.

THE OH LAW FIRM

Dedicated Professionals in Immigration Law for Over 24 Years@

The posting in the Breaking News requires visitors' some level of knowledge of immigration issues. Reading one posting without closely following previous postings will result in reading it out of context. The laws, policies, and practices of agencies are constantly changing and people should be careful in reading old postings. People should not take the news in this page as a legal advice. The purpose of Breaking News is to feed into the immigrant communities up to the minute news, especially inside information of agencies' decision making. Just like any other news reporting, the life span of the news can be very short. This is not a text book or a law book. It is a "news report." This site will welcome "only" those visitors who follow the news reports everyday just like the subscribers of daily newspapers. The sole purpose of this site is to serve the immigrant communities..

Current Page[06/01/2008 - Present]/Archive XVII[03/31/2008 - 05/31/2008]Archive XVI[08/01/2007 - 03/31/2008/Archive XV [04/30/2007 - 07/31/2007]/Archive XIV[06/15/2006 - 03/31/2007]Archive XIII [12/01/05 - 06/14/06]/ Archive XII [08/01/05 - 11/30/05]/Archive XI [04/30/05 - 07/31/05

03/30/2007: Last-Minute H-1B Filing Still Do-Able Tomorrow via Saturday Pick-Up Overnight Delivery Services

• People who failed to ship out the H-1B filing today can still ship it out tomorrow through the Saturday Pick-Up services,which will be delivered to the agency on Monday, 04/02/2007.
• There are a large number of people who think they cannot file H-1B petition before the cap reaches because either they have a problem of being unable to submit nonimmigrant status through October 1, 2007 or they will not be able to maintain nonimmigrant status. They should know that their employers can still file the H-1B petitions for them for consular processing without submitting any information or documents on the employees' status in the U.S. Since they may not be able to apply for H-1B until October 1, 2008 unless they get H-1B visa before the FY 2008 cap reaches on Monday or so, they should seriously consider this option and file it tomorrow. In that case, they should not ask change of status. They should rather request the consular visa processing. Remember that LCA can be filed even during the weekend.

03/30/2007: Special News for Last Minute H-1B Filers

• The Labor Department's LCA filing system is undergoing system glitch and people have a problem of printing out the certified LCA. Since the H-1B filing requires the certified LCA, this creates a huge problem. Since people can even file via Saturday pickup overnight delivery service tomorrow, Saturday, this could have been a nightmare.
• In order to accomodate the unusual crisis, Mr.Michael Aytes, Associate Director of USCIS has released a special memorandum dated 03/30/2007 addressed to the Service Center Directors that Service Centers may accept the H-1B petitions without a copy of the certified LCA if the filings are accompanied by "screen prints" from the DOL website showing that the LCAs were in fact certified on March 30, 2007 (or any other date on which USCIS can verify with the DOL that the DOL LCA website malfunctioned). The screen print must display the ETA case number, the petitioner EIN, and the employer name. However, prior to final adjudication of the petitions, USCIS may require copies of the certified LCAs.

03/30/2007: Bush Backed Off From Initial Proposal & Moved to the Right in the New CIR Proposal Sputtering Party-Line Division Rather Than Bi-Partisan Chances in Congress

• In the yesterday's meeting with the legislators in the White House, reportedly Bush proposed his CIR which deviated from his previous proposal and moved to the right making the immigration reform more restrictive than his previous proposal as well as the pending House bi-partisan STRIVE Act. Reportedly the right-wing Republicans are taking side with Bush's proposal creating party-line division in the CIR in the Congress rather than bi-partisan collaboration. Read on. For the full text of the White House proposal, please click here.

03/29/2007: One of the Busiest Days for Employment-Based Immigration Lawyers and Law Firms

• Tomorrow will be probably marked one of the busiest days for these law practitioners as they will have to ship out literally tons of FY 2008 H-1B cap filing. Report indicates that certain overnight delivery services have hired additional temporary workers to meet the unusual crushing business (60,000 or 80,000?). These practitioners are going through a tremendous stress and pressures because of the time-sensitive workloads.
• On top of the amount of work they need to accomplish before the end of the day tomorrow, they faced some last-minutes questions which they had to find answers quickly. Among others, the following two questions just pushed some of these practitioners to the edge or corner, whichever term you may want to use. In the end, they received the answers through the AILA, but it was indeed a stressful experience for these practitioners.
  • Question one involved those lawyers and lawfirms that use UPS for overnight delivery services. California Service Center released a list of overnight carriers which are acceptable. Believe it or not, the list did not include UPS. Those who have prepared the package for UPS delivery of filings had to experience a sort of "panicking?' Late this afternoon, the AILA confirmed that CSC would accept the UPS delivery as well. What a relief!
  • Question 2: USCIS released their tips for customers as to how the H-1B cases should be prepared and filed. Somehow, there was a statement that the filers should sign the LCA in blue ink and file it. Since this could be taken wrongly by the filers as a requirement for filing of original LCA, for a while, there was mind-boggling struggle for these practitioners. Fortunately, the USCIS timely revised its announcement acknowledging that it was an error and people should file a "copy" of the certified and signed LCA and not original. We thank the USCIS HQ for clarifying the issue "timely."
• People may as well forget about calling or contacting these lawyers and firms tomorrow. Their schedules will be so chaotic that they may not even remember your name!? Please give them a break. That includes this reporter. Please do not even think about calling this office tomorrow.
• Once this frenzy is over, someone will have to figure out how much the USCIS was able to collect the fees in such a short period of time and whether this mountain of checks plus additional mountain of checks from the to-be-increased filing fees in June or so will be able to meet the USCIS obligation to raise a monstrous amount of fund through the collection of user fees under the FY 2007 USCIS appropriation legislation.

03/29/2007: USCIS Implements 2007 Poverty Guideline for I-864 Affidavit of Support Eligibility Effective 04/01/2007

• The poverty guidelines are annually released by the HHS. For 2007, the HHS released the 2007 poverty guideline in February. However, thie HHS poverty guidelines did not take effect for the I-864 Affidavit of Support requirement as both the DOS and USCIS did not fix their effective date for the purpose of the immigrant visa adjudication and the immigrantion benefit adjudication. Under the HHS rule, effective date for implementation of the published poverty guidelines is determined by each relevant federal department. Accordingly, even if the poverty guideline was released by the HHS in February, it was not binding for the determination of eligibility of I-864 affidavit of support.
• Earlier this month, the State Department released a cable to the visa posts to implement the 2007 poverty guideline. Since then the 2007 HHS poverty guidelines has been binding for the purpose of immigration visa application. However, unlike the last year, the USCIS has been delaying implementation of the new poverty guidelines for 2007. USCIS has just released new I-864P which sets out the poverty guidelines for immigration proceeding effective April 1, 2007. Accordingly, the sponsors of the family petitions must now meet the 2007 income guidelines beginning from 04/01/2007.

03/28/2007: Testimony of Dr. Gonzalez, USCIS Director, Before the House Committee on Immigration Reform and Temporary Guest Worker

03/27/2007: USCIS Released 04/02/2007 FY 2008 H-1B Cap Petition Filing Tips: "MUST-READ" Material for H-1B Filers

• The USCIS announced today that the USCIS will begin accepting H-1B petitions subject to the fiscal year 2008 (FY08) H-1B cap on Monday, April 2, 2007. USCIS will not reject cases delivered during the weekend (March 31 or April 1). Instead, USCIS will treat those petitions as if they arrived on April 2. The deciding factor for USCIS is when the agency takes possession on the petition and not when the petition was postmarked.
• In reading these two important materials of the USCIS, there are two points which need people's attention. First: Any delivery to the agency on Friday will face rejection. This announcement is related to the deliveries made on Saturday and Sunday. Second: The filing tips ask to use blue color pens to sign the forms. Unfortunately, the USCIS also instructed people to file LCA with the petition and asked to sign LCA using a blue color pen, giving impression that people should file the original LCA with the USCIS. It is not true. People should not file "original" signed LCA with the USCIS. They should file a "copy" of the signed LCA and not original, according to the AILA. The original signed LCA must be kept by the petitioner under the DOL's and USCIS' rule.

03/27/2007: STRIVE Act and USCIS Rule-Making Agenda

• Our review of this proposed legislative bill reflects the probably participation of the USCIS in the draft of the bill. There are several sections of the bill which were reflected in the USCIS's long-term rule-making agenda such as precertification of certain employers in the immigration process, premium processing of certain proceedings, etc. We commend the sponsors of the bill for their job well done for seeking and coordinating with the stakeholder agencies.

03/27/2007: USCIS International Offices Resumes I-130 Petitions for the Overseas Residents U.S. Citizens

• We have already reported the identical State Department announcement. For the USCIS announcement, please click here.

03/27/2007: Continuing Confusion in Immigration Reform Legislation

• It is only one week that the immigrant community was elated by the introduction of a fantastic immigration reform bill (STRIVE) by Congressman Gutierrez in the House, but on the Senate side, there is a mess that is continously developing. We reported earlier that the two bipartisan leaders of Senator McCain and Senator Kennedy reportedly rifted their partnership. Now, another Senator is about to add confusion to this mess. News report indicates that Senator Durbin of Illinois may introduce within this week a legislation to put a block on the H-1B abuse and restrict the H-1B worker petitions. This move is totally shocking considering the fact that a rosy H-1B reform was just introduced as part of the STRIVE Act of 2007.
• Reportedly, Senator Durbin will propose to make it mandatory that the employers engage in the recruitment of U.S. workers prior to filing a H-1B petition and file sworn statement in the form of attestation that they failed to locate a qualified U.S. worker as part of the H-1B petition. Currently, such attestation is mandated for the so-called H-1B dependent employers only. Additionally, the proposal reportedly would mandate the DOL's annual audit of the employers hiring 100 or more employees out of which 15% constitutes H-1B employees. Once such proposal is enacted, there will be substantial changes in the flow of foreign professional workers. At this time, H-1B visas lay a stepping stone for foreign professional workers to land in this country and to apply for permanent residence.
• The late news that the FY 2008 H-1B cap may reach in one day on April 2, 2008 indeed raised a concern in the country as it can be taken as a pervasive abuse of this visa petitions by some employers. Part of the current clog in the employment-based immigrant visas for professional workers is arguably associated with the abuse of these visa petitions. Please stay tuned to this website for the development of this important news.

03/26/2007: Reminder of Changes After This Week

• This is a critical week in the immigration business in that the following changes, among others, will take effect after this week:
  • Nonimmigrant Immigration Benefits Petitions/Applications of I-129 and I-539 must be filed either with VSC or CSC as part of the Phase III Bi-Specialization Program. Until now, the petitioners and applicants were allowed to file with the CSC even though the official filing window was VSC, but such filing will no longer work unless the jurisdiction which is determined by the job site or residence under the new filing procedure falls under the CSC jurisdiction.
  • EAD Application will be rejected unless the form is 02/28/2007 version. Most of the commercial immigration form businesses have updated their databases, but those who intend to ship out at the end of this week should make it sure that they use the new form.
  • The Hold Harmless RIR conversion package must be filed by April 1, 2007 with a few exception involving those who received the prevailing wage determination late. When the hold harmless RIR conversion was requested but one fails to file the recruitment packed timely, not only RIR conversion will be denied but also the original TR case will be denied and terminated!!
  • USCIS filing fee increase proposed regulation comment period will end on 04/02/2007. Those who want to have their voices heard in this rule making process must make it sure that their comments are timely sent out within today.
  • FY 2008 H-1B cap filing starts on 04/01/2007. The rumor goes that the FY 2008 cap will reach on the first day of 04/02/2007, Monday. Obviously, if it is true, unless people send out the overnight delivery services at the end of this week so that it will be delivered on next Monday, one will have to wait until October 1, 2008 to get a new H-1B status unless the pending STRIVE Act, H.R. 1645 or the Senate CIR bill becomes a law.
  • If you file H-1B on 04/02/2007 with Premium Processing Request, unless your request uses the form I-907 of 08/28/2006 version, such I-907 will be rejected. If you wrote one check including the PPS fee of $1,000 and PPS I-907 is rejected, the entire H-1B petition will also be rejected. Careful.
  • Most importantly, April Fools Day begins next week. Unless you enjoy the April Fools Day, please take care of your business within this week.
• Just a reminder. Weather is turning beautiful all over. Please enjoy your Spring and lie down on the grass and enjoy the blue sky and clouds during your lunch break for your day dreams!

03/26/2007: USCIS Announces FY 2007 Second Half H-2B Cap Reached

03/25/2007: Completion (90%) of Main Portion of Legal Immigration Reform in STRIVE Act of 2007

• We have almost completed the summaries of legal immigration reform part of STRIVE Act of 2007. People will see above two links. One is the link to the STRIVE Act Summary and the other is the archive Q&A related to the previous comprehensive immigration reform and legal immigration reform legislations. The archive Q&A will give an opportunity for the readers to review the STRIVE Act in perspectives and analysis of the involved issues from previous experience in the legislative activities.

03/24/2007: Our Plan for Summarization and Q&A of STRIVE Act of 2007

• This proposed legislation encompasses reforms in almost all segments of immigration, and as such is a huge document. Accordingly, it would be impossible for anyone to summarize the entire text of the bill in a short period of time. We have thus decided to summarize the bill by each subject area step by step. This plan is based on our assumption that different stakeholders and different immigrants have primary interest in only certain type of issues. For the overall outlines, readers are encouraged to read the outlines which have been released by the Congressman Luis Gutierrez, the sponsor of the bill. We thank the Congressman Gutierrez for sharing the copy of his summary.
• The bill includes the following Titles:

Title I - Border Enforcement
Title II - Interior Enforcement

A - Reducing the Number of Illegal Aliens in the U.S.
B - Passport and Visa Security
C - Detention and Removal of Aliens Who Illegally Enter or Remain in the U.S.

Title III - Employment Verification
Title IV - New Worker Program [New H-2C Temporary Guest Worker Program]
Title V - Visa Reforms

A - Backlog Reduction
B - Preservation of Immigration Benefits for Victims of a Major Disaster or Emergency

Title VI - Legalization of Undocumented Individuals

A - Conditional Nonimmigrants
B - DREAM Act of 2007
C - AgJOBS Act of 2007

Title VII = Miscellaneous

• Quick perusal of the titles indicates that the bill covers following four broad categories:
  • Border Immigration Inspection and Enforcement Under Title I: Primarily current CBP functions within the DHS
  • Immigration Enfocement Under Title II and Title III: Primarily current ICE and immigration court functions including removal and deportation of aliens.
  • Illegal Immigration Relief Under Title IV and Title VI: Primarily current functions of USCIS. This is the area of reform which is extremely politically controversial and can determine the fate of this legislation.
  • Legal Immigration Reform Under Title V: Primary interest lies with the current backlog reduction, readjustment of immigrant visa allocation and numbers, reform in immigration procedures.
• We will start with the subject of "Visa Reform" or "Legal Immigration" part of the bill. Readers are requested to frequently visit our Temporary File site to review these summaries. We are also planning to restart Q&A soon focusing on the immigration reform. Please stay tuned.

03/23/2007: Senate's Likely Schedule for CIR Mark-Up

• Report indicates that Senate Leader Harry Reid has told House members he wants to have a bill on the floor of the Senate during the last two weeks of May. We will monitor closely the CIR legislative activities in each House during the next two months.

03/23/2007: STRIVE Act Bill (H.R. 1645) Sponsors and Status

• The bill was introduced on the floor yesterday and referred to the House Judiciary Commitee and the Homeland Security Committee. The sponsors of this bill are: Mr. GUTIERREZ and 29 co-sponsors of Flake, Baca, Lincoln Diaz-Balart of Florida, Emanuel, Radanovich, Jackson-Lee of Texas, Lahood, Crowley, Mario Diaz-Balart of Florida, Giffords, Ros-Lehtinen, Schakowsky, Fortuno, Becerra, Cardoza, Cuellar, Gonzalez, Grijalva, Hinojosa, Napolitano, Ortiz, Pastor, Reyes, Rodriguez, Roybal-Allard, Salazar, Serrano, Sires, and Solis.
• Please stay tuned to this website for the full text and summaries.

03/22/2007: What Was the Sources of Bad Blood Between McCain and Kennedy?

• They are veteran politicians and unless they had certain calculated hidden agenda, this news would not have been blown out through Boston media. Who is to be blamed, McCain or Kennedy? Was Senator Kennedy immatured enough to completely alienate his allies in the opposite party driving them into the corner or it was Senator McCain who attempted to send a "cute wink" to ultra-conservative right-wing community? It is indeed an irony that last year, it was the House that had destroyed the CIR legislation and the Senate was the strong ally of the immigrants. With such assumption, the new ruling party reportedly planned to initiate CIR in the Senate followed by the House consent. Now because of the current rift at issue in the Senate, it has to work the other way around and unless the House passes the new CIR bill in favor of immigrants, the chances for the passage of the new CIR may not be too promising. What a circus!

03/22/2007: Sen. McCain and Sen. Kennedy Partnership for Joint CIR Proposal Falters

• There is a shocking news that the rift between Senator McCain and Senator Kennedy broke down casting dark shadow for the fate of CIR on the Senate side. The partnership totally collapsed and there will no longer be "McCain-Kennedy" joint CIR bill. The rift between the Democrats and the Republicans has developed so wide and the Republicans are reportedly seeking their own immigration proposal. Are we returning to the painful course of post-S.2611 travesty in 2006 experienced during the hot Summer in 2006? The news is particularly shocking when there is a bi-partisan immigration reform initiative on the House side!! Read on.

03/22/2007: NSC Special Announcement on Typos in I-485 Transfer Notice Issued to Applicants on 02/26/2007

• If people have received a I-485 transfer receipt notice dated 02/26/2007 from the NSC that the NSC received the transfer of their applications from the Department of State rather than CSC, people may ignore such typos. NSC promises that they will process the CSC transferred cases in a normal fashion without being affected by the typos. This notice was forwarded to the AILA.

03/22/2007: House Version CIR "STRIVE ACT" and EB-Based Immigration Reform

• This bill is scheduled to be introduced in the House shortly. Pending the introduction, some organizations were successful in obtaining advance copy of the bill and released the summaries.
• As for the Employment-Based Immigration Reform, it appears that the key provisions include:
  • Total EB Annual Quota: 290,000
  • Recapture of Unused Number for the future years
  • Groups Exempt from the Numerical Limitation
    • EB Spouses and Children whose visas are issued after 10/01/2004 upto the annual maximum of 800,000.
    • Certain Professionals including Extraordinary Ability in the Sciences, Arts, Business, and Other Critical Fields
    • Foreign Students with an Advanced Degree in STEM from a U.S. Institutions or Foreign Institutions
  • H-1B Exempt from the Annual Caps
    • Those with Advanced Degree in STEM from a U.S. Institutions or Foreign Institutions
  • H-1B Quota Increase: 115,000with a flexible market based annual adjustment upto 180,000/year
  • U.S. STEM Degree Holders: New visa classification and Labor Certificatioin Waiver Immigration upon receiving a job offer in the U.S.
  • New H-2C Unskilled Worker: Basically temporary guest workers with the opportunity to apply for permanent resident status after five years of employment in this visa status.
• As soon as the copy is made available, we will summarize and post it.

03/22/2007: BIA Rules Certain Criminal Convicts on Probation Subject to Mandatory Detention

• Yesterday, the Board of Immigration Appeals ruled that an alien who has been apprehended at home while on probation for criminal convictions is subject to mandatory detention under the Transition Period Custody Rules regardless of the reason for the most recent criminal custory inasmuch as it is ascertained that he/she was released from criminal custody after 10/08/1998. See, In re Kotliar, 24 I&D 124 (BIA 2007), Interim Decision #2558, March 21, 2007.

03/21/2007: Consular Offices Abroad Resume Accepting I-130 Immigrant Visa Petitions

• Consular processing of I-130 petitions by the U.S. citizens residing in a foreign country has been suspending, but effective today, visa posts reinstated acceptance and processing of I-130 petitions. For the announcement, please click here.

03/21/2007: House Version Immigration Reform Bill Poised to be Introduced Shortly

• A bi-partisan House bill led by Rep. Gutierrez is expected to be introduced shortly. The details have yet to be disclosed. When it comes to illegal immigration reform, this bill apparently mirrors the last year's CIR. As for the legal immigration including visa number adjustment, it may not be as broad and favorable as the CIR which was passed in the Senate last year. Read on. Please stay tuned.

03/21/2007: Extension of Recruitment Package Filing for Hold Harmless RIR Conversion Request Filers Receing Prevailing Wage E-mail From BEC Between 03/01/2007 to 03/16/2007

• Report indicates that there are some employers who filed hold-harmless RIR conversion request timely but failed to receive the prevailing wage determination response from the BEC until the period between March 1 and March 16, 2007. Since these employers are required to complete the required recruitment and file the recruitment packet on or before April 1, 2007, some of these filers did not have enough time to complete the recruitment process so that they can submit the recruitment packet by April 1, 2007.
• According to the AILA, the DOL has decided to extend the deadline for the recruitment packets until April 13, 2007. Remember that this extension applies only to those who received the prevailing wage determination response between March 1 and March 16, 2007 and no others. These filers should immediately contact the BEC to obtain the confirmation of the extension. All other applicants should file the required recruitment packet by April 1, 2007.

03/21/2007: Revision of PERM Application Form Under Consideration

• Sources indicate that the DOL is considering revision of the current ETA 9089. Please stay tuned to this website for the developing news.

03/21/2007: Iranian Visas

• US Department of State has released the following information relating the issue of biometric collection for Iranian government and diplomatic officials: Are Iranian diplomats and party subject to the same fingerprinting and security screening procedures as other travelers? Answer: All visa applicants are subject to robust security screening procedures. However, applicants for diplomat visas (A and G) are not subject to biometric finger scanning procedures at U.S. Consulates and Embassies. The Iranian President and his party did not provide biometric finger scans to obtain their visas. Their visas are single entry and valid for 3 months specific to the U.N. visit. Any travel outside a 25-mile-radius of New York City must have the prior approval of the Office of Foreign Missions of the U.S. Department of State.
  

03/18/2007: USCIS District/Field Offices Facility Revitalization Strategy and Southeast Florida Field Offices New Facilities

• USCIS has released this strategy on 03/16/2007. Under this strategy, the USCIS will renovate or revitalize the district and field office facilities step by step each year. The USCIS has now secured the leases and building plans and blueprints for the Southeast Florida Field Offices. The fact sheet for each new field office facility is as follows:
  • Miami
  • Broward County
  • Hialeah
  • Orlando
• The AILA is scheduled to have its annual national conference in June 2007 at Orlando, Florida. This reporter and his family members will attend and visit Orlando at the time. We look forward to visiting the new facility in the summer.

03/18/2007: NSC & Concurrently Filed I-140 Denial & Refiling of I-140 Pending Appeal at AAO

• Nowadays, I-140 petitions are denied in a large numbers not because of the defects in the underlying certified labor certification applications but because of the employer's financial ability to pay the proffered wage. When the I-140 is denied in the context of current filing of I-140/I-485 and such denial has been appealed to the AAO, question remains whether the petitioner can refile I-140 pending the appeal and what procedure the petitioner should follow. The rules and NSC policies appear to be as follows:
  • (1) Denial of I-140 petition does not invalidate the underlying certified labor certification application unless it is invalidated for fraud or revocation. Accordingly the petitioner can refile I-140 petition at any stage.
  • (2) However, a single certified labor certification application cannot support two I-140 petitions when one of which supports concurrently filed I-485 application, particularly when the petition is denied and appealed to AAO. For the reason, the NSC requires that the petitioner first withdraws the denied I-140 petition and appeal which is pending at the AAO in order to refile I-140 petition. Otherwise, refiling of I-140 petition will be denied. Once it is withdrawn, the NSC will accept the withdrawal letter and proof of its delivery to the AAO as evidence of withdrawal.
  • (3) Once the concurrently filed I-140 is denied, accompanied I-485 is also usually denied by the agency. Thus if I-485 is also denied by the agency, unless the NSC, on its own motion, reopens the decision of denial of I-485 upon reversa of denial of I-140 petition by the AAO, the I-485 application remains denied. Accordingly, if that happens, the parties should also refile I-485 application at the time when new I-140 petition is refiled pending the appeal.
  • (4) If I-140 is denied, but for whatever reasons the agency has yet to deny I-485 application, it appears that NSC may exercise a discretion holding the decision of denial of such I-485 application once the parties timely refiles I-140 petition with the proof of withdrawal of pending appeal of I-140 denial before the AAO.
• Caveat: The foregoing policy does not answer one critical question of impact of withdrawal of appeal and refiling of I-140 petition and I-485 application on retrogression of the visa numbers. When the NSC requires refiling of I-485 application, one may assume that unless the visa number is available at the time of refiling of I-485 application, one may not be able to file the new I-485 application. Accordingly the withdrawal of denied I-140 and refiling of new I-140 petition in the context of the concurrent I-140/I-485 filing may accompany a huge risk unless the visa number is available when the parties seek such option. Accordingly, people should never, repeat never, take such action unless the circumstances are carefully and thoroughly reviewed by their legal counsels first. The huge risk includes that once one wins on appeal and the agency reopens the denial of accompanying I-485 application, the retrogression at the time of motion to reopen may not affect the "pending" status of I-485 application. However, when the appeal is withdrawn and they will have to file new I-140 petition and I-485 application, depending on the visa number retrogression, they may not be able to file the concurrently new I-140 and I-485 application. Beware, Beware!!

03/17/2007: I-140 Processing Standards of Nebraka Service Center

• AILA has summarized the NSC policies on I-140 processing based on its meetings and Q&As with the NSC as tips and updates for I-140 practice guidance. Readers are reminded and warned that the following summary is neither binding as a law or rule and is not even a memorandum. It just represents the NSC's current "practice" which can vary or change in the specific cases depending on the individual-specific facts or change any time. Readers should seek legal counsel on their specific situations.
  • Bachelor's Degree Equivalency involving 3-Year Post-Secondary Foreign Degree:
    • Issue of Completion of Four-Year Degree Equivalent Credits in Three Years: Despite its general policy not recognizing a foreign three-year degree as equivalent to a U.S. bachelor's degree, NSC is also examining the specific educational sequence and content of individual cases and if they find such addtional credits would make it equivalent to a U.S. bachelor's degree, they would recognize such equivalency. The catching words are "sequence" and "content." Accordingly, even if one earned enough additional credits that are normally required in a U.S. bachelor's degree, they can refuse to accept the equivalency if the sequence and content of additional courses or credits fail to meet their standards. Accordingly, they will not only consider the quantity of the credits and programs but also quality of the credits and programs. It thus appears that evalution of the specific courses and credits based on these standards by academic institutions may have a better chance to obtain approval than other evaluation reports that only count the number of credits. [Caveat]: Despite the exceptional rule, I-140 will be still denied if the labor certification application specifically required "4-year" in college for a bachelor's degree or equivalent. NSC will stick to the specific language in the labor cerification application. Accordingly specifying 4-year education as requirement of a bachelor's degree in the labor certification application may lead to a trap.
    • Issue of Equivalency of Three-Degree Foreign Degree Plus Two-Year Foreign Post-Graduate Degree: The rule on this issue remains still up in the air. Experiences varied.
  • Combination of 4-Year Bachelor's degree in Unrelated Field and Master's Degree in the Field of Specialty: The NSC distinguishes between the graduate degree earned in the U.S. and the same degree earned in a foreign country. If the alien was admitted to and granted a master's degree in the field of specialty by a U.S. graduate school, the NSC will accept the bachelor's degree equivancy in the field of specialty even though three-year foreign degree was earned in a different field. However, the same will not apply in the foreign earned master's degree in that a foreign master's degree in the specialty field will not "automatically" lead to a U.S. bachelor's degree equivance in the specific field of specialty. NSC will evaluate each situation case by case and determine this issue. Probably they may apply the same rule of reviewing sequence and conent for the purposes. Accordingly, a careful selection of credential evaluators will be critically important.
  • EB-31 (Skilled Worker) vs. EB-32 (Professional) Issue: From the standpoint of EB-3 applicant, it does not matter whether one obtains EB-3 approvals in EB-31 or EB-32 as the visa number falls under the same category. Accordingly, their strategy is to obtain EB-3 I-140 approval, no matter whether in Skilled Worker classification or in Professional classification. In achieving this goal, one should draft the labor certification application carefully considering the following NSC policy: (1) If the petitioner requires I-140 for "professional" when the labor certification and the alien's background supports only Skilled Worker classification, NSC will still approve such I-140 not as a "Professional" classification but "Skilled Worker" EB-3. In this case, the alien's goal is achieved. (2) On the other hand, if the labor certification application required a professional backgound and the alien fails to meet the professional background, NSC will refuse to approve it as Skilled Worker classfication and deny such I-140 petition on the ground that the labor certification requirements cannot be downgraded to accomodate the beneficiary's qualifications. It is thus critically important that in presenting the I-140 petition, petitioner may require professional or skilled worker classification such that should one fail to meet one of the two classifications, one's EB-3 petition can still be approved.
  • Availability of Multiple Petitions (EB-2 and EB-3) Using Single EB-2 Labor Certification Application: This strategy is particularly valuable when one's EB-2 I-140 can be potentially deniable but EB-3 I-140 petition is approvable in either professional classification (EB-32) or skilled worker classfification (EB-31). Additionally, one never knows whether EB-2 retrogression will become worse than EB-3 retrogression for a specific country.
• We hope to learn the position of TSC for the identical issues.

03/16/2007: Clarification of USCIS Fee Increase Timeline

• The USCIS published a proposed rule to increase the immigration filing fees SUBSTANTIALLY. The published rule says public should submit their comments "on" or "before" April 2, 2007.
• This message is posted because it appears that there is a grave misunderstanding of the date of fee increase as April 2, 2007 and there tends to be a frenzy of filings of applications or petitions for the fear that unless their papers are filed with the USCIS by April 2, 2007, they will have to pay a huge filing fee. It appears that the rumor that FY 2008 H-1B cap may reach on the first day, April 2, 2007 must have been partially affected by this misunderstanding. The released rule is not a binding rule but a non-binding "proposed" rule. This rule is not binding until the comment period is over and the USCIS drafts and obtains another cycle of OMB review and approval for the final or interim rule. The final or interim or interim final rule is binding.
• Careful review of the released proposed rule will indicate that the comment must be received by April 2, 2007, the first working weekday in April. Some people want to file their cases such that they cases will be received by the agencies at the last by April 2, 2007 without knowing that their understanding of the fee increase timeline is wrong. We reported earlier that it may take sometime before the fee increase will be shaped in a final or interim or interim final rule for the two reasons, among others. First, the rule making law requires that once comments are received and carefully considered by the agencies, they will have to draft a final rule or interim or interim final rule reflecting the opinions of the stakeholders, public in general or related government agencies. Once this draft of final or interim or interim final rule is presented to the OMB of the White House, it should take from 30 days to 90 days unless there is an emergency or special reasons that justify earlier completion of the OMB review. Hypothetically, let's assume that the OMB will approve it in ten days. Still it does not mean that the fee will increase on April 12, 2007. Why not? Because the USCIS is legally required to carefully and fully review, analyze, and consider every comment presented to them. Accordingly depending on the number of comments the USCIS will receive and the procedural or substantive issues which they received should refute their justification for the rule (fee increase), the USCIS will take time either to revise or redraft or withdraw the proposed rule based on the review of these comments. Currently the proposed fee increase is hotly debated all over and even in the House of Represenatatives. Under the circumstances, only god will know how soon they can draft the final or interim final rule or decide to withdraw. Educated guess will indicate that it will take some time before they can draft the final or interim or interim final rule.
• Granted that April 2, 2007 is not the date when the fee will skyrocketed. It is mysterious as to what is currently causing the frenzyness or the insanity. It is hoped that people are not taken advantage of by the wrong people with hidden agenda or suspicious motives. Eventually people will learn the truth after April 2, 2007, until which time unresolved fear will keep haunting the immigrants.

03/16/2007: Disappointing Delays in Congress Action on Immigration Reform Legislation

• Immigrant community was indeed looking forward to the introduction of McCain-Kennedy bill last week. Then, Senator Kennedy's office released an information that more likely date was this week. Surrounding this delay in introduction of so-called Kennedy bill, the media noticed development of a serious political hurdle which had been created by the Senate Democrats' sideling of the Republicans from the process and emotional revolt of the Republican Senators against the Leahy-Kenndy move, forecasting a dark stormy cloud ahead.
• As expected, the Senator Kennedy's move to introduce this new bill has been eventually abandoned and the fate of CIR has returned to ground zero. The Senate Judiciary Committee that has to act on this legislation is currently obsessed with a drama involving political scandal of firing of U.S. attorneys allegedly as motivated by political agenda of the White House and U.S. Attorney General. Under the circumstances, the Judiciary Committee is unlikely to mark up the CIR debate in the next one week or so. How disappointing!
• There is a concensus in the community that the longer the Congress delays, the slimmer the chances will be for the Congress to enact a CIR legislation. This is particularly true as more and more states are moving up the 2008 national election primary to earlier dates. Yesterday, California governor signed a legislation moving up the primary to February 2008! There may be a few other states that will follow the suit of California, including Florida. This change of primary in the key states has already charged the country politically hotter and hotter. Amen!

03/15/2007: USCIS 03/15/2007 Processing Times

• Please see our home page.

03/14/2007: U.S. Passport Processing Backlog - 10 Weeks!

• Currently the U.S. Department of State is experiencing tremendous delays in issuing U.S. passport to the citizens. Regular processing times is 10 weeks and expedite processing times is 4 weeks. Those who need a trip either for pleasure or business should apply for the passport sufficiently in advance before they book the flight. For the DOS announcement, please click here.

03/14/2007: Beware of Upcoming Final Rule to Eliminate Labor Certification Substitution Elimination and 45-Day Validity Cap

• This is currently reviewed by the OMB since January 26, 2007. The OMB usually has upto 90 days to make a decision unless either the OMB or the agency (DOL) decides to extend the period. Just reminder!

03/14/2007: OMB Cleared USCIS Proposed Rule Change on Religious Worker Immigrant/Nonimmigrant Worker

• This rule was submitted for the OMB review by the USCIS last year but the OMB clerance has been extended for a number of reasons. Yesterday, the OMB cleared this proposed rule and the USCIS is expected to publish it soon with certain period of comment period before finalizing the rule making process.
• This rule addresses concerns about the integrity of the religious worker program by proposing a petition requirement for religious organizations seeking to classify an alien as an immigrant or nonimmigrant religious worker. This rule also proposes including an on-site inspection for religious organizations to ensure the legitimacy of petitioner organizations and employment offers made by such organizations. USCIS is proposing to establish a fee, in addition to the standard fee required for special immigrant or nonimmigrant visa petitions, to cover the cost of the on-site inspections. This rule would also clarify several substantive and procedural issues that have arisen since the religious worker category was created. This rule proposes new definitions that describe more clearly the regulatory requirements, as well as add specific evidentiary requirements for petitioning employers and prospective religious workers. Finally, this rule also proposes to amend how USCIS regulations reference the sunset date, the statutory deadline by which special immigrant religious workers, other than ministers, must immigrate or adjust status to permanent residence, so that regular updates to the regulations are not required each time Congress extends the sunset date.

03/13/2007: 270 Businesses and Higher Learning Institutions Presented Today Urgency of Employment-Based Immigration Reform to Every Single Member of Congress

• The report indicates that a proclaim was signed and presented to every member of Congress today by 270 businesses and higher learning institution leaders urging the Congress to enact the employment-based immigration reform legislation to keep and attract foreign brains. Read on.
• In parallel with the so-called legal immigration reform, illegal immigrant relief reform supporting groups, particularly Hispanics, has just started to mobilize all the forces to pressure the political leaders to pass the Comprehensive Immigration Reform legislation.
• It thus appeared that immigant groups started showing impatience with the Congress, particularly the House, for dragging their feet, and their samo, samo "do-nothing" play of politics. Please watch how these dramas will unfold for the next several weeks. Immigrants are particularly unhappy about the House leaders who do not have any specific agenda on the immigration reform after two and a half months reign by the Democrats.

03/13/2007: Sen. Kennedy Reportedly Abandons "New" CIR Bill Initiatives

• New York Times has reported today that facing a rebellion from some crucial Republicans, Senator Edward M. Kennedy has abandoned efforts to produce a new immigration bill and is proposing using legislation produced last March by the Senate Judiciary Committee, then controlled by Republicans, as the starting point for negotiations this year, lawmakers said Monday. What an interesting development! Well, we will have to pull out of the closet the CIR which the Senate passed in 2006 to get some ideas about the upcoming CIR debates in the Senate. For the news, please click here.
• Please review the full text of S. 2611 which the Senate passed last year.
  

03/13/2007: Bush Expressed His Planned Push for CIR Legislation Before Congress' August Recess

• Bush has been visiting the South American countries and Mexico and reportedly expressed his desire and intended push for the CIR legislation such that the CIR be passed in Congress before August. This timeline is consistent with the Democrats' timeline. Considering the fact that the Chairman of the Senate Judiciary Committee wanted to see Bush's push for CIR before the Committee would mark up of the CIR, this report of Bush's intended push will help the Senate leaders to move on the CIR legislation process. It is one thing that Senator McCain-Senator Kennedy presents the new CIR in the Senate and it is the other when the Judiciary Committee will mark up the CIR debate. The immigrant community wants to see both of these actions taking place in the Senate as soon as possible. For the news, please click here.

03/13/2007: Senate "DREAM Act of 2007" Bill Text, S774 [Oh Law Firm Edited]

• Senator Durbin from Illinois reintroduced this bill on March 6, 2007 and this bill is currently pending before the Senate Judiciary Committee. It is expected that the following bill will be debated as part of the CIR.
• SECTION 1. SHORT TITLE.
  • This Act may be cited as the ``Development, Relief, and Education for Alien Minors Act of 2007'' or the ``DREAM Act of 2007''.
• SEC. 2. DEFINITIONS.
  • (1) INSTITUTION OF HIGHER EDUCATION.--Meaning given that term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).
  • (2) UNIFORMED SERVICES.--Meaning given that term in section 101(a) of title 10, United States Code.
• SEC. 3. RESTORATION OF STATE OPTION TO DETERMINE RESIDENCY FOR PURPOSES OF HIGHER EDUCATION BENEFITS.
  • (a) In General.--Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1623) is repealed.
  • (b) Effective Date.--The repeal under subsection (a) shall take effect as if included in the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
• SEC. 4. CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS OF CERTAIN LONG-TERM RESIDENTS WHO ENTERED THE UNITED STATES AS CHILDREN.
  • (a) Special Rule for Certain Long-Term Residents Who Entered the United States as Children.--
  • (1) IN GENERAL.--The Secretary of Homeland Security may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, subject to the conditional basis described in section 5, an alien who is inadmissible or deportable from the United States, if the alien demonstrates that--
    • (A) the alien has been physically present in the United States for a continuous period of not less than 5 years immediately preceding the date of enactment of this Act, and had not yet reached the age of 16 years at the time of initial entry;
    • (B) the alien has been a person of good moral character since the time of application;
    • (C) the alien--
      • (i) is not inadmissible under paragraph (2), (3), (6)(E), or (10)(C) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)); and
      • (ii) is not deportable under paragraph (1)(E), (2), or (4) of section 237(a) of the Immigration and Nationality Act (8 U.S.C. 1227(a));
    • (D) the alien, at the time of application, has been admitted to an institution of higher education in the United States, or has earned a high school diploma or obtained a general education development certificate in the United States; and
    • (E) the alien has never been under a final administrative or judicial order of exclusion, deportation, or removal, unless the alien--
      • (i) has remained in the United States under color of law after such order was issued; or
      • (ii) received the order before attaining the age of 16 years.
  • (2) WAIVER.--The Secretary of Homeland Security may waive the ground of ineligibility under section 212(a)(6)(E) of the Immigration and Nationality Act and the ground of deportability under paragraph (1)(E) of section 237(a) of that Act for humanitarian purposes or family unity or when it is otherwise in the public interest.
  • (3) PROCEDURES.--The Secretary of Homeland Security shall provide a procedure by regulation allowing eligible individuals to apply affirmatively for the relief available under this subsection without being placed in removal proceedings.
  • (b) Termination of Continuous Period.--For purposes of this section, any period of continuous residence or continuous physical presence in the United States of an alien who applies for cancellation of removal under this section shall not terminate when the alien is served a notice to appear under section 239(a) of the Immigration and Nationality Act (8 U.S.C. 1229(a)).
  • (c) Treatment of Certain Breaks in Presence.--
    • (1) IN GENERAL.--An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsection (a) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.
    • (2) EXTENSIONS FOR EXCEPTIONAL CIRCUMSTANCES.--The Secretary of Homeland Security may extend the time periods described in paragraph (1) if the alien demonstrates that the failure to timely return to the United States was due to exceptional circumstances. The exceptional circumstances determined sufficient to justify an extension should be no less compelling than serious illness of the alien, or death or serious illness of a parent, grandparent, sibling, or child.
  • (d) Exemption From Numerical Limitations.--Same rule to apply a numerical limitation on the number of aliens who may be eligible for cancellation of removal or adjustment of status under this section.
  • (e) Regulations.--
    • (1) PROPOSED REGULATIONS.--Not later than 180 days after the date of enactment of this Act, the Secretary of Homeland Security shall publish proposed regulations implementing this section. Such regulations shall be effective immediately on an interim basis, but are subject to change and revision after public notice and opportunity for a period for public comment.
    • (2) INTERIM, FINAL REGULATIONS.--Within a reasonable time after publication of the interim regulations in accordance with paragraph (1), the Secretary of Homeland Security shall publish final regulations implementing this section.
  • (f) Removal of Alien.--The Secretary of Homeland Security may not remove any alien who has a pending application for conditional status under this Act.
• SEC. 5. CONDITIONAL PERMANENT RESIDENT STATUS.
• (a) In General.--
  • (1) CONDITIONAL BASIS FOR STATUS.--An alien whose status has been adjusted under section 4 to that of an alien lawfully admitted for permanent residence shall be considered to have obtained such status on a conditional basis subject to the provisions of this section. Such conditional permanent resident status shall be valid for a period of 6 years, subject to termination under subsection (b).
  • (2) NOTICE OF REQUIREMENTS.--
    • (A) AT TIME OF OBTAINING PERMANENT RESIDENCE.--At the time an alien obtains permanent resident status on a conditional basis under paragraph (1), the Secretary of Homeland Security shall provide for notice to the alien regarding the provisions of this section and the requirements of subsection (c) to have the conditional basis of such status removed.
    • (B) EFFECT OF FAILURE TO PROVIDE NOTICE.--The failure of the Secretary of Homeland Security to provide a notice under this paragraph--
      • (i) shall not affect the enforcement of the provisions of this Act with respect to the alien; and
      • (ii) shall not give rise to any private right of action by the alien.
• (b) Termination of Status.--
  • (1) IN GENERAL.--The Secretary of Homeland Security shall terminate the conditional permanent resident status of any alien who obtained such status under this Act, if the Secretary determines that the alien--
    • (A) ceases to meet the requirements of subparagraph (B) or (C) of section 4(a)(1);
    • (B) has become a public charge; or
    • (C) has received a dishonorable or other than honorable discharge from the uniformed services.
  • (2) RETURN TO PREVIOUS IMMIGRATION STATUS.--Any alien whose conditional permanent resident status is terminated under paragraph (1) shall return to the immigration status the alien had immediately prior to receiving conditional permanent resident status under this Act.
• (c) Requirements of Timely Petition for Removal of Condition.--
  • (1) IN GENERAL.--In order for the conditional basis of permanent resident status obtained by an alien under subsection (a) to be removed, the alien must file with the Secretary of Homeland Security, in accordance with paragraph (3), a petition which requests the removal of such conditional basis and which provides, under penalty of perjury, the facts and information so that the Secretary may make the determination described in paragraph (2)(A).
    • (2) ADJUDICATION OF PETITION TO REMOVE CONDITION.--
    • (A) IN GENERAL.--If a petition is filed in accordance with paragraph (1) for an alien, the Secretary of Homeland Security shall make a determination as to whether the alien meets the requirements set out in subparagraphs (A) through (E) of subsection (d)(1).
    • (B) REMOVAL OF CONDITIONAL BASIS IF FAVORABLE DETERMINATION.--If the Secretary determines that the alien meets such requirements, the Secretary shall notify the alien of such determination and immediately remove the conditional basis of the status of the alien.
    • (C) TERMINATION IF ADVERSE DETERMINATION.--If the Secretary determines that the alien does not meet such requirements, the Secretary shall notify the alien of such determination and terminate the conditional permanent resident status of the alien as of the date of the determination.
    • (3) TIME TO FILE PETITION.--An alien may petition to remove the conditional basis to lawful resident status during the period beginning 180 days before and ending 2 years after either the date that is 6 years after the date of the granting of conditional permanent resident status or any other expiration date of the conditional permanent resident status as extended by the Secretary of Homeland Security in accordance with this Act. The alien shall be deemed in conditional permanent resident status in the United States during the period in which the petition is pending.
• (d) Details of Petition.--
  • (1) CONTENTS OF PETITION.--Each petition for an alien under subsection (c)(1) shall contain information to permit the Secretary of Homeland Security to determine whether each of the following requirements is met:
    • (A) The alien has demonstrated good moral character during the entire period the alien has been a conditional permanent resident.
    • (B) The alien is in compliance with section 4(a)(1)(C).
    • (C) The alien has not abandoned the alien's residence in the United States. The Secretary shall presume that the alien has abandoned such residence if the alien is absent from the United States for more than 365 days, in the aggregate, during the period of conditional residence, unless the alien demonstrates that alien has not abandoned the alien's residence. An alien who is absent from the United States due to active service in the uniformed services has not abandoned the alien's residence in the United States during the period of such service.
    • (D) The alien has completed at least 1 of the following:
      • (i) The alien has acquired a degree from an institution of higher education in the United States or has completed at least 2 years, in good standing, in a program for a bachelor's degree or higher degree in the United States.
      • (ii) The alien has served in the uniformed services for at least 2 years and, if discharged, has received an honorable discharge.
    • (E) The alien has provided a list of each secondary school (as that term is defined in section 9101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801)) that the alien attended in the United States.
  • (2) HARDSHIP EXCEPTION.--
    • (A) IN GENERAL.--The Secretary of Homeland Security may, in the Secretary's discretion, remove the conditional status of an alien if the alien--
      • (i) satisfies the requirements of subparagraphs (A), (B), and (C) of paragraph (1);
      • (ii) demonstrates compelling circumstances for the inability to complete the requirements described in paragraph (1)(D); and
      • (iii) demonstrates that the alien's removal from the United States would result in exceptional and extremely unusual hardship to the alien or the alien's spouse, parent, or child who is a citizen or a lawful permanent resident of the United States.
    • (B) EXTENSION.--Upon a showing of good cause, the Secretary of Homeland Security may extend the period of conditional resident status for the purpose of completing the requirements described in paragraph (1)(D).
• (e) Treatment of Period for Purposes of Naturalization.--For purposes of title III of the Immigration and Nationality Act (8 U.S.C. 1401 et seq.), in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence. However, the conditional basis must be removed before the alien may apply for naturalization.
• SEC. 6. RETROACTIVE BENEFITS UNDER THIS ACT.
  • If, on the date of enactment of this Act, an alien has satisfied all the requirements of subparagraphs (A) through (E) of section 4(a)(1) and section 5(d)(1)(D), the Secretary of Homeland Security may adjust the status of the alien to that of a conditional resident in accordance with section 4. The alien may petition for removal of such condition at the end of the conditional residence period in accordance with section 5(c) if the alien has met the requirements of subparagraphs (A), (B), and (C) of section 5(d)(1) during the entire period of conditional residence.
• SEC. 7. EXCLUSIVE JURISDICTION.
  • (a) In General.--The Secretary of Homeland Security shall have exclusive jurisdiction to determine eligibility for relief under this Act, except where the alien has been placed into deportation, exclusion, or removal proceedings either prior to or after filing an application for relief under this Act, in which case the Attorney General shall have exclusive jurisdiction and shall assume all the powers and duties of the Secretary until proceedings are terminated, or if a final order of deportation, exclusion, or removal is entered the Secretary shall resume all powers and duties delegated to the Secretary under this Act.
  • (b) Stay of Removal of Certain Aliens Enrolled in Primary or Secondary School.--The Attorney General shall stay the removal proceedings of any alien who--
  • (1) meets all the requirements of subparagraphs (A), (B), (C), and (E) of section 4(a)(1);
  • (2) is at least 12 years of age; and
  • (3) is enrolled full time in a primary or secondary school.
  • (c) Employment.--An alien whose removal is stayed pursuant to subsection (b) may be engaged in employment in the United States consistent with the Fair Labor Standards Act (29 U.S.C. 201 et seq.) and State and local laws governing minimum age for employment.
  • (d) Lift of Stay.--The Attorney General shall lift the stay granted pursuant to subsection (b) if the alien--
  • (1) is no longer enrolled in a primary or secondary school; or
  • (2) ceases to meet the requirements of subsection (b)(1).
• SEC. 8. PENALTIES FOR FALSE STATEMENTS IN APPLICATION.
  • Whoever files an application for relief under this Act and willfully and knowingly falsifies, misrepresents, or conceals a material fact or makes any false or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false or fraudulent statement or entry, shall be fined in accordance with title 18, United States Code, or imprisoned not more than 5 years, or both.
• SEC. 9. CONFIDENTIALITY OF INFORMATION.
  • (a) Prohibition.--Except as provided in subsection (b), no officer or employee of the United States may--
  • (1) use the information furnished by the applicant pursuant to an application filed under this Act to initiate removal proceedings against any persons identified in the application;
  • (2) make any publication whereby the information furnished by any particular individual pursuant to an application under this Act can be identified; or
  • (3) permit anyone other than an officer or employee of the United States Government or, in the case of applications filed under this Act with a designated entity, that designated entity, to examine applications filed under this Act.
  • (b) Required Disclosure.--The Attorney General or the Secretary of Homeland Security shall provide the information furnished under this section, and any other information derived from such furnished information, to--
  • (1) a duly recognized law enforcement entity in connection with an investigation or prosecution of an offense described in paragraph (2) or (3) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)), when such information is requested in writing by such entity; or
  • (2) an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).
  • (c) Penalty.--Whoever knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000.
• SEC. 10. EXPEDITED PROCESSING OF APPLICATIONS; PROHIBITION ON FEES.
  • Regulations promulgated under this Act shall provide that applications under this Act will be considered on an expedited basis and without a requirement for the payment by the applicant of any additional fee for such expedited processing.
• SEC. 11. HIGHER EDUCATION ASSISTANCE.
  • Notwithstanding any provision of the Higher Education Act of 1965 (20 U.S.C. 1001 et seq.), with respect to assistance provided under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.), an alien who adjusts status to that of a lawful permanent resident under this Act shall be eligible only for the following assistance under such title:
  • (1) Student loans under parts B, D, and E of such title IV (20 U.S.C. 1071 et seq., 1087a et seq., 1087aa et seq.), subject to the requirements of such parts.
  • (2) Federal work-study programs under part C of such title IV (42 U.S.C. 2751 et seq.), subject to the requirements of such part.
  • (3) Services under such title IV (20 U.S.C. 1070 et seq.), subject to the requirements for such services.
• SEC. 12. GAO REPORT.
  • Not later than seven years after the date of enactment of this Act, the Comptroller General of the United States shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives setting forth--
  • (1) the number of aliens who were eligible for cancellation of removal and adjustment of status under section 4(a);
  • (2) the number of aliens who applied for adjustment of status under section 4(a);
  • (3) the number of aliens who were granted adjustment of status under section 4(a); and
  • (4) the number of aliens whose conditional permanent resident status was removed under section 5.

03/12/2007: Visa Number Predictions During the Coming Months

• Family-sponsored: It is likely that the Mexico Family First preference cut-off date will retrogress for the month of May.
• Employment-based: It is likely that the Employment Third Preference “Other Worker” (EW) category will become unavailable beginning in May.
• Both of these issues are the direct result of low annual limits and very heavy demand for numbers, primarily for adjustment of status cases at Citizenship and Immigration Services Offices.
  

03/12/2007: April 2007 Visa Bulletin

• EB no changes.
• Retrogression of Mexico and Philippines Family Third Preference cutoff dates: Further retrogression or “unavailability” in future months cannot be ruled out.

03/12/2007: Disappointing News of Sen. Cornyn and Rep. Kyl to Introduce Separate Border Security Only Bills in the Two Chambers to Oppose CIR

• It is extremely disappointing to read a news that these two gentlemen have not changed their attitude on the immigration issues. We really understand how upset they are over the recent Democrats' behavior alienating the Republicans in the immigration reform legislation process, but it would not justify their repetition of the past behaviors in the CIR process. We rather hoped that he quickly introduce the SKIL bill and negotiate with the CIR legislative leaders for an assurance that the SKIL bill is included in the CIR and not neglected. We urge these respected legislators not to repeat the past mistake of the Republican Congress.

03/12/2007: USCIS Confirms 485 Transfers from VSC, CSC to TSC, NSC

• AILA has reported the USCIS HQ confirmation that I-485 applications are currently being transferred from CSC to NSC, and from VSC to TSC, including the cases which are subject to visa retrogression and security and background checks. The USCIS has also confirmed our report that the USCIS online system is being updated to reflect the transfers and that transferred cases will go into the queue based on original filing date and not the date of the transfer.
  

03/11/2007: Delays in EAD Extension Processing for TPS Hondurans, Nicaraguans, and El Salvadorans and Ongoing Panic in These Communities

• These communities have experience extreme stress and panicking lately because of the delays in the USCIS EAD extension processing.
• However, now the relief is on the way. The USCIS announced on 03/09/2007 that certain Hondurans, Nicaraguans and Salvadorans who are eligible for TPS re-registration and whose application is pending with the USCIS and waiting for an EAD will receive in the mail a letter giving them the opportunity have an extension sticker affixed to their EAD while USCIS completes their TPS application. They will receive an extension valid through June 2007 to serve for I-9 employment authorization purposes. The USCIS began mailing letters giving eligible re-registrants the opportunity appear at an ASC to receive the extension sticker beginning on Monday, March 5, 2007. Their current EAD expired on 01/05/2007 for Hondurans and Nicaraguans, and on 03/09/2007 for Salvadorans.
• They advise that applicatns should not appear at USCIS district offices to seek an extension sticker or an interim EAD. They should wait for the mail. For the details, pleaser read announcement.

03/10/2007: Advisory for First Day Filing of FY 2008 H-1B Cap Filing

• Caveat: Under the Labor Condition Application and H-1B rules, one cannot submit an LCA earlier than six months prior to the beginning date of the period of intended H-1B employment. Accordingly, if people want their LCA filed before April 1, they should set their employment start date on the LCA for a date in September rather than October 1, and set the expiration date for a date no more than three years from the start date rather than three years from October 1. However, they should file the I-129 with a start date of October 1, but the expiration date should coincide with the expiration date of the LCA. Accordingly, they will lose a few days in the H-1B three-year request, but in this way, they will be able to file and obtain the LCA before April 1 such that they can file the H-1B petitions timely on April 2, 2007.
• Caveat: USCIS has advised that there is no advantage to submitting a petition for delivery on Saturday, March 31st, as all petitions delivered on Saturday will not be opened and processed until Monday, April 2nd. Besides, people should keep in minde that any cases which are received on Friday, March 30, 1007 will be rejected. [USCIS has announced that if a sufficient number of petitions are received to reach the cap on the first day, the agency will apply the lottery process for the cases which they received on the first and second days. Accordingly, if the cap is reached on the first day, USCIS will randomly apply all of the numbers among the petitions filed on the final receipt date and the following day.
• Caveat: The first day of FY 2008 H-1B cap filing coincides with the USCIS new I-129/I-539 CSC or VSC direct filing procedure effective 04/02/2007. Accordingly, it must be addressed correctly. Even though there is a 15-day grace period for the wrong address filings, should the cap number reaches indeed either on the first date or in a few days, the wrong address filing can face a serious problem.
• Caveat: If the cases are filed in Premium Processing Request, be mindful of the changes in the specific address for each Preimum Processing filing. Please read the Direct Filing announcement and the updated Premium Processing filing instructions before drafting and filing the petitions/applications.
• Caveat: Flaws in the filing fee checks and missing signatures on the forms will face rejection of filing with the deadly consequences, should the cap reach on the first day or in the first few days. Double check to make it sure that the checks are properly executed and all the immigration forms are property signed and dated.

03/09/2007: On-Going Insanity Involving FY 2008 H-1B Cap Reaching On the First Day

• There is a wild forest fire burning mountains with the speculation and rumor that FY 2008 H-1B cap may reach on the first day, April 2, 2007. The H-1B annual cap is 65,000 including special numbers for Free Trade Agreement aliens of Singapore and Chile. For the U.S. master degree holders, there are additional 20,000. Speculation runs that all these numbers will run out on April 2, 2007.
• Well, who knows, but there is something wrong with the current immigration system. It is sickening to stomach even to think about such insanity. Distinguished ladies and gentlemen in the Beltway, I hope you share this madness and sickness with this reporter.

03/09/2007: Revised I-129 & I-539 Direct Filing Instructions of USCIS Adding Filing Location Charts

• USCIS has revised its previously released direct I-129 and I-539 filing instructions which will take effect on April 2, 2007 adding the filing locations. Please follow this revised posting for filings on or after April 2, 2007./
  • I-129 Filing Location Charts
  • I-539 Filing Location Charts
  • Premium Processing

03/09/2007: USCIS March Newsletter "Today"

03/08/2007: Employment-Based Visa Numbers Used in 2006

• According to the Department of State, in 2006, the following visa numbers were taken out:
  • Numerical Limitation Employment-Based Total: 133,623
  • Schedule A: 33,343
• Largest consumers of each sample preference categories were as follows:
  • EB-1: Great Britain(4,3850, Canada(3,397), China(3,281), India(3,156), South Korea(1,960), and Germany(1,434)
  • EB-2: India(3,720), China(3,347), Canada(1,248)
  • EB-3 Skilled: Mexico(6,766), Korea(4,375), Philippines(4,114), Ecuador(3,747), Brazil(3,670), Poland(3,230), India(3,006), China(2,477), Pakistan(2,091)
• For the full visa statistics, please click here.

03/08/2007: 7th-Year H-1B Extension Alert for Backlog Case Refiling for PERM

• There is a report of an incident where BEC case applicant filed a PERM application with the request to retain the BEC case priority date, and pending the PERM application, filed a 7th-year H-1B extension based on 365-day LC pending. Apparently the H-1B extension eligibility is challenged by the USCIS in this incident based on the fact that PERM application has been pending less than 365 days and BEC application which had been pending for years has been withdrawn at the time PERM application was filed. This is a very novel issue which is not covered by any existing USCIS memorandums or rules or opinions. Obviously the issue involves distiction of retention of priority date from AC-21 7th year extension eligibility based on a "specific" labor certification application.
• We post this as an alert for the two reasons. First, this is a novel issue and until the issue is resolved by the USCIS or by the courts, it will remain in a grey area. Secondly, because of the EB-3 backlogs, EB-3 BEC applicants tend to refile the labor certification for EB-2 under the PERM system, and should the USCIS come forward with a hardline stance on this issue. the number of victims can grow large. Without doubt, AILA will seek the official opinion from the USCIS Headquarters, and until this issue is cleared, people are reminded to pay extra caution to this potential volatile issue.

03/08/2007: Time for SKIL or PACE Act Introduced In the Senate

• The secretary of Senator Ted Kennedy reportedly opined that the new CIR bill is likely to be introduced next week. In time for the March 2007 CIR debates, some Senators have already introduced bills which will eventually form important parts of the new CIR. For instance, AgJOBS bill for low-end industry workers, so-called "essential workers," and guest workers and DREAM Act for illegal alien youngsters. Obviously main body of the CIR will focus on the legalization of 13 million illegal aliens and these bills will form additional reform involving illegal aliens.
• The other important part of the immigration reform should be reform in immigration of legal immigrants, particularly high-end industry worker employment-based immigration system. In the last CIR, the reform in the employment-based immigration was presented initially in the form of PACE Act, and afterwards, in the form of SKIL Act. All these bills passed in the Senate as part of the CIR bill, which was killed afterwards by the House.
• In the current immigration reform debates, politicians and legislators remain silent on this important part of immigration reform for employment-based immigrants. It is plainly wrong that this issue is more or less handled as a back-burner in the legislation process. Mr. Bill Gates testimony should have reminded the legislators of importance of this issue. As the Senate Judiciary Committee is poised to debate the CIR legislation in the near future, we urge Senator Cornyn to quickly act and reintroduce his SKIL Act bill so that the employment-based immigration reform receives at least equal attention in the Congress.

03/08/2007: Sudan TPS Designation Extension and EAD Automatic Extension Notice of USCIS

• The extension of the TPS designation of Sudan is effective May 3, 2007, and will remain in effect until 11:59 p.m. on November 2, 2008. The 60-day re-registration period begins March 8, 2007, and will remain in effect until May 7, 2007. To facilitate processing of their applications, applicants are strongly encouraged to file as soon as possible after the start of the 60-day re-registration period beginning on March 8, 2007.
• Given the timeframes involved with processing TPS re-registrants, the Department of Homeland Security (DHS) recognizes that re-registrants may not receive a new EAD until after their current EAD expires on May 2, 2007. Accordingly, this Notice automatically extends the validity of EADs issued under the TPS designation of Sudan for six months, through November 2, 2007, and explains how TPS beneficiaries and their employers may determine which EADs are automatically
  extended. New EADs with the November 2, 2008 expiration date will be issued to eligible TPS beneficiaries who timely re-register and apply for an EAD.
• For other details, read the federal register notice.
  

03/07/2007: Full Text of Bill Gates Testimony Before the Senate Committee on Health, Education, Labor & Pensions (Oops!)

• His testimony was important to highlight the employment-based immigration reform which can be neglected or minimized in the midst of nation's CIR debates that focus on the relief for undocumented aliens. We thank CompeteAmerica for the posting of this text on their site. We also extend our congratulation to Mr. Bill Gates for the job well done.

03/07/2007: "DREAM" Act Bill Reintroduced by Sen. Richard Durbin of Illinois with Bi-Partisan Co-Sponsors

• This is a counter-part bill to "American Dream Act" which was recentrly introduced in the House with slightly different name. This is also the bill which the Senator introduced and was successful in the last Congress as part of the ill-fated and Senate passed CIR. The co-sponsors of this bill in the Senate are: Sen Craig, Larry E. [ID]; Sen Crapo, Mike [ID]; Sen Feingold, Russell D. [WI]; Sen Hagel, Chuck [NE]; Sen Kennedy, Edward M. [MA]; Sen Leahy, Patrick J. [VT];
  Sen Lieberman, Joseph I. [CT]; Sen Lugar, Richard G. [IN] ; Sen McCain, John [AZ]; and Sen Obama, Barack [IL]. For the full text of the bill, please stay tuned.
• It is expected that this bill will again be incorporated as part of the upcoming CIR.
• We hope to see the SKIL bill as incorporated in the new CIR which is expected to be introduced in the Senate shortly.
  

03/07/2007: Business and Employment Immigration and CIR

• The Congress' agenda is to legislate all the immigration issues as part of the Comprehensive Immigration Reform legislation rather than taking care of piecemeal immigration legislations. Report indicates that the anti-immigration forces are penetrating community and business groups and immigrant groups to oppose the CIR legislation in order to block allegedly "amnesty" legislation. They are also intimidating business and community groups that advocate the CIR as the supporters of CIR and amnesty of 13 million illegal aliens. Read what Lou Dobbs of CNN has to say.
• Report indicates that such tactics of the anti-immigration groups are working effectively leading to the two deadly consequences for immigration legislation. One is reluctance of businesses and business community to voice their support of the CIR legislation despite their motive to pass the business/employment immigration legislation which is part of the CIR for fear that they may be labelled as illegal alien amnesty advocates. The second fallout is reluctance of legislators and political forces to aggressively pursh forward the CIR legislation for fear of the negative impact on the 2008 elections and the perception of the public as the illegal alien supporters. There is no evidence that the motives of the Chairman of the Senate Judiciary Committee recent statement that unless Bush pushed the CIR, the Judiciary Committee would not mark up the CIR bill was affected by the sense of CIR legislation on the 2008 elections, but obviously it could have been one of the factors that affected his announcement.
• Well, anti-immigration forces, congratulations for your job well done. The same should go to the groups in the community that actively joined these forces campaign one way or another without knowledge of their suicidal acts.

03/07/2007: DOS and Overseas USCIS Offices Launch Processsing of Iraqis Refugee and Resettlement Applications

• The Iraq has produced estimated two million displaced Iraqis who will not be able to return to their home countries. Out of estimated two million, 80,000 displaced Iraqis have already registered with UN Refugee Program seeking a safe haven in foreign countries. They are displaced in Syria, Jordan, Turkey, and Egypt. The report indicates that the U.N. will refer 7,000 of these Iraqis during the next nine months for admission as refugees.
• The Department of State has just announced that the overseas USCIS offices in the region has just begun processing the refugee applications from these displaced Iraqis and their eventual resettlement in the United Statges. The Iraqis refugees are not subject to the annual cap of the U.S. refugee program and there is no limited to the numbers of these displaced Iraqis who can be admitted to the U.S. as refugees for resettlement in the U.S. For the details, please click here.

03/07/2007: TPS and EAD Extension for Sudanese

• USCIS will publish the notice extending the designation of TPS and automatic EAD extension for the Sudanese tomorrow. Please stay tuned to this website.

03/07/2007: USCIS Aytes Memorandum on 2-Year Extension of International Medical Graduates (IMG) Conrad Program

• As the IMGs know, the lame duck Congress passed the legislation to extended States' Conrad program for two years beginning from May 31, 2006 through June 1, 2008. Mr. Aytes issues this memorandum to notify and guide the field offices of USCIS for processing of two-year residency requirements for these eligible foreign medical doctors under the states' Conrad sponsorship. Read on.

03/06/2007: USCIS Announced Direct Filing of I-129 and I-539 with VSC (East) or CSC (West) Per Phase III Bi-Specialization Proposal Effective 04/02/2007

• The USCIS is inching close to implementation of the Phase III Bi-Specialization Program. We have already reported that the I-485 cases have been in the process of transfer from VSC to TSC and from CSC to NSC. This announcement implies the two decisions of the USCIS. One is that the agency is more or less accelerating the Phase III implementation. Secondly, the agency has decided not to centralize the FY 2008 H-1B cap filing and processing at the VSC. Accordingly, the USCIS Phase III plan can be pushed ahead without such temporary hurdle.
• Advisory: Effective April 2, 2007, all the I-129 and I-539 including FY 2008 H-1B cap filing should be filed with either VSC or CSC depending on the place of employment or residence. Those who are not familiar with these new jurisdictions should visit our previous posting on these jurisdictions. There will be a grace period when the I-129 or I-539 which are filed with a wrong VSC or CSC will be accepted until April 16, 2007. However, any I-129 petitions or I-539 applications which are received by a wrong service center on or after April 17, 2007 will be rejected and considered not filed. This direct filing policy will include the Premium Processing Requests.
• The jursidctions under Phase III Bi-Specialization Program were known to be as follows: [Please double check with the USCIS]
  • Vermont Service Center for those with employment (including family members concurrently filing I-539) or residence (non-petition based I-539 cases only) in Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Mississippi, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, New York, North Carolina, South Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, Tennessee, Texas, Virginia, Virgin Islands, Vermont and West Virginia.
  • California Service Center for Those with employment (including family members concurrently filing I-539) or residence (non-petition based I-539 cases only) in Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin and Wyoming.
• Stay tuned to this website for additional announcements.

03/05/2007: Comprehensive Immigration Reform Bill

• The Comprehensive Immigration Reform bill is currently pending in the Senate Judiciary Committee. The bill number is S.9. Accordingly, the Kennedy-McCain bill may be introduced in the form of Amendment to the pending S.9 bill. The Senate Judiciary Committee is not scheduled to debate on this legislation this week, but it does not mean that the bill may not be introduced to the Senate this week. Please stay tuned to this website for the development of this news.
• The problem is regardless of timing of introduction of CIR bill, reportedly the Chairman of the Senate Judiciary is not ready to mark up this bill unless the President pushes the Republicans first. Read on.

03/05/2007: Immigrant Women "Fuel" Small Business Growth in the United States

• The State Department Washington Journal reports a startling statistics on the role and contribution of immigrant women in the United States. Reportedly, immigrant women start small business at 41% higher than the women born in the United States. They fuel the growth of small business in the country. This statistics is interesting and important as when the immigrant workers contribution to the country is concerned, people tended to talk only about the role and contribution of high tech foreign brains. Immigrant women, you should be proud of yourself for playing such an important role and contribution to this country! Read on.

03/05/2007: Snow-Storm Affected Government Offices in Minnesota and Dakotas Closing on 03/02/2007 and Rescheduling of Naturalization Ceremonies

• The St. Paul USCIS office and the federal court in Sioux Falls were closed on March 2, 2007 because of the snow storms in the areas. Accordingly, the naturalization applicants who were scheduled to be sworn in on March 2, 2007 could not take the oath that day.
• The St. Paul USCIS Field Office has informed that these ceremonies will be reschedules as follows:
  • St. Paul Field Office Ceremony: April 4, 2007, 11:00 a.m.
  • Sioux Falls Federal Court House Ceremeny: March 23, 2007, 10:00 a.m. and 2:00 p.m.
• (Courtesy of AILA Minnesota-Dakotas Chapter)
  

03/05/2007: Summary of American Dream Act

• This bill, H.R. 1275, was introduced in the House on March 1, 2007 and the main provisions are as follows:
• SEC. 4. CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS OF CERTAIN LONG-TERM RESIDENTS WHO ENTERED THE UNITED STATES AS CHILDREN.
  • (a) Special Rule for Certain Long-Term Residents Who Entered the United States as Children-
    • (1) Secretary of Homeland Security may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, subject to the conditional basis described in section 5, an alien who is inadmissible or deportable from the United States, if the alien demonstrates that--
      • (A) the alien has been physically present in the United States for a continuous period of not less than 5 years immediately preceding the date of enactment of this Act, and had not yet reached the age of 16 years at the time of initial entry;
      • (B) the alien has been a person of good moral character since the time of application;
      • (C) the alien--
      • (i) is not inadmissible under paragraph (2), (3), or (6)(E) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)); and
      • (ii) is not deportable under paragraph (1)(E), (2), or (4) of section 237(a) of the Immigration and Nationality Act (8 U.S.C. 1227(a)); and
      • (D) the alien, at the time of application, has been admitted to an institution of higher education in the United States, or has earned a high school diploma or obtained a general education development certificate in the United States.
    • (2) WAIVER- Notwithstanding paragraph (1), the Secretary of Homeland Security may waive the grounds of ineligibility under section 212(a)(2) of the Immigration and Nationality Act, and the grounds of deportability under paragraphs (1)(E) and (2) of section 237(a) of such Act, if the Secretary determines that the alien's removal would result in extreme hardship to the alien, the alien's child, or (in the case of an alien who is a child) to the alien's parent.
    • (3) PROCEDURES- The Secretary of Homeland Security shall provide a procedure by regulation allowing eligible individuals to apply affirmatively for the relief available under this subsection without being placed in removal proceedings.
  • (b) Termination of Continuous Period- For purposes of this section, any period of continuous residence or continuous physical presence in the United States of an alien who applies for cancellation of removal under this section shall not terminate when the alien is served a notice to appear (NTA).
  • (c) Treatment of Certain Breaks in Presence-
    • (1) IN GENERAL- An alien shall not be considered to have failed to maintain continuous physical presence in the United States for purposes of subsection (a)(1)(A) by virtue of brief, casual, and innocent absences from the United States.
    • (2) WAIVER- The Secretary of Homeland Security may waive breaks in presence beyond brief, casual, or innocent absences for humanitarian purposes, family unity, or when it is otherwise in the public interest.
  • (d) Exemption From Numerical Limitations- Nothing in this section may be construed to apply a numerical limitation on the number of aliens who may be eligible for cancellation of removal or adjustment of status under this section.
  • (e) Regulations-
    • (1) PROPOSED REGULATIONS- Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall publish proposed regulations implementing this section. Such regulations shall be effective immediately on an interim basis, but are subject to change and revision after public notice and opportunity for a period for public comment.
    • (2) INTERIM, FINAL REGULATIONS- Not later than 90 days after publication of the interim regulations in accordance with paragraph (1), the Secretary of Homeland Security shall publish final regulations implementing this section.
  • (f) Removal of Alien- The Secretary of Homeland Security may not remove any alien who has a pending application for conditional status under this Act.
• SEC. 5. CONDITIONAL PERMANENT RESIDENT STATUS.
  • (a) In General-
    • (1) CONDITIONAL BASIS FOR STATUS- Except as provided in section 6, an alien whose status has been adjusted under section 4 to that of an alien lawfully admitted for permanent residence shall be considered to have obtained such status on a conditional basis subject to the provisions of this section. Such conditional permanent resident status shall be valid for a period of 6 years, subject to termination under subsection (b).
    • (2) NOTICE OF REQUIREMENTS-
      • (A) AT TIME OF OBTAINING PERMANENT RESIDENCE- At the time an alien obtains permanent resident status on a conditional basis under paragraph (1), the Secretary of Homeland Security shall provide for notice to the alien regarding the provisions of this section and the requirements of subsection (c) to have the conditional basis of such status removed.
      • (B) EFFECT OF FAILURE TO PROVIDE NOTICE- The failure of the Secretary of Homeland Security to provide a notice under this paragraph--
      • (i) shall not affect the enforcement of the provisions of this Act with respect to the alien; and
      • (ii) shall not give rise to any private right of action by the alien.
  • (b) Termination of Status-
    • (1) IN GENERAL- The Secretary of Homeland Security shall terminate the conditional permanent resident status of any alien who obtained such status under this Act, if the Secretary determines that the alien--
      • (A) ceases to meet the requirements of subparagraph (B) or (C) of section 4(a)(1);
      • (B) has become a public charge; or
      • (C) has received a dishonorable or other than honorable discharge from the uniformed services.
    • (2) RETURN TO PREVIOUS IMMIGRATION STATUS- Any alien whose conditional permanent resident status is terminated under paragraph (1) shall return to the immigration status the alien had immediately prior to receiving conditional permanent resident status under this Act.
  • (c) Requirements of Timely Petition for Removal of Condition-
    • (1) IN GENERAL- In order for the conditional basis of permanent resident status obtained by an alien under subsection (a) to be removed, the alien must file with the Secretary of Homeland Security, in accordance with paragraph (3), a petition which requests the removal of such conditional basis and which provides, under penalty of perjury, the facts and information so that the Secretary may make the determination described in paragraph (2)(A).
    • (2) ADJUDICATION OF PETITION TO REMOVE CONDITION-
      • (A) IN GENERAL- If a petition is filed in accordance with paragraph (1) for an alien, the Secretary of Homeland Security shall make a determination as to whether the alien meets the requirements set out in subparagraphs (A) through (E) of subsection (d)(1).
      • (B) REMOVAL OF CONDITIONAL BASIS IF FAVORABLE DETERMINATION- If the Secretary determines that the alien meets such requirements, the Secretary shall notify the alien of such determination and immediately remove the conditional basis of the status of the alien.
      • (C) TERMINATION IF ADVERSE DETERMINATION- If the Secretary determines that the alien does not meet such requirements, the Secretary shall notify the alien of such determination and terminate the conditional permanent resident status of the alien as of the date of the determination.
    • (3) TIME TO FILE PETITION- An alien may petition to remove the conditional basis to lawful resident status during the period beginning 180 days before and ending 2 years after either the date that is 6 years after the date of the granting of conditional permanent resident status or any other expiration date of the conditional permanent resident status as extended by the Secretary of Homeland Security in accordance with this Act. The alien shall be deemed in conditional permanent resident status in the United States during the period in which the petition is pending.
  • (d) Details of Petition-
    • (1) CONTENTS OF PETITION- Each petition for an alien under subsection (c)(1) shall contain information to permit the Secretary of Homeland Security to determine whether each of the following requirements is met:
      • (A) The alien has demonstrated good moral character during the entire period the alien has been a conditional permanent resident.
      • (B) The alien is in compliance with section 4(a)(1)(C).
      • (C) The alien has not abandoned the alien's residence in the United States. The Secretary shall presume that the alien has abandoned such residence if the alien is absent from the United States for more than 365 days, in the aggregate, during the period of conditional residence, unless the alien demonstrates that alien has not abandoned the alien's residence. An alien who is absent from the United States due to active service in the uniformed services shall not be considered to have abandoned the alien's residence in the United States during the period of such service.
      • (D) The alien has completed at least 1 of the following:
      • (i) The alien has acquired a degree from an institution of higher education in the United States or has completed at least 2 years, in good standing, in a program for a bachelor's degree or higher degree in the United States.
      • (ii) The alien has served in the uniformed services for at least 2 years and, if discharged, has received an honorable discharge.
      • (E) The alien has provided a list of all of the secondary educational institutions that the alien attended in the United States.
    • (2) HARDSHIP EXCEPTION-
      • (A) IN GENERAL- The Secretary of Homeland Security may, in the Secretary's discretion, remove the conditional status of an alien if the alien--
      • (i) satisfies the requirements of subparagraphs (A), (B), and (C) of paragraph (1);
      • (ii) demonstrates compelling circumstances for the inability to complete the requirements described in paragraph (1)(D); and
      • (iii) demonstrates that the alien's removal from the United States would result in exceptional and extremely unusual hardship to the alien or the alien's spouse, parent, or child who is a citizen or a lawful permanent resident of the United States.
      • (B) EXTENSION- Upon a showing of good cause, the Secretary of Homeland Security may extend the period of the conditional resident status for the purpose of completing the requirements described in paragraph (1)(D).
  • (e) Treatment of Period for Purposes of Naturalization- Except as otherwise provided under this Act, an alien who is in the United States as a lawful permanent resident on a conditional basis under this section shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence. However, the conditional basis must be removed before the alien may apply for naturalization.
• SEC. 6. APPLICABILITY.
  • If, on the date of the enactment of this Act, an alien has satisfied all the requirements of subparagraphs (A) through (D) of section 4(a)(1) and section 5(d)(1)(D), the Secretary of Homeland Security may adjust the status of the alien to that of a conditional resident in accordance with section 4. The alien may petition for removal of such condition at the end of the conditional residence period in accordance with section 5(c) if the alien has met the requirements of subparagraphs (A), (B), and (C) of section 5(d)(1) during the entire period of conditional residence.
• SEC. 7. EXCLUSIVE JURISDICTION.
  • (a) In General- The Secretary of Homeland Security shall have exclusive jurisdiction to determine eligibility for relief under this Act, except where the alien has been placed into deportation, exclusion, or removal proceedings either prior to or after filing an application for relief under this Act, in which case the Attorney General shall have exclusive jurisdiction and shall assume all the powers and duties of the Secretary until proceedings are terminated, or if a final order of deportation, exclusion, or removal is entered the Secretary shall resume all powers and duties delegated to the Secretary under this Act.
  • (b) Stay of Removal of Certain Aliens Enrolled in Primary or Secondary School- The Attorney General shall stay the removal proceedings of any alien who--
    • (1) meets all the requirements of subparagraphs (A), (B),