & 129) and Frontlog for Two Weeks

• USCIS has announced that due to the heavy filing of I-140 and I-129 bi-specialization cases in the first week of April 2006, the petitioners are currently experiencing delays in receiving Receipt Notices for over two weeks. USCIS intends to bring the front-end processing of these petitions to "current" by mid-May 2006.
• Those who need the Receipt Notices for H-1B portability or a driver license application renewal before mid-May 2006 may have to file Premium Processing Request as the USCIS is processing the PPS petitions within 15 days and the Receipt Notices are processed and mailed out as usual.

04/28/2006: FY 2007 H-1B Cap Count As Of 04/24/2006

• Regual H-1B=12,713
• 20,000 U.S. Earned H-1B Cap=2,358

04/27/2006: USCIS Explains Immigration Security Checks

04/26/2006: Immigration Reform Overshadowed by Gas Prices?

• The Senators and the White House appear to try to pick up the immigration reform legislation debates which they left behind when they had left the Hill for the Easter break. However, during the period, the gas price moved up every single day, and the nation and the people are shiverring with anger, fright, and confusion. The country faces a political crisis. Under the circumstances, one cannot but worry about the fate of the comprehensive immigration reform debate and legislation. One wonders how the political leaders would be able to keep the immigration reform as the front burner under the circumstances. What an irony!

04/25/2006: Today Bush Invited and Discussed with Bi-Partisan Senate Leaders for Comprehensive Immigration Reform Legislation

• The Senate leaders and the President gathered together in the White House late this afternoon emphasizing the importance of the comprehensive immigration reform legislation. For the discussion, please click here.

04/25/2006: Senate Judiciary Committee Hearing Today on Immigration and Economics for Comprehensive Immigration Reform Legislation

• Today, the full Senate Judiciary Committee heard testimonies from the distringuished academic experts in the topic: Prof. Richard Freemand of Harvard, Dan Siciliano of Standford Law School, Prof. Barry Chiswick of Illinois U at Chicago, and Prof. Harry Holzer of Georgetown U. For the text of the testimonies, please click these experts names.
• The Chairman Specter called Executive Committee business meeting on April 27, 2006, Thursday, and it is anticipated that the debate on the Judiciary Committee's redrafting of the comprehensive immigration reform bill may take a center stage. Please stay tuned.

04/25/2006: "Massive Deportation Unrealistic," Bush Declared in California

• As we reported, Bush appeared in California yesterday and asked Congress to work on comprehensive immigration reform. Read on.

04/24/2006: Notice to The Oh Law Firm Clients

• Mr. Matthew Oh has been travelling out of town for the family emergencies. The Oh Law Firm apologizes for the incovenience this may cause to the clients. We ask that you bear with us during his temporary absence from the office.

04/24/2006: Reignition of Immigration Reform Debate and Current Agenda

• As pushed by the November mid-term national election strategies, the political leaders are poised to reignite the comprehensive immigration reform debate. Here is the currently known agenda:
  • Bush will announce in California today urging the Congress to work on this legislative bill.
  • Senators will pick up the debate which they left behind unfinished when they had left the Hill for the Easter break. All likelihood is close to April 27, 2006.
  • Senate Judiciary Committee will redraft the bill by May 4, 2006 to push for the passage of the bill.
  • Senate Majority Leader, Bill Frist, is pushing to wrate up the immigration reform legislation by the end of May 2006.
• Despite the media opinion of the potential backfire of the massive rallies and outpouring of the immigration supporters, the foregoing agenda may rekindle the heat and flame of passions on the streets, allies, and door steps of the political leaders. Please stay tuned.

04/24/2006: Labor Sustitution Elimination Rule-Making Agenda of DOL and USCIS

• This policy requires the rule-making by the two agencies: U.S. Deparment of Labor and USCIS of DHS. DOL has already published the proposed regulation to eliminate the labor certification application substitution and the comment period even ended on April 14, 2006. However, interestingly enough, the USCIS rule-making agenda for this proposed regulation reveals a quite different schedule from the Labor Department. According to the just released next six-month Semi-Annual Rule Making Agenda of USCIS, this proposed rule is planned to be released not until July 2006 and the comment period is planned to be ended in September 2006. This is just a plan and the USCIS can change its agenda and advance the rule making process, but as it stands now, the rule-making agenda of the "proposed" regulation to eliminate the labor certification substitution and to impose 45-day cap on the validity of the certified labor certification applications appears to be something that may not happen within this FY 2006 (09/30/2006). Besides, the Labor Department has yet to release the total number of comments received before the end of comment period, but it is a wild educated guess that the agency might have received a huge number of comments and will take a substantial period of time to review and make a decision on all of these comments after coordination with other agencies including the USCIS. Please stay tuned.

04/24/2006: Glimpse of USCIS Agenda for Complete Electronic Filing/Processing/Adjudication of Business Related Petitions/Applications

• The USCIS is restructuring its entire business processes to implement new procedures for the filing, processing, and adjudication of all benefit applications and petitions. The USCIS is moving toward complete electronic filing and adjudication of benefits to streamline processing, modernize adjudications, and facilitate efficient and effective data collection and reporting. Initially, this plan was targeted at completion by the end of September 2006. However, the newly relesed rule-making indicates that there will be a slight delay in completing the procedural change. The proposed regulated is scheduled to be relased with a two-month period of comment in June 2006 and the final regulation is scheduled to be completed by November 2006. Once the new procedure is implemented, the benefits petitions/applications relating to the business and employment visas will witness a new chapter in history with accompanying availability of data-sharing for fraud detection and law enforcement. Please stay tuned.
  

04/24/2006: Semi-Annual Rule-Making Agenda of Immigration/Visa Agencies

• Homeland Security
• Labor Department
• State Department
• HHS
• Social Security

04/22/2006: April 21, 2006 Service Centers Processing Times

• See Homepage.

04/21/2006: Comprehensive Immigration Enforcement Program and Potential Impact/Fallout on Immigration Benefits Adjudications

• Yesterday's announcement of the Comprehensive Immigration Enforcement Strategy by the Secretary of DHS and the Assistant Secretary of BICE/DHS looks on the surface the crackdown of illegal aliens or undomented aliens. However, close reading of the announcement will reflect that the DHS will take a tougher enforcement policy against the violation of immigration rules and laws as well as criminal violations in the adjudication of immigrant and nonimmigrant proceedings. There is a report that a Pakistani H-1B professional in H-1B for the first time faced a denial of H-1B 8th-year extension for his apparent conviction of DWI in Texas years ago. Despite the misdemeanor criminal conviction, the H-1B professional had no problem in H-1B extensions in the past for change of employer or for other purposes until the recent denial.
• Immigrant community has been using the term "illegal" alien or "undocumented" alien loosely as though it only meant those cross borders without inspections or "overstay" aliens. However, it means more than EWI (Entered Without Inspection) aliens and Overstay aliens. Any violation of immigration rules and laws can affect the alien's legal status and could have gone unnoticed by the immigration services as well as the involved aliens themselves. The ongoing electronization of filing and adjudication process and sharing of the databases among the law enforcement authorities, including the immigration agencies, will increasingly make minor details of immigration violations available to the law enforcement agencies. Yesterday's announcement of tougher immigration law enforcement against the violators including criminals should be taken seriously by all the immigrants and they should relook at their records of maintenance of nonimmigrant status or any previous violation of nonimmigrant status. Tougher enforcement policy can reach much wider and broader stakeholders. The term "tolerance" can turn into a thing of the past!

04/21/2006: Comprehensive Immigration Enforcement or Comprehensive Immigration Reform?

• For the last ten days, there have been widespread reports that the DHS/ICE started taking immigration enforcement actions including raids at the job sites of illegal immigrants. Then came a release of the Comprehensive Immigration Enforcement Strategy yesterday by the DHS/ICE. This Strategy explains why there was such massive enforcement actions during the past ten days. One wonders what message and signal the Bush and Republican leaders intend to send out by such enforcement action at this point of time. Lately, Bush's rating plummeted disasterously and the Republicans started worrying about its impact on the November mid-term national election. Ongoing reshuffle in the White House and the Bush Cabinet surprises no one in the Beltway.
• Unfortunately, it appears that the Senate's failure to pass the Comprehensive Immigration Reform bill led to a political blaming ping pong game and the public's interest and support for the comprehensive immigration reform have noticeably slipped away since then, and the supporters of the compehensive immigration reform are losing steam facing the intimidation of the forceful anti-immigrationists and ultra-conservative forces. Bush zipped up his mouth and media started reporting potential negative impact of the massive rallies by the illegal alien supporters on the comprehensive immigration reform. By now, the comprehensive immigration reform is in the public's perception synonymous with the legalization or amnesty of illegal aliens. The sign is ominous. It is hoped that DHS is not drumming up enforcement actions to join the forceful antiimmigration and ultra conservatives constituents rather than to appease the antiimmigrationists and conversative legislators that Bush admnistration started taking care of the border security and immigration enforcement problems and the Congress might take care of a legislation that would resolve the current illegal immigrant issues. This reporter certainly hopes that the public and the Congress take the latter message from the Comprehensive Immigration Enforcement announcement. Bush should step forward to make such intent clear by reiterating his support for the comprehensive immigration reform to send a right message and signal to the public and the legislators, even though it is questionable how much it will help considering his poor popularity. We will just have to watch next week how the drama will unfold.

04/20/2006: I-140 Denials on Employer's Financial Ability to Pay and Need for Strategic Planning or Review of Pending Labor Certification Application

• The employers and the alien employees often neglect the distinction of deadly issues between the DOL labor certification process and the subsequent USCIS I-140 immigrant petition process. Because of such failure of distinction, the employers and the alien employees experience denials of I-140 petitions after spending tons of expenses and time. Most of the I-140 petitions are denied primarily on the two issues. One is related to the "employer's" eligibility and the other is related the "employee's" eligibility. In the employer's eligibility, most of cases have denied on the employer's financial ability to pay the labor certification wage to the alien beneficiary. Since the employer is required to prove such financial ability to pay from the "date of labor certification application filing (priority date)" to I-140 petition adjudication, the longer the labor certification application takes, the employers and the alien employees tend to face an increased risk of I-140 denial after obtaining the labor certification applications on this issue. The second issue of "employee eligibility" involves primarily the definition of education and experience which are required by the employers in the labor certification applications. The second issue is often called "equivalent" issues. Both the employer eligibility and the employee eligibility issues are usually not raised at the labor certification stage by the DOL as the DOL perceives their job to be primarily testing the American workers' labor market for various jobs and when it comes to the eligibility of the employers or the employees' eligibility, the DOL and the USCIS consider that it is primarily the job of the USCIS. There arises the problem. The employers and the employees thus often fail to see the dead valley ahead of them when they prepare for filing of the labor certification application or while they wait for the adjudication of the labor certification application. The bi-specialization of the I-140 petition processing and adjudication can bring some added risk down the road.
• The employer and employee eligibility issues can be dealt with by the employers and the employees at three different stages. Stage one is a thorough review of potential issues of the employer's eligibility and the employe's eligibility from the standpoint of the USCIS I-140 adjudicators before filing the labor certification application. Stage two is review of the pending labor certification applications from the standpoint of the USCIS I-140 adjudicators and attempt to take remedial actions. Stage three is appeal of the USCIS decision after the agency has denied the I-140 petitions. It does not require a rocket scientist to figure out which options are best out of these three.
• With respect to the financial ability to pay issue, the employer should review their financial record from the standpoints of so-called Yates' memo (*Net Income*Net Asset*Current salary of the employee). The filing of the labor certification application should thus be "timed" until whent the employer can show such financial ability to pay from the foregoing legal standards. Otherwise, the employer and the alien employee can pay a huge and deadly price later after wasting a huge amount of expenses and time. Basically, it is the responsibility of the employers and not the employees as the employees usually do not have access to the employer's financial record.
• As for the employers and the employees who have already filed and are waiting for the decision of the pending labor certification applications, it may be critically important that they review the employer's financial record to see whether they will be able to prove such financial ability to pay at the I-140 stage. If their review reveals that they may not be able to meet the requirement, they may as well file a new application at the cost of priority date inasmuch as they have sufficient finance at the time of the new try. Otherwise, again, they may have to pay a big price long time later. This may be particularly true with the BEC cases of traditional or regular applications. It does not mean that they will have to withdraw or abandon the pending cases. It just means that they need a back-up! There may be two different groups of employers in this category. One is those that had sufficient financial ability to pay at the time of labor certification application but their finacial picture has gradually deteriorated afterwards. The other group is those that did not have such financial ability but their financial picture has gradually improved afterwards. The first group is deadlier than the second group in that the first group cannot establish the financial ability to pay under any circumstances unless there are other overriding evidence establishing unusual temporary circumstances. The second group will have a better chance because of a precedent decision (BIA decision named Matter of Sonegawa) that mandates the USCIS to consider such trend even if the employer failed to prove such financial ability at the beginning.
• To sum up, it is time for the employers to review this issue to cope with the forthcoming reality before too late.

4/19/2006: Senate Comprehensive Immigration Reform Schedule - Thursday, April 27, 2006?

• The Senate reconvenes on next Monday, April 24, and the House reconvenes on Tuesday April 25. Unconfirmed sources indicate that on April 27, 2006, Thursday, the Senators will try to revive the comprehensive immigration reform which the Senate failed to pass before the Easter break. No details have been made available about as yet. Please stay tuned to this web site for the development of this news.
• Next two weeks will determine the fate of comprehensive immigration reform, probably for the rest of the year.

04/18/2006: Bi-Specialization and Reshaping Service Centers Processing Times Report

• The bi-specialization initiative that went into effect on April 1, 2006 is expected to bring about the changes in the Service Centers processing times report. The latest reports have already reported the following two changes in I-140 petition processing times report:
  • California Service Center ceased reporting I-140 processing times
  • Nebraska Service Center I-140 petition processing times have jumped remarkably since the April 10, 2006 report as follows:

• 	04/10/2006 Report	04/15/2006 Report
  EB-1A	10/01/2005	03/01/2006
  EB-1B	11/12/2005	03/01/2006
  EB-1C	12/17/2005	03/15/2006
  EB-2	12/10/2005	12/15/2005
  NIW	12/10/2005	03/15/2006
  EB-3	10/16/2005	02/15/2006
  EB-3EW	01/15/2006	03/15/2006
  Schedule A	12/17/2005	02/01/2006

  • Texas Service Center I-140 petition processing times was already January 2006 in April 10, 2006 Report. It is likely that TSC I-140 processing times may also reveal some changes in the next report.
• We will keep watching the development and effect of the bi-specialization program. The next review will focus on EB-485 processing patterns in these Service Centers. Please stay tuned to this web site.
• Speedy processing times will help some of the recent PERM application filers whose H-1B approaches the six-year limit and who cannot apply for extension of 7th-year extension of H-1B for failure to prove 365 days pending labor certification before reaching H-1B six year limit. Since the PERM applications are nowadays adjudicated in about three months and I-140 petition adjudication takes between two months and three months, they will be able to apply for three-year increment H-1B extension if their visa numbers are retrogressed. Late starters of PERM applications should consider two options to extend their H-1B extension beyond six years while they wait for the visa numbers: One is overseas trips and recapture of H-1B times abroad. The second is prompt processing of I-140 petitions and filing of three-year increment H-1B extensions.

04/17/2006: CIS Ombudsman Recommends USCIS Director to Issue Multiple-Year EAD

• USCIS has already enacted a regulation that allows the Service Centers to issue multiple-year EAD. However, this regulation has not been implemented by the USCIS because of its impact on the USCIS revenue. The Ombudsman wrote on March 20, 2006 his recommendation to Dr. Emilio Gonzalez, Director of USCIS to implement this regulation on the ground that multiple-year EADs would substantially reduce the USCIS immigration benefits workloads and that if impact on the revenue was the hangup for the failure to implement the published regulation which is a binding rule, the USCIS might consider raising the EAD application filing fees. Multiple-year EAD will relieve the customers from substantial inconvenience and hassle each year. The statistics also strongly support the Ombudsman's statement that issuance of multiple-year EAD would reduce substantially the USCIS workload. For instance, the February 2006 monthly immigration statistical report indicates that the total receipts of entire applications and petitions numbered 409,893, out of which EAD applications numbered 100,051, during one month in January 2006. It means one-fourth of total immigrantion benefits applications and petitions were taken by the EAD applications! This reporter strongly and without any reservations supports the Ombudsman's recommendation and justification! This reporter urges Dr. Gonzalez to implement the regulation as soon as possible.
• The CIS Ombudsman also recommends the USCIS to issue EAD valid as of the date of the current EAD expiration rather than the date of approval. Current practice has raised pains and aches to the I-485 waiters in two areas: Potential gap between the date of expiration of current EAD and the date of approval of extension of EAD, and loss of some period of existing EAD when the EAD renewal is issued a few months earlier than the expiration date of the current EAD. Again, we strongly support this recommendation as well. For the memorandum of the Ombdudsman addressed to the Director of USCIS, please click here.

04/16/2006: House Version of Senate DREAM Act Introduced in the House

• Without much publicity and controversity, a legislative bill named American Dream Act was introduced in the House of Representatives on April 6, 2006. This bill very much mirrors the DREAM Act bill in the Senate to legalize certain yongsters in illegal status and to allow them to receive a state resident tuition for the college education. Please read the full text.

04/15/2006: Q&A and Request for Readers' Cooperation

• This reporter is trying to accomodate only questions with challenging issues. This reporter is bothered by the three types of questions. One is use of colloqual English, abbreviations, and incomplete sentences. Second is a question which has already been answered in our Q&A site, but without checking our previous answers, they send the same questions over and over again. Third is a question which is too individual specific and with no common interest for other readers. It is too bad that this reporter had to ignore a number of questions because of the first problem. Our Q&A sessions have focused and will focus on certain issues that need somewhat in-depth analysis and the answers are not readily available in the immigrant community in most cases. We try to ignore questions with too "basic" issues as the answers to these questions are mostly readily available in the immigrant community or in various websites. Please avoid colloqual English and abbreviations!!

 

04/14/2006: State of Nebraska Joined 9 Other States to Grant State Resident Tuition Benefits to Qualified Children of Undocumented Aliens

• Report indicates that the legislature of the State of Nebraska passed this bill, which was afterwards vetoed by the Governor. The legislature then overrode the Governor's veto making this bill a law. This is a moving story, especially under the current environment involving a federal legislator to make undocumented aliens a felony criminal. Read on.
• For the full text of this state law, please click here.

04/14/2006: PERM "Refiling" and Processing Delays

• Some employers have filed a PERM application with the option to retain the priority date of their identical labor certification application pending at the Backlog Elimination Center. According to the AILA, such PERM applications cannot be adjudicated by PERM National Processing Centers until the backlog case files are transferred to the PERM processing center. This causes delays in the decision of PERM application.

04/13/2006: USCIS Local District Offices Processing Times of April 13, 2006

• See homepage.

04/13/2006: Bi-Specialization Related e-Forms Temporarily Suspended

• USCIS temporarily suspended e-filing of the bi-specialization related forms, including I-129, I-539, I-907, and I-140 petition. Currently e-filing of these forms is not available. People should remember that the USCIS is scheduled to turn all the immigration filings into the Bi-Specialization filing system. Additionally, the USCIS is heading towards complete electronic filing of the immigration forms.

04/12/2006: Two Days Left for Submission of Comments to DOl on Substitution Elimination Proposed Rule

• The deadline for submission of comments is April 14, 2006. The immigration stakeholders should send in as many comments as possible to correct some issues in the proposed regulation. There are a number of issues involved with the proposed rule. However, this reporter e-mailed yesterday the following comment that covered the two issues:
  • Dear Sir or Madam:
  •  
  • Please allow me to address two issues that I find troublesome.
  • (1) I find a serious flaw with the provision that limits validity of the certified permanent employment applications to 45 days "from the date of certification" under proposed substitution elimination rule. The record of the National Processing Centers and Backlog Processing Centers will reflect that these offices have failed to "timely" mail out the certified labor certification applications in a number of cases both in the PERM applications and the Backlog applications. There have been some reports by the legal counsels and employers that in the case of PERM applications, after they learned that the cases had been certified online, they failed to receive the certified applications even way over a month! There have been similar reports for the Backlog cases in that the employers and the counsels have received the certified applications a substantial number of days behind the date of certification. No matter how meticulously the agency processes the mailing of the certification, without doubt, there will be some cases of delay in mailing of the certified applications. This will be particularly serious in the PERM applications that require signature of the alien applicants on the original certified application before the employers can file I-140 petition. Sometimes, employers file the PERM applications for the alien beneficiaries who reside outside of the United States or who reside in the United States but travel at the time of receipt of the certified applications after delays in the agency's mailing. In a number of cases, depending on the extent of the agency's delays in the mailing, it would be impossible to timely obtain the signatures from the aliens residing or travelling abroad within 45 days from "the date of certification."
  • Obviously, this provision is a product of either oversight. Firstly, the 45-day clock should not tick until the certification is mailed out by the agency as proven by a post-mark on the envelope or until the certification is received by the legal counsel or the employer. Secondly, in some instances, the 45-day clock should not click or an extended period should be provided to make this policy work. For instance, for the aliens residing or travelling in foreign countries, depending on the itinerary of the aliens, delivery of the certified PERM applications on such a short notice may not work at all. Additionally, there would be situations where the alien is in an emergency situation such as surgery or in coma or other emergencies. The proposed regulation is unreasonably and unnecessarily rigid on this issue and fails to accomodate certain exceptional circumstances that need a special rule on the running of 45 days. The DOL is urged to change the start date of 45-day validity from certification date to either mailing date or receipt date, and more importantly, to provide exceptional circumstances and rules where a different rule should prevail in counting 45 days.
  • (2) The rule proposes that the "approved substitution" at the time of effective date of the final rule will be exempt from application of the final rule. However, the proposed rule fails to define "approved substitution." Such substitution may involve two circumstances. One is amendment of the application before the application is adjudicated. The second circumstances will involve substitution of alien beneficiary by the USCIS after the certification by the USDOL. As for the first situation, the proposed rule fails to define exactly what point of time the amendment will be considered approved: Return of ETA 750 by the Backlog Elimination Center or certification of the amended ETA 750 with a new alien beneficiary. As for the second situation, there are three sub-categories that fall under this group. One is the substitution of alien beneficiary before the I-140 was approved on behalf of the original beneficiary. Second situation involves the substitution during the period when I-140 is pending on behalf of the original beneficiary. Third situation involves the substitution after the I-140 was granted by the USCIS on behalf of the original beneficiary. The proposed rule fails to define when the substitution is "approved" by the USCIS in these three circumstances. Again is it the decision of approval of the I-140 petitions on behalf of the new substituting aliens or "receipt" of such I-140 petition by the USCIS on behalf of the new sustituting aliens. The rule should clearly
    define the term "approved" substitution. Otherwise, it will cause a tremendous confusion, followed by unnecessary federal court litigations.
  •  
  • Thank you.
  •  
  • Very truly yours,
  •  
  •  
  • Matthew Oh
    Attorney at Law
    The Oh Law Firm
    

04/11/2006: April 10, 2006 Service Centers Processing Times

• See homepage.

04/11/2006: Upcoming Notification of Winners of DV-2007 Immigration Lottery

• This is a reminder that those selected will be notified by mail between May and July 2006 and will be provided further instructions, including information on fees connected with immigration to the U.S. Persons not selected will NOT receive any notification. U.S. embassies and consulates will not be able to provide a list of successful applicants. Spouses and unmarried children under age 21 of successful applicants may also apply for visas to accompany or follow to join the principal applicant.

04/11/2006: USCIS Established New Directorate of National Security & Records Verification

• USCIS has announced that it has created a new directorate within the USCIS merging Fraud Detection/National Security function and Records function under one umbrella. For the announcement, please click here.

04/11/2006: Clarification of Preadjudication of I-485 Applications During the Period of Retrogression

• It appears that the initiative of the USCIS to preadjudicate the I-485 applications during the period of retrogression includes "pending" cases (cases on file) only. Nowhere it stated that the USCIS would accept the I-485 applications during the period of retrogression when visa numbers are not available. For the latter type of action, the USCIS does not have authority to initiate it at the agency-level and needs a legislative authorization. People will remember that this was part of S.1932 which failed to pass the House and Conference Committee at the end of 2005.
• It appears that the USCIS is initiating the preadjudication policy to streamline security clearance process and fraud detection or prevention. The community should take the preadjudication announcement as a news that they may receive massive RFEs and Biometric notices even if their priority dates still remain remote. Please remember that the announcement involves their "internal" procedure and processing guidelines and not, repeat not, filing guidelines for the immigrants.

04/10/2006: USCIS Initiates Preadjudication of I-485 Applications During the Period of Retrogression

• The USCIS/Nebraska Service Center has annnounced that it has launched the procedure of adjudication of I-485 applications even during the period of visa number retrogression. The intention of this "preadjudication" initiative is to prepare eligible cases to the greatest extent possible, short of approval, in anticipation of the availability of a visa.
• More important than this preadjudication notice is that the Service Centers may issue RFEs or Biometric notices while they process the cases on preadjudication initiative, and if the applicant fails to timely respond or comply with other notices or requests, the applications may be denied. The I-485 waiters should watch closely their mails religiously from now on in order not to experience a deadly consequence for failure to respond. |"The unconfirmed sources also indicates that the USCIS field offices are currently under operation to achieve the goal of 6 months adjudication of benefit applications. The preadjudication initiative may have something to do with such move.

04/09/2006: FY 2007 H-1B Cap Count as of 04/03/2006

• H-1B: 1,631
• US Earned 20,000: 340

04/08/2006: Number One Enemy After Shockwave: Anti-Immigrationist vs. Pessimism

• The immigrant community and, for that matter, the nation are still struggling to wake up from yesterday's shockwave. The immigrants and the nation are in a state of impotancy and stupor. Such vaccuum in the mental state is crept by pessimism and depression. At this juncture, it is not the anti-immigrationists and the conservatives but the pessimistic mental process that the immigrants and the nation should deal with. Thus such shockwave as the one the nation experienced and witnessed yesterday requires added struggle and fight to overcome the huddles of anti-immigrationists and conservatives. We are all infected by the mild state of depression. However, it is difficult but not impossible to fight against this disease.
• The comprehensive immigration reform is reportedly not completely over. There will be another cycle of political process from now until May 4 when the Senate Judiciary Committee Chairman Specter will come up with the revised bill. During the period, there will also be an activity to work out a Senate-House Joint Committee. Bill Frist will play a key role as he has yet to agree that the new Specter bill (May 4) will be put on the Senate floor.
• Without doubt, there is nothing to be juvilent about at this point, and the immigrants and the nation should not keep their chins down. Everyone agrees that the thing which happened yesterday was "terribly" wrong. This appears to be the general opinion of the nation. When there is a wrong, the wrong must be corrected. We cannot afford an evil to swallow the nation. Keep your chins up!

04/08/2006: What If Congress Fails to Act on Immigration?

• Here is one view. Read on.
• One more reason to hate election politics.

04/07/2006: Aftermath of Senate Defeat

• Reports indicate that when the Congress returns from the Easter break after two weeks, the House and the Senate intend to form a Senate-House joint committee to work out the immigration legislation. However, considering the fact that both Houses are dominated by the Republicans and the House maintains much more hostile attitude against the illegal aliens, it is generally predicted that the relief for illegal aliens under the Senate bill may have a slim chance to survive.
• The Senate's failure to pass "comprehensive immigration reform" legislation focusing on illegal immigration may bring about some unexpected gains for some segments in the immigrant community whose interest were represented in separate independent bills until they were brought into the packet bill named comprehensive immigration reform bill. The following list just reflects a fraction of such legislative bills:
  • DREAM Act (a bi-partisan emembers of the House have already introduced in the House, which is known to be identical with the Senate DREAM Act bill)
  • H-1B Cap Adjustment bill (House has already been debating this legislation)
  • PACE Act (This is a part of Education bill rather than immigration bill and this bill is likely to continue the process)
  • Some other legal immigration legislations.
• Today's defeat in the Senate will not stop the clock for the supporters of the illegal aliens and during the next two weeks, they may regroup and mobilize massive campaigns to keep the current momentum alive. For the news, please click here.

04/07/2006, 11:30 EST: Very Sad Day for All the Immigrants: Senate Failed to Pass Both Frist and Compromise Bills Today!

• Report indicates that the Senate was unable to break the filibuster for the Compromise Bill and the Bill Frist bill also could not get 60 votes and failed. Consequently, the comprehnsive immigration reform legislation in the Senate is shelved. What a tragic and sad day! Please stay tuned to this web site for further development.

04/07/2006: May 2006 Visa Bulletin

• RETROGRESSION OF FAMILY PREFERENCE CUT-OFF DATES FOR MAY:For May, it has been necessary to retrogress the cut-off dates for the Mexico and Philippines chargeability areas. This has been done in an effort to hold the issuance levels within the applicable annual numerical limits for the affected categories. The categories which have experienced retrogressions are listed below:
  • Mexico: F1, F2B, and F3
    Philippines: F3
• RETROGRESSON OF THE EMPLOYMENT THIRD PREFERENCE “OTHER WORKER” CATEGORY FOR MAY: Continued heavy demand for numbers (particularly for adjustment of status cases at USCIS offices) has brought allocations close to the 5,000 annual numerical limit. Therefore, it has been necessary to retrogress the Employment Third preference “Other Worker” cut-off date in an effort to limit future demand. Should the annual limit be reached, it will be necessary to immediately make the category “unavailable” for the remaining months of the fiscal year.
• POTENTIAL RETROGRESSION OF FAMILY-SPONSORED PREFERENCE CATEGORIES: Applicant demand for numbers, particularly in the Family F1 and F2A categories, has increased dramatically in recent months. Should the current rate of demand continue, it will be necessary to retrogress those cut-off dates in June.
• CHINA-MAINLAND BORN AND INDIA EMPLOYMENT-BASED PREFERENCE VISA AVAILABILITY: There has been a significant amount of forward movement in the China-mainland born and India Employment First and Second preference cut-off dates during recent months. This has been done in an effort to generate demand for numbers. It cannot be assumed that these cut-off dates will continue to advance at this pace during the remainder of the fiscal year. It remains to be seen how heavy the demand for visa numbers by applicants from those areas will be in the coming months.

04/06/2006: Immigration Frauds Growingly Center of political and Agency Concern and Attention

• As reported earlier, federal government agencies that are involved inthe immigration and visa enforcement formed a joint task force and began operations in ten major cities. The details of the operations and tasks have yet to be made public but today in a House committee, former USCIS HQ official testified corrupt governmental officials and ongoing immigraion frauds in the nation. We hope that the issue is not politically tied to the national election and immigrations do not become victims of election politics. For the news, read on.

04/06/2006, 3:00 EST: Senate Republicans Agreement Turned Into Bi-Partisan Agreement

• We reported earlier the Senate Republican Members Agreement last night. Today, the Democratic Minority Leader and other Democractic leaders agreed to the proposal, turning the Republican agreement into the Bi-Partisan Agreement. This dramatic break-through opens a door to the possibility of passing the Senate version of Comprehensive Immigration Reform bill, S. 2454, as amended before this week is over and before the Congress goes into the recess next two weeks.
• The development is accompanied by three other developments:
• President released statement supporting the bi-partisan agreement;
• Senate rejected the Democrat's motion to cloture for the Specter amendments to S.2454;
• Senate also relected the Republican Kyl' motion for his amendments.
• Now we see the light at the end of the tunnel!!

04/06/2006: USCIS Has Announced H-2B Cap Reached

• USCIS Announcement.

04/06/2006: DOL Report of Status of PERM and Backlog Applications Processing as of 03/17/2006

• DOL has reported the following statistics to the AILA:
• PERM:
• Total Received: 80,272
• Certified: 36,587
• Denied: 23,305
• Audit: 24,960
• Withdrawn: 1,950
• Backlog Cases:
• Total Received: 363,000+
• Total Completed: 108,000+
• Total Certified: 50,000
• Balance: 255,000
• Full data entry will will be completed by 06/30/2006 as scheduled.

04/06/2006: FY 2007 H-1B Cap Update

• AILA has reported that the FY 2007 H-1B cap filings were coming in at a similar pace as FY 2006. It thus appears that should this pace continue, the FY 2007 cap numbers may have at least about four months to run out. However, the earlier, the safer to file H-1B petitions not to take any chances. As for the OPT students whose OPT and grace period will run out before October 1, 2006, there is no sign that the DHS will issue a stop-gap legal status discretion regulation. Accordingly, they should do something to maintain their nonimmigrant status through October 1, 2006 before they file the FY 2007 H-1B petition and more importantly before the numbers run out. 20,000 special numbers for U.S. earned Master or higher degree people should also keep in mind that they are facing the graduation season and a substantial number may be taken out during the graduation season.

04/06/2006 1:00 a.m. EST: Republicans Reportedly Reached Agreement Last Night and Seek Vote Friday

• Washington Post indicates that Senate Republicans reached agreement last night on a compromise immigration measure that they believe will garner enough bipartisan support to break through a parliamentary impasse that has stymied progress on a high-stakes border security bill for two weeks. Under the agreement, the Senate would allow undocumented workers a path to lawful employment and citizenship if they could prove -- through work stubs, utility bills or other documents -- that they have been in the country for five years. To attain citizenship, those immigrants would have to pay a $2,000 penalty, back taxes, learn English, undergo a criminal background check and remain working for 11 years. Those who have been here a shorter time would have to return to one of 16 designated ports of entry, such as El Paso, Tex., and apply for a new form of temporary work visa for low-skilled and unskilled workers. An additional provision still under consideration would disqualify illegal immigrants who have been in the country less than two years. In a surprise move last night, Senate Majority Leader Bill Frist (R-Tenn.) went to the Senate floor with a parliamentary motion to send the compromise to the Senate Judiciary Committee for ratification, then scheduled a vote for tomorrow to cut off debate on that motion. In an extraordinary showdown yesterday, Frist assembled most of the 55 Republicans in the Senate chamber to castigate Reid's intransigence. Read also New York Times.
• Stay tuned to this web site on the development of the Senate floor activities today.

04/05/2006, 8:44 p.m. EST: Republicans and Democrats to Have a Final Showdown over Predural Matter Tomorrow Morning

• Reportedly there are 228 amendments to the comprehensive immigration reform bill, but the Senate failed to vote for any amendment today. The Democrats intends to mobilize the procedural weapon of a cloture motion tomorrow morning to limit debates and amendments. On the other hand, the Republicants want to continue the debates on amendments even after this week and are prepared to block such motion. The Senate needs 60 votes to pass such cloture motion. Should the Senate pass the cloture motion, the Democrats intends to push roll call for the vote on the Senate Judiciary bill. Tomorrow, Thursday, the community will see the climax of this theatrical drama that can determine the future of the comprehensive immigration reform legislation. For the details, please read the news.

04/05/2006: Task Forces to Target Immigration Frauds

• Officials from the Department of Homeland Security, Department of Justice, Department of Labor, Department of State and other agencies today announced the creation of task forces in 10 major U.S. cities to combat the growing problems of document fraud and immigration benefits fraud. The new “Document and Benefit Fraud Task Forces” will be located in Atlanta, GA; Boston, MA; Dallas, TX; Denver, CO; Detroit, MI; Los Angeles, CA; New York, NY; Newark, NJ; Philadelphia, PA; and St. Paul, MN. The ten new task forces build upon the success of an existing document and benefit fraud task force in the Washington, D.C. / northern Virginia area. For the full text, please click here.

04/05/2006: Today's Senate Immigration Reform Schedule

• Convenes and resumes consideration of S. 2454, the Border Control bill at 9:30 a.m. It is anticipated that there will be a fierce showdown between the Democrats and the Republicans on the floor today. If the Senate fails to pass the comprehensive immigration bill, the immigrant community will have to live with the nightmarish Rep. Sensenbrenner House bill! We hope the Senate makes some progress in amendment votes today. People should continue to contact the Senators and the community should not cease their rallies and other pressures on the legislators. Stakes are too high to lose this opportunity, no matter whether it is legal aliens or illegal aliens.

04/04/2006: GAO Find Visa Delay's Faults with State Department's Failure to Assess Staff Needs in Different Visa Posts

• According to the GAO study which was released on April 4, 2006, posts that consistently have wait times of 30 days or longer for interview appointments may have a resource problem. During a recent 6-month period, 97 of State's 211 visa-issuing posts reported maximum wait times of 30 or more days in at least one month; at 20 posts, the reported wait times were in excess of 30 days for this entire 6-month period. Further, in February 2006, 9 posts reported wait times in excess of 90 days. Several factors have contributed to these delays at some consular posts. For example, Congress, State, and the Department of Homeland Security have initiated new policies and procedures since the September 11 attacks to strengthen the security of the visa process; however, these new requirements have increased consular workload and exacerbated delays. Additionally, some applicants have faced additional delays because of special security checks for national security concerns. Other factors, such as resurgence in visa demand and ongoing embassy facility limitations, could continue to affect wait times. We recently reported that State had not conducted a worldwide, comprehensive assessment of staffing requirements for visa operations. While State has increased hiring of consular officers, there is a need for such an assessment to ensure that State has sufficient staff at key consular posts, particularly in light of the visa processing delays at some posts. For the full text of the report, please click here.

04/04/2006: No Progress Made on Immigration Reform Bill Votes Today

• As we reported earlier today, the Senate Republicans wanted to reach a compromise on the illegal immigration issues. Reportedly about 30 Republican Senators gathered at the Majority Leader Bill Frist's office this morning to resolve the differences on the issue, but apparently failed. The Senate is under the tremendous pressure because of the self-imposed deadline of April 7, 2006 to pass the bill. The Senate is scheduled to go into a twe-week recess after this week and Bill Frist wants the reform bill passed before the Senate goes into recess. However, the earned adjustment of status and temporary guest worker programs for the illegal aliens present a mountaneous road block to a large number of other important amendments for the Senate floor to reach its own bill. The two-week break can affect the process either pro or con for this bill and both sides of the immigration reform legislation are watching the current Senate debates nervously. People are reminded that the main body of the bill is the Bill Frist bill and the Senate Judiciary bills are prsented to the floor as amendments. Please stay tuned.

04/04/2006: Senate Republicans to Consider Three Options Today for Earned Adjustment of Status for Illegal Aliens

• Report indicates that the Senate Republicans are basically moving towards passing the earned adjustment of status for the illegal aliens, but the leaders are scheduled to introduce three compromise options for the eligibility: (1) EWI (Entered Without Inspection or Border Crossers) vs. Overstays (Entered legally but overstayed); (2) Long resident over 5 years vs. Recent arrivals; and (3) Adjustment of status within the U.S. for some illegal aliens vs. Application for reentry to the U.S. at the border for some illegal aliens. It thus appears that the Senators are likely to give credit to the illagal aliens to the longer overstayed illegal aliens over the border crossers. It is interesting how the Senators will iron out the final compromise bill today. Please stay tuned.

04/03/2006: Senate Started Votes Today

• Senate started votes for two amendments. One is to reduce naturalization waiting period from five years to four years for those who are fluent in English and meet other requirements which DHS will provide. The second amendment which the Senate passed today is to fund $50 million for Mexican border enforcement activities. Last week, the Senate floor focused on debates without the votes. This week, a host of amendments will be voted. Text of the entire amendments to the Fist's bill S.2454 which will be voted on the Senate floor can be found on our site. Please click here.
• AILA has released the Section-By-Section summary of the Judiciary committee bill where the summary of numerical limit exempt provisions for NIW and certain Advanced Degree holders were omitted. Our office has received a number of e-mails on this issue, and this reporter confirms that Section 508 is still part of the comprehensive reform packet.

04/03/2006: Visa Posts Implement New I-864 (Affidavit of Support) Requirements and Procedures

• DHS has been implementing new requirement and procedures for family-based immigration I-864 filing. The State Department released a cable to the visa posts identical changes in the requirement and procedures. The cable is very important for the family-based immigration practitioners.

04/03/2006: USCIS Warns Spoof H-1B Release

• This morning there was circulating a hoax USCIS website announcement that U.S. earned special cap number for Fy 2007 reached the first date in April and other FY 2007 cap number almost reached and April 3 filing would be randomly selected by computer. Since it was USCIS letterhead announcement, the community was in a state of total shock, confusion, and numbness until it was turned into an anger once the USCIS announced that it was a hoax. The confusion reached a peak when it was reported on the website of a leading immigration law publisher.
• The community should watch out such "criminal" activities. Our site has also received a number of hoax messages recently. The golden rule is that if the message does not sound right, it should be taken as a hoax.

04/03/2006: Here I come, San Antonio, Texas

• The AILA annual conference will be held in San Antonio from June 21 through June 24, 2006. It is the annual convention of immigration lawyers nationwide, immigration department leaders, State Department officials, Labor Department officials, and other involved entities and orgnizations. This reporter will attend this meeting as he has been doing for over 20 years. Every year, this reporter asked our readers to send him e-mails to indicate the issues which the readers consider critically important at this point of time. Such e-mails help the reporter to focus on the selected issues and try to explore or collect information on the issues. Obviously, the questions should not be related to any individual cases or individual situations. We will convene in the San Antonio Convention Center. This will be the third visit to this city for this reporter. San Antonians, if you see this reporter on the street, please say hello to him!

04/03/2006: Who in the EB Group Are Exempt from Numerical Limitation under Specter Bill?

• There appears to be some confusion in the immigration community on the proposed legislation to exempt certain Advanced Degree holders from the numerical limitation. Here is Section 508 of the Specter bill:
• SEC. 508. VISAS FOR INDIVIDUALS WITH ADVANCED DEGREES.
• (a) Aliens With Certain Advanced Degrees Not Subject to Numerical Limitations on Employment Based Immigrants.--
• (1) IN GENERAL.--Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended by section 505, is amended by adding at the end the following:
• ``(G) Aliens who have earned an advanced degree in science, technology, engineering, or math and have been working in a related field in the United States under a nonimmigrant visa during the 3-year period preceding their application for an immigrant visa under section 203(b).
• ``(H) Aliens described in subparagraph (A) or (B) of section 203(b)(1)(A) or who have received a national interest waiver under section 203(b)(2)(B).
• ``(I) The spouse and minor children of an alien who is admitted as an employment-based immigrant under section 203(b).''.
• (2) APPLICABILITY.--The amendment made by paragraph (1) shall apply to any visa application--
• (A) pending on the date of the enactment of this Act; or
• (B) filed on or after such date of enactment.
• Section 201(b)(1) of the current immigration statute lists the aliens who are exempt from the numerical limit. Section 508 of the Specer bill proposes to add the foregoing aliens to the list.

04/02/2006: Frist Wants Immigration Vote This Week

• Senate Majority Leader Bill Frist reportedly stated today that he wanted to have the Senate to vote on the comprehensive immigration reform bill within this week. Interestingly enough, though, Rep. Sensenbrenner also wants to see the Senate vote on the Senate bill as soon as possible. It thus appears that the polticians in the opposition court have sensed that time would work against them rather than for them. This is reflected by the latest poll. The poll reflects that at least a half of the polled agreed that the current illegal aliens should be allowed to stay under guest worker program. We have already reported that even in the House, wind has started blowing on behalf of the immigrants.
• These reports raise a question of strategy: Whether we want to see the Senate to rush to vote hastily and prematuredly.

04/02/2006: Pluses and Minuses from Bi-Specialization Program

• Obviously, the most noticeable plus from the Bi-Specialization of I-129, I-140, and other forms down the road will turn out to be a reduced regional disparity in the processing times and adjudication standards. Readers must have noticed from the Service Centers' monthly processing time reports that there have been a wide gap in the processing times for these forms among the four Service Centers. The same was true with the standards which each of the four Service Centers had adopted and applied. In a way, the program will help the immigrants in achieving regional fairnes which will be brought about by the program. However, there can be downside as well. Depending on which way the wind will blow, the entire immigrants can either benefit or suffer. If the Bi-Specialization induces the delays in the processing times because of the policy and practice of the new specialized program agencies, the value of fairness which this program is supposed to bring out will be critically compromised, increasing the sufferers from a region or regions to nationwide. The same will be true with the standards which these new specialization offices will adopt and apply.
• We urge the leaders in the HQ of USCIS and the involved Service Centers to be mindful of the foregoing potential issues and endeavor assurance of balance between achievement of regional fairness in processing times and standards and achievement of application of fair and open standards rather than too narrow and restrictive standards and policies in adjudications. As the adjudication moves towards the centralizaton, the HQ should increase its oversight over the field offices such that the intended goals of the Bi-Specialization Program are achieved smoothly and without too painful fallouts.

04/02/2006: Centralized H-1B Filing Procedure and USCIS Advisory on Evidentiary Requirement

• USCIS launched as of yesterday, April 1, 2006, two H-1B actions. One is processing of FY 2007 cap filings, and the other is the centralization of I-129 filing, the largest of which will be taken by H-1B petitions. It may also be no coincidence that the USCIS also released a H-1B filing guidance that warned the employers of the increased scrutiny of H-1B petitions. This uniform processing and adjudication guideline of H-1B petitions will result in the two consequences. One is to crack down abuse of the H-1B petitions by some consulting firms to take the H-1B cap numbers without bona fides jobs. This should be taken as a positive action. The other is to require a substantial additional evidence to adjudicate the consulting job H-1B petitions. The guidance indicates that the USCIS will require two types of evidence: For consulting job that involves work at more than one location, the employer will be required to provide "itinerary." Submitting itineray will entail additional problems for certain consulting firms. Additionally, when the H-1B employer files so-called H-1B transfer petition to change employer, the USCIS will now probably require increased number of evidence to prove "maintenance of H-1B status" and actual performance of work in compliance with the labor condition application. It is unclear how far the USCIS will go in requesting the evidence to establish these requirements, but it is obvious that the employers may have to submit more evidence on these two requirements when they file H-1B petitions for these types of jobs.
• The details are not disclosed as to how the centralized filing will help to achieve these goals, but the centralization of filing was indeed recommended by the GAO exactly to achieve, among others, fraud detections and removal of flaws in adjudications. Considering the fact that the current centralization of I-129 filing was somewhat driven by the GAO recommendation, the H-1B employers should be prepared to deal with the increased scrutiny and the resulting increased RFEs for the H-1B petitions. It may be thus prudent that the H-1B employers proactively submit the required evidence meticulously to avoid unnecessary scrutiny and delay in approval of the H-1B petitions. Employers are suggested to read once again the USCIS Guidance.

04/01/2006: Immigration Monthly Statistical Report of 02/28/2006 for the Statistics at the End of 01/31/2006

03/31/2006: Bush Press Statement After Meeting With President Fox on 03/30/2006

• "As the debate over immigration reform unfolds in the United States Congress, Bush said he reaffirmed to Fox his commitment to comprehensive U.S. immigration reform that includes border security, increased enforcement of immigration laws within the United States, and a temporary worker program. He added that a guest worker program would not reward undocumented workers with amnesty, but allow them to get in line for citizenship behind those individuals who have already applied. “I told President Fox that I think a program that will work is somebody working on a temporary basis with a tamper-proof ID card,” Bush said. “And if they want to become a citizen, they can get in line, but not the head of the line.” To accommodate increased applications for legal status in United States, Bush told Fox that he has called on the U.S. Congress to increase the number of green cards made available to immigrants."

03/31/2006: Full Text of Specter Amendments to Frist Bill

• Senator Specter introduced his amendments to the Sen. Frist's bill yesterday. The amendments propose to strike and delete the entire text of the Frist bill including the title of the bill and keep the bill number S. 2454. Specter amendments represent the Senate Judiciary Committee bill.

03/31/2006: New I-129 and I-140 Filing Procedure Effective 04/01/2006 and Answers to Some Questions

• The USCIS announcement of the new procedure generally described the new procedures relating to I-129, I-140, and concurrently filed EB-485. However, however, when it comes to the related legal proceedings, there were many unanswered questions, making people nervous because of lack of the answers. In order to resolve the problem, the AILA Liaison worked with the USCIS to clarify some of the questions and answers. We will report below only some questions which were not answered in the USCIS announcement.
• I-907 Premium Processing for I-129:
• For New I-129 filing: File with VSC
• For I-129 Pending cases: File with Service Center where I-129 is pending with a copy of I-129 Receipt Notice
• I-539 Filng Procedures:
• Dependant I-539 Filing Procedures:
• Filing Concurrently with I-129: File with VSC
• Filing Separately from I-129:
  • When I-129 is already filed and pending: File with the Service Center where I-129 is pending. Include I-129 Receipt Notice.
  • When I-129 has already been approved: File with VSC with a copy of I-129 Approval Notice.
• All Other I-539 Filing Procedures: File with the Service Center that has jurisdiction over his/her case under the current rule.
• Ancillary Applications Green Card Proceedings: I-765/I-131 Filing Procedures:
• If I-765/I-131 is bing filed concurrently with I-140/I-485: File with NSC
• If I-765 is filed separately from I-485 application: File with the Service Center where I-485 is pending
• If stand-alone I-140 petition is pending and approved: File concurrent EB-485, I-765, and I-131 that handles or handled I-140 petition
• I-129 Extensions/Change of Status/Amendment: File with VSC
• USCIS plans to adopt all forms under the bi-specialization program by January 2007.
• (Courtesy of AILA)

03/31/2006: Reminder: Do Not Send Out I-129 and I-140 Filing to CSC or TSC From Today

• The Service Centers do not accept overnight deliveries on Saturdays and Sundays. Besides, the new filing procedure takes effect from tomorrow. The new procedure announcement stated that the USCIS would not reject even if these petitions were delivered to the wrong Service Centers, but such wrong delivery can cause delays or sometimes misdelivery of packets. Just out of caution, people may want to send out all the I-129 filings to the Vermont Service Center and all the I-140 petitions to the Nebraska Service Center from today. Just reminder!

03/31/2006: Federal Register Release: TPS Extensions

• Honduras
• Nicaragua

03/31/2006: Senators See Immigration Reform Momentum as Debate Moves On

• We have already reported that the House Speaker and the House Republican Majority Leader expressed their intent to consider compromise which was considered in the Senate. This was an important step forward for the future of the comprehensive immigration reform legislation in that the Rep. Sensenbrenner bill which had been passed by the House may not necessarily pose insurmountable obstacle in the comprehensive immigration reform legislation process. Besides, when the Senate opened the debate day before yesterday, Senator Frist took a position that the Senate should consider passing his bill that focused on enforcement only legislation adding the Judiciary Committee bill as the amendments to his bill. In this regard, the Senator was proposing to accomodate the Judiciary Committee bill. Obviously, Sen. Specter and Judiciary Committee members proposed to pass the Judiciary Committee bill.
• However, as reported in the news, overall, the immigration reform started witnessing a momentum to crack the barriers. Without doubt, the legislation still faces a steep opposition from the Conservatives in both Houses, but this week's event shows at least a light at the end of the tunnel. The Senate will continue the debates and a flurry of amendments are expected to be introduced and acted upon next week. We thank the members of the Senate Judiciary Committee, particularly Chairman Specter. We also want to thank the Majority Leader, Bill Frist, for accomodating the Judiciary Committee proposals and look forward to his continuing efforts to work with the members of the full Senate to produce and pass a broad comprehensive immigration reform bill at the end of next week.

03/30/2006: Senator Durbin's Statement on the Senate Floor in Support of His DREAM Act Sponsorship

• "The DREAM Act would address the situation of many young people. It would permit undocumented students to become permanent residents if they came here as children, if they are long-term U.S. residents, if they have good moral character, and attend college or enlist in our military for at least 2 years. During the 108th Congress, the Senate Judiciary Committee marked up this DREAM Act, and it was voted out by a vote of 16 to 3, a strong bipartisan vote. Compromises and changes were made. It is unfortunate that the Senator from Alabama, when he spoke about the DREAM Act earlier, did not make reference to the current version of the law. There were three things in particular that he said that were not accurate, which I would like to clarify for the RECORD.
• First, the path for a young person to become an American citizen involves education or military service. It does not include community service, which the Senator mentioned earlier. Second, those students who go on to college, if they are allowed to by the States where they reside, and receive in-State tuition, that is strictly a State decision. They would not be eligible for Pell grants, the grants of Federal funds to college students. We eliminated that. The Senator from Alabama referred to Pell grants earlier, but that provision was eliminated from the DREAM Act. Finally, the number of students who are likely to benefit from this and be involved with our colleges is dramatically less than the number quoted by the Senator from Alabama. He said it is likely--I quote from his statement on the floor: Sixty-five thousand students would enroll during the first year.
• We have a recent report from the Congressional Budget Office. Their estimate is that about 13,000 students might enroll during the next academic year. And they go on to say it is unlikely because they are probably going to be community college students, that they would be receiving substantial amounts of Federal assistance as students. So those three points made earlier by the Senator from Alabama were not accurate. They do not describe the current law as passed by the Senate Judiciary Committee. I think the best way to describe what this is about is to tell you some of the stories of actual young people who have been affected by this. A young lady named Theresa was raised in Illinois. She is an amazing young lady. She came to the United States when she was 2 years old. Her parents brought her here from Korea. Her mother is the family's only bread winner, and she works at a dry cleaners in Chicago. If you know that great City of Chicago, which I am honored to represent, 85 percent of the dry cleaning establishments are owned by Korean Americans. They are wonderful, hard-working people. They are there from the crack of dawn until late at night, 6 and 7 days a week. Her mother is one of those people. She raised Theresa, and realized at an early age that Theresa was an extraordinary young girl. She had musical talents that none would have imagined. She began playing the piano when she was 8 years old. She became a musical prodigy, winning the Chicago Symphony Orchestra Youth audition. The top music schools in the United States recruited Theresa. They wanted her as a student. She only learned when she applied to the schools that she had a problem, and the problem is this: When her mother brought her to this country her mother never filed any papers. So Theresa is an undocumented person in America. She is here illegally. Now, at the age of 18, after having lived here all of her life since she was 2, she discovers it, and she calls my office--her mother did--and said: What can be done? She started filling out the application for the Juilliard School of Music, and they put a question in there on citizenship. She said: I do not know what to put down. We had better call. They called my office. We asked the Immigration and Naturalization Service. They said she is undocumented. She is here illegally. I said: What can be done? We want to get this young girl on the right track to become an accomplished musician. We know she will be. They said: There is one thing she can do. She can go back to Korea. Go back to Korea after 16 years? That was the only alternative available to her. Luckily, she has gone on to school without financial assistance, incurring a lot of debt in the process. She is in this gray shadow world of people who are undocumented living in the United States--a young woman who will undoubtedly be a great contribution to America's culture at some point in her life. She still does not know what her future holds. She is not the only one. One of her music teachers told me about her. She said: I worry that our country, the richest and most blessed in the world, will not permit this very large talent to be developed. We are not such a rich land that can throw away the talents of our children. Theresa is among the lucky ones who went off to college at great financial sacrifice. But she is one of the people I am talking about. Theresa is not alone. There are thousands like her. They turn out to be honor roll students, star athletes, talented artists, valedictorians, aspiring teachers, doctors, scientists, and engineers. They follow the rules and work hard in school. And they beat the odds....
• Let me tell you about another one, Dianna, whom I met, a very bright young lady. She went to high school in Chicago and aspired to become an architect. That was her dream. She entered contests, was an honor student in high school, won competitions statewide in Illinois to move on toward architecture. She graduated from high school with a 4.4 out of 4.0, applied, and was accepted at Northwestern University to become an architect, a dream come true. Then it was discovered that she was undocumented, the papers had not been filed. She had been here all her life but still was not a legal American, living in the United States. She couldn't get financial assistance to go to that great university and instead had to go to another school where she is pursuing her education at great expense but worries that the day will come when she wants to be licensed as an architect and she cannot be because she does not have legal status. She is not documented.
• Those two young women I just talked about are classic examples of why the DREAM Act is important. Would America be a better place if those two girls left, if we didn't have the architectural skills of Dianna or the musical skills of Theresa or the other student who came up to me in the streets of Chicago and said: Senator, I finished high school and then I went to college and paid for it all on my own because I can't get any financial help. I want to be a teacher. I want to teach in the schools of Chicago, the public school system. I can't be licensed as a teacher because I am undocumented. Would we be better off if that young man who came up to me left America? I don't think so. In many respects, these young people, like our own children, are our future. They are our hopes. What we do with the DREAM Act is say we are going to take this group of students and give them a chance. Here are the conditions: They have 6 years under the DREAM Act. A student could obtain conditional legal residency for 6 years if the student has been continuously present in the United States for at least 5 years prior to the enactment of this law, was under 16 years of age when he entered the United States, has graduated from high school or obtained a GED in the United States or has been admitted to an institution of higher education in the United States, can demonstrate good moral character, is not inadmissible or deportable under specifically enumerated grounds. The student could obtain legal permanent residency if within the 6-year conditional period he earns a degree from an institution of higher education or completes at least 2 years towards a bachelor's degree or serves honorably in the U.S. military for at least 2 years. That is not amnesty. We say to that young person: We don't know the circumstances that brought you here. But if you have done a good job as a student, if you were prepared to continue your education to contribute to America, if you are prepared to serve America in our U.S. military and risk your life for this country, we will give you a chance to be a citizen. You have to earn it. It is not free. It is not amnesty. It is not unconditional. We put these provisions in the law. I think that is a reasonable thing to do. I think otherwise we are going to waste talent, talent that America needs among the thousands of students who may be helped by the DREAM Act. They may be a doctor who will treat your child in the future. They may be a researcher who will help advance the cures in medical treatment. They may be an engineer who will help us find new composite metals that we use for a space program. The possibilities are limitless because opportunity is limitless in America. Why would we want to walk away from these kids? Why would we want to turn our backs on them?
• Finally, I say to States across America that you decide how to treat these students. Many States like my own have already decided, but you decide whether these undocumented students will be eligible for instate tuition or out-of-State, which is more expensive. But each State makes the decision. That is a change in the Federal law, but it is a change that States can make without a Federal penalty. I received a letter of support for the DREAM Act from a group of Americans who lost loved ones in the September 11 terrorist attacks. Here is what they wrote me: We will all be safer if we unite against terrorists, and if our immigration system can be made more rational and reflective of our values as a Nation. President Bush said the other day some words that I think are worthy of repeating on the floor of the Senate. He said: It is true that we are a Nation of laws, but we are also a welcoming Nation. We are a Nation of immigrants. I stand before this body, as I have said many times, so proud of the fact that my grandmother and grandfather had the courage to pick up and leave a tiny little village in Lithuania in 1911."
  

03/30/2006: H-2B 2nd Half Target Cap to Reach - 4,936 Workers as of 03/27/2006

03/30/2006: Honduras/Nicaragua TPS Extension Federal Register Notice Scheduled to be Published on 03/31/2006

• USCIS Announcement of Hondras/Nicaragua TPS Extension
• USCIS Q & A for Honduras TPS Extension
• USCIS Q & A for Nicaragua TPS Extension

03/30/2006: Frist Bill First in Senate Debate

• As we reported earlier, the Senate will debate both the Frist Bill and the Judiciary Committee Bill. The debates are however bifucated: Frist bill is debated first, and comes the Judiciary Committee bill. Yesterday, the Senate floor debated the Frist bill, the enforcement-only version comprehensive immigration reform proposal. There is a slim chance that the Frist bill will make it as the stand-alone legislation considering the general opinion of the Senators and the nation. Somehow, the two bills will have to be compromised in the final Senate bill to make this legislation work through the House or Conference of the two houses and the White House for the President's blessing on the legislation. The immigrant community should be patient to watch through the process on the floor in the Senate until the end of the debate and vote rather than hastily judging the situation and acting in a wrong way. Eliticism is something the community should stay away.

03/30/2006: Momentum is Building for Immigration Reform

• The real test for the success of the Senate's comprehensive immigration reform lies with the House once the Senate passes the bill. Recently, however, some of the key House leaders came forward to rescue Bush in support of his Guest Worker Program which is considered the most serious roadblock to the legislation. For instance, report indicates that the House Speaker Dennis Hastert indicated today that he was willing to consider a guest worker program as part of the immigration-reform package now moving through Congress.
• This is the time everyone should work hard to make it work and think positive. Please keep contacting the Senators and the members of the House to support the immigration reform legislation. People should set aside the politics and the immigrant community should unite to seize the momentum. Last thing the community wants to see will be disagreements and division within the community. Whether legal or illegal, they are in the same pot and navigating together.
  

03/29/2006: Senate Action May Take Two Weeks or More

• Read on.

03/29/2006: Advanced Degree vs Doctoral Degree, and EB Cap Exemption vs Special Immigration Benefits

• Both Frist bill and Judiciary Committee bill include legislation to keep or bring in the brightest to this country. Both of these bills were intended to incorporate another pending legislative bill, PACE Act. However, in the process, Sen. Frist and Sen. Specter made some changes. For these reasons, people are very confused about the scope and parameter of this legislation when it comes to the eligible brightests.
• First, there is no definition of "Advanced Degree." Neither the current immigration statute has a provision defining the term. However, the advanced degree is defined by the immigration regulation to mean 'Any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate.' Simply put it means a master's degree or higher degree.
• Advanced degree thus encompass both master's degree and doctoral degree. However, PACE Act attemps to distinguish between the U.S. doctoral degree holders vs. non-U.S. doctoral degree holders. Additionally, the Act distinguish U.S. doctoral degree holders vs master degree holders (both U.S. and foreign earned) when it comes to the specific benefits.
• Close reading will reflect that U.S. doctoral degree holders will benefit from special immigration process without labor certification but they will be subject to the annual EB cap. Meanwhile, advanced degree holders (including foreign degree) with three years of qualified employment in the U.S. or advanced degree holders with the National Interest Waiver will not be subject to the numerical limit in immigrant quota, but will be required to go through the labor certification or other immigrant petition process. Consequently, PACE Act decided not to give both benefits of exempt from numerical limit and special immigration procedures to eiher U.S.doctoral degree holders or advanced degree holders. The legislative intent behind these provisions is not made clear.
• However, the qualified brightest should read carefully these three bills (Frist, Specter, and PACE) and understand some variations when it comes to the details. Eventually, some more changes can take place on the Senate floor. We will keep readers posted of development of floor action on this part of the comprehensive immigration reform legislation.

03/29/2006: Frist Decided to Allow Both Bills to Be Voted

• Today, the U.S. Senate started debates on the comprehensive immigration reform bill. After the Senate Judiciary Committee passed its bill on Monday, it remained an open question as to whether Sen. Frist will table the Judiciary Committee bill on the floor and if yes, what he would do with his bill. Until today, he remained silent on this issue.
• However, report indicates that he has pledged to allow a vote that could replace his bill with the Judiciary Committee bill. It means that the two bills will be eventually voted. As we reported earlier, there will be no vote or roll call today, and for that matter, it is uncertain exactly when the bills will be voted. Reportly, the conservative Senators are adamant in opposing the legalization of illegal aliens. It is critically important that people keep contacting the Senators incessantly to tip the scale in favor of the immigrants.

03/29/2006: Senate Judiciary Final Proposal and Employment-Based Immigration

• The Senate Judiciary Committee and media have almost entirely focused on the illegal immigration and border security issues in the Committee's debates, causing confusion in the employment-based immigrant community. Some members of the employment-based immigrant community have a concern that the critical issues relating to the backlog elimination including the quota adjustment, PACE Act, and other relief were neglected by the Committee and might not have made it in the passed bill.
• They should rest their fears and confusion once and for all. The employment-based immigration backlog elimination and other relief constituted Title V of the passed bill and the Title IV passed the Committee "as amended." The amendments have been reported in the media and this web site.
• When it comes to the Title IV, Frist bill was better than Specter Mark which became the final Judiciary Committee bill. There is some possibility that the Title V may be replaced by the Frist bill in the full Senate debate and final Senate bill as a compromise between the Senate Judiciary Committee bill and the Frist bill, without affecting the very positive side of the Committee bill such as Guest Work Program and Earned Adjustment of Status Program, etc.

03/29/2006: Outline of Bush Comprehensive Immigration Reform for Cancun Summit Meeting with Canadian & Mexican Leaders

• Anticipating a fierce debate on the Senate floor, Bush laid out his vision and direction for the comprehensive immigration reform legislation. Considering the fact that the Republicans in both the Senate and the House are severely divided on the legislation, the role of Bush should weight more in the legislative process.
• In a March 28 roundtable discussion with Canadian and Mexican journalists, Bush outlined his vision for immigration reform in the United States and outlined issues slated to be addressed with Canadian Prime Minister Stephen Harper and Mexican President Vicente Fox at the March 30-31 Security and Prosperity Partnership meeting in Cancun, Mexico. For the full text, please click here.

03/29/2006: Senate Floor Schedule Update for Comprehensive Immigration Reform

• AILA has reported that the full Senate will begin debating immigration reform on Wednesday or Thursday, March 29 or 30. According to AILA, Senate Majority Leader Frist has obtained unanimous consent to devote the first day of debate to debate only and no amendments or votes. People should thus keep contacting and urging the Senators to vote for the Senate Judiciary bill today and tomorrow.
• There is a report by the Washington Post that the Judiciary Committee's bill is growingly receiving some support in both Houses. Read on. The general concensus of the media appears to be that the recent "massive" rallies, campaigns, and contacts by the supporters of the illegal immigration relief is playing a key role in the swing within the Congress. Both legal and illegal immigration communities should realize that whether they like it or not, they are the bed-partners and share the future of this legislation. These two communities should learn to work together to achieve the mutual goal of passage of the comprehensive immigration reform legislation in the Congress as soon as possible.

03/28/2006: Selective Summary of Amendments Adopted as Part of Committee's Passed Bill

• DREAM Act
• Removal of Criminalization of Overstays
• Earned Legalization of Undocumented Aliens
• Nurse Employment-Based Immigration Quota Exemption for 7 Years
• Temporary Guest Worker Program
• L-1 for New Office Limited to One-Year with Extension Opportunity and Removal of Employment Authorization for the Spouse during the First One-Year Period
• H-1B Cap of 115,000 Stays.
• AgJobs

03/27/2006: Comments of Members of Judiciary Committee on Passage of Bill in the Committee

• Sen. Edward Kennedy
• Sen. Sam Brownback
• Sen. Diane Feinstein
• Sen. Dick Durbin

03/27/2006: Full Senate Schedule for Comprehensive Immigration Reform Legislation

• Majority leader, Bill Frist, was scheduled to present cloture motion tomorrow, Tuesday, for the immigration reform debates, but it is known that the immigration reform will not be marked up until towards the end of the week. Please stay tuned.

03/27/2006: Judiciary Passed Bill Includes Cap Exempt for Nurses for Seven Years

• Senator from Kansas, Brownback, introduced the two healthcare amendments including permanent J-1 Waiver Program for International Medical Doctors and Immigrant Visa Number Cap Exempt for Nurses for 7 years. The amendment for the nurses was deferred twice in the debate and its fate was uncertain. But report indicates that this amendment was adopted as part of the Senate Judiciary Committee Comprehensive Immigration Reform bill.

03/27/2006: Important Advisory for I-140 and I-129 Filing This Week

• The USCIS Bi-Specialization program that requires filing of all the I-129 petitions with the Vermont Service Center and filing of all the I-140 petitions with the Nebraska Service Center does not start until April 1, 2006. There was a rumor that people can file these cases following the Bi-Specialization program even before April 1, 2006, but the AILA has confirmed from the USCIS that the agency will not implement the program until April 1, 2006, this Saturday. Accordingly, those who will have to file either I-140 or I-129 before April 1 and timely filing is important, they should make it sure that they file with the Service Center of their jurisdiction unless they are assured that the delivery will be made to the agency either Monday, the 27th or thereafter to either Nebraska Service Center (I-140) or Vermont Service Center(I-129). Premature filing of the petitions with either VSC or NSC can be rejected with a serious consequence if timely filing is critically important.

03/27/2006(5:00 p.m.): Senate Judiciary Committee Passed Comprehensive Immigration Reform Bill

• Late this afternoon, reportedly the Senate Judiciary Committee passed the Specter's Mark that includes temporary guest worker program as well as earned adjustment of status program for illegal alien. This passage marks the winning record for both legal immigration as well as illegal immigration. The Committee ficercely debated mostly illegal immigration related issues as these issues were politically charged. The fact that the Committee did not fiercely debate legal immigration, particularly employment-based immigration portion of the bill does not mean that these parts of the bill did not make it. On the contrary, it means that they passed most of them without controversy. Read on. Some more details. Stay tuned to this website for the text of the passed bill by the Judiciary Committee.
• Salute to Chairman Specter, and other hard-worked members of the Senate Judiciary Committee!!
• However, this is a starting point and not end point of the struggle. For the next two weeks, the full Senate will debate this bill and flood of anticipated "anti-immigration" amendments to be introduced in the full Senate. People should not stop contacting the Senators!

03/27/2006: Fate of Relief for Illegal Aliens on the Balance of Today's Senate Judiciary Committee Action

• Senate Judiciary Committee convenes at 10:00 a.m. this morning with a task that will determine the fate of over 12 million illegal aliens in this country. The Senate Judiciary Committee is required to complete its proposal on the comprehensive immigration reform before the end of the day. Otherwise, the full floor of the Senate will start debating on the immigration reform legislation without the relief for illegal aliens. At this point, the Majority leader, Sen. Bill Frist, has not retreated from his agenda even an inch. It is unclear whether the Senate floor will be able to pass such legislation without the action of the Judiciary Committee because the Democrat Senators appear to be ready to take such a drastic action as filibuster on the floor, but should the Senate passes such bill, the illegal aliens will face a grim future in that the House has been extremely hostile against the illegal aliens and may agree to the Senate version without the relief for illegal aliens. The President can veto such bill, but the country will get into a total chaos.
• Report indicates that the Senate Judiciary Committee has to resolve extremely difficult issues to meet the deadline and is uncertain whether it can timely complete the action. It is going to be a very stressful day today not only for the immigrant community but also the nation as a whole. Please stay tuned to this website for the development of the Senate action.

03/27/2006: Anticipated Massive H-1B Cap Filing Beginning from April 1 and Potential Waste of Cap Numbers

• Because of the severe shortage of the H-1B cap numbers, there is a sign that people want to file the FY 2007 H-1B cap cases as early as possible. No one knows how soon these numbers will run out but it is almost certain that the number may run out before the start of the FY 2007, October 1, 2006. The situation may be worse this year as the H-1B cap increase remains an hostage to the comprehensive immigration reform legislation which is anticipated to take quite a long time. It is hoped that one of the legislators introduces a separate H-1B cap adjustment bill as soon as possible.
• When situation is like this, people tend to encourage multiple employers to file multiple H-1B petitions for fear of potential denials of some of these petitions or for other reasons. As far as the involved individual alien is concerned, filing of multiple petitions by the multiple employers for an identical alien does not entail any penalty, even though there is a delicate rule involving student OPT filers. However, such behavior will hurt their colleages who will be desperate to share the limited H-1B annual cap numbers. We do not know the exact numbers, but there has been a report that some numbers have been unused and wasted. This reporter urges the immigrants not to abuse the H-1B cap numbers and help to return any unused numbers to the USCIS so that their colleagues do not suffer.

03/26/2006: Iraq War and Immigration Reform - Two Wild Cards in November 2006 Election Politics

• For the November 2006 election, currently there are only two wild cards which are on the table that the political leaders can play to win or lose their constituents, no matter whether they are conservatives, liberals, or middle of the roads. We just hope that these political leaders would not use immigration as a lamb to be sacrificed for the purpose of playing a card game. Literally, these two cards are very critical issues for the direction and destiny of this nation and the world, and the two wild cards deserve "equal" attention in the election politics and in no way one card should be manipulated and used for the purpose of minimizing importance of the other card in the election process. Immigration reform should be a legitimate issue which the nation's leaders should zealously pursue in good faith and not as a distractor from the other critically important issue the nation faces which should be continuously debated and discussed. Otherwise, the immigration reform will drag on as a lamb rather than be treated as a separate and critical and legitimate stand-alone national issue.
• Politics is an evil but a necessary evil for a human society, which people tend to hate but at the same time enjoy. Immigration reform politics should be watched in these contexts.

03/25/2006: Selective AAO Appeal Processing Times 03/23/2006

Form	Case Type	Processing Times
I-140 (EB-1A)	Extraordinary Worker	6 Mos
I-140 (EB-1B)	Outstanding Researcher	c
I-140 (EB-1C)	Multi-nat'l Exec/Mgr	c
I-140 (EB-2)	(D) NIW	c
I-140 (EB-3 & EW)	Skilled/Unskilled Worker	15 Mos
I-129 (H-1B)	Professional Worker	13 Mos
I-129 (L)	Intra-company Transfer	15 Mos
I-129 (H-2)(H-3)	Temporary Worker/Trainee	c
I-129 (O)	Extraordinary Worker	c
I-129 (P)	Artist/Athlete/Entertain	c
I-360 (R)	Religious Worker Imm	c
I-360 (VAWA)	Violence Against Woman	c

03/24/2006: Bush Meets Fox in Mexico March 30 and 31, 2006

• President Bush of the USA and President Fox of Mexico are scheduling to have a two-day Summit in Mexico and the pending immigration reform is expected to be the focus of the meeting between the two leaders. Currently the wind is blowing the other way against the comprehensive immigration reform legislation in this country and it appears to be the concensus of the media and public opinions that there is a slim chance that the comprehensive immigration reform legislation will be passed before the end of the year. Probably Bush intends to turn the wind around by scheduling a meeting with the Mexican President who can strongly influence the November election in this country and the Summit meeting can send a signal to those who must run in the coming election that the strong Hispanic community will remember all those opponents to the temporary guest worker program and earned adjustment of status program. We will see how this will play out in the Senate next week! For the news, read on.

03/24/2006: I-129 and I-140 Mailing Address vs. Processing Agency

• Filing Agency:
• I-129 Petitions and Related I-539: Vermont Service Center(VSC)
• I-140/EB-485/Ancillary Applications: Nebraska Service Center(NSC)
• Processing Agencies:
• I-129 Petitions and Related I-539: Vermont Service Center(VSC) and California Service Center(CSC)
• I-140/EB-485/Ancillary Applications: Nebraska Service Center(NSC) and Texas Service Center(TSC)

03/24/2006: Wow, USCIS Released Bi-Specialization and I-129/I-140 Filing Changes for Employers!

• USCIS has just released a notice that effective April 1, 2006, employer must file I-129 petition with the Vermont Service Center and I-140 Petition filed with the Nebraska Service Center. Any accompanying forms should also be filed at these centralized locations.
• After April 1, 206, the Vermont Service Center and California Service Center will process all I-129 petitions and related dependent applications. After April 1, 2006, all I-140 petitions and related I-485 applications will be processed by the Nebraska Service Center and Texas Service Center. USCIS however notes that the filing location for the form type is not necessarily the Service Center that will decide the case. USCIS will continue to process cases received before April 1, 2006 preexisting procedures.
• Filing with the incorrect ServiceCenters will not be rejected but accepted and redirected to the correct location and USCIS will honor the initial receipt date.
• For other details, please read on.

03/24/2006: USCIS Issues FY 2007 H-1B Filing Guideline Effective April 1, 2006

• Please note another announcement of USCIS today concerning the filing procedure changes!!!

03/24/2006: USCIS Requested OMB Approval on 03/24/2006 for Extension of TPS Designation for Nicaragua & Automatic Extension of EAD

03/24/2006: USCIS Requested OMB Approval on 03/23/2006 for Extension of TPS Designation for Honduras & Automatic Extension of EAD

03/24/2006: 15,000 I-140/I-485 Cases Under Transfer From CSC to TSC

• With reference to our report of this subject yesterdays, AILA reported today that USCIS HQ indicated that approximately 15,000 such cases are in the process of being transfered as part of the USCIS' preparation for the agency's "bi-specialization" program, whereby Service Centers will specialize in particular types of filings - two service centers handling all I-140 and related I-485 cases and the other two handling all I-129s. USCIS plans to issue an announcement detailing the bi-specialization program in the very near future. Please stay tuned.

03/24/2006: Controversy Surrounding Per Country Limit Provision in the Senate Immigration Reform Bills

• The per country limit provision in the Specter bill fumes the Indian and Chinese community. For the details of the issue, please visit http://www.immigrationvoice.org/media/immigrationvoice_memo_hard_country_quota.pdf.

03/23/2006: One Child Policy & Forced Sterilization in China and New Political Asylum Ruling, Interim Decision #3530 (BIA March 23, 2006)

• The immigration courts, Board of Immigration Appeals (BIA), and the federal courts have often granted asylum and permanent resident application where a Chinese woman estalished that she had fear of persecution in the form of forced sterilization because of the country's one child policy.
• However, the BIA handed down a new rule in In re C.C.-, 23 I&N Dec. 899 (BIA 2006), decided March 23, 2006, that an alien seeking to reopen removal proceedings based on a claim that the birth of a second child in the United States will result in the alien’s forced sterilization in China cannot establish prima facie eligibility for relief (political asylum) where the evidence submitted with the motion and the relevant country conditions reports do not indicate that Chinese nationals returning to that country with foreign-born children have been subjected to forced sterilization in the alien’s home province. It is an important decision and immigration court practitioner should read it.

03/23/2006: Bush Steps Forward to Influence Anticipated Vicious Duel in the Senate Monday

• Report indicates that Bush came forward today asking the Senators to maintain the civility in the immigration reform debate and to work on a broad immigration reform legislation including the temporary guest worker program. The country and the Senators are so divided on the immigration reform that it is very difficult to predict that any bill will pass the Senate quickly. We will closely monitor the debates. Please stay tuned.

03/23/2006: When Will the USCIS Disclose the Details of Its Transformation Program?

• In November 2005, GAO criticized the USCIS for the ineffective management and operation of the immigration benefits potentially causing the two serious problems: One was the security risk and the other was backlog elimination. The current structure of the four Service Centers was cited as one of the causes and the GAO recommended to streamline the operation into a single centralized structure in order to avoid the faults in security management and backlog elimination to meet the Bush's five-year 6-month processing time target date of September 30, 2007. The USCIS partially disagreed and in response to the criticism, it first made public for the first time the outline of the USCIS' ongoing transformation program which included, among others, electronic filing of the immigration benefits petitions and applications with the embedded biometric clearance requirement for filing, and restructuring of the current four Service Centers into two Centers. One Center appeared to Vermont Service Center with the current Nebraska Service Center under its command as the Satellite Center, and the other Center appeared to be California Service Center with the current Texas Service Center under its command as the Satellite Center (?). Accordingly beginning from the new year, the immigrant community has witnessed the swifting of files among Service Centers and the USCIS which also was pressing ahead the electronic filing program.
• Lately the EB-485 filers in Califonia Service Centers have received notices that their cases have been transferred to the Texas Service Center. Earlier the family-based I-130 petitioners had received a notice that their cases had been transferred to the Carlifornia Service Center. At this point, there is no official report about the details of ongoing streamlining of processing of immigration benefits and planned restructuring of the processing centers. The customers are concerned that the ongoing transformation may affect the processing of their cases, particularly the processing times, and we urge the USCIS leadership to release the details of its transformation program and its schedule of implementation. The last we heard was that the USCIS was targeting to complete the transformation program by the end of this fiscal year, September 30, 2006. We also urge the AILA to work with the USCIS HQ and give a guidance to the immigrant community and their constituents. Predictability of administration should be an important goal for the government service agencies.

03/22/2006: How to Read Codes in Biometric Appointment Notices from USCIS

• According to the USCIS, the codes in the Biometric Notices include the following:
• Code 1: Fingerprint only
• Code 2: Photos + Signature (No Fingerprints)
• Code 3: Fingerprints + Photos + Signature

03/21/2006: DOL Procedures to Request Duplicate Labor Certification (ETA 750 and ETA 9089): FAQ Round 8

• On March 20, 2006, DOL issued FAQ for guidance for request of duplicate labor certification application. The procedures are different between the old ETA 750 applications and the new PERM ETA 9089 applications. Read on.

03/21/2006: Service Centers March 20, 2006 Processing Times

• See homepage.

03/20/2006: Fierce Battle Brews Over Comprehensive Immigration Reform and Difficult Road Ahead

• Report indicates that the comprehensive immigration reform battles are getting growingly passionate over the illegal immigrant issues among the different political forces and some news agencies question whether the Congress will be able to pass such legislation before this year is over. The real battle is waiting in the House of Representatives and reportedly the restrictionist members of the House are organizing and mobilizing their forces to oppose any bills that will give any relief to the illegal aliens including the temporary guest worker program and the earned adjustment of status of the illegal aliens to permanent residents. There are some indications that some of the House members favor the Frist bill over the Specter bill in the Senate because of the illegal alien immigration issues. The Frist bill does not offer any relief for the illegal aliens and proposes to reinforce the border security and immigration enforcement. Meanwhile, the Specter bill proposes the temporary guest worker program and earned adjustment of status along with reinforcement of the border security and immigration enfocement.
• When it comes to the reform of legal immigration, particularly the employment-based immigration, there appears to be no noticeable battle among different political forces. Indeed the Frist bill and the Specter bill agree each other in almost every detail in the direction of the reform. However, the Chinese and Indian immigrant communities are currently battling with these bills over the provision that restricts use of the per country immigrant visa numbers for fear that such bill will not be able to relieve current employment-based visa number retrogressions for India and China regardless of increase of the overall employment-based immigrant visa quota, recapture of unused immigrant visa numbers, and other provisions that exempt several employment-based immigration related groups from the annual numerical limitation, including family members and certain advanced degree holders.
• It is our view that the direction of the employment-based immigration system reform should focus on removing the clogs to the pipeline that supplies the needed foreign workers at both high-end and low-end. The reality is that these foreign workers are supplied primarily by certain countries. The statistics reflect that most of the high-end professional workers come from India and China. Considering the fact that it is the sense of the Congress and the nation that this country needs continuing in-flow of foreign brains as reflected in the special provisions relating to the advanced degree foreign worker immigration, the per country limit in the employment-based immigration quota system will work against the achievement of these primary policy goals since it will create another clog to the supply of foreign brains from the primary sources of these brains. It is proposed that the Specter bill is amended to remove the per country limit and the Senate passes the comprehensive immigration reform bill without imposing per country limit in the visa number allocations. In formulating the nation's policy, the Congress cannot contradict itself in the same legislation.

03/19/2006: Frist Statement in Introducing Title IV, Backlog Reduction Part of His Bill

• The following is this reporter's edited Congressional Record on the Senator Frist's statement in introducing his bill on March 16, 2006:
• TITLE IV--BACKLOG REDUCTION AND VISAS FOR STUDENTS AND ALIENS WITH ADVANCED DEGREES
• Section 401. Elimination of Existing Backlogs: Section 401 reduces visa backlog waiting times by allowing the recapture of unused visa numbers and increases the number of employment-based green cards from 140,000 to 290,000. It also exempts immediate relatives of U.S. citizens from the 480,000 annual cap on family-based immigration.
• Section 402. Country Limits: Section 402 increases the per-country limits for family-sponsored and employment-based immigrants are from 7 % to 10 % (in the case of countries) and from 2 % to 5 % (in the case of dependent areas).
• Section 403. Allocation of Immigrant Visas: The current 480,000 ceiling on family-sponsored immigrants is redistributed among existing family preference categories. 10 % is allocated to the FB-1 preference--unmarried sons and daughters of U.S. citizens. 50% is allocated to the FB-2 preference--spouses and unmarried sons and daughters of lawful permanent residents, of which 77% of such visas will be allocated to spouses and minor children of lawful permanent residents. 10% is allocated to the FB-3 preference--married sons and daughters of U.S. citizens. 30% is allocated to the FB-4 preference--brothers and sisters of U.S. citizens. Section 403 also restructures visa number availability to provide additional visas for unskilled workers (who are limited to 5,000/year right now) and other categories where visas have not kept up with demand. The 290,000 ceiling for employment-based immigrant visas is redistributed among the employment-based immigrant visa categories and certain modifications are made to current categories. 15% is allocated to the EB-1 preference--aliens with extraordinary ability, outstanding professors and researchers, and multinational executives and managers. 15% is allocated to the EB-2 preference--aliens holding advanced degrees or having exceptional ability. 35% is allocated to the EB-3 preference--skilled workers and professionals. 5% is allocated to a re-designated EB-4 preference--investors. 30% is allocated to a re-designated EB-5 preference--other workers performing labor or services (previously included in EB-3 preference).
• Section 404. Relief for Minor Children: Section 404 amends the immediate relative category to allow the children of spouses and parents of U.S. citizens to obtain legal status and travel to the United States with their families. [Matthew Oh Comment: Currently these children can neither immigrate nor accompany their parents unless the parents file a separate preference petition under either FB-1 or FB-3, which are heavily backlogged. Consequently there is a long separation between the natural parents and the children.]
• Section 405. Student Visas: Section 405 extends foreign students' post-curricular Optional Practical Training (and F-1 status) to 24 months. It also creates a new ``F-4'' student visa for students pursuing an advanced degree candidates studying in the fields of math, engineering, technology or the physical sciences. The new visa would allow eligible students to either to return to their country of origin or remain in the United States for up to one year and seek employment in their relevant field of study. Once such a student received such an offer of employment, the individual would be allowed to adjust status to that of a legal permanent resident once the alien paid a $1,000 fee and completed necessary security clearances. 80% of this fee would be deposited into a fund for job training and scholarships for American workers, while 20% of the fee would go toward fraud prevention.
• Section 406. Visas for Individuals with Advanced Degrees: Section 406 exempts from the numerical cap on employment-based visas aliens with advanced degrees in science, technology, engineering, or math, and has worked in a related field in the U.S. during the 3 year period preceding their application for adjustment of status. [Matthew Oh Comment: This benefit appears to apply not only to the U.S. earned advanced degree holders but also to those advanced degree holders who earned the degrees in the foreign countries as well.] It also exempts immediate relatives of aliens who are admitted as employment-based immigrants from the numerical limitations of 203(b). [Matthew Oh Comment: Exemption from the numerical limitation of spouses and children of EB immigrants and exemption from the numberical limitation of advanced degree holders in science, technology, engineering and mathematics with 3-year employment in the U.S. would practically make a substantially large addtitional numbers available to the total EB immigration numbers beyond the total cap of 290,000.] Finally, it increases the available visas numbers for H-1B nonimmigrants and provides an exemption from the numerical limitation aliens who have earned advanced degrees in science, technology, engineering, or math. [Matthew Oh Comment: Currently those advanced degree holders who are benefitted from the different H-1B annual cap are limited to the U.S. earned advanced degree holders. Besides, they are still subject to a cap, albeit separate, of 20,000 annually. This provision appears to make totally H-1Bcap-exempt for those advanced degree holders in science, technology, engineering, or mathematics.] The H-1B numerical limitation is also supplemented with a flexible limitation that is set according to demand for foreign high-skilled workers.
  Section 407. Medical services in underserved areas: Section 407 permanently authorizes the current J-1 visa waiver program. Under this program, participating states are allocated 30 J-1 visa waivers, which enables them to waive the 2 year home residency requirement for medical students and physicians who serve in ``medically underserved areas'' upon completion of their J-l program. The program has been reauthorized twice before and is now set to expire on June 1, 2006.

 

03/18/2006: FY 2006 H-2B Cap Count Balance as of 03/13/2006: 11,399

• It appears that the FY 2006 H-2B cap number is running out fast. As of March 13, 2006, the USCIS estimated that there were 107,500 numbers available to reach a cap for FY 2006 with allowance for withdrawals, denials, and revocations, but the USCIS had already approved 83,814 cases and had additional 12,287 cases pending. As a result, they had only 11,399 numbers available to reach the cap of FY 2006 (until September 30, 2006). Accordingly, unless the Congress acts, the country is expected to face a crisis of essential worker shortage in both non-agricultural sector before September 30, 2006. For the details, please read the USCIS report. (For the link, see our homepage.)

03/18/2006: Visas Mantis Visa Securance Clearance Validity Period

• Currently different types and different natinalities enjoy different period of validity of Visas Mantis security clearance in the visa applications at the visa posts as follows:
• Nationals of state sponsors of terrorism who fall within the Visas Mantis requirement: Need a Visas Mantis SAO everytime they apply for a visa.
• All oher nationalities are generallty subject to the following rules (permissive but not mandatory) even though each consular officer has an authority to vary the practice in certain individual visa application:
• F Visa Students: Can receive a clearance valid for the length of the approved academic program to a maximum of 4 years. Once the student changes academic programs, the clerance will no longer be valid.
• H, J, and L Visa nonimmigrants: Can receive a clearance valid for the duration of their approved activity to a maximum of 2 years. If the nature of the activity changes, the clearance will no longer be valid.
• B-1 and B-2 Visitors: Can receive a clearance valid for 1 year, but once the purpose of the visit changes, the clearance will no longer be valid.
• For other details, please address your inquiry to the visa posts and the Department of State.

03/17/2006: USCIS Issued Sample H-2B Attestation Form for Cap-Exempt Returning H-2B Hiring Employer

03/17/2006: Frist Bill, Judiciary Committee Bill, and Temporary Guest Worker Program/Earned Adjustment Program

• Senator Frist Bill's bill excluded the controversial Temporary Guest Worker Program and Earned Adjustment of Status of Illegal Alien Program. Does it mean it is the end of these programs in the Senate? Nope! Frist's bill would go directly to the full Senate, but reportedly he said he would allow Senate Judiciary Committee Chairman Arlen Specter, R-Pa., to substitute a committee bill if Specter's panel can approve one by March 27. Otherwise, the majority leader will stick to a strict, two-week schedule to finish work on what he conceded would be "as challenging a bill as any we'll have to address this year." Senator Bill Frist certainly has dropped a bombshell, making his colleagues totally stunned, but there is a good chance that the Temporary Guest Worker Program and the Earned Adjustment Program eventually adopted by the Judiciary Committee on Monday, March 27, 2006 and the Committee's final compromise bill put on the center stage on the floor of the Senate.
• The good news is that for the gain of politics or not, the comprehensive immigration reform legislation may move fairly in good pace to some observer's surprise. Legal immigration and employment-based immigration reform are clinging on the edge of the politics involving on these two issues.

03/17/2006: Section-by-Section Summary by Bill Frist Himself

03/17/2006: Summary of Frist Bill Title IV: Backlog Reduction & Visas for Students, Medical Providers, and Aliens with Advanced Degrees:

Family-Sponsored Immigrants:

*Worldwide Level of Family-Sponsored Immigrants, equal to the sum of--
(1) 480,000;
(2) the difference between the maximum number of visas authorized to be issued under this subsection during the previous fiscal year and the number of visas issued during the previous fiscal year;
(3) the difference between--
`(A) the maximum number of visas authorized to be issued under this subsection during fiscal years 2001 through 2005 minus the number of visas issued under this subsection during those fiscal years; and
`(B) the number of visas calculated under subparagraph (A) that were issued after fiscal year 2005.'.

(b) Employment-Based Immigrants:

Worldwide Level of Employment-Based Immigrants,

(1) Equal to the sum of--

`(A) 290,000;
`(B) Recapture: the difference between the maximum number of visas authorized to be issued under this subsection during the previous fiscal year and the number of visas issued during the previous fiscal year; and
`(C) Recapture: the difference between--

`(i) the maximum number of visas authorized to be issued under this subsection during fiscal years 2001 through 2005 and the number of visa numbers issued under this subsection during those fiscal years; and
`(ii) the number of visas calculated under clause (i) that were issued after fiscal year 2005.

(2) Visas for Spouses and Children - Immigrant visas issued on or after October 1, 2004, to spouses and children of employment-based immigrants shall not be counted against the numerical limitation set forth in paragraph (1).

Country Limit: 10 % (in the case of a single foreign state) or 5 percent.

Allocation of Immigrant Visas:

Family-Based Preference System:

(1) FB-1: Unmarried Sons and Daughters of Citizens: 10% of of worldwide level
(2) FB-2: Spouses and Unmarried Sons and Daughters of Permanent Resident Aliens-

(A) In General- Visas in a quantity not to exceed 50 percent of such worldwide level plus any visas not required for the class specified in paragraph (1) shall be allocated to qualified immigrants who are--
(i) the spouses or children of an alien lawfully admitted for permanent residence; or
(ii) the unmarried sons or daughters of an alien lawfully admitted for permanent residence.
(B) Minimum Percentage- Visas allocated to individuals described in subparagraph (A)(i) shall constitute not less than 77 percent of the visas allocated under this paragraph.

(3) FB-3: Married Sons and Daughters of Citizens-

(A) 10 percent of such worldwide level; and
(B) any visas not required for the classes specified in paragraphs (1) and (2).

(4) Brothers and Sisters of Citizensh- Not to exceed 30 percent of the worldwide level.

Employment-Based Immigrants-

(1) EB-1: 15%

(2) EB-2: 15%

(3) EB-3 (Skilled Worker & Professional): 35%

(4) Other Workers (Unskilled Worker): not to exceed 30 % of such worldwide level, plus any visa numbers not required for the classes specified in paragraphs (1) through (4), to qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor that is not of a temporary or seasonal nature, for which qualified workers are determined to be unavailable in the United States

(5) EB-4 (formerly EB-5): 5%

Repeal of NACARA

Visas for Advanced Degree Holders:

(a) Aliens With Certain Advanced Degrees Not Subject to Numerical Limitations on Employment Based Immigrants-

Aliens who have earned an advanced degree in science, technology, engineering, or math and have been working in a related field in the United States under a nonimmigrant visa during the 3-year period preceding their application for an immigrant visa under section 203(b).
Aliens of EB-11 (Extraordinary Worker) and EB-12 (Outstanding Researcher)
Aliens who have received a national interest waiver under section 203(b)(2)(B).

(b) Spouse and minor children of an alien who is admitted as an employment-based immigrant under section 203(b) are not subject to numerical limitation.

(c) Effective date: The foregoing numerical limitation exemption provision will apply to any visa application--(1)pending on the date of the enactment of this Act; or (2) filed on or after such date of enactment.

 

H-1B Numbers: 115,000 in the first fiscal year beginning after the date of the enactment of this clause; and if the cap is reached during a given fiscal year, the numerical limitation under paragraph (1)(A)(ix) for the subsequent fiscal year shall be equal to 120 percent of the numerical limitation of the given fiscal year; and the cap is not reached during a given fiscal year, the numerical limitation under paragraph (1)(A)(ix) for the subsequent fiscal year shall be equal to the numerical limitation of the given fiscal year.'.

Effective date of H-1B annual cap change: Apply to any visa application--(1) pending on the date of the enactment of this Act; or (2) filed on or after such date of enactment.

International Medical Graduates' J-1 Waiver Program: Available permanently.

PACE Act Immigration Provisions Incorporated.

• For the additional summaries, please stay tuned to this website.

03/17/2006: Senate Majority Leader Bill Frist Introduced to the Senate His Bill Yesterday, 03/16/2006

• The Senator introduced his bill yesterday to the Senate bypassing the Senate Judiciary Committee. Surprisingly, this bill include more positive reform for the "legal" immigration, particularly "employment-based" immigration, indeed somewhat better than the Specter's Mark! We are in the process of analyzing part of the bill. As soon as this bill is analyzed, we will post the summary of EB-related provisions. Please stay tuned.

03/16/2006: Senate Judiciary Committee to Vote on March 27, 2006

• Report indicates that Chairman Spector decided today to markup vote session on Monday, March 27, 2006 as soon as they return from the one-week break. The key votes include earned adjustment of status for miliions of undocumented aliens and temporary guest worker program which are the two prime issues in the comprehensive immigration reform legislation. For the first issue, the Committee will vote between McCain-Kennedy version and Corny-Kyl version. Reportedly, Chairman Spector temporarily agreed to support the McCain-Kennedy version inasmuch as the proposal is changed to require aliens departure before they can apply for adjustment of status. For the temporary guest worker program, the members of the Committee decided to work out the details of compromise during the one-week break and will put the compromise to vote on March 27, 2006. It thus appears that the Judiciary Committee will be able to complete the comprehensive immigration reform packet on or immediately after March 27, 2006 and the full Senate may be able to start debating on the Committee proposals. It is uncertain whether Senator Frist will still bring his own bill to the full Senate, but reportedly, one the Committee completes the proposal before the end of the month, he would also agree to markup the Committee proposal in the agenda for the full Senate action for the two weeks or so.
• It is not too late for the people to contact Senators to push for the proposals which are supported by the immigrant community.

03/16/2006: More Scientific Backup of IPC Report

• We reported today Immigration Policy Center's report on the contribution of immigrant workers. One of the academic community researchers has sent us the attached scientific or mathematical backup for the IPC report. Those are familiar with the mathematical formulas may want to read this material. Read on.

03/16/2006: Senate Judiciary Committee Update - Promising News

• The news this afternoon indicates that the Committee was tentatively agreeing to the McCain-Kenndy proposal of earned adjustment of status to illegal aliens as well as the temporary guest worker program. Considering the fact that these two have been almost unsurmountable road block to the Committee's work, it is indeed a positive news. We have yet to learn more about the rest of the Specter's Mark, but the employment-based immigration reform has never been controversial and removal of these two mountaneous hurdle should clear way to resolution of the Committee differences fairly quickly. However, it is one thing that the Senate Judiciary Committee is leaning in favor of the immigrants and it is the other that the full Senate floor agree to the Judiciary Committee bill. People should keep contacting the Senators, not just the Committee members next week to make the favorable immigration reform into a reality. Please stay tuned to this web silte for the development. In the meantime, read the news.

03/16/2006: DOS Predicts Retrogression of Schedule A Visa (EX) Numbers in First Quarter of FY 2007 (10/01/06-12/31/06)

• AILA has reported that there remains 20,000 number for this FY 2006 and EX will remain current until September 30, 2006. However, the State Department intends to set a cut-off date for Schedule A visa category of EX in the first quarter of FY 2007. Retrogression will be no longer other immigrant categories' agony at the end of this year unless the Congress acts!!
• No one knows how steep the retrogression will be. Schedule A retrogression will result in three consequences, among others: (1) Those Schedule A waiting for 485 application decision will face delays in the green card application after the retrogression and until the visa number becomes available again. (2) Schedule A concurrent I-140 and I-485 filing will be not available during the period of retrogression. Only stand-alone I-140 petition will be available during the retrogression. (3) EB-3 will experience added pressure in terms of the available visa numbers.
• Those who are working on the Schedule A cases should accelerate the "concurent" filing such that at least they can take advantage of EAD and Advance Parole during the retrogression.
• Senator Brownback's amendment to the Specter Mark for the Comprehensive Immigration Reform bill to make Schedule A cases visa quota exempt immigration category becomes more important and allied healthcare industry should lobby hard to get this amendment passed at the Senate!

03/16/2006: Tension and Friction Building Between Senate Judiciary Committee and Senate Majority Leader, Bill Frist

• The Senate Judiciary Committee has been moving very slowly and there is a concern across the nation that the Committee may fail to work out its bill before the end of the week. Since the Senate will go into recess next week and the Senate majority leader is scheduled to bring his own immigration bill excluding all provisions other than border security on March 27, 2006, there has been building a tension between the majority leader and the bi-partisan members of the Senate Judiciary Committee for the arbitrary timeline imposed by the majority leader. There are so many stakes involved with the Senate Judiciary Committee bill other than the Temporary Guest Worker Program and the illegal alien relief plan, the immigrant community is "nervously" watching the Committee's activity today. This is particularly true with both legal immigrant and illegal immigrant communities. As for the legal immigration issues, the Committee has failed to produce any positive action other than the Brownback amendment for foreign medical doctors since they have been caught up with the border security, immigration enforcement, and related issues, hardly finding any concensus.
• Sen. Bill Frist is one of the presidential candidates on the Republican side and his push for his own immigration agenda is linked by many people to his political motives. But Frist denied any political motivation. His political action committee's Web page does have a link to a survey asking readers about border security and the president's guest worker plan, though.
• It is an irony that the immigrant community has to lobby against the early full floor mark-up of the comprehensive immigration reform legislation in the Senate. Should the Judiciary Committee fails to work out its bill this week, the immigrant community should work out a plan to block Bill Frist from setting agenda to mark up comprehensive immigration reform debate on March 27, 2006, the first day the Senate session after the next week's break. People should stage a massive campaign to contact the White House and other political leaders next week and to delay the comprehensive immigration reform legislation debate on the floor in the Senate and to urge Sen. Specter to extend the Judiciary's committee's mark-up for this legislative bill to the future dates, should the Committee fails to come up with a bill within this week.

03/16/2006: Immigration Policy Center Reports Foreign Workers Increased and Not Lowered Native-Born Workers Wages

• This study indicates that unlike the common misunderstanding of the public in this country, the foreign workers have contributed to the raise of the rate of wages for the native-born workers in this country. Read on.

03/15/2006: Possible Full Senate Debate Mark-Up Beginning From March 20, 2006 (Retracted)

• An unconfirmed sources of information has just released a report that the Sen. Bill Frist, Majority Leader is pushing a two-week full Senate floor debate beginning from March 20, 2006 rather than March 27, 2006. This report is indirectly supported by another news that the Senate Judiciary Committee is pressed to extend their additional mark-up on Friday, March 17 to finish up the Committee action before the end of the week.

03/15/2006: Senate Judiciary Committee Update: Additional Mark-Up Friday, 03/17/2006

• Senate Judiciary Committee is scheduled to pickup the Sen. Specter's Mark of the Comprehensive Immigration Reform bills today. Initially it was scheduled for two days, March 15 and March 16, but the AILA has just obtained the information that the Committee has tentatively extended the mark-up on March 17, Friday as well in order to finish up this business within this week. As we reported earlier, the Committee has been working on a tight schedule because of the pressure from Senator Frist, the Majority Leader of the Senate to start debate on the Comprehensive Immigration Reform in the Senate beginning from March 27, 2006.
• Now is the time for everyone to pickup the phone or send emails to the Senate Judiciary Committee members to urge them to support the bills. Otherwise it will be too late.

 

03/14/2006: E-Mail Problem For Ohlaw@Immigration-Law.Com

• Our website and office e-mail (ohlaw@immigration-law.com) are currently experiencing technical difficulty on the Server system. Those who have been sending e-mail to ohlaw@immigration-law.com will get a false message that it has been transmitted but our office is currently unable to retrieve from the Server these e-mails because the Server's (ISP) failure to forward the email to the client, ohlaw@immigration-law.com.
• Until we find the soltuions, we ask that people use our private e-mail addresses of matthewoh.attorney@gmail.com or matthewoh@hotmail.com. In the meantime, we ask our valuable visitors and readers to give us some help in finding options. We apologize for the inconvenience this may cause you.

03/13/2006: Senate Judiciary Committee Update

• Report indicates that there were nearly 30 amendments introduced for the Specter's comprehensive immigration reform mark and by the end of Friday, March 10, 2006, the Committee adopted a dozen of them. The Committee is scheduled to act on the rest of the amendments on Wednesday (March 15) and Thursday (March 16) this week. The Senate Judiciary is scheduled to act on the Specter mark by March 24, 2006 and the Majority Leader Bill Frist plans the debates on the bill in the Senate beginning from March 27, 2006.
• For the summary of the amendments that were adopted last week, please click here. We will report the details of each amendment as soon as they become available.

03/12/2006: FY 2007 Cap H-1B Filing Beginning From 04/01/2006 and Plea to the U.S. Earned Applicants

• Beginning from April 1, 2006, the USCIS will start accepting and processing FY 2007 H-1B cap petitions, which ,once approved, will become effective on October 1, 2006. The cap number will include 65,000 annual number plus 20,000 U.S. earned advanced degree holders. At this point, it is not clear whether the USCIS will process the special 20,000 cap cases only through one of the designated Service Centers, but the USCIS may process these cases just the way all other H-1B petitions are being accepted and processed, unless it announces a new policy in the next two weeks. Accordingly, the U.S. earned advanced degree holders may have to file their H-1B petitions with the Service Center that has jurisdiction over their job site and not Vermont Service Center. It can change, though. Please stay tuned.
• The existing legislation and the proposed legislation in the Congress tend to give preference to the U.S. advance degree holders over the Bachelor degree holders or foreign advanced degree holders. This reporter thus urges the U.S. advanced degree holders to extend their compatriot passion to the less privileged H-1B professionals by assuring that they use 20,000 special numbers rather than the regular 65,000 cap numbers. The U.S. advanced degree holders do not necessarily have to use 20,000 numbers if they do not disclose their U.S. advanced degree. This is true because for the purpose of H-1B petitions, except a few occupations, the threshold requirement is a "Bachelor's or Equivalent" education in the specialty. When they complete H-1B Data Collection form, they should thus make it clear that they are eligible for 20,000 special numbers by clearly completing the items that are related to the U.S. Institutions where they earned an advanced degree. By doing so, they can help more of 65,000 numbers made available to the Bachelor's degree applicants or foreign advanced degree holder applicants. Unlike the cap exempt cases such as the employees of the Higher Learning Institutions or related research institutions or certain J-1 Waiver International Medical Graduates, the other U.S. earned advanced degree holders will not be disadvantaged in any way for their future H-1B extensions or change of employer. In the cap exempt cases, they cannot change employment from the cap exempt employer to the non-cap exempt employer unless the H-1B annual cap number is available. This is not true with the U.S. advanced degree holders who use the special 20,000 cap numbers.
• You are all navigating a difficult journey named "immigration," no matter what kind of different ship each of you sails. It will be nice if each of you will give a moment of thought as to how you can help your colleages without yourself being affected.

03/12/2006: Comprehensive Immigration Reform: EB-2 vs. EB-3: Time to Consider Filing of Concurrent EB-2 and EB-3 I-140 Petitions?

• All of the comprehensive immigration reform bills in the Senate except the border security bills propose to increase the annual EB-3 numbers substantially. On the other hand, these bills propose to reduce annual allocation for EB-2 in terms of the percentage. When combining EB-3 for skilled workers/professionals with EB-3EW for unskilled workers, the combined EB-3 will run as high as 60% plus and minus. Besides, should Sen. Brownback amendment be legislated into law, a large number of nurses/physical therapists will be taken out of the burden in the EB-3 visa numbers. In the BECs, there still remain a huge number of mostly EB-3 cases including unskilled workers which will take out the immigrant visa numbers in the future, probably before the summer of year 2008. Still, 60+ of the total "increased" employment-based immigrant visa numbers must add upto a large number. Contrary to this trend, a large number of cases are filed in the EB-2 category these days. Considering the fact that EB-2 numbers may be reduced or maintain at the current level at best, EB-2 visa numbers may increasingly face the pressure.
• We hope that the history will not repeat itself. In the 1990s, there was a time when the EB-2 numbers were more oversubscribed than EB-3 for China. One may wonder whether it is time for the EB immigrants who attain the EB-2 labor certification to consider filing of EB-2 and EB-3 I-140 petitions concurrently or sequentially against the situation which reveal worse oversubscription of EB-2 over EB-3, particularly P.R. China. EB-2 labor certification is eligible for both EB-2 I-140 petition and EB-3 I-140 petition. It is a matter of paying additional $195 filing fees. Something to think about.

03/11/2006: Will Nurses and Physical Therapists be Exempted from Employment-Based/Per Country Immigrant Visa Limit?

• Senator Brownback also introduced an amendment to exempt the nurses and physical therapists from annual employment-based and per country immigrant visa number cap. However, unlike the IMG J-1 waiver program, Senator Brownback was not that successful in obtaining a full support from the Committee and this amendment had been deferred twice. We hope that the Committee adopts this amendment as well. Please stay tuned.

03/11/2006: Sen. Sam Brownback (KS) Upbeat About Passage of IMG J-1 Waiver Program Permanent

• As we reported earlier, the Senate Judiciary Committee amended the Sen. Specter's Comprehensive Immigration Reform bill making the IMG J-1 Waiver Program permanent. This amendment was sponsored by Senator Sam Brownback from Kansas State (R). According to the Senator, the Congress established the J-1 visa waiver program in 1994. Under this program, participating states were allocated 20 J-1 visa waivers. The program was reauthorized in the 107th as well as the108th Congress, at which point the annual number of waivers was increased to 30. The program is now set to expire on June 1, 2006. The passage of Senator Brownback’s amendment, however, will permanently authorize the program. “This program has a positive impact on participating states, especially those with great numbers of citizens living in rural areas,” continued Brownback. “Since its inception in 1994, not a single state has terminated its participation in the program; currently, all 50 states participate, which speaks to the program’s ability to assist state health departments in meeting the need of their most underserved patients.” Read on.

03/11/2006: USCIS Local District Offices Processing Times March 10, 2006

• Please see homepage.

03/10/2006: GAO Study and Recommendation on Immigration Benefits Frauds

• On March 10, 2006, the GAO submitted its study on the immigration frauds to the House Judiciary Subcommittee. This report includes recommendation to reinforce the USCIS control mechanisms to cope with the ongoing immigration frauds. According to the report, in FY 2005, the USCIS detected frauds and denied 20,000 cases. The investigation learned approximately over 35% of religious worker petitions in 2004 were potentially fraudulent. The next immigration benefits which were highly fraudulent were EAD (Employment Authorization Documents) which were required to be issued within 90 days of I-765 application filings. The report indicates that frauds include filing of frivolous applications to obtain the EAD which also gave the benefits of driver license applications.
• The new Director of USCIS, Dr. Emilio Gonzalez, expressed his disagreement with the GAO study in the news releases and its March 2006 monthly newsletter "Today." He defended that the USCIS had developed sufficient system to expand its services to upcoming Temporary Guest Worker program without being loaded with fraudulent applications. Currently, there is a small "see-saw" contest between the GAO and the USCIS. This GAO report of approximately 50 pages may be a good reading material for some of our readers who are curious about how the agency handles the fraud investigations and how the current system operates. For the full report, please click here.

03/10/2006: State Department Changes Rules on Earliest Issuance/Admission Dates for F,M, and J Visas

• The U.S. Department of State has changed the rule as to how early a student can obtain the visas or can be admitted to the U.S. before the program starts, and issued a cable to the visa posts to implement this new policy. The students in F, M, and J visa status should be aware of this change. The changed rules are as follows:
• As one of the elements of the recently anounced Rice-Chertoff Joint Vision, persons applying for initial-entry F-1, F-2 and M-1 and M2 visas may now be issued these visas up to 120 days before the proram start date as listed on their I-20s.
• These changes apply only to initial-entry students. Continuing students may apply for new F or M visas at any time, as long as they have been maintaining student status and their SEVIS records are current. Continuing students may also enter the U.S. at any time before their classes start.
• For the Exchange Visitors (J), officers may issue J-1 and J-2 visas at any time before the beginning of their programs.
• For the full text of the diplomatic cable, please click here.
  

03/10/2006: April 2006 Visa Bulletin

• EB-1 and EB-2 moved substantially, but EB-3 remain at more or less standstill to our great disappointment.
• For Family Preferences, POTENTIAL RETROGRESSON OF SEVERAL FAMILY PREFERENCE CUT-OFF DATES FOR MAY - A dramatic increase in the amount of demand being received from Citizenship and Immigration Services offices for adjustment of status cases makes it likely that the following cut-off dates will retrogress for May:
• Mexico: 1st, F2B and 3rd
  Philippines: 3rd

03/10/2006: AILA Reports of Some Headway of Senate Judiciary Commttee Immigration Reform Legislation

• As we reported earlier, the Senate Judiciary Committee started debating the Senator Specter's mark beginning from March 8, 2006. However, for the last two days, the debates did not produce any roll calls and votes. However, AILA reports that the Committee started showing some headway today taking votes on some amendments presented by the Committee members. However, most of the debates currently focus on the border security and enforcement which are the Title I and Tile II of the bill and the employment-based immigration bills have yet to be reached.
• However, the report indicates that the Judiciary Committee is working on a tight schedule as the Senate Majority leader Bill Frist reportedly threatened that unless the Committee completes the Comprehensive Immigration Reform bill by March 27, 2006, he would bypass the Senate Judiciary Committee and attempt to have his own Comprehensive Immigration Reform bill totally focusing on the border security and enforcement issues only passed by the full Senate. It is thus critically important that the Judiciary Committee passes the bill in one form or another by March 27, 2006. Please stay tuned to this website for the breath-taking development.

03/10/2006: Senate Judiciary Committee Adopted Removal of Sunset for J-1 Waiver Profram for Foreign Medical Doctors

• Report indicates that today the Senate Judiciary Committe adopted the amendment presented by Sen. Brownback to strike the curren sunset provision of J-1 waver program for the foreign doctors as part of the Comprehensive Immigration Reform bill. It means that once the part of the bill passes the full Senate and the House of Representatives, the foreign medical doctors would be able to obtain J-1 waiver once they are qualified without the fear of the statutory sunset of J-1 program for the foreign medical doctors.

03/10/2006: DHS Inspector General Reports Vulnerabilities and Potential Abuses of L-1Visa Program

• The Inspector General reported in January 2006 that the L-1 visa program was vulnerable to abuses. This report is expected to affect the adjudication of L-1 visa petitions by the Service Centers. For the report, please click here.

03/10/2006: Top 5 Approved L-1B and L-1A Source Countries in FY 2005

• Top Five Approved L-1B Petition Source Countries

• India	48%
  Canada	15%
  UK	5%
  Japan	4%
  Germany	3%

• Top Five Approved L-1A Petition Source Counties

• Canada	17%
  India	11%
  UK	11%
  Japan	5%
  Mexico	4%

03/10/2006: EOIR Initiates Automated Telephone Case Status Check System

• The Executive Office for Immigration Review (EOIR) maintains an electronic phone system to provide EOIR's customers with ready access to immigration court information in English and Spanish. Users can dial (703) 305-1662 or 1-800-898-7180, toll-free, to obtain case status information 24 hours a day, 7 days a week.
• To access case information, callers must use the alien registration number, also known as the “A” number, which begins with the letter “A” and is followed by an 8-digit number, or in some newer cases, a 9-digit number. This number is printed on all Department of Homeland Security and EOIR correspondence. After entering the automated phone system, when directed by the voice prompt, simply enter the 8 digits (but not the “A”) to retrieve case information. For newer 9-digit numbers, only enter the last 8 digits to access case information.
• After the “A” number has been entered correctly, the automated system provides the following information:
  • Next hearing date, time, and location;
  • Elapsed time and status of the clock for asylum cases;
  • Board of Immigration Appeals (BIA) case appeal information, including appeal due date, brief due date, date forwarded to the BIA, BIA decision, and decision date;
    General filing information.
• For the details, contact EOIR.
  

03/10/2006: Latest Immigration Statistics as Published on January 27, 2006

03/10/2006: USCIS March 2006 Newsletter "Today"

03/09/2006: Comprehensive Immigration Reform Legislation Update

• According to the report, the Judiciary Committee met on the immigration bill yesterday, but had trouble doing much business because there were rarely enough senators present to hold a vote. The Committee will meet again.
  

03/09/2006: Serious Flaw of 45-day Validity of Labor Certification under Proposed Substitution Elimination Rule

• The DOL's proposed substitution elimination rule with the comment period ending on April 4, 2006 has a number of flaws which many stakeholder parties will address to the agency in writing before the deadline. Here, we want to address just one of these flaws related to the provision which will limit the validity of the certified labor certification application to 45 days from the date of certification. As the agency would admit it, the National Processing Centers and Backlog Processing Centers have failed to timely mail out the certified labor certification applications in a number of cases both in the PERM applications and the Backlog applications. There have been some reports by the legal counsels and employers that in the case of PERM applications, after they learned that the cases had been certified online, they failed to receive the certified applications even way over a month! There have been similar reports for the Backlog cases in that the employers and the counsels have received the certified applications a substantial number of days behind the date of certification. No matter how meticulously the agency processes the mailing of the certification, without doubt, there will be some cases of delay in mailing of the certified applications. This will be particularly serious in the PERM applications that require signature of the alien applicants on the original certified application before the employers can file I-140 petition. Sometimes, employers file the PERM applications for the alien beneficiaries who reside outside of the United States or who reside in the United States but travel at the time of receipt of the certified applications after delays in the agency's mailing. In a number of cases, depending on the extent of the agency's delays in the mailing, it would be impossible to timely obtain the signatures from the aliens residing or travelling abroad within 45days from " the date of certification."
• Obviously, this provision is a product of either oversight or failure to work out a rule after a well thought-out analysis and review. Firstly, the 45-day should not run until the certification is mailed out by the agency as proven by a post-mark on the envelope or until the certification is received by the legal counsel or the employer. Secondly, in some instances, the 45-day clock should not run or an extended period should be provided to make this policy work. For instance, for the aliens residing or travelling in foreign countries, depending on the itinerary of the aliens, delivery of the certified PERM applications on such a short notice may not work at all. Additionally, there would be situations where the alien is in an emergency situation such as surgery or in coma or other emergencies. The proposed regulation is unreasonably and unnecessarily rigid on this issue and fails to accomodate certain exceptional circumstances that need a special rule on the running of 45 days. The DOL is urged to change the start date of 45-day validity from certification date to either mailing date or receipt date, and more importantly, to provide exceptional circumstances and rules where a different rule should prevail in counting 45 days.

03/08/2006: Full Senate Judiciary Committee at 09:30 a.m. Today Scheduled to Consider Pending Immigration Reform Legislation.

• The U.S. Senate Judiciary Committee is scheduled to meet at 9:30 a.m. Est to continue detabe on the Comprehensive Immigration Reform Legislation. There are currently several bills pending before the Committee but the detabe has been proceeded primarily based on the Chairman Arlen Specter's markup which we reported earlier. Please stay tuned.

03/08/2006: USCIS Implements 2006 New Poverty Guideline of HHS Effective March 1, 2006

03/07/2006: March 7, 2006 Service Centers Processing Times

• See homepage.

03/04/2006: Interesting Consular Visa Denial Statistics by Type of Grounds in FY 2005

• The State Department's FY 2005 statistics on denial of immigrant and nonimmigrant visa by the types of ground should shed some light on the types of issues which the immigrant visa and nonimmigrant visa applicants should focus when they apply for the visas. We will review these statistics separately between immigrant visa and nonimmigrant visa for only top five or six types.
• Nonimmigrant Visa Denials

  • Grounds	Denied	Charged but Overcome
    Immigrant Intent	1,484,342	28,919
    Insufficient Documents	456,732	399,101
    Misrepresentation	6,885	742
    3/10 Year Bar	4,465	302
    Moral Turpitude Crime	4,277	2,373

  • These statistics reflect that most of the visa denial decisions were made based on the applicants' immigrant intent and insufficient documentation or evidence submitted. It also tells that the denials on immigrant intent, crime issues, and 3-year or 10-yar bar are very difficult to overcome, while the denial on insufficient evident can fairly be overcome by submitting additional evidence.
• Immigrant Visa Denials

  • Grounds	Denials	Charged but Overcome
    Insufficient Documents	270,590	156,433
    Labor Certification	11,717	214
    Public Charge	9,559	13,665
    3/10 Year Bar	6,747	1,973
    Misrepresentation	3,626	565
    Poligamy	21	10,001

  • These statistics refect that most of the immigrant visa applications were denied on insufficient evidence submitted and a large number of cases with these problems could overcome the problem by submitting additional evidence. It also reflects that family-based applications were denied on affidavit of support issue, while in the employment-based applications, the immigrant visas were denied because of the problem in the labor certification applications. It is very interesting that only 21 immigrant visas were denied on poligamy, but a large number of applications were approved despite such issue was raised by the consular officers. This issue is more or less related to the cultural factor.
  • For the details, read on.

03/04/2006: Approaching Deadline of Comment Period for Labor Substitution Elimination Proposed Rule

• This controversial rule-making of the U.S. Department of Labor has a deadline for the agency to take in comments. It is April 4 which is a month away from today. We expect that various stakeholder entities and individuals are expected to send in the comments before the deadline. Currently, AILA is working on its comments focusing on the following five issues:
  • Absolute prohibition against substituting aliens on labor certifications;
  • Limitation on validity period of the labor certification to only 45-days;
  • Interference with the attorney/client relationship in prohibiting the alien from paying attorneys fees and other expenses for the labor certification application;
  • Imposition of new penalties and standards for penalizing suspected fraud;
  • Prohibition against amending PERM applications.
• The comment is a political process that arouses both pro and con immigration forces to tip the policy decision of an agency toward their interests. Accordingly, anti-immigrant forces tend to send in their strongly worded but articulated view on the rule-making. In this case, they are expected to send in their comments in support of the proposed rule. Without doubt a number of immigration stakeholder groups will participate in sending in comments to the agency, but it is urged that public and private organizations and community entities also participate in the rule-making process and send in their comments before the deadline. Short list of comments will shorten the final rule making process and long list of comments will stretch out the final rule making process as the law mandates that the rule-making agency carefully reviews and reflects the views of the constituents pro and con in drawing up the final regulation.
  

03/03/2006: Deeply Divided Senate Judiciary Committee on Illegal Immigrant Relief

• Report indicates that the Senate Judiciary is deeply divided and the emotions of the Senators are very high in the debate of the Comprehensive Immigration Reform legislation. The debate is primarily focused on the issue of relief of 11 million undocumented aliens, and there appears to be no sign of concensus on the immigration reform legislation when it comes to this part of the comprehensive immigration reform. Thus the fate of this legislation appears to depend on the dice thrown on the two issues: Temporary Guest Worker Program and Relief of Undocumentated Aliens in the form of "earned" adjustment of status. As November mid-term national elections are approaching inching away, the debate on these issues is expected to swirl into a violent political thunderstorm and confusion before the nation sees any light at the end of the tunnel on the comprehensive immigration reform legislation. Read on for the update on the Judiciary debate.

03/02/2006: New Dawn and Opening of New Chapter for Immigration Reform in the Country Today

• A new chapter is about to open today in the American immigration history as the Senate Judiciary begin to debate the immigration reform. As the overture of the dawn of the new era in the immigration in this country, various stakeholders in the issue have been charging their batteries, including the Governors, city government leaders, business leaders, immigration interest organizations including AILA, to push forward the immigration reform. It is expected that the constituents of the political process will be highly energized to push their agenda, pro or con.
• As the Senate Judiciary initiates this process beginning from today, this website will closely monitor the breath-taking changes in courses and stream of policy making process and dynamics of the political process involved in the immigration reform. Please stay tuned to this website for the development of the comprehensive immigration reform legislation.

03/01/2006: Western State Governors Adopted 2006 Policy Strongly Supporting Employment-Based Immigration Reform

• Yesterday, we reported two governors' recommendation on immigration reform presented to the Western State Governors' Association meeting in 2006. This recommendation was officially adopted by the Governors conference, strongly demanding to increase employment-based immigration quota, reduce backlogs in employment-based immigration, increasing H-1B and H-2B visa numbers, adopt special procedure of immigration for the advanced education foreign workers, and pass temporary guest worker program, etc. For the full text, please click here.

02/28/2006: Unavailable "Certified" Labor Certification, USCIS Duplicate Request, and Concurrent I-140/I-485 Filing

• AILA has reported that the USCIS has agreed to request duplicate certified labor certification from the DOL and process I-140 petitions inasmuch as the filers take certain steps. One important caveat is that when one files with the request to USCIS to request duplicate certified applications, USCIS will not accept concurrent I-140/I-485 applications.

02/28/2006: Western State Governors to Support Comprehensive Immigration Reform

• Report indicates that more and more state governors come forward to urge support of Comprehensive Immigration Reform. It appears that this is particularly noticeable in the western states. There has been Governors conference for the last few days and reportedly the Utah Governor Jon Huntsman Jr. and Arizona Governor Janet Napolitano asked Western governors to:
  * Oppose blanket amnesty to all undocumented workers and support "appropriate sanctions" for those breaking the law.
  * Urge Congress to avoid creating incentives for more illegal immigration by "creating unnecessary hurdles and lengthy delays" for those wishing to immigrate legally.
  * Call for full funding for law enforcement and security along the southern U.S. border, enforcement using "cutting-edge" technology, better coordination with law enforcement agents and construction of a federal correctional facility to house illegal immigrants convicted in state courts as well as reimbursement to states for incarcerating illegal immigrants.
  * Request full funding for processing employment-based visas; eliminating visa-request backlogs and increasing the number of visas to meet U.S. industry needs, especially in high-tech, bio-tech and seasonal-based industries.
  * Establish a guest worker program that will include background checks to help supply workers where there are shortages.
  * Enforce sanctions against employers for hiring illegal immigrants along with a system for employers to verify citizenship and worker status. Read on.

02/24/2006: Sen. Arlen Specter's "Comprehensive Immigration Reform Act of 2006" Draft

• AILA has obtained and summarized the draft of Senator Specter's draft of Comprehensive Immigration Reform Act of 2006, which will be introduced in the Senate Judiciary shortly (March 2, 2006). This is basically a Republican bill that put together various pending bills with some adjustments, such as the PACE Act, McCain-Kennedy bill, and other Comprehensive Immigration Reform bills. We are happy to report that when it comes to the employment-based immigration, this bill incorporates the following key elements:
  • Recapture of employment-based immigration visa numbers since FY 2001
  • Exempt from the employment-based numerical limitation of the spouses and children of the EB immigrants
  • Exempt from the employment-based numerical limitation for (1) the advanced degree holders in Science, Technology, Engineering, or Mathematics with 3 years of work experience in the major fields in the U.S., or (2) National Interest Waiver EB-2. (For comparison with other bills, please revisit our summary report on 08/18/2005 in the Breaking News Archive.
  • Increase of employment-based immigrant quota from 140,000 to 290,000 with the allocations in EB-1=15%, EB-2=15%, EB-3 Skilled Worker/Professional=35%, Other Worker (Unskilled)=Upto 30%, and EB-4 Investor Immigrant=5%.
  • Special green card eligibility for the U.S. Doctorate Degree holders under the new F-4 visa program in Mathematics, Engineering, Technology or Physical Sciences with full full-time employment
  • Increase of H-1B annual quota from 65,000 to 115,000 or a market-based increase beyond 115,000
  • H-1B cap exempt for those advanced degree holders in the fields of Science, Technology, Engineering or Mathematics (not limited to the U.S. degree holders)
  • New F-4 visa for those pursuing advanced degree program in Mathematics, Engineering, Technology or Physical Sciences with the accompanying benefits of "intending immigrant" in certain cases, special handling labor certification application for immigration, and for the doctoral degree holders in the U.S., green-card eligibility
  • OPT period change for all the F-1 students from the current 12 months to 24 months and off-campus employment opportunity unrelated to the filed of study on or off academic terms under certain conditions.
• Unfortunately, the Senator dropped from S. 1932 the provision on availability of I-485 filings for employment-based immigrants during the period of retrogression. We urge the Senator to reinstate this provision in the final draft of his bill before it is introduced to the Senate Judiciary Committee. Community leaders, please urgently contact the Senator's office to urge him to reinstate this provision.
• For the details, we will continue the analysis in our Advanced Q&A. Readers may send in the email inquiry on this legislative bill. For the background news report on this bill, please click here.

02/23/2006: DOL Released FAQ Round 7

02/23/2006: DOL Released FAQ Round 6

02/23/2006: February 22, 2006 Service Centers Processing Time

• See homepage.

02/23/2006: USCIS Announces TPS Extension for El Salvador, Honduras, and Nicaragua

02/22/2006: HHS 2006 Poverty Guidelines

• This guideline was released on 01/24/2006, but it is not applicable to immigration and visa affidavit of support until USCIS issues it as its guideline.

02/20/2006: PERM System Still Down Making People Nervous and Concerned

• The PERM website was scheduled to be down from the evening of Friday, 02/17/2006, till the evening of Saturday, 02/18/2006. Indeed, the PERM started working beginning from Satuday evening, but it lasted only for a short period of time. The PERM online filing and checking system has since been down and no one could file any new cases nor can anyone check the status of their cases. There was unconfirmed report that some of the files at the Backlog Centers had been lost, turning some of the immigration practitioners very concerned as no one knew who would suffer if the information was true. Now, the problem with the PERM system understandably turns some people into a state of paranoia with a question as to what would happen if some of the data and information are lost in so-called "maintenance" work. Today was indeed a dark black-hole day in the labor certification system.

02/17/2006: Senate Judiciary to Table Comprehensive Immigration Reform Bill

• In yesterday's Executive Business Meeting, the Senate Judiciary marked up the Comprehensive Immigration Reform bill. Please stay tuned to this website for the details of the calendar.

02/17/2006: Curious George Wonders What Menu DOL Is Scheduled to Cook This Weekend!

• Please stay tuned.

02/16/2006: USCIS Local District Offices Processing Times of February 15, 2006

• See homepage.

02/16/2006: GAO Recommends Sharing of Alien Social Security Data Among SSA-IRS-DHS to Prevent and Detect Illegal Employment

• Today, the Government Accounting Office (GAO) testified before the Congressional Committee with a recommendation to better coordinate and share the Social Security data among Social Security Administration, IRS, and the Homeland Security in order to prevent illegal employment of aliens.
• According to the testimony, Congress asked GAO to discuss how federal agencies can better share reported earnings data to identify unauthorized work. Specifically, this testimony addresses two issues: (1) the Social Security data that could help identify unauthorized employment and (2) coordination among certain federal agencies to improve the accuracy and usefulness of such data.
• The Social Security Administration (SSA) has two types of data that could be useful to reducing unauthorized work--individual Social Security records and earnings reports. Individual Social Security records, which include name, date of birth, and SSN, are used by SSA to provide verification services to employers wishing to assure themselves that the names and SSNs of their workers match SSA's records. SSA also uses Social Security records in a work authorization verification system developed by DHS called the Basic Pilot that offers electronic verification of worker status. These services are voluntary, and none are widely used by employers. SSA's earnings records provide additional information, which could be used as an enforcement tool to identify unauthorized work. Currently, SSA uses such records to produce two relevant files based on earnings records, which are the Nonwork Alien File and the Earnings Suspense File (ESF). The Nonwork Alien File contains earnings information posted to SSNs issued for nonwork purposes, suggesting that these individuals are working without authorization. The ESF contains earnings reports for which SSA is unable to match the name and SSN of the worker, suggesting employer error, SSN misuse, or unauthorized work activity. In addition, we have reported that the ESF, which contained roughly 250 million records as of December 2004, appears to include an increasing number of records associated with probable unauthorized work, but because of statutory constraints, the ESF is not available to DHS as an enforcement tool. Improving the usefulness of SSA data could help identify unauthorized work and ensure that limited enforcement resources are targeted effectively. Ensuring that the most useful data are available requires close coordination among the three federal agencies involved in collecting and using the data--SSA, the Internal Revenue Service (IRS), and DHS. We have previously recommended that IRS work with DHS and SSA as it considers strengthening its employer wage reporting regulations, as such action could improve the accuracy of reported wage data, and that DHS, with SSA, determine how best to use such wage data to identify potential illegal work activity. Efforts to improve data will only make a difference, however, if agencies work together to improve employer reporting and ensure they can conduct effective worksite enforcement programs.
• For the details, please read the full text.

02/16/2006: DOL Website to Go Down from 7:00 p.m. Tomorrow to 8:00 p.m. Saturday

• DOL has announced that its website including PERM filing and H-1B labor condition application filing system will go down on Friday, 02/17/2006, 7:00 p.m. EST, to Saturday 02/18/2006, 8:00 p.m. EST. Those who face deadline for prevailing wage determination or H-1B labor condition application or PERM application during the one-day period should file before 7:00 p.m. tomorrow, which is 4:00 p.m. in Pacific Standard Time.

02/15/2006: DOL Target Date of Backlog Elimination - September 30, 2007

• The DOL has released the information that it will eliminate all the backlog cases by September 30, 2007. It is 18 months away. It means that over 360,000 cases will be decided within the next 18 months, opening a flood gate to the USCIS within that period of time. This will certainly affect the visa movement.

02/15/2006: USCIS Revised Adjudicators' Field Manual on Schedule A Labor Certification Cases Effective 02/14/2006

• The Adjudicators' Filed Manual has been revised to give a guidance on the procedure and documentation for filing of Schedule A I-140 petitions "Before" and "After" March 28, 2005 labor certification system change. Read on.

02/14/2006: Last Minute Substitution of Labor Certification and Two Caveats on USCIS Policy Changes

• Ever since the news was reported that the substitutions would be eliminated in the near future, there appears to be a frenzy (?) of filing of the substitution I-140 petitions. However, those who consider change of employment to seize the opportunity of the substitution through the new employers should realize that there are two big risks involved in hastily jumping into an action. One involves the issue of the employer's financial ability to pay the proffered wage at the time of filing of the labor certification application and at the time of filing of substitution I-140 petition. Most of the substitution labor certification were filed years back with the old priority date. At the time the country experienced a serious down-turn of the economy and the businesses struggled to survive. Consequently, there may be a large number of businesses who filed the labor certification applications with a financial record that did not meet the financial ability to pay the proffered wage standards. Additionally, over the years, USCIS has hardened its stance on this requirement and more or less ruthlessly and strictly and narrowly applied the requirement. As a consequence, most of the cases of I-140 denials for the past two years involved the employer's inability to meet this standard. When one files a substitution I-140 petition, the employer will have to establish its financial eligibility from all the way back until the time of I-140 petition. Unlike other information, the financial picture of a corporation is a top business secret and not accessible by the alien employees. The second risk involves the USCIS change of interpretation of EB-2 and EB-3 statutory requirements, particularly the "education" requirement in the labor certification applications. In old days, the legacy INS adopted more or less flexible policies or interpretation. Consequently, when the legal counsels for the employers drafted the labor certification applications, they followed the rules and policies of the time. Unfortunately, since then the USCIS, including AAO, has adopted a restrictive and narrower interpretation of the requirements, posing a serious challenge to the eligibility of the I-140 petition for the original alien beneficiaries after years of struggle to obtain the labor certification applications from the Backlog Elimination Centers. Accordingly, some of the labor certification applicants who filed the application in early years have lately faced denial of I-140 petitions because of the changes in the USCIS interpretation and policies over the years which no one could anticipate at the time of the labor certification application. By now, everyone knows what these issues are: (1) Definition of "equivalent" in education requirement; (2) Definition of "Bachelor's Degree"; (3) Definition of "Master's Degree"; Definition of "Bachelor's Degree" in the context of "Bachelor's degree plus 5 years of progressive experience" requirement to make an EB-2 case. These changes have affected Indians more than other nationalities because of the educational systems in India. Currently, there is some indication or anticipation that the USCIS HQ may loosen up the standards on these issues, but the Service Centers, particularly Nebraska and Texas Service Centers, take a very narrow interpretation and produce a lot of denials on these issues.
• This message is posted because at this time, everyone is pushed to make a quick decision on employment change to take advantage of the substitution opportunities before the law sunsets in the near future. However, people should take time to analyze and assess the risks involved as the hasty decision can bring about a deadly consequence. The rules and policies on the foregoing two issues are extremely complex and need legal professional's assistance. Please beware.

02/13/2006: DOL Released Proposed Substitution Elimination Rule

02/12/2006: Prohibition of Employer From Receiving Any Payment of Any Kind From Any Source Under Proposed Regulation

• The proposed regulation to eliminate the substitution of labor certification beneficiary goes beyond eliminination of substitution and 45-day validity cap of the certified labor certification applications. The regulation bars employers from seeking or receiving any payment in any kind or any form from any source including the alien beneficiaries. The preamble illustrates the following, among others, which fall under these prohibitions:
  • Employer fees for hiring the alien beneficiary;
  • Receing "kickbacks" of part of the alien beneficiary's pay either in the form of payroll deduction or otherwise;
  • Paying the alien beneficiary less than amounted stated on the application;
  • Goods and services or other wage or employment concessions;
  • Receiving payment for filing labor certification from aliens or attorneys or agents;
  • Payment of attorney fees and costs by the aliens relating to preparing, filing, and obtaining labor certification application.
  • Any other payment from any other source.
• The regulation does not specify the effective date for this rule, but it provides that this prohibition includes ETA 750 cases and ETA 9089 cases and any other actions in connection with the permanent labor certification process. It thus implies that this prohibition will apply retroactively to all the pending backlog cases (ETA 750) and all the PERM cases (ETA 9089). It is not clear whether the prohibition will retroactively apply to the cases which have already been certified at the final rule's effective date, but such broad brush retroactive application of the regulation may face a serious challenge in the federal courts. The retroactive application of this rule is indeed very troublesome in that the regulation and practice of the DOL have permitted some of the listed payment by the aliens or sources other than the employers. DOL should clarify the effective date of application of this new rule, particularly as related to the ETA 750 backlog cases which even go back to as early as the year 2000!! Please stay tuned to this website for the development of this part of regulation.
• This rule will affect the dynamics of the labor certification from the perspectives of the employers as the DOL's proposed FY 2007 budget also proposes to enact another regulation to charge filing fees for the labor certification applications. Depending on the amount of the filing fees, the cost to the employers for filing labor certification applications may skyrocket down the road.

02/12/2006: Questions of Substitutions Not Affected by the Forthcoming Substitution Elimination Regulation

• The preamble of the proposed regulation provides that this regulatory change would not affect substitutions approved prior to the final rule's effective date. Accordingly, the following substitutions which have been approved prior to the final rule's effective date may or may not be affected:
  • Cases which are pending at the Backlog Elimination Centers for which the employer had requested and either SWA or Regional Certifying Offer allowed to amend ETA 750 and approved such amendment before March 28, 2005. Clearly will not be affected;
  • Cases which are pending at the Backlog Elimination Centers for which the employer had requested or will request amendment of ETA 750 substituting the alien's name, and the BEC would have approved such amendment before the final rule's effective date. BEC's returning of ETA 750 to the employer to amend and return to the BEC may or may not comfort with the requirement. The DOL may argue that BEC may have to "approve" the "amended" ETA 750 to meet the requirement of "substitution approved." However, one may argue that the act of returning ETA 750 to the employer to amend the alien name constitutes an approval of substitution. Additionally, BEC may also have to rule on the situation involving appeal of denial of the amendment before the BALCA.
  • When the employer has already obtained certification of the labor certification application, there may be following groups of people who intend to substitute and whose future needs the agency's further action on this regulation because of the ambiguity in the definition of "substitution approved":
    • (1) Employer filed I-140 petition for the substituting beneficiary but the I-140 has yet to be approved on the final rule's effective date. Simple Receipt Notice of I-140 may or may not comfort with the requirement of "substitution approved." However, again this should remain an issue which the DOL and the USCIS will have to resolve.
    • (2) Employer filed I-140 petition for the substituting beneficiary, which has been approved prior to the final rule's effective date. This would be a classical case of "substitution approved."
    • (3) Employer filed I-140 petition for the original beneficiary which has been either approved or pending. As part of the substitution process for such situation, employer withdraws the I-140 petition and at the time files a new I-140 petition for the substituting beneficiary. If no decision has been made on the approval of withdrawal and the new I-140 petition, the answer to the question turns to foregoing question (1). If the USCIS issues revocation letter, but the new I-140 is still pending, it may be considered another classical case of "substitution approved," similar to the foregoing question (2).
    • (4) Employer filed I-140 petition for the substituting beneficiary prior to the final rule's effective date, but USCIS denied I-140 on the issue of alien's qualification to meet the labor certification qualification requirement and the appeal of the decision is pending before AAO prior to the final rule's effective date. There may arise two conflicting arguments: One argument would be that the USCIS has approved the employer for the substitution but denied I-140 petition based on the merit of I-140 petition. Opposing argument would be that the USCIS failed to approve the substitution before reaching the merit. Obviously, the first argument sounds more persuasive and convincing, but we will have to wait and see.
    • (5) Employer filed I-140 petition for the substituting beneficiary, which has been denied on the issue of the employer financial ability to pay the proffered salary. I-140 was filed prior to, but denial was made post to, the final rule's effective date. Clearly, the denial was handed down the employer's qualification issue and not on the substitution nor the substituting alien's qualification issues. Arguably, the act of USCIS reaching merits of the I-140 implies that the USCIS approved the substitution, because unless they approved the substitution, there could not have adjudication of the I-140 on the merits. However, we will still have to wait and see what DOL and USCIS would say on the situation.
• It is anticipated that the ambiguity of the language "substitution approved" prior to the final rule's effective date may generate a host of litigation in the future unless the DOL would revise or clarify or define the language clearly in the final regulation. Please stay tuned.

02/11/2006: February 2006 USCIS Today Newsletter

02/10/2006: DOL to Publish Substitution Elimination Proposed Rule on February 13, 2006, Monday

• DOL is scheduled to publish this important proposed regulation on February 13, 2006, Monday.
• The following are the key provisions:
  • 60-day Comment Period to end on April 14, 2006.
  • The rule will not be effective until "Final Rule" is published after the comment period.
  • Prohibition of Substitution From Effective Date of Final Rule:
    • Beginning from the effective date of Final Rule, all labor certification application cannot be used for substitution either during and after the certification per the following detailed rules.
    • No amendment of backlog cases will be allowed to substitute alien beneficiary while the labor certification application is pending.
    • No amendment of pending PERM applications to substitute alien beneficiary will be allowed any time.
    • Approved labor certification which has not been filed with the USCIS for I-140 filing at the time of effective date of Final Rule cannot be used for substitution of the alien beneficiary.
    • Substitutions already approved at the time of effective date of Final Rule will not be affected by this prohibition rule.
  • 45-Day Validity of Approved Labor Certification Application: Unless I-140 is filed with the certified LC application within the following period, the approved labor certification application will expire and turn invalid:
    • All cases which are approved on or after the effective date of Final Rule will expire 45 days from the date of certification.
    • All cases which are approved prior to the effective date of Final Rule will expire 45 days from the effective date of Final Rule.
  • No Payment of Labor Certification Expenses Other Than Employer: Alien beneficiary or other party is not permitted to pay any expenses including attorney fees.
  • Debarment from Filing Labor Certification for Upto 3 Years for Violators.
• Other details will be summarized as soon as the proposed rule is published on Monday.

02/10/2006: S. 2198 Legislative Bill to Ensure the Best and Brightest Remain the U.S.

• On January 26, 2006, Sen. Pete Domenici introduced a bill named "Protecting America's Competitive Edge Through Education and Research Act of 2006" with a nick name of PACE Act. This bill is cosponsored by 53 Senators out of total 100 Senators in the U.S. Senate. This is a significant bill for those with an advanced education in the U.S. in that it gives a special nonimmigrant as well as green card benefit. The Title III of this bill provides for provisions to ensure the best and brightest remain in the U.S. and we will report the extract of the bill as follows:
• Visas for Doctorate Students in Mathematics, Engineering, Technology, or the Physical Sciences
• Congress finds the following:
  • The National Academies, in their congressionally requested report entitled `Rising Above the Gathering Storm: Energizing and Employing America for a Brighter Economic Future', recommended that Congress--
    • continue to improve visa processing for international students and scholars by providing less complex procedures and continuing to make improvements on issues such as visa categories and duration, travel for scientific meetings, the technology-alert list, reciprocity agreements, and changes in status;
    • provide a 1-year automatic visa extension to international students who receive doctorates or the equivalent in science, technology, engineering, mathematics, or other fields of national need at qualified United States institutions to remain in the United States to seek employment;
    • provide such students with automatic work permits and expedited residence status if they are offered jobs by employers based in the United States and pass a security screening test;
    • institute a new skills-based, preferential immigration option that gives applicants with doctorate-level education and science and engineering skills priority in obtaining United States citizenship; and
    • increase the number of H-1B visas by 10,000, which should be allocated for applicants with doctorate degrees in science, or engineering from a United States university;
  • Since the publication of the report by the National Academies, the Senate has passed the Deficit Reduction Act of 2005, which authorizes an additional 30,000 H-1B visas per year. (Matthew Oh Comment: This failed to materialize.)
• It is the sense of the Senate that--
  • the Department of State and the Department of Homeland Security have made significant improvements since 2002 in the efficiency with which visas are processed for--
    • students at colleges and universities in the United States; and
    • foreign researchers to engage in appropriate scientific research in the United States;
  • particular improvements have been made to the MANTIS clearance process, which--
    • reduce wait times from more than 70 days to less than 15 days; and
    • extend the duration of the MANTIS clearance process up to 4 years, as appropriate, to cover the duration of study for foreign students in the United States;
  • both departments and related supporting agencies should further improve efficiency and convenience in the granting of visas to foreign students and researchers while protecting national security;
  • the departments should extend MANTIS clearance for foreign researchers for the duration of a specified scientific research program while balancing security concerns; and
  • other such improvements should include--
    • review of the technology-alert list; and
    • efforts to better facilitate travel for scientific conferences.
• VISAS FOR DOCTORATE STUDENTS IN MATHEMATICS, ENGINEERING, TECHNOLOGY, OR THE PHYSICAL SCIENCES.
  • Creation of New Visa Category- F-4 for an alien who has been accepted and plans to attend an accredited graduate program in mathematics, engineering, technology, or the physical sciences in the United States for the purpose of obtaining a doctorate degree;
  • Requirements for Obtaining an F-4 Visa:
    • An alien who obtains the status of a nonimmigrant under section 101(a)(15)(F)(iv) shall demonstrate an intent to (i) return to the country of residence of such alien immediately after the completion or termination of the graduate program qualifying such alien for such status; or find employment in the United States related to the field of study of such alien and become a permanent resident of the United States upon the completion of the graduate program, which was the basis for such nonimmigrant status.
  • Visa issued to an F-4 alien shall be valid--
    • during the intended period of study in a graduate program described in such section;
    • for an additional period, not to exceed 1 year beyond the completion of the graduate program, if the alien is actively pursuing an offer of employment related to the knowledge and skills obtained through the graduate program; and
    • for an additional period, not to exceed 6 months, while the alien's application for adjustment of status under section 245(i)(4) is pending.
  • An alien shall qualify for adjustment of status to that of a person admitted for permanent residence if the alien--
    • has the status of a nonimmigrant under section 101(a)(15)(F)(iv);
    • has successfully earned a doctorate degree in mathematics, engineering, technology or the physical sciences at an accredited college or university in the United States; and
    • is employed full-time in the United States in a position related to the knowledge and skills gained while pursuing such degree'.
  • The Secretary of Homeland Security may adjust the status of an alien who meets the requirements under this section to that of an alien lawfully admitted for permanent residence if the alien--
    • makes an application for such adjustment;
    • is eligible to receive an immigrant visa;
    • is admissible to the United States for permanent residence; and
    • remits a fee of $1,000 to the Secretary.'.
• NOT SUBJECT TO NUMERICAL LIMITATIONS ON EMPLOYMENT-BASED IMMIGRANTS:
  • Aliens who have earned an advanced degree in science, technology, engineering, or math and have been working in a related field in the United States under a nonimmigrant visa during the 3-year period preceding their application for an immigrant visa under section 203(b).
  • Aliens described in subparagraph (A) or (B) of section 203(b)(1)(A) or who have received a national interest waiver under section 203(b)(2)(B).
  • The immediate relatives of an alien who is admitted as an employment-based immigrant under section 203(b).
  • Applicability- The amendments made by this section shall apply to any visa application pending on the date of enactment of this Act and any visa application filed on or after such date of enactment.
• Stay tuned to this website for the development of this legislation.
  

02/09/2006: March 2006 Visa Bulletin

• VISA AVAILABILITY DURING THE COMING MONTHS
• Family-sponsored: Movement of the cut-off dates consistent with those of recent months can be expected for the foreseeable future.
• Employment-based: Cut-off date movement in several categories during recent months has been greater than originally expected. This is because demand by Citizenship and Immigration Services (CIS) offices for adjustment of status cases has been much less than anticipated. Advancement of the cut-off dates at this time should prevent a situation late in the fiscal year where there are large amounts of numbers available but not enough time to use them. Interested parties should be aware that the recent rate of cut-off date advances might not continue indefinitely; however, it is not possible to say at present how soon CIS number use will influence the cut-off date determinations. Moreover, in some categories (for instance the “Other Workers” category), cut-off date retrogression is a definite possibility should demand increase dramatically. Such retrogressions are not likely in the immediate future, but readers should be alert to the possibility as the year proceeds and watch for updates in this Bulletin. Retrogressions are normally preceded by a period of no movement of the cut-off date, as we attempt to limit future demand for numbers under the annual limit.
• It turned out that New Delhi consulate posting was an error.
  

02/09/2006: Dallas Backlog Elimination Center Very Helpful

• The processing of backlog cases has been improving substantially in Dallas, adjudicating May 2004 priority date RIR cases. This is not necessarily happening in the Philadelphia Center. It goes to more than processing times when it comes to the Dallas Center services. Their assistance with the returned cases or other problem cases has been improved substantially lately. Keep it up, Dallas BEC!

02/09/2006: EAD/AP For Transferred 485: Confusion, Confusion, Confusion!!

• When EB-485 case is transferred to the district offices, people are truly going through a nightmare because of lack of uniform national procedures. Some districts ask to file such ancillary applications at the local office where the files are located. Now, the AILA Texas Service Center Liaison minute indicates that the TSC is requiring to file such applications not at the district offices but at the TSC.

02/09/2006: PERM Labor Certification Latest FAQ Access Problem

• DFLC has been releasing its PERM processing guidance and standards through the release of the Frequently Asked Question (FAQ) series. Until August 2005, it had released upto FAQ Round 5. The Round 5 FAQ involved a critical issue on the multiple filing of applications. It had adopted a very restrictive policy scaring the employers and the alien beneficiaries. This new policy was to take effect in August 2005. Then came a upheaval or revolution. The then-Chief of DFLC was removed and the new leadership discarded the scary policy by amending FAQ Round 5.
• The problem is that if people go to the FAQ Round 5, all they get is the statement that the previous FAQ on multiple filing had been withdrawn and nothing else. The truth is, though, that they changed the FAQ on multiple filings additing the new processing guidance on the multiple filings in the "general" FAQ site and not in the "Round 5" FAQ site. Apparently, there are people who are confused by the current Round 5 as it does not include any information on the new policy on the multiple filings. People should visit the general FAQ site rather than Round 5.
• DFLC is apparently planning to release upto-date FAQ in the near future answering many critical unanswered questions. We urge DFLC to streamline the FAQ update into one format so that people are not confused by the series of FAQs.

02/08/2006: February 8, 2006 Service Centers Processing Times

• See homepage.

02/07/2006: Visa Retrogression and Importance of Good Management of Contact Information and Communication with Counsels

• One of the problems which the long process of immigration application is updating the immigrants' contact information for the agencies, not just filing of AR-11 report. The same is true with the immigrants' communication with their legal counsels. As time passes, people undergo changes including change of addresses and change of employers. Keeping the agencies informed of the changes tends to be more critical in the current visa retrogression as the agencies are reinforcing their policies and practices to close the files or to deny cases for their failure to receive responses from the immigrants. Some communications are addressed to both the immigrants and their legal counsel simultaneously but some do not. Over the years this reporter has learned that the immigrants have seriously neglected to contact with their legal counsels when they receive any communication from the agencies.
• It is critically important that the immigrants proactively and immediately contact their legal counsels whenever they receive any communications from the agencies to avoid the pitfall, particularly fingerprint notices, RFEs, or any letters or emails from the agencies.

02/07/2006: DOL BEC - Picking-Up Pace of Adjudication

• Our record reflects that the Backlog Elimination Centers are indeed picking up the speed of adjudication of the backlog labor certification applications. It is indeed a positive sign. This changing pace of processing of backlog cases is significant in that some of these cases are expected to give relief to the employers in the form of substitution of alien beneficiaries as well as resolving the issues of visa retrogression for their alien employees before the agencies enact and implement the elimination of the substitutions. Understandably, some employers have refiled and obtained new labor certifications under the PERM program without withdrawing the pending backlog cases. Employers have been receiving the large "white envelopes" in the mail in increased numbers from the BEC.

02/07/2006: Serious H-1B Cap Problem and Mounting Political Pressure on Congress for Solutions

• Unless something is done fairly quickly, this country will almost completely shut out foreign scientists, engineers, and brains, posing a serious threat to R&D industry, high-tech industry, and other industries that need a sustained growth against severe foreign competitions. This huge black-hole in supply of needed foreign workers was so serious enough for Bush to come forward to urge the Congress to do something about the H-1B problem during his recent visit to our town, Minneapolis-St. Paul, Minnesota. State governments are feeling urgency as the life-blood businesses in their states start experiencing a serious suffering from the current H-1B problem.
• However, at this time, a legislative bill has yet to be introduced in the Congress. By now, the Congress should have learned their serious mistake of killing the S. 1932 bill in December 2005. Wake up, the members of the House of Representaitves!!

02/06/2006: DHS FY 2007 Proposed Budget and Immigration Priorities

• According to the DHS proposed FY 2007 budget (10/01/2006-09/30/2007) which was released yesterday, the DHS is planning to place a high priority on immigration programs. The budget reflects a substantial increase in allocation of funding and immigration programs as follows:
  • Border Security
  • Temporary Worker Program (TWP)
  • Backlog Reduction and Automation of Immigration Process
• The budget mirrors Bush's agenda in the comprehensive immigration reform to focus on border security, immigration enforcement, temporary guest worker program initiatives. The budget ignores the legalization (earned adjustment) of illegal aliens or expanded immigration benefits program which are reflected in the current Senate Comprehensive Immigration Reform bill of McCain-Kennedy. The budget allocates $111 million to initiate the automation of immigration benefit program. As we reported earlier, the USCIS is accelerating this process and has already released the proposed online registration and filing forms which are expected to be implemented within this calendar year. Bush and DHS need to complete the five-year backlog reduction program of over $500 million by the end of September this year. For the new FY budget proposal, please click here.

02/05/2006: DOL Resummitted and Obtained OMB Clearance of Proposed Labor Substitution Elimination Regulation on 02/02/2006

• This DOL and DHS proposed rule was cleared by the OMB last fall, but for unknown reasons, it has been pushed off. However, on February 2, 2006, Thursday, ETA/DOL resummitted the proposed rule and on the same day, the OMB cleared again this regulation. It is unknown at this time exactly when the DOL will publish this critical regulation but considering the fact that it reinstated the rule-making process as late as three days back, something must be cooking this time. Please stay tuned.

02/05/2006: Results of Pilot Immigration Filings/Adjudications in California Service Center, New York District Office, and Dallas District Office

• The CIS Ombudsman's 2005 report to the Congress reflects that the California Service Center employment-based I-485 75-day adjudication program and New York District Office's 90-day adjudication program resulted in failures and Dallas District office 90-day adjudication program was better than the CSC and NY program. CSC pilot program was intended to test the water as to whether certain less-fraud-prone cases like EB-2 can take the pilot adjudication model of processing in 75 days. Accordingly, CSC pilot program was to test the backlog reduction program for employment-based I-485 applications. While the New York District Office program was more focused on fraud prevention. The Dallas program was intended to test the speedy adjudication of I-485 applications.
• The results were as follows:
  • CSC 75-Day I-485 Adjudication Program: This program was available only for the selected EB-2 cases. CSC processed 1,376 cases but only 347 cases were completed in the target date of 75 days and all other cases remained process-hold pattern, indicating that in the employment-based cases, the pilot program did not work well.
  • New York District Pilot Program: The 90-day adjudication was available only in the marriage cases in the New York District Office. Out of 8,119 total cases it processed, only 4,509 were processed within the target 90 days. The New York pilot program is also evaluated to be more or less failure for the two reasons: Firstly, it learned that there were much less fraud cases than the agency predicted. Secondly, unlike Dallas model, the new model did not conduct interviews at the time of filing in most cases, resulting in the delays in scheduling and processing.
  • Dallas Program: The Dallas program was intended to test "rapid processing" model. This program processed 12,037 cases and the overall target adjudication rate of 90 days turned out be between 60% and 70%, much better than New York or CSC. The Ombudsman attributed it to the model that interviewed the applicants at the time of filing.
• Overall, the report was negative. It is uncertain, though, how this report will be translated into the USCIS' policy on Premium Processing vs. Speedy Processing Program in the immigration benefits processing and adjudication in the future. For the details, please click here.

02/05/2006: Latest Immigration Monthly Statistics as Published 12/29/2005

• DHS has published its December 29, 2005 report on the following immigration monthly statistrics as at the end of November 2005:
  • Immigration Benefits
  • Naaturalization Benefits
  • Asylums
  • Removal(deportations)
  • SW Border Inspections.

02/04/2006: Quite Beltway for Immigration News

• Since January 2006, the nation's Capital has been fairly quite on immigration news for a number of reasons. Firstly, the comprehensive immigration reform legislative bills were planned to be tabled in February 2006, but reportedly this has been pushed off until March 27, 2006. Secondly, the New Director of Citizenship and Immigration Services took office last months. Additionally, the career immigration benefits leader, William Yates, retired and new acting director took over the immigration benefits management responsibility. Understandably, when the heads of the organization change, pending review of the policies and directions, the organization's activities on policy making usually remain on halt.
• As opposed to the immigration benefits issues, there have been flurry of news coming out of all sources throughout the country relating to the immigration enfocement and border security initiatives. There are sporatic and increasing reports that ICE has swifted the enforcement policy from leniency to reinforcement over the illegal aliens despite its inability to keep up with expanding detenion facilities to house the detained illegal aliens. The ICE has just announced that it will cease the practice of arrest and return of the border crossers and enforce detention of such border crossers. There were reports that ICE officials stopped certain traffics in certain locations in Minnesota to demand legal documents and enforced illegal immigration action against the detected illegal aliens.
• Until the immigration legislative activities are recharged and energized and the new CIS Director has a handle on the immigration benefits policy and management direction, it is expected that the nation's capital may remain in low key for a while when it comes to the employment-based immigration.

02/02/2006: New Delhi Website Report of Priority Dates Incites Confusion, Jubilence, and Disappointment

• American Consulate in New Delhi has updated its priority date reporting for the February 2006. However, the report is different from the official February 2006 report, raising speculation that probably this is visa bulletin for March 2006. According to this report, EB-3 will become current for world wide but the cut off dates for India will remain same. People may visit the New Delhi website.

01/30/2006: Sign of Growing Temporary or Permanent Repatriation of Indian-Origin Permanent Residents and U.S. Citizens in the U.S.

• There have been some developments in India that affect the Indian-origin permanent residents and naturalized U.S. citizens in the U.S. one way or another lately. The Indian economy and power have been reportedly growing very fast and India is looming up as one of the leaders in the world. The Indian parliament passed a legislation sometime back that would recognize the dual citizenship to its nationals in foreign countries. The implementation of this legislation has been pushed off, but reportedly the Indian government has started implementing this dual citizenship law beginning from January 2006.
• There is some sign that a growing number of Indian permanent residents or U.S.citizens in the United Staes are returning to their home country either temporarily or permanently. It is thus the time for these Indians to learn the impact of their long-term return to their home country and their conducts on their U.S. citizenship or permanent resident status. We will summarize the rules relating to these issues, but for the present purpose, it suffice to warn the permanent resident Indians of the impact of their prolonged absence from the U.S. on their permanent resident status as well as the eligibility for naturalization to the U.S. citizenship. The USCIS website has a good material on these issues and we recommend these Indian nationals to read the materials. They should remember two important points: First, continuous absence of more than six months or one year can affect their permanent resident status as well as the naturalization eligibility. In order to deal with the potential negative impact of their prolonged absence from the U.S. on the permanent resident status, they usually file and obtain the Reentry Permit which will permit their absence for two years at a time without affecting their permanent resident status. However, the Reentry Permit will not save them from "breakage of continuous residence in the U.S." for the purpose of the naturalization eligibility unless their absence falls under one of the exceptions which are provided in the nationality act of the country. People should seek legal counsel before their decisions such that they do not face a crisis in keeping their permanent resident status or eligibility of naturalization. They should also learn that certain acts in their home country can lead to the loss of the U.S. citizenship.

01/29/2006: Amidst Heating-Up Pro and Con Immigration Reform, the Fate of Upcoming Extension of TPS Reportedly in Debate

• The Department of Homeland Security must decided whether to renew the TPS for Nicaraguans and Hondurans by May and for Salvadorans by July. There are 220,000 Salvadorans, 70,000 Hondurans and 3,600 Nicaraguans in the U.S. under the program. About 4,000 Africans are covered by similar permits.
• Reportedly, the debate on desirability of extension of TPS is growing fierce, pushing the fate of these Central American aliens to the edge. Unless the TPS is extended, these aliens must be returned to their countries. For the full report, please click here.

01/28/2006: What Does New Prediction Mean for Visa Movement?

• The State Department's new prediction is derived from two changed circumstances. One is the slow-down of I-485 adjudications by the USCIS and the resultant decrease of the EB visa numbers demand on the part of the USCIS. The second factor is the delays in processing of the old labor certification cases in the Backlog Eliminination Centers of the DOL. It is not clear what has caused the decreased visa number demand from the USCIS EB-485 proceedings, but it may have something to do with the on-going reengineering of the USCIS processing and adjudication system. As for the Backlog Elimination Centers, they have yet to complete the ground work of data entry and 45-day letters, before they can focus on adjudication of the backlog applications. Currently, the USCIS is scheduled to complete the reengineering by the end of September 2006 and the DOL is scheduled to complete the ground work of data entries and 45-day letter processing by approximately the end of June 2006. As we reported earlier, a substantial number of these BEC cases are known to be 245(i) cases, meaning that the cases were filed in traditional regular application type of EB-3 in most cases on or before April 30, 2001. A substantial number of these cases have yet to go through the "supervised" recruitment process to complete the labor certification processing and it will take a substantial period of time before these cases will move into the USCIS I-485 processing system.
• From the foregoing analysis, one can predict that the big winners of the new prediction may include (1) those old priority date I-485 cases pending before the USCIS including 245(i) cases which may be approved within next several months; (2) those old priority date I-140 cases pending before the USCIS which may at least move into the I-485 phase and getting the benefits of EAD, AP, and AC 21 change of employment eligibility; and (3) those old priority date backlog labor certification cases which can move into the I-140/I-485 concurrent filing phase upon approval of the delayed backlog labor certification processing with the ancillary benefits that come along with the filing of I-485 applications such as EAD, AP, and AC-21 change of employment benefits. It is anticipated that the cases under the foregoing (3) may remain very limited in numbers due to the BEC processing delays.
• The real losers may turn out to be those with late priority dates. Once the USCIS reengineering work is completed by the end of this fiscal year and the BECs start processing backlog cases en masse around the end of this fical year, the stream of visa number demand will move into the State Department visal allocation system. The pressure to the allocation system will mount tremendously as time passes, and unless the Comprehensive Immigration Reform legislation brings a cure to the current ailing immigrant visa quota system within this year, it is likely that these late priority date cases may experience tremendous difficulties due to the stand-still or further retrogression of the visa numbers and the resultant unavailability of the ancillary benefits of EAD, AP, and AC 21 change of employment opportunities. It is anticipated that the real crisis may be witnessed beginning the end of this calendar year as by that time it is anticipated that the BECs are expected to pump out certifications of backlog cases.
• It is thus obvious that the new prediction of the State Department can turn out to be a short-lived relief for a limited number of immigrants and a sign of foreseeable dark cloud and storm moving into the visa number system for most of the immigrants. The only answer to the clogged employment-based immigration system lies with the reform of the employment-based immigrant quota allocation system and related reform, including but not limited to (1) dependants immigration without taking out visa numbers from the employment-based quota system and (2) eligibility of I-485 applications for those who attained the labor certification approvals or I-140 petitions even during the period of visa number unavailability. For these reasons, the immigrant community should not stop its efforts to bring back (1) the legislative proposals which were reflected in the failed Section 8001 and 8002 of S. 1932 and (2) the adjustment of EB-immigrant quota substantially upward as reflected in the McCain-Kennedy bill.

01/27/2006: DOL FY 2006 Temporary/Permanent Labor Certification Funding for Each State

• The overall funding has been cut 30% as their role has been reduced to the prevailing wage determination and temporary labor certification programs. For the specific funding allocation for each state, please click here.

01/26/2006: Good News for Visa Movement

• AILA has reported the DOS advised AILA that "thanks? to" the decrease in demand for EB visa numbers from USCIS I-485 cases and 245(i) labor cases still being held in the Department of Labor, the visa number would progress forward as follows:
  • Worldwide EB-1 and EB-2: There will be no cut-off date for the these categories.
  • Worldwide EB-3: Unlike the DOS previous prediction that the large number of 245(i) filings would be filed during March and April 2001 and it would result in a surge of EB-3 number demand and would limit movement of the cut-off date, 245(i) cases still remain at the DOL and therefore there will be movement in EB-3 visa numbers.
  • India EB-1 and EB-2: It will continue a rapid movement for the next several months.
  • India EB-3: It will move ahead but may become limited down the road.
  • China EB-1 and EB-2: It will continue a rapid movement for the next several months.
  • China EB-3: It will stay at the Worldwide date.
• What a good news!

01/26/2006: BEC Accepts Request for BEC Case Amendment for PERM Re-Filing

• AILA has reported that DOL advised the AILA that "employers who are interested in submitting a PERM refile but, due to the identical issue, would like to amend the pending backlog case first, can go ahead and send in the new information to the Backlog Center."
• It appears that "send in the new information" may be just a first step and eventually the DOL would have to return the original ETA 750 for the amendment by the employer.

01/25/2006: Top 10 Countries That Sent EB-Immigrants to the U.S. in FY 2005 by Category

• The State Department has just released a report of immigrant visas and I-485 granted in FY 2005 by country and by immigrant category. We are reporting the following 10 countries in EB immigration categories to learn where each of EB category immigrants came from. This 10-country summary may indicate which coutries have more stakes in each of EB visa categories (EB-1, EB-2, EB-3, EB-EW) in the comprehensive immigration reform.

• 	EB-1	EB-2	EB-3	EB3EW	Pref. Total	Comment Focus (EB)
  India	6,336	16,687	23,250	149	47,160	3 & 2
  China	6,422	9,346	4,761	237	20,928	2 & 1
  Mexico	2,932	368	11,844	788	16,676	3
  Korea	3,427	1,405	8,316	915	16,167	3 & 1
  Phil	777	979	2,911	41	12,723	3
  Canada	5,756	1,643	4,544	13	12,329	1 & 3
  U.K.	7,204	883	2,636	22	10,946	1
  Brazil	1,883	329	6,227	356	9,145	3
  Colombia	2,408	339	2,929	140	6,049	3 & 1
  Venezuela	3,027	231	1,594	41	4,974	EB-1

• For the full report, please click here.

01/24/2006: January 24, 2006 Service Centers Processing Times

• See homepage.

01/24/2006: January 24, 2006 USCIS Local District Processing Times

• See homepage.

01/24/2006: USCIS Will Not Adjudicate Family Members "in Group" in Naturalization Processing Unless Requested

• USCIS has announced that it is abandoning the current practice of processing family members as a group unless the the applicants request such group management. Currently, when family members apply for natulization together, unless every single member completes the whole process including fingerprint clearance, none of the members in the family group is granted a naturalization. Such practice has caused delays in procesing of the naturalization applications with the result that so many family members remain a hostage until the processing of each member of the family group is completed. Report indicates that there are currently about 10,000 cases of such group management. Accordingly, the new practice will result in members of a family being naturalized at different times even if they submitted applications together. For the details, please read on.

01/24/2006: DOL Guidance on Funding for FY 2006 SWAs Labor Certification Support Services

• On January 23, 2006, the Deputy Secretary of Employment & Training of DOL issued a guidance letter for the funding of SWA labor certification support services. Read on.

01/24/2006: AILA Reports Push-Back of Senate Comprehensive Immigration Reform Debate Schedules

• AILA reported last week that the Senate Judiciary Committee could start immigration reform debates as early as February 2, but now it reports that the Senate Committee action on immigration legislation may be pushed back until later in February or perhaps into March.
• There are a few immigration portals in the community that monitor and share opinions and news on the comprehensive immigration reform legislation. The following three sites are particularly helpful: www.immigrationvoice.org, www.isnamerica.org, www.immigrationportal.com.
• We will post the summary of the pending comprehensive immigration bills shortly. Please stay tuned.

01/24/2006: Senate May Table Comprehensive Immigration Reform Bills As Early As February 2, Thursday

• Unconfirmed sources indicate that the Senate may table this bill earlier than expected. Since there is the nightmarish Sensenbrenner border protection bill that will come up with the comprehensive immigration reform legislation, it appears that the pro-immigration forces may have to energize their forces and start working on the critical immigration legislation.

01/24/2006: DOL National Foreign Labor Certification Changes its Web Site Address

• Old Address: www.workforcesecurity.doleta.gov.
• New Address: www.foreignlaborcert.doleta.gov.

01/24/2006: Bush Reiterates Support for Foreign Workers and Guest Worker Program

• Yesterday, in his speech at the Kansas State University, Bush reiterated his support for H-visa programs and guest worker program. He also emphasized that the guest worker program should not include amnesty. For the full text, please click here.

01/22/2006: The Origin of Foreign Students in 2005

• In the first week of January 2006, there was the U.S. University Presidents Summit on International Education which attracted the political and foreign service leaders to the meeting. For this Summit, the IIE prepared and released information on the foreign students in the United States. This report shed light on the stakeholders of the employment-based immigration issues for the higher level professional occupations.
• Generally, about 50% of the graduate students are taken by the foreign students in the U.S. One then wonders where they are comming from. The following table shows the top six countries that sent more than 50% of the total foreign graduate students in 2005.

• 	2000	2005 (% of Total Foreign Students)	Graduate Students	% of Graduate Students
  India	42,337	80,466 (14.2)	57,936	72%
  China	54,466	62,523 (11.1)	49,393	79%
  Korea	41,191	53,358 (9.4)	24,011	45%
  Japan	46,872	42,215 (7.5)	8,443	20%
  Canada	23,544	28,140 (5.0)	13,225	47%
  Taiwan	29,234	25,914 (4.6)	14,771	57%

• The number of Indian students almost doubled in five years and dominated the graduate level students in the absolute numbers. It is followed by the Chinese students. Accordingly, any nonimmigrant (such as U.S. advanced degree 20,000 H-1B visas) or immigrant (such as EB-1 and EB-2) visa issues related to the advanced degree professionals are more or less more closely tied to the Indians and Chinese than other nationals. According to the report, 25% of the total foreign students studied engineering, particularly computer science related engineering and 18% of the total foreign students studied business and management. Obviously, the graduate level foreign students from India and China focused on the engineering. For the full text of the report, please click here.

01/21/2006: Republican National Committee Resolution: Support Legal Immigration & Guest Worker Program, Oppose Legalization

• Report indicates that the Republican National Committee voted on 01/20/2006 to back the Bush's call for a guest-worker program, and adopted a resolution that calls for continued "legal immigration," criticizes illegal immigration and endorses a "new work program for foreign workers," but states there should be "no amnesty for those persons presently in the United States illegally." Read on.
• There are several Comprehensive Immigration Reform bills pending in the Senate. The Senate is expected to return to the Hill next month and the specific agenda for the debate of these conflicting bills have yet to be announced by Sen. Bill Frist. He previously announced that these bills would be tabled for the debate in February. Please stay tuned to this website for the upcoming comprehensive immigration reform debates in the Hill. These bills are expected to bring a reform in the employment-based immigration increasing the employment-based immigrant visa numbers substantially. There are no strong opposition to this part of the comprehensive immigration reform.

01/18/2006: U.S. Master Degree H-1B Cap Reached 01/17/2006

01/18/2006: Validity of I-485 Medical Exam Report Extension Until January 1, 2007

• The sealed medical examination report which people submit as part of the I-485 applications is supposed to be valid only for one year. However, due to the delay of I-485 processing for the past several years, the USCIS has been extending such medical report annually by releasing their policy decision. The medical report which was issued before January 1, 2005 or earlier was supposed to expire on January 1, 2006 unless the USCIS makes such extension decision. Now all of the medical reports for the pending I-485 cases will be automatically extended until January 1, 2007. Consequently, these people do not have to retake the medical examination. The extension policy does not apply to the Class A or Class B certification by the USCIS designated civil surgeons. For the details, please read the USCIS announcement.

01/18/2006: Multiple Pending PERM Applications by Same Employer for Same Employee: Deadline for Withdrawal

• Those who have multiple PERM applications pending before DFLC by the same employer for the same employee for same occupation should withdraw the unwanted applications within today. Otherwise, the DFLC will adjudicate the "last" filed application and all the earlier filed applications will be automatically denied from tomorrow. There are some multiple PERM cases which people filed for the same occupation because of the decision matrix errors and the DFLC decision to reinstate the earlier denied cases in June 2005. Considering the delay which the people have experienced, some people refiled the same applications online over and over again resulting in mulple applications pending. Additionally, people often filed the same applications repeatedly as the regulation did not prohibit the people from doing so.
• People should look at their pending PERM applications carefully and make a decision of withdrawal within today as today will be the last day to withdraw the later filed applications to keep the earlier filed application and its priority date. For the details, please revisit out posting of December 25, 2005.

01/15/2006: REAL ID Act and Identity Theft Fallouts

• Report indicates that as required by the Real ID Act of 2005, DHS officials are drafting regulations and establishing standards, which state governments must implement by May 2008 as minimum security features in state-issued driver’s licenses and personal identification cards. If they don’t, individuals with noncompliant licenses and ID cards could be barred from flying on an airplane or entering a federal facility. Now, a coalition of nearly two dozen organizations from across the political and ideological spectrum is urging the Homeland Security Department to reject use of radio frequency identification chips in driver’s licenses for fear of data theft from remote devices and lack of adequate safeguards.
• Soon, the government is planning to issue digital chip embedded U.S. passports with all the personal and private ID data in it, which may also be potentially accessed from remote devices and we may not have adequate safeguards against such identity theft.
• In Minnesota, the state government is selling the driver license data for monetary gains. You guessed it! Identity thieves have started using these data causing outcry in the commuity.
• I am not a tort law specialist. I wonder what kind of remedy the victims of the identity theft have against the federal and state governments other than the civil and criminal remedies against the identity thieves and the political liability. It is time for the tort law specialists to look into the limit to the government immunity in this newly developing area of tortious conducts of the governments. It is time for the anti-trust lawyers to look into the potential tortious conducts of some of the private industries including, but not limited to, oil industry and seek remedies for millions and mllions of potential victims. Where are these tort lawyers?

01/13/2006: U.S. Master Degree H-1B Cap Reach Imminent

• The reach of FY 2006 20,000 H-1B cap for U.S. master or higher degree is imminent. As of January 10, 2006, there were only 378 numbers left to reach 20,000! Once the cap is reached, the U.S. master or higher degree will not be able to apply for H-1B until April 1, 2006 with the validity date of October 1, 2006. Those who fail to maintain the nonimmigrant status through October 1, 2006 may not be able to apply for change of nonimmigrant status to H-1B since there is no indication that the DHS plans to adopt a stop-gap regulation.

01/13/2006: Immigration Policy Center Emphasizes Right Focus for "Comprehensive" Immigration Reform Debate and Legislation

• On January 12, 2006, IPC released an article to call attention to the right focus for the ongoing comprehensive immigration reform debate. The immigration debate is currently dominated by narrow thinking and the search for simplistic solutions to complex problems. Most lawmakers and the press have come to equate “immigration reform” with the question of whether or not enhanced immigration enforcement should be coupled with a new guest worker program that is more responsive than current immigration policies to the labor needs of the U.S. economy. All but lost in this debate have been the calls by prominent immigration reform advocates to improve and expand pathways for permanent immigration as well. But immigration reform will not be truly comprehensive, or effective, unless it recognizes the vital contributions of temporary workers and permanent immigrants alike, and the inadequacy of the current immigration system in providing legal channels for either to enter the country. Both temporary workers and permanent immigrants fill critical gaps in the U.S. labor force, but permanent immigrants are far more likely to acquire new job skills, achieve upward mobility, learn English, buy homes, create businesses, and revitalize urban areas. For the full text, read on.
  
  
  

01/12/2006: State Department Cable on Validity of F,M Student Visa After 5 Months of Break of Studies

• State Department has released a cable to visa posts for guidance on the validity of F or M student visa when such student takes a break of studies for more than five months.
• Students who are not studying but remain in the United States: An individual admitted in F-1 or M-1 status who is transferring between schools or programs is no longer regarded to be in student status if classes are not resumed within five months of the date of transferring out of the previous school or within five months of thedate of program completion, whichever is applicable. No formal finding of loss of status needs to be made. In order for that student to restore lawful status,he or she must apply for reinstatement of student status with the USCIS. USCIS has the option to approve or deny reinstatement of student status. If student statusis restored, then the student's F-1 or M-1 visaremains valid (assuming that the visa has not expired). However, if the student is denied reinstatement, then the student is held to have lost F-1/M-1 status at that point. Any valid student visa that was in the student's possession would be invalidated per INA 222(g). Because the student is considered to be out-of-status from the time that reinstatement is denied, the student must immediately depart the United States. There is no bar for a student who was denied reinstatement from applying for and receiving another student visa, but consular officers should review the circumstances surrounding why the student ceased full-time study and lost status in the first place, including any actual status violation, in determining whether the applicant is a bona fide student at the time of application.
• Students who depart the United States while in valid student status: Students who are enrolled in schools in the United States will often take a break from studies and return home for a semester or more. When a student has been out of the country for more than five months, the student's F-1 or M-1 visa would be considered to be invalid. Under DHS regulations, an F-1 student returning to the United States from a temporary absence of five months or less may be readmitted for study upon presentation of a valid I-20. After an absence of more than five months, an alien is no longer admissible as a continuing student. The immigration officer is authorized to physically cancel a nonimmigrant visa of an alien who appears to be inadmissible. Because a student who has been out longer than five months can be found inadmissible, that student's F-1 or M-1 visa is subject to cancellation and should not be used, even though it remains valid on its face. A student who wishes to resume study in the United States must obtain a new visa. In order to apply, the student should either obtain a new I-20 from the school or verify that his/her previous I-20 remains valid and SEVIS record is in active status before applying for a new F-1 or M-1 visa. Students who have the approval of their schools to take an extended break from study must have their SEVIS record terminated for Authorized Withdrawal. When the student is ready to resume study, the school will issue the student a new initial Form I-20 with a new SEVIS number.These students must pay the SEVIS I-901 fee.
• Students depart the United States for extended periods of time for activities related to their course of study, such as field research: Schools are expected to maintain those students in an active SEVIS status. Since these students continue to maintain their student status while overseas, their F-1 visas are not considered to be invalid after an absence of more than fivemonths.
  

01/12/2006: New Interim Chief of Division of Foreign Labor Certification

• Reportedly there is now a new interim Chief of Foreign Labor Certification whose name is John Beverly who used to be the Administrator of Employment and Training Administration, DOL. The reengineered foreign labor certification system has way passed the first anniversary for the backlog elimination program and is approaching the first anniversary for the PERM program soon. These two programs have yet to witness a substantial improvement. Currently, the consumers of these two programs experience a tremendous confusion and feeling of swimming in the open sea in the darkness or playing Nintendo or gambling machine. We hope that the new Interim Chief achieves streamlining of the process into a more formalized adjudication system such that the consumers are better informed of the operation and status of the process and develop the detailed standards which help the consumers from playing guessing games because of the ambiguity of the rules and policies. We want to welcome aboard of Mr. Beverly.

01/11/2006: February 2006 Visa Bulletin

• Small good news. The State Department reports that the USCIS demands for EB visa numbers have been very slow and until the demand increases, the EB visa numbers will keep moving forward.
• The EB-1 and EB-2 for India and China have progressed substantially. Even EB-3 has moved for India and China impressively. Worldwide is still stuck with the 245(i) cases. India and China EB-3 will also be stuck in April 2001 once their numbers reach the date because of the massive 245(i) cases which were filed on or before April 30, 2001 by illegal aliens to take advantage of 245(i) relief before the law sunset. Reportedly, these numbers reached about 345,000 plus their dependants of estimated 250,000 - 275,000. A substantial number of these cases are still left behind in the DOL Backlog Elimination Center. These cases have been moving extremely slow, but once the Centers pick up the speed, these cases will add a tremendous pressures on the EB-3 visa numbers as most of these cases have very early priority dates. Worse yet, the USCIS is expected to pick up the speed of EB-485 adjudication to meet the Bush's commitment to reducing processing to six months by the end of September 2006, which is only eight months away. There are a huge number of 245(i) cases which have yet to move into the stream of EB-3 I-485 rows which will eventually take out EB-3 numbers, constraining the progression of EB-3 numbers continuously.
• The family-based categories moved very slow but there were no dramatic retrogression in any categories. It should be taken a small good news.
• The immigration quota system is choked and will continue to be choked, unless a relief comes from the pending Comprehensive Immigration Reform legislation.

01/11/2006: RIR Conversion Still Available for BEC Regular Labor Certification Application Cases

• AILA has reported that conversion of the regular labor certification application to the reduction in recruitment application is reportedly still available without losing the priority date. This conversion may be a valuable tool to shorten the BEC labor certification processing since the BEC is currently processing the RIR applications in different processing times schedule from the old regular labor certification applications. However, the conversion is not available for everyone. Please review the August 3, 2001 DOL RIR Conversion Regulation.

01/10/2006: USCIS Memorandum of Guidance on E-3 COS/EOS Within the U.S.

• This memorandum of December 15, 2005 issued by Michael Aytes, Acting Associate Director of Domestic Operations gives the details for handling of EB-3 status applications within the U.S. Pending the revision of the forms, the applicant does not, repeat does not, have to submit E-Supplement to I-129. For the details, read the Memorandum.

01/09/2006: USCIS Monthly Newsletter, January 2006 "TODAY"

01/07/2006: Reminder of State Department Prediction for Pace of EB-Visa Number Movement this FY

• The EB-visa numbers for India and China moved forward last month quite substantially consistent with the State Department prediction that for the first few months of FY 2006 which began from October 2005, the EB visa numbers would move forward very quickly. However, the Indians and the Chinese should also remind themselves of the State Department's prediction that their EB numbers would either stop or sporadically move after the rapid movement for the first few months. Probably, for the next two months, the EB numbers for India and China may continuously show progress, but such movement may not last too long for the rest of the FY 2006.
• What this means is that not only Indians and Chinese but also all the immigrants from any country in the world may face a serious clog and lofty roadblock ahead for their immigration journey unless the Congress passes the legislation to reform the immigration system increasing the employment-based immigrant visa numbers and other proposals which the ill-fated S. 1932 immigration packet presented. There are various comprehensive immigration reform bills either pending or yet to be present in the next two or three months in the Congress and all of these bills except one or two bills including the notorious Tancredo bill favorably propose to adjust the employment-based immigrant quota system upward. It is unclear how soon the comprehensive immigration reform legislation will materialize into a law. The immigrant community should work hard in a unified voice to support the comprehensive immigration reform legislation coming months ahead.

01/07/2006: Reminder of Upcoming Potential EB-2 Cutoff Dates for Worldwide Category

• Currently people from countries other than India and China are enjoying the concurrent filing of EB2 I-140/I-485 along with EAD and Advance Parole applications with the accompanying benefits of maintaining legal status, employment authorization, and international travel even if the visa number retrogresses for them in the future. However, these people should remind themselves of the previous State Department prediction that their EB-2 category would also retrogress sometime during the second half of FY 2006. This means that the cut-off date may be set up for the worldwide EB-2 category during April 2006 and September 2006.
• These people should accelerate development and filing of their EB-2 cases as early as possible.

01/07/2006: January 6, 2006 Vermont, Texas, Nebraska, & California Service Centers Processing Times

• See the homepage.

01/07/2006: U.S. Master Degree H-1B Numbers for FY 2006 Quickly Running Out

• As of January 3, there were less than 1,000 numbers left. The numbers may be exhausted before the end of January?

01/06/2006: USCIS Announces Procedure for Change of Status to the New E-3 for the Australian Professionals

• The long-awaited USCIS guidance on its procedure for change of nonimmigrant status to E-3 visa status within the United States has just been released. The processing of the Australian E-3 petition is centralized to the Vermont Service Center, meaning that no matter the Augustralians reside and work, the I-129 petition for E-3 visa status and change of status must be filed with the Vermont Service Center. Read on.

01/06/2006: Homeland Security Department Introduces New Leaders for USCIS and Immigration Enforcement Directorates

• New USCIS Director
• New ICE Director

01/05/2006: Refiling Needed for Erroneous Rejection of PERM-Based I-140 Petitions by VSC

• AILA has reported that the Vermont Service Center erroneously rejected about 100 cases of I-140 petitions which were based on the "colored" certified PERM. Those who fall in this group should immediately contact their legal counsel to refile it. VSC has set up a special procedure for the lawyers to refile it.

01/03/2006: New USCIS Director, Emilio Gonzalez, Takes Office

• Mr. Emilio Gonzalez is taking office of the USCIS Director today. He is taking the post with the difficult tasks ahead, including the backlog reductions, immigration reform, and mounting border security issues. We wish him well.

01/03/2006: USCIS AAO Appeal Processing Times of 12/28/2005

• AILA has reported the AAO appeal processing times as of December 28, 2005. The I-140 processing time is backlogged to one year and six months!

12/31/2005: FY 2006 U.S. Master Degree H-1B Cap

• The U.S. Master or higher degree H-1B cap for FY 2006 has only about 1,350 to reach the cap. FY 2006 ends on September 30, 2006. Once this 20,000 number is exhausted, this country will really face the H-1B cap crisis beginning early next year.

12/30/2005: USCIS Plan for Electronic Filing of Employment-Based Petitions/Applications in 2006 and Proposed New e-Forms

• The USCIS is planning to accelerate the mandatory electronic filing system in 2006 and has released a proposed regulation with the draft new e-forms, starting from H-1B and I-140 filings. As part of the filing, the new system will require each of the involved parties to file a separate registration, including employer, attorney, and alien beneficiary. Employers, alien community, and immigration practitioners should review carefully the proposed regulation and proposed forms, and send comments to the agency within 30 days. Some of the information in these forms currently raise concerns and controversy. People should note that the new system will require for the H-1B filing the two separate filings, one by employer (petition) and another by alien (application). The alien has to pay the filing fee of $200 for the application and the employer will have to pay the filing fee of $190 for the petition. The change practically proposes to raise the filing fees by $200 for the initial and extension H-1B.
• For the new forms and instructions, please click here.
• Company Employer Registration Form and Insturctions
• Individual Employer Registration Form and Instructions
• Alien Registration Form and Instructions
• Attorney Registration Form
• Alien Application for Change/Extension to H-1B Form and Instructions
• Employer H-1B Petition Form and Instructions

 

12/26/2005: Federal Courts Criticize Immigration Judges of Handling of Asylum Cases

• Since Ashcroft changed the Board of Immigration Appeals and the change has allegedly compromised the justice and due process for the alien rights, the federal court of appears have been experiencing a surge of appeals. The federal courts of appeals throughout the country are now critisizing the immigration judges and the BIA for the way that they have been handling the asylum cases. Read on.

12/25/2005: Multiple Applications for "PERM" Filers (Revised)

• This posting applies only to the multiple applications, all filed under the PERM online filing system.
• Until now and for that matter, even until January 19, 2006, DFLC has been and will be permitting employers to file online multiple applications by the same employer for the same employee and for the same job opportunity, subject to the following policies. Each of these terms is an operative word and we will discuss this later.
• Once the employer is convinced that the employer filed such multiple applications or will refile such multiple applications before January 19, 2006, the employer will have to take a critical decision and action before January 19, 2006. Assumedly, employers have filed multiple applications mostly under the three circumstances: (1) Denied by the decision matrix and refiled after the change of DFLC policy to reopen such denials in or after June 2005. (2) Refiled to correct errors and to make changes to avoid denials. (3) Refiled to change their minds on "retaining the BEC case priority date" or make some other changes. It appears that the employers with the multiple PERM applications may not have to do anything if they think the "last filed" application is the right one for the employers for all intents and purposes. In this case, DFLC will continue to adjudicate this last filed applications and deny all other earlier-filed pending applications. Obviously such denials of "earlier-filed" applications will result in loss of such early priority dates. Assuming this is acceptable to the employers, they are not required to do anything and DFLC will decide the last-filed case after January 19, 2006 and deny all other cases. However, should the employers want the DFLC to decide not the last-filed application but the earlier-filed applications for the purpose of the priority date or other reasons, they should make it sure that they withdraw all the applications other than the one they want to keep "before January 19, 2006!" Otherwise, all of such earlier-filed cases will be automatically denied after January 19, 2006.
• There may be some employers who want to refile now or later but before January 19, 2006 to make some changes to correct their errors or to revise anything in the earlier filed cases. For instance, they change their minds of taking the option of retention of priority date in the ETA 9089 or make any other changes. For these employers, this will be a golden opportunity to refile "before January 19, 2006" so that this "last-filed" application is automatically decided and all the pending cases which have previously been filed are automatically denied. DFLC apparently encourages employers to proactively withdraw all such earlier cases even before January 19, 2006, but the result will be same, no matter whether the employers withdraw proactively or let these earlier-filed cases automatically denied, since they will decide only the last-filed application in both situations.
• The policy will be opposite for the employers who will refile another application for the same employee after January 19, 2006! The policy will be completely opposite to the situation of refiling before January 19, 2006. When a multiple application is filed after January 19, 2006, DFLC will automatically decide the "first-filed" case and deny all the later-filed cases unless the employers refile after first withdrawing the pending applications. Accordingly, the employers who intend to refile applications after January 19, 2006 should first withdraw the pending application(s). If the employers are attempting to refile because of the denial of previously-filed applications, they should wait until they receive a "written" decision of denial before they refile.
• The foregoing decisions need the employer's judgment that their multiple applications are "subject" to these policy changes. For any employers to be subject to these new policies, the multiple applications must meet the three requirements: (1) Same Employer; (2) Same Employee; and (3) Same Job Opportunity. Assuming that any one of these three factors are different in the multiple applications, theoretically, such employers should not be subjected to the new policy and DFLC should adjudicate each of the multiple applications separately, but as will be discussed shortly, DFLC is indetermined as to its policy on such multiple applications by the same employer for the same alien. The first two factors are easy to determine: Same employer filing for the same employee. However, the third factor "same job opportunity" is an operative word which has yet to be defined by the DFLC.
• First, the employer should know whether "same job opportunity" means "identical" job opportunity as defined in the PERM regulation. It is unclear but one may assume that the job opportunity in the multiple applications must be "identical."
• Assuming that it means "idential job opportunity," under the PERM regulation any variations among the multiple applications in one of the following items will take out such cases from the new policy:
• Same Employer, including address
• Same Alien
• Same Job Title
• Same Job Location
• Same Job Requirements
• Same Job Description.
• It is not clear whether minor variation rather than material variation to each of these factors would make it a "different" job opportunity.
• Besides, DFLC states that it has yet to make a policy decision on the situation where the same employer filed multiple applications for the same employee "but" in a different job opportunity. Thus the rule on this issue will remain up in the air. Considering the fact that most of the multiple applications involve somewhat different job opportunity such as EB-3 vs. EB-2, the announcement of this new policy will not be able to give much help to most of the multiple application filers.
• However, it seems to be clear that if different employers file multiple applications for the same alien, none of the new policy will affect the multiple applications and DFLC will continue adjudication of each of such applications separately.
• All in all, it seems to be the DFLC position that they disfavor any multiple applications by the same employer for the same employee at a given time.
• Obviously, some employers filed repeatedly multiple applications with some changes in one of these items. The problem is that at this time, each of these six words are also operative terms which have yet to be clearly defined by the DFLC. Accordingly, the "conservative" employers may want to take an action before January 19, 2006 if they want their earlier-filed cases adjudicated rather than the last-filed cases. The same may be true with those employers who intend to refile a case after January 19, 2006. Until the DFLC comes forward with the clear definition of the operative word "same job opportunity," they may want to take a conservative approach if they want the last-filed case decided rather than earlier-filed cases. This is particularly true if the employers know that there were some errors or other critical flaws in the ealier-filed cases.
• It is expected that the AILA DOL Liaison may contact the DFLC and try to obtain clarification on this issue as soon as possible.

12/24/2005: Illegal Immigration Control and Increasing Legislative Focus on Employer Sanctions: "Illegal" Immigration Issue

• As a part of solutions to control the growing problem of undocumented aliens, it appears that the comprehensive immigration reform is likely to focus on guest worker program, border security, and intensified enforcement of employer sanctions for hiring undocumented aliens.
• This legislative trend will increasingly impose burden on the employers to verify employment authorization much more than what is required at this time. For instance, in coming year, the USCIS is expected to publish a regulation to reduce the number of documents for verification of employment authorization. Additionally, there is a strong legislative movement to require the employers to verify the status of employment authorization online. Currently, the employers do not have any obligation to verify such employment authorization inasmuchas the alien provides the listed documents under the I-9 regulation.
• As the nation moves into a new era of immigration enforcement in coming year, it is time for the employers to be more conscious of the I-9 compliance. The first step is to familiarize themselves with the I-9 process. Strikingly, there are so many employers who are not familiar with the I-9 regulation. Employers are encouraged to read the following USCIS publication which was released in October 2005.
• "The I-9 Process in a Nutshell"

12/23/2005: Senate Comprehensive Immigration Reform Bills and Employment-Based Immigrant Quota Reform: "Legal" Immigration Issue

• This summary was posted on our site in September 2005 and we want to repost it to help immigrant community understand how these bills will affect their future differently in these bills:

[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."

12/23/2005: H-1B Recapture Policies of Nebraska Service Center

• The Nebraska Service has released its opinion that the rule of recapture of H-1B cap or L-1 will not only apply to the time spent outside of the U.S. but also apply to the time within the U.S. in the following two situations:
• Period of Unlawful Status in the U.S.: Time spent in an unlawful status counts towards the H-1B cap.
• Another Lawful Status in the U.S.: Time in the U.S. in another lawful status is recapturable.

12/23/2005: Emilio Gonzalez, New USCIS Director, Effective 01/03/2006

• AILA has reported that the Senate confirmed yesterday Mr. Gonzalez as the New Director of USCIS and he will take the office on January 3, 2006. Mr. Robert Divine, the current Acting Deputy Director, will remain in his current position.

12/21/2005: Upcoming Advanced Q&A Topics

• After Christmas, we will start analyzing some hot issues in the form of Q&A. The topics will include "multiple labor certification applications," impact of "comprehensive immigration reform legislation on the Employment-Based backlogs," and AC-21. Please stay tuned.

12/21/2005: GAO Reports that USCIS Needs Improvements to Address Backlogs and Ensure Quality of Adjudications

• The Government Accounting Office (GAO) just released its November 21, 2005 report to the Congress, which indicated that the USCIS's recent release of the backlog reduction did not correctly reflect the ages of old backlog cases and the USCIS needed improvements to address backlogs as well as quality of adjudications. This 80-pdf page document reports in details the problems in adjudication process and system. Read on.

12/21/2005: DOL New Policy on Multiple Labor Certification Applications for Same Employee

• DOL has revised the FAQ to announce the long-awaited DOL policy on the multiple filings of labor certification applications by the same employer for the same employee as follows:
• PERM Cases: Under PERM, is it permissible for an employer to have more than one labor certification application actively in process for the same alien for the same job opportunity at any given time? What should an employer do if it has already filed multiple applications for the same alien for the same job opportunity?
  Under the old and new permanent labor certification regulations, DOL certifies that there are not available U.S. workers for a particular "job opportunity." See, e.g., 20 CFR 656.10(c) (new PERM regulation) and 656.20(c) (prior regulation). DOL's longstanding policy has been that an employer is not prohibited from filing applications for the same alien involving different, legitimate job openings to which U.S. workers may be referred. See, e.g., Field Memorandum 48-94 (May 16, 1994) (Policy Guidance on Alien Labor Certification Issues at § 6). However, DOL has not processed or certified multiple labor certifications for the same alien and same job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.
• In the months since the PERM regulation's streamlined procedures for filing and processing of permanent labor certification applications took effect on March 28, 2005, some employers have filed multiple electronic applications for the same alien and same job opportunity. In some cases, the multiple applications are identical in all respects and may have been the result of inadvertently repeating the "submit" function. In other cases, the applications differ in minor respects, such as answering questions regarding job requirements differently or varying in descriptions of skill requirements. In some cases, these minor differences may have been intended to prematurely respond to electronic denials (that is, in advance of receiving the written denial letter) or to test the system's responsiveness and auditing criteria.
• DOL intends to apply its longstanding policy regarding multiple applications to multiple applications filed under the new PERM regulation. Therefore, an employer may not have more than one Form 9089, Application for Permanent Employment Certification, in process under the PERM regulation for the same alien beneficiary for the same job opportunity at any given time.
• Recognizing that multiple filings are already in the PERM queue for the same employer, alien and job opportunity, we have developed the following procedures to transition in implementation of this policy to PERM:
  If an employer currently has multiple applications in process under PERM for the same alien and job opportunity, the employer must withdraw, by January 19, 2006, all applications other than the one it wants processed. (For withdrawal information, see the separate FAQ on procedures for withdrawing an application.)
  As of January 19, 2006, if multiple applications from an employer for the same alien and same job opportunity are still pending under PERM, we will assume that the employer wishes the last-filed application to be processed (since this presumably includes any corrections or clarifications from earlier filings) and the other pending PERM applications for the same alien/job opportunity will be denied.
  After January 19, 2006, if an application for a particular employer/alien/job opportunity is pending under PERM and a second application is filed under PERM for the same employer/alien/job opportunity, we will continue to process the first-filed PERM application and deny subsequent PERM filings except where the employer follows the procedures outlined here. If the employer wishes to file a new or changed application under PERM for that same alien and job opportunity, the employer should not file the new PERM application until the employer formally withdraws the PERM application currently in process or the employer has received the Final Determination form notifying the employer that the previous application is denied. NOTE: An employer may not file a new application for an alien while a request for review is pending with the Board of Alien Labor Certification Appeals (BALCA) for that same alien, employer, and job opportunity. See 20 CFR 656.24(e)(6).
• Backlog Cases: DOL will continue to apply its longstanding policy regarding multiple applications under Field Memorandum 48-94 where multiple cases have been filed and are being processed under the old regulation at Backlog Elimination Centers. DOL will continue to process and certify multiple permanent labor certification applications filed under the prior regulation for the same alien if the employer is proposing to employ the alien in multiple different bona fide job openings to which U.S. workers can be referred. DOL will not process or certify multiple labor certifications filed under the prior regulation for the same alien, employer, and job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.
• If a BEC identifies multiple pending applications for the same employer, job opportunity, and alien, the BEC will issue a Notice of Findings for all related applications, and provide the employer the opportunity to identify which application contains the bona fide job opportunity. Should an employer currently have multiple applications pending at a BEC for the same employer, job opportunity, and alien, the employer may take the initiative and notify the BEC as to which application it wishes to have processed and withdraw all other applications.
• Mutiple Applications Between PERM and Backlog Cases: This FAQ does not address the situation in which an application for the same employer, alien and job opportunity is pending under both the prior and new PERM regulation. DOL is considering stakeholder input on this situation, which in some cases may have implications for priority dates.
  
• Multiple Applications for Different Occupations: In view of the past practice of allowing the filing of multiple applications by the same employer for the same alien if the job opening was different, why, under PERM, is the employer precluded from having more than one application for the same alien actively in process at any given time?
  We have removed the response to this question posted on August 8, 2005. The Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future.
• For the analysis, please stay tuned to this website.
  

12/20/2005: Service Centers Processing Times of 12-20-2005

• See Home Page.

12/20/2005: Q&A Schedules

Please be advised that we will not take e-mail questions during the office hours. People should send questions in the evening after 7:30 p.m. Eastern Standard Time (New York). We will accomodate as many questions answered in the evening either via e-mail or our Q&A site.

12/19/2005: Visa Retrogression and Q&A to Retart

• We will restard the Q&A session which has been held off due to the S. 1932 monitoring. People may send questions again without seeking a legal advice on the individual specific question.

12/19/2005: Senate Agreed to Debate the Conference Report by Large Majority

12/19/2005: Still Trembling from the S. 1932 Shock Wave

• This reporter is still struggling to wake up from the bad dream that he had gone through. He keeps wondering why the big guys including fortune 500 businesses and large educational institutions more or less slipped away from the push after the passage of this bill in the Senate. In fact, there was a sign of switching gear from recapture issue to the comprehensive immigration reform and more or less accepted the idea that the visa numbers for legal immigration would be better off being a part of the comprehensive immigration reform process. They may realize by now probably it was one of their big mistakes. By next February or thereafter, they will realize that their turn of the strategy was misguided by the anti-immigration forces. "Divide and Conquer" and "Delay and Kill" strategies of these forces perfectedly worked.
• It is a sad day but the process should never cease. After all, it is a part of the political "process" which should not end at a given time spot. We will wake up and continue the march afresh and more forcefully.

12/19/2005: AILA Has Confirmed that Conference Report Did Not Include 8001

• AILA has released information that the S. 1932 which the House passed early this morning did not include visa recapture and H-1B.

12/19/2005: S. 1932 - Please Calm Down Until Officially Confirmed

• The previous report is very unofficial. It can be wrong. We will report the details as soon as the Conference Report is made available.

12/19/2005: House Passed S. 1932 Last Night (Retracted)

• The unconfirmed sources (Budget Committee staff in D.C.) indicated over the phone that it "appeared" that it included Section 8001!! Until it is confirmed, please do not assume that it is official. The Conference Report 109-362 which the House adopted last night will be released soon. However, until it is confirmed wrong, it is a good news for the time being. The Budget Committee Summary of the Conference Report was not specific enough to confirm this informal sources of information.

12/19/2005: This Site is Experiencing Technical Problem. Please be Patient.

12/18/2005: S. 1932 Voting Schedules

• Report indicates that the GOP leaders in the House and the Senate have reached an agreement and are scheduled to push passage of the compromised bill in the House tonight and the Senate will pass it when they return to the session at noon, Monday. House Republican leaders said they would call for a vote within hours, and a post-midnight session seemed likely. Passage would clear the way for a Senate vote on Monday. There will be no votes in the Senate tonight. The Senate will return to the session at noon tomorrow, Monday, December 19, 2005.
• Currently this preliminary draft of the GOP agreement is not available. Neither is available the information on Section 8001 and Section 8002 in this agreement. It is hoped that the AILA will obtain and release this informatioln the first thing in the morning tomorrow.

12/18/2005 (4:45 p.m. EST): House and Senate Schedules Today and S. 1932

• The Senate will return to the session at 6:00 p.m. EST. The House has been in session since 1:00 p.m. The activities of the Conference Committee have yet to be disclosed and formalized into a Conference Report.
• It appears, however, that the Senate and the House are preparing themselves for the potential conference report being brought to the full floors today. The House leaves open for the today's agenda a potential consideration of Conference Report on H.R. 4241 - Deficit Reduction Act of 2005, the House version of S. 1932. If the Conference Report is presented today, the votes will be taken anytime after 5:00 p.m. EST.

12/18/2005: Rep. Lamar Smith Contact

• http://lamarsmith.house.gov/constituentservices.asp?FormMode=Call&LinkType=Section&Section=8. In view of the urgency, phone calls and faxes "en masse" may be directed to his office in Washington, D.C. Please remember that we should recognize his previous contribution to the "legal immigration" and appreciate for his sense of urgency that the country has to take an action immediately to retain foreign brain powers and cannot afford of being pull into very complex illegal immigration issues which will take some time even in the next year to resolve the nation's broader immigration policy. For fax assistance, please go to one of the following two community organization sites:
• ImmigrationPortal.com (S.1932 Status link)
• ISNAmerica.org

12/17/2005: S. 1932 Information is Still Unofficial and Immigrant Community May Continue their Efforts

• The sources of this information is fairly reliable but not official. We did not post the information to discourage the immigrant community from continuing their efforts. We will find out the official decision of the Congress very soon and until it becomes official, people should continue their efforts.
• As this reporter stated, Rep. Sensenbrenner and Rep. Lamar Smith are fairly well known anti-immigrationists. Even before the House passed S. 1932, Rep. Lamar Smith was advocating his view that S. 1932 immigration bills should be handled as part of the Comprehensive Immigration Reform legislation next year. However, Rep. Smith is a legislator who is unpredictable as illustrated by his sponsorship of H-1B Visa Reform Act of 2005 providing 20,000 additional H-1B numbers for the U.S. Master or higher degree earners. He stands strongly against legalization of the illegal immigrants but supports reluctantly legal immigration bills. This reporter urges the community to send "en masse" thank-you fax to him for his previous legislation of H-1B Visa Reform Act of 2005 and ask him to show a similar support in the S. 1932.
• Remember that these three members are appointed as conferees from the Committee on the Judiciary for consideration of title VIII of the Senate's original bill and title V of the House amendment. For the conference reports, please click here.

12/17/2005: Both Houses May Pass S. 1932 Without Immigration Packet Tomorrow

• Unconfirmed sources indicate that in order to pass the negotiated S. 1932 in the House that has adamantly opposed the immigration bill as part of the budget reconciliation bill, the House leadership has reportedly negotiated and agreed to take out the immigration packet from the S. 1932, and both the House and the Senate may pass the finally negotiated S. 1932 bill tomorrow. Please stay tuned.

12/17/2005: House Instructions to Conferees Which Were Adopted Last Night

• Before closing the meeting, the House floor passed the following Spratt motions for instructions to the House conferees which they had just appointed before the end of the meeting: To the maximum extent possible within the scope of the conference, the managers on the part of the House at the conference on the disagreeing votes of the two Houses on the House amendment to the bill S. 1932 be instructed to recede to the Senate by eliminating House provisions reducing eligibility for food stamps (sections 1601 and 1603 of the House amendment), and reducing funding for child support enforcement (sections 8319 and 8320 of the House amendment), and repealing the Continued Dumping and Subsidy Offset (the ``Byrd Amendment'' (section 8701 of the House amendment)) and modifying the Mining Law of 1872 (sections 6201 through 6207 of the House amendment); such managers be instructed to recede to the Senate by eliminating the sections of the House amendment that reduce Medicaid benefits and allow increases in beneficiary costs (sections 3111, 3112, 3113, 3114, 3115, 3121, 3122, 3123, 3124, 3125, 3134, and 3147 of the House amendment) and by reducing to the maximum extent possible increases in interest rates and fees paid by student and parent borrowers on student loans contained in sections 2115, 2116, and 2117 of the House amendment, and by adopting the Senate provisions concerning Pell grants (sections 7101 and 7102 of S. 1932); and such managers be instructed to recede to the Senate by adopting the Senate provision eliminating the stabilization fund that makes payments to Medicare Advantage Regional Plans (section 6112 of S. 1932), adopting the Senate provision on Medicare Advantage risk adjustment (section 6111 of S. 1932), and adopting the Senate provision on Medicare physician payments (section 6105 of S. 1932).
• The meeting adjourned close to the mid-night. There is no information available about current activities of the Conference Committee this morning. Please stay tuned.
• As was true with the Senate conferee instructions, the House instructions mean that the conferees need to follow the instructions in the negotiation with the Senate conferees.
  

12/17/2005: House Passed "Egregious" H.R. 4437 Last Night, but Senate Action Needed Next Year

• This bill is so egregious as to make drunken driving an aggravated felony, an deportable offense, unlawful presence in the U.S. a criminal offense, termination of immigration lottery program, etc., etc. There was an amendment introduced to remove citizenship to a child born of illegal alien parents in the U.S., but this stupid amendment was defeated.
• Employment-based immigrant community started to pay attention to this bill because a Congressman from Arizona had introduced an amendment to increase the employment-based immigrant quota as part of this legislation. However, such attention was misguided in that the immigrant community could not support this inherently egregious legislative bill just because it had contained a provision to increase the immigrant quota. This amendment was defeated on the floor any way.
• This bill has a long way to go. The Senate will not pick up this bill until next year and it is expected that this bill will face a steep opposition from various segments of the community. The fate of this bill is uncertain in that this bill will eventually fall into a part of the Comprehensive Immigration Reform legislation process which is tabled in February 2006 in the Senate. In a way, it was a good news that the House passed this bill right at the end of the Congress' last dates in session.

12/17/2005: House and Senate Will Be in Session Today (Saturday)

• House will reconvene at 2:00 p.m. and Senate will reconvene at 4:00 p.m. today. People should have a sufficient time this morning to contact them before they go into the special weekend session via "fax" and "phone calls." House will also meet Sunday. If S. 1932 is not finally compromised and resolved this weekend, both the House and the Senate are expected to return to a special session early next week so that they finish up S. 1932 before the First Year of 109th Congress closes its curtain until the next Congressional year.

12/16/2005: House Appointed S. 1932 Conferees

• The following members have been appointed today by the Speaker of the House:
• From the Committee on Ways and Means for consideration of secs. 6039, 6071, and subtitle B of title VI of the Senate bill and title VIII of the House amendment, and modifications committed to conference: Thomas, Herger, and Rangel.
  From the Committee on Transportation and Infrastructure for consideration of title V and Division A of the Senate bill and title VII of the House amendment, and modifications committed to conference: Young (AK), LoBiondo, and Oberstar.
• From the Select Bipartisan Committee to Investigate Preparation for and Response to Hurri for consideration of title IV of the Senate bill and title VI of the House amendment, and modifications committed to conference: Pombo, Gibbons, and Rahall.
• From the Committee on the Judiciary for consideration of title VIII of the Senate bill and title V of the House amendment, and modifications committed to conference: Sensenbrenner, Smith (TX), and Conyers.
• Appointed conferees Provided that Mr. Ney is appointed in lieu of Mr. Bachus for consideration of subtitles C and D of title II of the Senate bill and subtitle B of title IV of the House amendment.
• From the Committee on Financial Services for consideration of title II of the Senate bill and title IV of the House amendment, and modifications committed to conference: Oxley, Bachus, and Frank (MA).
• From the Committee on Energy and Commerce for consideration of title III and title VI of the Senate bill and title III of the House amendment, and modifications committed to conference: Barton (Initially Upton, but later replaced by Barton), Deal (GA), and Dingell.
• From the Committee on Education and the Workforce for consideration of title VII of the Senate bill and title II and subtitle C of title III of the House amendment, and modifications committed to conference: Boehner, McKeon, and Miller, George.
• From the Committee on Agriculture for consideration of title I of the Senate bill and title I of the House amendment, and modifications committed to conference: Goodlatte, Lucas, and Peterson (MN).
• Appointed conferees for consideration of the Senate bill, and the House amendment thereto, and modifications committed to conference: Nussle, Ryun (KS), Crenshaw, Putnam, Wicker, Hulshof, Ryan (WI), Blunt, DeLay, Spratt, Moore (KS), Neal (MA), DeLauro, Edwards, and Ford.
• The Title VIII which includes the Immigration packet will be represented by the members who took the strongest anti-immigration stance in the House when it comes to the legalization of "illegal" aliens, but they are not necessarily hostile to the issues of "legal" immigration issues. They are Sesenbrenner, Smith (Larmar), Conyers.
• Please start contacting these members and emphasize that this bill involves "legal immigration" and critically needed foreign brain powers.
• The House will be in session tomorrow, Saturday. Important, Important, Important..........................!!
• Contact Information:
• U.S. Senators
• U.S. House of Representatives Members
  

12/16/2005: Status of NBC & Local District Office Case Transfers to California Service Center and Important Reminder

• USCIS has released an important notice to the familiy-based immigration and Citizenship related filers pending before the National Benefits Center or Local District Offices in the Eastern Region that some of their cases have been transferred to the California Service Center for potential interview-waiver adjudications. People should pay close attention to the following reminders by the USCIS:
• New Notices and New CSC Case Numbers: The California Service Center will issue a new WAC Receipt Notices: I-130, I-485, N-565, N-600. People should not be too much alerted by the different Receipt Dates on the new Receipt Notices since the approval notice will show the correct original Receipt Date.
• No New Notices to Be Issued for the Following Cases: I-751. For these cases, people will first learn through the RFE from the CSC that their cases have been transferred to the CSC.
• Importance of Return Address on the Notices and RFE: When people receive the new Notices or RFEs, they should pay special attention to the return address to avoid any failures to respond to the request "timely" and correct address.
• People are asked not to make inquiry for 180 days from the date of the notices.

12/16/2005: USCIS Announced First Half FY H-2B Cap Reached

12/16/2005: New York USCIS Offices to Remain Open During the New York Transit Strike

12/16/2005: Senate Appointed Conference Conferees

• Senate appointed conferees. Gregg; Domenici; Grassley; Enzi; Allard; Sessions; Stevens; Shelby; Specter; Chambliss; McConnell; Conrad; Murray; Harkin; Sarbanes; Inouye; Bingaman; Baucus; Kennedy; Leahy.

12/16/2005: Interesting U.S. Citizenship and Naturalization Facts Released by USCIS

12/15/2005: S. 1932 Compromise Process Expected to be Completed within This Week

• Report indicates that the Speaker of the House and the Senate Majority Leader have reached an agreement to pass the reconciliation bill within this week. On the Senate side, the motions for the conferee instructions are currently passed very quickly. Out of the seven motions, the Senate has already passed three motions before 4:00 p.m. EST, and the rest of the motions are expected to pass before the end of the day. The House has yet to act on the instructions to their conferees but considering the agreement between the two leaders of the House and the Senate, the House is anticipated to act on it very quickly as well.
• The Senate motions mean that the Senate conferees are not allowed to compromise these seven instructions in the original S. 1932 of the Senate. The conferees can negotiate with the House conferees for all other differences but the Senate has not mandated the conferees on the immigration packet. Due to the short timeframe within which the conferees from both the House and the Senate will have to reach a compromise for all the differences, unless the House is determined to accept the Senate's S.8001 and S. 8002 when they come to the conference table, the chance of the immigration packet in the original bill is slim as the Senate will pass the final compromised S. 1932 conference report even without the immigration packet.
• Please stay tuned to this web site for the breath-taking development of the S. 1932 negotiations.

12/15/2005: Senate S. 1932 Immigration Packet Practically "Dead"

• The Senate is scheduled to continue the preagreed motions for instructions to the Senate conferees as follows: DeWine Motion to Instruct Conferees to insist that any conference report shall not include the provisions contained in section 8701 of the House D1282amendment relating to the repeal of section 754 of the Tariff Act of 1930. GPO's PDFKohl Motion to Instruct Conferees to insist that any conference report shall not include any of the provisions in the House amendment that reduce funding for the child support program established under part D of title IV of the Social Security Act (42 U.S.C. 651 et seq.), and to insist that the conference report shall not include any restrictions on the ability of States to use Federal child support incentive payments for child support program expenditures that are eligible for Federal matching payments. Kennedy Motion to Instruct Conferees to insist that the Senate provisions increasing need based financial aid in the bill S. 1932, which were fully offset by savings in the bill S. 1932, be included in the final conference report and that the House provisions in the bill H.R. 4241 that impose new fees and costs on students in school and in repayment be rejected in the final conference report. Reed Motion to Instruct Conferees to insist on a provision that makes available $2,920,000,000 for the Low-Income Home Energy Assistance Act of 1981 (42 U.S.C. 8621 et seq.), in addition to the $2,183,000,000 made available for such Act in the Departments of Labor, Health, and Human Services, and Education, and Related Agencies Appropriations Act, 2006. A unanimous-consent agreement was reached yesterday providing for further consideration of the message from the House to accompany S. 1932 (listed above) at 3:30 p.m., today with a series of votes to occur on the pending motions to instruct Conferees.
• Since the Senate would agree not to instruct the Senate conferees not to include the House amendment to the Senate version on the immigration packet, the original Sections 8001 and 8002 appear to be practically dead unless any unlikely miracle takes place.
  

12/14/2005: Senate S. 1932 Conferee Instructions Debate and Agreements

• As we pointed out in the previous posting, today the Senate debated and agreed to certain motions following the Senate's yesterday's agreements. Unfortunately, these debates did not include the immigration packets. The debate is scheduled to continue tomorrow, but it is uncertain whether any motions can be brought up other than the ones which the Senate agreed to yesterday. For the today's debate, please click here.
• We have yet to wait and see how the House-Senate conference process will develop and unfold. However, it is too sad that the businesses have swifted their gears from S. 1932 issue to illegal immigration legislation issue after the Senate passed the S. 1932. The immigrant communty has also lost steam and energy since the passage of the bill in the Senate. Reportedly, the FAIR group that is the Meca of anti-immigration forces has intensified their lobby and campaigns against the S. 1932 immigration packet. It appears that one poisonous pill the group used was that the S. 1932 immigration bills may be better handled as part of the Comprehensive Immigration Reform legislation next year. It was drummed up by some legislators including Lamar Smith, the Congressman from Texas and an Indian website in India even publicized the concept. Such tactics apparently worked in dividing immigration stakeholders. We must congratulate the FAIR for their job well-done.

12/14/2005: Uncertainty of the Fate of Immigration Packet in Senate Instructions to S. 1932 Conferees

• Today's debate has yet to be relased, but the text of the Senate's motion to limit the instructions to certainly issues only raises a question as to whether the Senate would disagree with the House on the immigration packets. The following is the Senate Majority Leader's motion which was adopted by the full Senate yesterday:
• Mr. FRIST. Mr. President, I ask unanimous consent that on Wednesday, following morning business, the Chair lay before the Senate a message from the House to accompany S. 1932, the deficit reduction bill. I further ask consent that the Senate disagree to the amendment of the House, request a conference with the House, and that the Chair be authorized to appoint conferees on the part of the Senate with the ratio of 11 to 9; provided further that before the Chair appoints conferees, the following motions to instruct be the only motions in order and that they be considered under the following limitations: Kennedy, higher education, 60 minutes equally divided; Baucus, Medicaid, 5 minutes equally divided; DeWine, trade, 60 minutes equally divided; Kohl, child support enforcement, 60 minutes equally divided; Carper, TANF, 5 minutes equally divided; Harkin, food stamps, 5 minutes equally divided; and Reed, LIHEAP, 60 minutes equally divided. I further ask consent that no amendments be in order to the motions and the only debate in order under the statute other than debate on the motions be 30 minutes equally divided for general debate, divided between the chairman and ranking member; further, that all motions be debated on Tuesday and Wednesday and that the vote occur in relation to the motions in the stacked sequence at a time determined by the majority leader after consultation with the Democratic leader; finally, that any votes which do not occur prior to 1 p.m. on Wednesday be stacked to occur beginning at 3:30 on Thursday, December 15.
• On top of the uncertain Senate position, report indicates that the Acting Majority Leader in the House may not even agree to the conference before they go into the year-end recess. The House development is still fluid, but report indicates that once S. 1932 fails to pass this year, the survivial of this bill in the next session of the Congress is dubious. Read on.
• We will report the details as soon as the Senate's debate of today is released. Please stay tuned.

12/13/2005: Senate Floor to Debate Instructions to S.1932 Conferees Tomorrow

• Senate is scheduled to debate the instructions to S. 1932 conferees tomorrow morning after the regular business session. The businesses, academic institutions, and employers should contact the Senators tonight via fax or e-mail and ask to retain Section 8001 and 8002 immigration packet.

12/13/2005: Under Secretary of Commerce Emphasizes Importance of Foreign Scientists/Engineers for U.S. Technical Leadership

• Under Secretary of Commerce, David McCormick, emphasized how important it is to attract foreign scientists and engineers for our leadership in the world. Reportedly, Over the past five years, Mr. Bush has worked with Congress to increase federal education funding by 33 per cent, with a special emphasis on the next generation of innovators. Yet, even with this investment in the future, the U.S. must be able to draw on the world's best minds. America's research capabilities benefit from the talents of foreign citizens. In 2001, foreign-born scholars held nearly 57 per cent of science and engineering postdoctoral positions at U.S. universities, while 38 per cent of doctoral-level employees in technical firms are foreign-born. Technology leadership is the key to prosperity and security, and America remains the world's technology leader. But, as highlighted by a recent report from the National Academies, the U.S. lead in science and technology is not guaranteed. Whether measured by the number of science and engineering degrees, the growth in patent applications or the authorship of journal articles, the gap is closing. Asian universities produce 47 per cent of engineering graduates worldwide and foreign-born inventors account for nearly half of U.S. patents.
• Mr. McCormick has disclosed that in order to open the door to the foreign brains, the Department has been working on a regulation to restrict certain foreign scientists and engineers from getting access to certain technologies and databases that can compromise the security and induce transfer of our technologies. He concluded that the nation should open the door to these brains to achieve technical leadership in the world and his department's mission is to work out devices to maintain a balance between the goal of technical leadership and protection of technology and national security.
• This is an important reminder to the leaders in the House and the Senate of importance of passage of Sections 8001 and 8002 of the original Senate Reconciliation bill, S. 1932. For the full text of his statement, please click here.

12/12/2005: Distinguished Senators and Representatives of the House

• As the Senate reconvenes today and you are scheduled to initiate the compromise process for the S. 1932, we urge each of you to take a look at the importance of foreign scientists and engineers for the future of your own state by reviewing the attached statistics. Currently the foreign professional scientists and engineers are unable to apply for the H-1B visa unless they have earned a U.S. master's or higher degree. Early this year, the Congress assigned special 20,000 numbers for these U.S. earned foreign professionals, but these numbers are expected to run out shortly and the U.S. employers will not be able to hire any of these critically needed foreign scientists and engineers until October 1, 2006. You do not have to be a rocket scientist to understand the seriousness of the current situation for the U.S. businesses and employers in the high-end industry. It is more an issue of challenge for the U.S. businesses and employers to survive in the severe competition in the global economy than the issue of immigration of foreign workers. Our country needs them for our own national interest more than they need us for their immigration to this country. With due respect, we urge you to agree to the Sections 8001 and 8002 of the Senate version of S. 1932.

12/12/2005: Effect of Expiration of "Paroled" I-94 on Pending I-485 Eligibility

• Some of the I-485 waiters travel on Advance Parole. When they return to the U.S., they are "paroled" into the country based on a valid Advance Parole. Thus their I-94 which is issued at the port of entry will show "paroled" and expiration date. Since it is a "I-94" document, the I-485 waiters whose parole I-94 expired have lived in fear since there has been no clear cut answer released by the USCIS as to its impact on the pending I-485.
• AILA has reported that the USCIS authorities confirmed that expiration of the Advance Parole-based I-94 (parole) would not lead to the denial of the pending I-485 applications.

12/11/2005: DHS Inspector General Report Recommending Improvement in USCIS Security Check Management System for Security and Backlog Reduction

• The Inspector General of the DHS has released its investigation and report, dated November 2005, of the USCIS security check management system and recommendation for improvement of the system to enhance the homeland security and to achieve the immigration benefits processing backlog reduction.
• The USCIS reports that the current backlog of the benefits processings was caused by the IBIS check processing and the USCIS is working on changes in management and processing system in order to achieve the Bush's 6-month processing by September 30, 2006 without compromising the homeland security.
• The IG report indicates that there are three problems, among others, with the current USCIS security check processing and management system. Firstly, biometric identification is either not utilized or improperly utilized in a number of immigration/nonimmigrant benefit applications/petitions as the primary tool for security clearance, posing the risk to the nation's security. Secondly, different agencies collect overlappingly biometrics at different stages, but because of lack of coordination and sharing of the biometric databases among the agencies, the USCIS takes steps to collect and re-collect biometrics causing delays in the processing times and increasing the backlogs. Thirdly, the USCIS undertakes security checks for certain proceedings that may not be necessary because of the nature of the proceedings. The IG thus recommends to achieve the improvements in these areas in order to remove the current loopholes in security clearance and potential security risk and to remove the current backlogs of applications and petitions.
• The IG report is expected to affect the immigration benefits processing, requiring the changes in the procedures in petitions or applications. First, the USCIS is expected to require the biometric collection as a standard procedure for the "first" application or petition for any immigrant or nonimmigrant benefits. The USCIS has reported that it intends to require a biometric collection for the temporary worker (I-129) petitions and other applications, including the ancillary proceedings such as EAD and Advance Parole. This may affect the EAD application procedures in two ways, among others. Currently the agency allows mail-in EAD application which does not require the biometric collection unlike online filings. It is likely that the agency may change that. As for the Interm EAD after 90-day of filing of EAD application, the agency may adopt the current practice of some of the Service Centers and local district offices that state that the 90-day clock does not start ticking until the biometric is completed at the Application Service Centers. Moreover, even though the USCIS enacted a regulation, multiple-year EAD issuance may turn out to be a dead regulation because of the security issues. People should be prepared for such upcoming changes.

12/11/2005: H-1B Recapture of Overseas Trip Time and 7th Year H-1B Extension Pending Labor Certification

• USCIS has officially abandoned previous arbitrary policy of restricting recapture of H-1B overseas time by "meaningful interruption" standard. Accordingly, at this time, H-1B professionals can recoup any time spent outside of the U.S. for whatever purposes, practically allowing them to stretch out the H-1B stay in the U.S. beyond six years. This new policy is particularly important for those who filed the labor certification application after their five (5) years of stay in the U.S. in a H-1B status. Since the 7th year recapture rule requires that the labor certification application must be pending for 365 days before reaching the H-1B 6-year limit, unless the labor certification application is filed before reaching 5 years in H-1B, he/she is not eligible for the 7th-year extension. However, by making international trips, they will be able to stretch out the six-year limit beyond the calendar six years and may be able to meet the "365-day labor certification pending" requirement before reaching the H-1B 6-year limit.
• Those who need the overseas time recapture must preserve good record to establish the exact period of absence from the United States. Usually people attempt to prove such absence through the entry-exit stamps in the passport, but the USCIS authorities warn that they may need additional evidence including boarding passes, hotel registrations or invoices, or phtographs with digital date, etc, etc. They should also ensure that their absence from the U.S. will not violate the labor condition application and H-1B rules.

12/10/2005: House Speaker Comment on Pending S. 1932

• On December 9, 2005, the Speaker of the House made the following statement in summarizing legislative agenda coming week: We’re also going to finish our efforts to reduce the deficit soon. I know I talked to you before about the Deficit Reduction Act that we passed. The American people deserve to have a more efficient and effective government. This legislation makes the reforms so they have that. We’ve passed our version in the House. The Senate has theirs. So now we’re working out a compromise and I hope we can get that to the floor soon. Read on.

12/10/2005: Computer Glitch Issued Green Cards with Wrong Start Dates and USCIS is Recalling and Reissuing the Cards

• LA times reports that the USCIS is recalling about 60,000 green cards which have been issued with errors because of the computer glitch. Most of these cases are known to be asylum cases. These recalled cards are reproduced in about three weeks.

12/10/2005: USCIS Reportedly to Release Policy Memo on "Equivalent Education Degree" Issue Soon

• Report indicates that there was a disgreement within the USCIS on this issue, but the difference has been resolved and the USCIS intends to release a policy guidance on this issue. We do not know whether it was resolved in favor of the immigrants or in favor of AAO that required a "single" degree, but it may be leaning towards the former.
• The disagreement has been most visible between the opinion of Efren Hernandez, Director of Business Branch, who more than once opined in letters to lawyers that certain two degrees should be acceptable, and the Service Centers and AAO that took a contrary position that a single degree was required for the purpose of the labor certification based I-140 petition when the labor certification required a bachelor's or equivalent degree. As we reported earlier, a federal district court in Oregon also disagreed with the Service Centers and AAO on this issue, but the Service Centers have refused to follow the court decision in cases other than the specific court case. It is not clear how soon this memo will be released, but we hope that the USCIS leadership releases this memo as soon as possible.

12/10/2005: USCIS Accepts Latest "One-Year" Tax Return (Not Three Years) for Affidavit of Support I-864 Supporting Documentation

• The USCIS has changed its policy for supporting financial documents for Affidavit of Support, I-864, from the three-year tax returns to one-year tax return if the latest tax return establishes 125% of poverty guideline income. This will help tremendously those family immigration sponsors or co-sponsors or joint sponsors who were without income or insufficient income two or three years back but currently have sufficient income during the past one year. Good move, indeed. For the details, read the new memorandum.

12/09/2005: January 2006 Visa Bulletin

• As predicted, the employment-based visa number was very slow. Good news is that there was no retrogression for the worldwide EB-2 and EB-1.
• India: EB-1=5 months, EB-2=6 months, EB-3=5 months
• China: EB-1=6 months, EB-2=4 months, EB-3=3 months
• Worldwide: EB-3=15 days
• Mexico: EB-3=1 month
• Philippines: EB-3=15 day

12/09/2005: Immigration Community Website Links in "Yellow Index" Frame of Our Home Page

• We are planning to make some changes in our home page effective January 1, 2006. One of the new features may include posting of links to selective immigration community websites on the yellow-colored left frame of our home page to serve better the immigrants and immigrant community. The links may be organized in different categories depending on the purpose and intended audience of the websites.
• Interested websites may send us the following information to our e-mail: ohlaw@immigration-law.com by the end of December 2005:
• Information on the organization including name, address, telephone, fax, e-mail, and details of the organization.
• Targeted audience and number of membership.
• Focus of the immigration issues and services
• Other information.
• Only a handful of websites may be carefully selected and linked.

12/09/2005: USCIS Corrects the EAD Filing Jurisdictions

• USCIS has published a notice to correct its current regulation and clarify the EAD filing jurisdictions as follows:
• Those whose Suspension of Removal is granted do not need EAD and do not have to apply for EAD.
• Those who applied for Suspension of Removal must file EAD application with the Chicago Lockbox Facility.
• Those who applied for Cancellation of Removal must file EAD application with the Chicago Lockbox Facility.
• NACARA relief applicants must file EAD application with the Service Center that has jurisdiction of NACARA.
• This correction applies only to those whose I-485/I-765/I-131 filing procedure was changed from the local district office to the direct mail filing to the Chicago Lockbox facility. Accordingly, the cases which had been handled by the Service Centers rather than the local district offices at the time of the filing procedure change continue to fall under the jurisdiction of the Service Centers and the EAD should be filed with the Service Centers and not Chicago Lockbox Facility. This correction does not have anything to do with the employment-based I-485 filers.
• This correction takes effect today, December 9, 2005.

12/09/2005: Quickly Exhausting FY 2006 U.S. Master Degree Cap Numbers Poses a Serious Challenge to U.S. Employers

• Readers must have noticed that the latest FY H-1B cap count for U.S. master degree holders indicates that the U.S. employers have only 3000 or less available to recruit these highly needed foreign workers. As these numbers may be exhausted in the near future, the U.S. employers are expected to face a crisis for a prolonged period of time, at least until October 1, 2006! The visa recapture legislative bill under S. 1932 should give some relief, albeit temporay, to these employers. These employers should let their concerns heard in the Congress during the next few days. The fate of this bill will be determined next week!

12/08/2005: USCIS Updated Service Centers/District Offices Processing Times of 12/08/2005

• Please see our home page.

12/08/2005: H-1B Cap Counts Are Frequently Updated by USCIS

• USCIS is updating H-1B/H-2B cap counts fairly frequently. They have posted the cap counts as of the first week of December 2005. People are suggested to visit our home page and check the cap counts through the link which we have set up in the main body of the home page.

12/08/2005: DOL Notice of Special Procedures for Permanent Labor Certification Cases Affected by Hurricanes Katrina, Rita, and Wilma

• DOL has published a notice that the DFLC centers for PERM applications and backlock elimination cases are handled under the special procedure as specified in this notice effective November 16, 2005. Today's official notice published in the federal register will supercede any previous messages posted in the DFLC websites. The employers, aliens, and their legal counsels who are involved should immediately follow these special procedures:
• A. Mail delivery: Centers will not send correspondence to zip codes in the affected regions where there is either no mail service or partial mail service until a new address is provided by the employer or attorney in accordance with the instructions in this notice. Employers or their attorneys are asked to contact the Center with jurisdiction over each particular permanent labor certification case as follows: Katrina.dflc@phi.dflc.us for the Backlog Elimination Center in Philadelphia; Katrina.dflc@dal.dflc.us for the Backlog Elimination Center in Dallas; Katrina.dflcatlanta@dol.gov for the National National Processing Center in Chicago.The subject line of each e-mail should designate which hurricane(s) affected the application. E-mailed notices must include: the new mailing address to which correspondence should be forwarded, any new telephone and facsimile information, and sufficient information to identify each affected application(s), including the case number(s).
• B. Extension of Due Dates: DFLC is extending deadlines for employer responses to Backlog Elimination Center (BEC)-issued 45-day letters (also known as continuation letters), BEC-issued Notices of Findings, National Processing Center (NPC)-issued audit requests, NPC requests for additional information, and employer appeals. In other words, any of these specifically listed application materials with a due date during the period described below will be considered timely if received by the appropriate Center by the date specified for each hurricane:
  For Hurricane Katrina: If the specific deadlines listed above fall during the period from August 29, 2005, until December 1, 2005, the employer's submission will be considered timely if received by the appropriate NPC by December 1, 2005.
  For Hurricane Rita: If the specific deadlines listed above fall during the period from September 23, 2005, until January 1, 2006, the employer's submission will be considered timely if received by the appropriate NPC by January 1, 2006.
  For Hurricane Wilma: If the specific deadlines listed above fall during the period from October 24, 2005, until February 1, 2006, the employer's submission will be considered timely if received by the appropriate NPC by February 1, 2006.
  These extensions apply even if the employer, attorney, or agent has relocated and resumed operations outside the disaster area.
• C. PERM Filing Date Extension: DFLC is extending recruitment validity periods to allow employers or their attorneys located within a FEMA-designated disaster area (as defined above) to file their permanent labor certification application by seventy-five (75) days after the date of the last of the three hurricanes, so long as recruitment was begun within 180 days prior to the specific hurricane. The last of the three hurricanes, Wilma, hit on October 24, 2005, and 75 days after that date is January 7, 2006. The specific dates applicable to each hurricane are as follows:
• ------------------------------------------------------------------------
  Recruitment must
  have begun by (180 Filing must occur
  Hurricane date days prior to by:
  hurricane):
  ------------------------------------------------------------------------
  Katrina--Aug. 29, 2005.......... March 2, 2005..... January 7, 2006.
  Rita--Sept. 23, 2005............ March 27, 2005.... January 7, 2006.
  Wilma--Oct. 24, 2005............ April 27, 2005.... January 7, 2006.
  ------------------------------------------------------------------------
  
• For details, please follow the instructions.
  
  

12/07/2005: Ongoing Negotiation on S.1932 by Legislative Leaders

• Report indicates that House-Senate negotiators are nearing agreement on a $45 billion five-year savings target through an array of program cuts, pension premium increases and bro