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 Sena