.
THE OH LAW FIRM
Dedicated Professionals in Immigration Law for
Over 24 Years@
www.immigration-law.com
(home page)
Breaking
News Archive XIV
Reported by Matthew Oh, Attorney
(06/15/06 - 04/01/2007)
|
The Oh Law Firm and its Lawyers
are not responsible for reliance by the reader on this information
as each individual situation may be unique and different. The
readers are advised to seek legal counsel from a qualified immigration
attorney. The information stated here is subject to change. |
The posting in the Breaking
News requires visitors' some level of knowledge of immigration
issues. Reading one posting without closely following previous
postings will result in reading it out of context. The laws, policies,
and practices of agencies are constantly changing and people should
be careful in reading old postings. People should not take the
news in this page as a legal advice. The purpose of Breaking
News is to feed into the immigrant communities up to the minute
news, especially inside information of agencies' decision
making. Just like any other news reporting, the life span
of the news can be very short. This is not a text book
or a law book. It is a "news report." This site will
welcome "only" those visitors who follow the news reports
everyday just like the subscribers of daily newspapers. The sole
purpose of this site is to serve the immigrant communities..
Home Page: www.immigration-law.com
Current
Page[09/01/2012 - Present]/Archive XXIII[01/01/2012-08/31/2012]Archive XXII[01/01/2011-12/31/2011]/Archive XXI[03/01/2010-12/31/2010]/Archive XX[05/01/2009-02/28/2010/Archive XIX[10/01/2008-04/30/2009]/Archive XVII[03/31/2008 - 09/30/2008]Archive XVI[08/01/2007 - 03/31/2008/Archive
XV [04/30/2007 - 07/31/2007]/Archive XIV[06/15/2006
- 03/31/2007]
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:
- 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
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./
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), (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 of 1938 (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. CONFIDENTIALITY OF INFORMATION.
- (a) Prohibition- 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. 9. 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. 10. HIGHER EDUCATION ASSISTANCE.
- Notwithstanding any provision of the Higher
Education Act of 1965 (20 U.S.C. 1001 et seq.) or any provision
of Title IV of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (8 U.S.C. 1601 et seq.), with respect
to Federal financial education assistance, an alien who is lawfully
admitted for permanent residence under this Act and has not had
the conditional basis removed shall not be eligible for--
- (1) Federal Pell grants under part A of title
IV of the Higher Education Act of 1965 (20 U.S.C. 1070a et seq.);
and
- (2) Federal supplemental educational opportunity
grants under part A of title IV of that Act (20 U.S.C. 1070b
et seq.).
03/05/2007: USCIS Aytes Memorandum Guidance of I-130 and
I-129F Fiancee Petition Involving Sex Offense Against Minors
- This memorandum lays out the details of the
definition of sex offenses, situation of denial and revocation
of the petitions, and recourse for relief for the petitions.
Read on.
03/04/2007: Indictment of Immigration Attorneys on Visa
Fraud Charges
- The Central District of U.S. Attorney's Office,
U.S. Department of Justice, released the information on March
1, 2007 that some attorneys and staff of a large immigration
law firm in the West Coast had been indicted by the grand jury
on visa fraud charges. As the government intensifies the visa
fraud investigation and crackdown, there is likely that the immigration
practitioners may increasingly be vulnerable to such investigation
and indictment. Read on.
03/03/2007: Ongoing 485 Transfers from VSC to TSC for East
Cases and from CSC to NSC for West Cases
- Immigrants are reporting that their pending
I-485 applications have lately been transferred from VSC or CSC
to either TSC or NSC depending on where they are located. This
report is consistent with the Phase III of Bi-Specialization
Program. There also were some reports that these immigrants had
received a confusing information from the officials as to the
processing queue of their cases in the TSC or NSC, but the NSC
and TSC have consistently reported in the AILA liaison meetings
that they would keep the original processing queue before the
transfers. Obviously such transfers and maintenance of queues
may affect the processing times for I-485 cases and I-485 processing
times for NSC and TSC.
- The USCIS has yet to announce the exact date
of launch of the Phase III Bi-Specialization Program, but pending
the launch of Phase III program, some confusion may continue
to arise for pending petitions and applications. Immigrants should
bear with the USCIS to help them to complete its reengineering
process successfully.
03/03/2007: Seven Months to Eliminate Backlog Labor Certification
Cases
- The OFDC has only seven months to finish
all the backlog cases in Dallas and Philadelphia BECS by September
30, 2007. It is indeed a short time to finish up the remaining
cases.
- Currently, OFDC is hoping to eliminate a
substantial TR cases in the form of RIR conversion with the deadline
of RIR packet filing by 04/01/2007. It thus appears that the
Dallas and Philadelphia BECs will accelerate the processing of
all the remaining RIR cases and the final TR cases between April
and June 2007, and the rest of the fiscal year from July through
September 2007 may focus on processing of those cases which they
fail to finish up because of NOF or Request for Reconsideration
or Appeal. Accordingly, there will be a flurry of the BECs supervised
recruitment activities between April and June 2007. This probably
is consistent with the close-down of American Job Bank in June
2007.
- It is unknown how the field offices of OFDC
will be reshaped after September 30, 2007 as the field offices
must still process nonimmigrant labor certification applications
and labor attestations cases. Since these two BECs may have to
be closed down, it is anticipated that there will be some type
of readjustment in field operation structures and functions OFDC
after September 30, 2007.
03/03/2007: U.S. Senate to Act Upon Legislation to Share
Social Security Data Among Federal Agencies for Immigration Enforcement
Purposes
- As part of S. 4, the unfinished 9/11 Commission
Recommendation implementation, the Senate floor is currently
considering the following legislation which will affect the privacy
of the immigrants to a great extent for the purpose of the immigration
enforcement: SHARING OF SOCIAL
SECURITY DATA FOR IMMIGRATION ENFORCEMENT PURPOSES.
- (a) The Secretary
of Homeland Security, the Secretary of Labor, and the Attorney
General are authorized to require an individual to provide the
individual's social security account number for purposes of inclusion
in any record of the individual maintained by either such Secretary
or the Attorney General, or of inclusion in any application,
document, or form provided under or required by the immigration
laws.
- (b) Exchange
of Information.--
- (2)
- (A) If earnings are reported on or after
January 1, 1997, to the Social Security Administration on a social
security account number issued to an alien not authorized to
work in the United States, the Commissioner of Social Security
shall provide the Secretary of Homeland Security with information
regarding the name, date of birth, and address of the alien,
the name and address of the person reporting the earnings, and
the amount of the earnings.
- (B) The information described in subparagraph
(A) shall be provided in an electronic form agreed upon by the
Commissioner and the Secretary.
- (3)
- (A) If a social security account number was
used with multiple names, the Commissioner of Social Security
shall provide the Secretary of Homeland Security with information
regarding the name, date of birth, and address of each individual
who used that social security account number, and the name and
address of the person reporting the earnings for each individual
who used that social security account number.
- (B) The information described in subparagraph
(A) shall be provided in an electronic form agreed upon by the
Commissioner and the Secretary for the sole purpose of enforcing
the immigration laws.
- (C) The Secretary, in consultation with the
Commissioner, may limit or modify the requirements of this paragraph,
as appropriate, to identify the cases posing the highest possibility
of fraudulent use of social security account numbers related
to violation of the immigration laws.
- (4)
- (A) If more than one person reports earnings
for an individual during a single tax year, the Commissioner
of Social Security shall provide the Secretary of Homeland Security
information regarding the name, date of birth, and address of
the individual, and the name and address of each person reporting
earnings for that individual.
- (B) The information described in subparagraph
(A) shall be provided in an electronic form agreed upon by the
Commissioner and the Secretary for the sole purpose of enforcing
the immigration laws.
- (C) The Secretary, in consultation with the
Commissioner, may limit or modify the requirements of this paragraph,
as appropriate, to identify the cases posing the highest possibility
of fraudulent use of social security account numbers related
to violation of the immigration laws.
- (5)
- (A) The Commissioner of Social Security shall
perform, at the request of the Secretary of Homeland Security,
a search or manipulation of records held by the Commissioner
if the Secretary certifies that the purpose of the search or
manipulation is to obtain information that is likely to assist
in identifying individuals (and their employers) who are using
false names or social security account numbers, who are sharing
a single valid name and social security account number among
multiple individuals, who are using the social security account
number of a person who is deceased, too young to work, or not
authorized to work, or who are otherwise engaged in a violation
of the immigration laws. The Commissioner shall provide the results
of such search or manipulation to the Secretary.
- (B) The Secretary shall transfer to the Commissioner
the funds necessary to cover the costs directly incurred by the
Commissioner in carrying out each search or manipulation requested
by the Secretary under subparagraph (A).''.
- Senate floor may act upon this amendment
to S.4 on Monday, 03/05/2007. Senate is attempting to pass S.4
as soon as possible. Please stay tuned.
03/02/2007: Statisitics of Allied Healthcare Professional
Immigration and Needs in the United States
- The CGFNS (Commission on Graduates of of
Foreign Nursing Schools) that processes the VisaScreen for immigrant
and nonimmigrant visa applications by the foreign allied healthcare
professionals has released very interesting statistics in its
Annual Report 2006. According to the Report, between 1998 and
2005, 84,464 applicants applied for the VisaScreen, out of which
64,491 received the VisaScreen certifications. Most of these
professionals were educated in the Philippines, India, Canada,
and Korea, and most of them intended to practice in such large
states as California, Florida, Illinois, New Jersey, New York,
and Texas.
- The Report also states that by 2010, demand
for nurses in the U.S. will begin to exceed supply at an accelerated
rate so that by 2015, the shortage will have almost quadrupled
to 20%. Hmm.......
03/02/2007: "American Dream Act" Bill for Illegal Youngsters
Introduced in the House
- Congressman Howard Berman (CA-28, D) and
Congresswoman Lucille Roybal-Allard (CA-34, D) announced today
the introduction of the "American Dream Act" which
will provide a path to legal immigration status for college-bound
children who have lived most of their lives in this country,
but do not have legal immigration status. Their Republican colleague,
Congressman Lincoln Diaz-Balart (FL-21, R) joined the Los Angeles
representatives in this bipartisan effort.
Under the American Dream Act, qualified students would be eligible
for temporary legal immigration status upon high school graduation
that would lead to permanent legal residency if they go to college
or serve in the military. The American Dream Act would also eliminate
a federal provision that discourages states from providing in-state
college tuition to immigrant students who have long resided in
their states. Despite meeting state residency requirements, immigrant
students in certain states are charged out-of-state or international
tuition rates, which can be triple the cost of in-state tuition.
03/02/2007: Sudan TPS and EAD to be Extended
- USCIS requested OMB yesterday its plan to
extend the TPS designation for Sudanese and automatic extension
of employment authorization. It is expected that the USCIS will
publish the notice soon.
03/01/2007: DHS Announces Upcoming Release of REAL ID Guidance
- DHS has released the advance copy of the
proposed regulation that will affect the state's driver license
rule and procedures. For the details, please click the following:
03/01/2007: BIA Recognizes Immigration Judge's Jurisdiction
on TPS
- On March 1, 2007, the Board of Immigration
Appeals handed down an important decision for the TPS aliens
in the removal proceeding that Section 244(b)(5)(B) of INA (2000)
permits an alien to assert his right to Temporary Protected Status
in removal proceedings, even if his application has previously
been denied by the Administrative Appeals Unit. See In
Re William Osmin Barrientos, 24 I&N 100
(BIA 2007), Interim Decision #3554 (BIA, March 1, 2007)
03/01/2007: New Biometric Procedure in Effect for Conditional
Permanent Residents Since 02/28/2007
- The new process requires all conditionalpermanent
residents to appear at a ASC after filing Form I-751 in order
to have their biometrics electronically captured. An ASC appointment
notice will automatically be sent by mail to the applicant with
the specific date, time and location for biometric processing.
Biometric processing includes the electronic capture of an applicants
photograph, signature, index fingerprint and ten-print fingerprints.
The photograph, signature and index fingerprint are used to generate
the lawful permanent resident card, if the Form I-751 is approved.
The ten-print fingerprints are captured for the purpose of conducting
a criminal background check and are processed for applicants
between the ages of 14 and 79. Applicants (except for overseas
applicants will no longer be required to submit passportstyle
photographs, since photographs will be captured at an ASC. Read
the announcement.
03/01/2007: USCIS Advises Foreign Country Residents U.S.
Citizen Spouses Not to Refile I-130 Petition
- The Sate Department recently announced that
they were returning the approved I-130 petitions to implement
the recently enacted legislation. However, USCIS has been working
with the State Department and released an advisory that those
who hold the approved I-130 petitions should not refile I-130
petition. Additionally, the USCIS officials stationing at the
visa posts will be able to accept and process the petitions.
Please read the USCIS announcement.
03/01/2007: Proposed USCIS Rule to Amend Religious Worker
Petition Procedures in Snag
- We reported earlier that the USCIS proposed
in November 2006 to amend the current rule to make "on-site"
visit as part of the standard procedure for processing of the
religious worker petitions. The OMB had 90 days to make a decision,
but the OMB has extended the decision for the obvious reason.
- The proposed rule includes charge of fees
to recoup the on-site visit cost for the DHS. Currently, the
on-site visit procedure is informally implemented, but full-blown
implementation of this procedure will require the funds as on-site
visit will cost USCIS a substantial resources and cost for the
agency. For this reason, the proposed rule intended to charge
a separate fee for onsite visit on top of the regular petition
fees to recoup the cost. However, people must have read and noticed
that the released USCIS fee increase proposed rule cited the
on-site visit cost as one of the justifications for the proposed
USCIS filing fee increase. Obviously, the rule to charge a separate
fee for the on-site visit for religious worker petitions contradicts
to the fee increase rule which has already been released and
published. On-site visit may have to be undertaken by ICE officials
rather than CIS and two agencies may require some type of contract
to fund the ICE work. It is interesting to learn how much it
will need for the USCIS to implement the on-site visit missions
and whether or not this cost which should have been reflected
in the published fee increase rule should be able to be fully
covered without a separate fee charge for the religious worker
petitions.
03/01/2007: Testimonies of Government Witnesses at the Senate
Judiciary Committee 02/28/2007 CIR Hearing
- Committee concluded a hearing to examine
comprehensive immigration reform, focusing on gaining effective
control of the border, building a robust interior enforcement
program, establishing a Temporary Worker Program, and promoting
assimilation of new immigrants into society, after receiving
testimony from Carlos M. Gutierrez, Secretary of Commerce; and
Michael Chertoff, Secretary of Homeland Security.
- Report indicates
that Sen. Kennedy and co-sponsors will introduce the new CIR bill as early as next week with the target to pass it within March 2007. Please
stay tuned to this website.
02/25/2007: Importance of Unity of Immigrant Community for
the Successful Legislation of Comprehensive Immigration Reform
- As the Senate is poised to pick up pieces
of the comprehensive immigration legislation process, the immigrant
community should critically look back their mistakes and determine
their direction to assure a successful passange of a comprehensive
immigration reform this time.
- We strongly believe that the success to the
comprehensive immigration reform legislation lies with the "unity"
of the immigrant community. Probably, the goal of the anti-immigrant
forces is to break up and divide the immigrant community to weaken
its voices and to distract importance of the immigration reform.
The immigrant community is extremely vulnerable to such "divide
and conquer" tactics of the anti-immigration forces because
the comprehensive immigration reform involves diverse issues
that affect the different groups in the immigrant community differently.
Indeed, the conflict among the different groups in the immigrant
community tends to be extremely sharp as a policy in favor of
one group can lead to the sacrifice of other groups' interests.
Assuming that a legislation involves hundreds of different issues,
such legislative process creates a large number of groups of
people whose interests are sharply in conflict among themselves.
For instance, there can arise a sharp conflict between the so-called
legal immigrant group and the so-called illegal immigrant group
because of the anti-immigration forces' propaganda that legalization
of illegal aliens will take away most of the immigrant visa numbers
"unfairly" leading to the continuing retrogression
of immigrant visa numbers for legal immigrants. Another tactic
was to divide between employment-based immigrant community and
family-based immigrant community based on the anti-immigration
forces' progranda that family-based immigration system should
be eliminated and the immigrant should be admitted on point-system
focusing on employability, education, etc., which will arguably
lead to the opportunity for employment-based immigration hopefuls
to immigrate to the U.S. with no hurdles. As for the sharply
conflicting interest groups in the employment-based immigration
community, we touched a tip of icebergs on our posting on February
15, 2007 on this issue, including a sharp conflict between EB-3
immigrants and EB-2 immigrants, between 485 waiters and I-140
and labor certification waiters who are stuck with the retrogression,
between Schedule A immigrants and other EB-3 immigrants, etc.
etc. etc. Taking advantage of such conflicts
in the immigrant community, the anti-immigration forces may attempt
to penetrate into some of these immigrant groups, leading to
a sharp division in the immigrant community. The immigrant community
may be vulnerable to such anti-immigration forces for a number
of reasons. One is their lack of resources and understanding
of the complex immigration history, immigration system, immigration
law, complex legislative and political process, and implication
of legislative bills on interests of diverse groups in the society.
The anti-immigration forces can take advantage of it and approach
them with the information which turns out to be very misguiding.
- Immigrant community may as well work with
other immigrant groups and their legal resources to refute such
tactics of the anti-immigration forces and achieve the goal of
passage of the CIR through the unified and coordinated voices.
02/23/2007: New Comprehensive Immigration Reform Bill Scheduled
to be Introduced by Senator Kennedy in March as Planned
- We reported quite earlier that the Senate
Democrats had determined to introduce this bill in March and
would attempt to act on it on the full Senate floor in April
2007, and turn over the Senate bill to House for consent. It
appears that the Senate leaders are marching as planned. The
report indicates that once the Senate Judiciary Committee completes
hearing of testimonies of the government officials, Senator Kennedy
will quickly introduce the new version of Comprehensvie Immigration
Reform Bill in the Senate. It appears that the aides of Senator
Kenndy has been coordinating with Bush for the details of the
bill. President wants to see a CIR legislated as soon as possible.
Read on.
02/23/2007: Comprehensive Immigration Reform Senate Judiciary
Committee Hearing Scheduled 02/28/2007
- Senate Judiciary Committee has set up a schedule
of hearing for the Comprehensive Immigration Reform on Wednesday
February 28 at 10:00 a.m. The Committee has called two government
witnesses: One is Carlos Gutierrez, U.S. Department of Commerce
Secretary and the other is Michael Chrtoff, DHS Secretary.
02/23/2007: USCIS EAD Revised Form Effective Date Confusion
- As reported earlier today, USCIS announced
that the current I-765 form will not be acceptable. However,
its form site still states that 11/20/2006 version
will be accetable until March 30, 2007, after when only 02/08/2007
will be acceptable. We are uncertain whether this is caused by
the time lag between the press announcement and the form site.
It is expected that the USCIS will clarify on this. Please stay
tuned.
02/23/2007: Great Victory for EB-485 180-day Ported Aliens
While in Immigration Court Removal Proceeding
- On October 28, 2005, the Board of Immigration
Appeals held that Immigration Judge did not have jurisdiction
to determine whether the employment-based I-485 applicants who
had changed employment had met the AC 21 portability threshold
and thus the Immigration Judge did not have jusriction to consider
the legal status of the employment-based 485 applicants in the
removal proceeding based on the AC 21 portability law. See, In
re Perez Vargas, 23 I&D Dec . 829 (BIA 2005), Interim
Decision #3519, October 28, 2005. This BIA decision presented
a challenging issue for those EB-485 applicants who had to seek
I-485 approval not from the USCIS but from the Immigration Judge
because of their minor violation of immigration law or status
and being placed under the removal proceeding.
- The AILF, the litigation arm of the AILA,
brought a suit against the decision in the U.S. Court of Appeals
for the Fourth Circuit, Perez-Vargas v. Gonzales, No. 05-2313, and
won big in the lawsuit yesterday as the U.S. Court of Appeals
reversed the BIA decision and ruled that the Immigration Judge
had a jurisdiction to determine the AC 21 485 portability issue.
We wish to send a big hats-off to the AILF for the job well done
on behalf of the employment-based immigrant community.
02/23/2007: EAD I-765 Form Revision: Effective Yesterday,
Current Form I-765 Not Acceptable
- The USCIS announced yesterday:
The revised form requires
more evidence from NIW physician applicants that will ensure they are not using a pending adjustment
of status application solely as means for employment in areas
other than medical service in designated shortage areas. Previous editions of the Form I-765
will not be accepted;
however, Form I-765s
that are received as of the date of this notice (02/21/2007)
will be accepted and processed. Certain aliens in the United States may file a Form
I-765 to request an Employment Authorization Document (EAD).
Others who are authorized to work in the United States without
restrictions should also use the form to apply for a document
that provides evidence for the authorization.The revision was
necessitated by a recent Ninth Circuit Court of Appeals (San
Francisco) decision of Schneider v. Chertoff in which the court
decided that certain NIW physician regulations intending to ensure
compliance with the Nursing Relief Act and INA section 203(b)(2)(B)
were ultra vires (beyond power or authority). Providing necessary
and reliable medical care to medically underserved areas is an
important mission of the Nursing Relief Act, and USCIS believes
that it is still imperative to secure this commitment from the
NIW physicians.The revised Form I-765 and instructions removes
two options as reasons for filing: (1) replacement of employment
authorization document that was never received, and (2) replacement
of employment authorization document that was issued with incorrect
information because of a USCIS administrative error. Customers
who are filing a Form I-765 for these reasons should contact
the USCIS office that processed their previously filed Form I-765
(refer to the USCIS letter that came with your employment authorization
document for the address of the office that processed your previously
filed Form I-765).
- New form is dated 02/08/2007.
For the new form, please click here.
- For the full text of USCIS
Announcement, please click here.
02/23/2007: OMB Approved USCIS Removal of Mandatory Response
Timeframe for RFE and NOID
- We reported earlier the following:
- The USCIS is expected to implement within
this month or early March a new rule removing the current absolute
requirement for, and the fixed regulatory time limitations on
responses to a USCIS RFE or NOID. These changes will enable USCIS
to set an appropriate deadline rather than fixed 12-week deadline
for responding to an RFE or NOID, specific to the type of case,
benefit category, or classification reducing the time a case
is held awaiting evidence allegedly to reduce average case processing
time. Under current regulations, there are certain situations
in which USCIS must issue an RFE, and in all cases in which an
RFE is issued, USCIS must provide a standard 12-week response
time. USCIS will replace the current 12-week response period
with a more flexible approach, setting response periods based
on various factors such as the type of benefit sought; the type
of application or petition filed; the type of evidence needed
for adjudication; the source and availability of documentation
(both foreign and domestic); etc. USCIS will remove most provisions
that require issuance of an RFE or Notice of Intent to Deny (NOID)
in order to allow USCIS greater flexibility in deciding cases
based on the information received, including initial evidence
and other relevant materials. USCIS, in its discretion, may
deny a petition or application when required initial evidence
is missing. If an applicant or petitioner fails to submit
the required initial evidence, and USCIS decides to deny the
application or petition rather than issue an RFE, the applicant
or petitioner may file a motion to reopen, with fee, as provided
under 8 CFR 103.5 or file a new application or petition. The
applicant or petitioner may also file an appeal of the denial
if other regulatory or statutory authority exists for such appeal.
- Considering the fact that this change may
take place within about a month or so, people should soon pay
attention to the two things: (1) Make sure that all the "initial
evidence" be meticulously collected and filed for each petition
and application in order not to face unexpected denial of the
application or petition without receiving a RFE. "Initial
Evidence" is usually set forth in the filing instruction
sheets for each application or petition. (2) When they receive
a RFE, they should read very carefully the deadline for response
as it can vary rather than the current 12-week time, being defnitely
shorter than 12 weeks in most cases. Under the USCIS rule, failure
to response to the RFE or NOID before the deadline is considered
"abandonment" and case will be automatically denied.
Please stay tuned to this web site for the upcoming announcement
of this change.
- It is thus expected that the USCIS may implement
the final rule soon. Please watch the required time to respond
to RFEs and NOIDs carefully.
02/22/2007: News Report of CIR Bill in Final Touch Excites
the Immigrant Community
- Today, Washington Times reported that the Senate
Democats and their aids are doing a final touch on the new CIR
bill, which is likely to be acted in the Senate in April 2007.
However, reportedly, there is currently developing a serious
discord between the Democrates and the Republicans who are sidelined
in the process. As soon as the draft is available, we will post
it. Please stay tuned to this web site.
02/21/2007: Vermont Service Center Processing Times of
February 20, 2007
02/21/2007: Texas Service Center Processing Times of February
20, 2007
02/21/2007: California Service Center Processing Times
of February 20, 2007
02/21/2007: Nebraska Service Center Processing Times of
February 20, 2007
02/21/2007: USCIS Criteria to Request Expedite of FBI Check
- We recently reported that the USCIS would
not request expedite of FBI check simply because a legal action
of Mandamus was filed by the parties. Now the USCIS has just
released the information on criteria for USCIS decision to request
the FBI to expedite the checks. The criteria include:
- 1. Military deployment,
- 2. Age-out cases not covered under the Child
Status Protection Act, and applications affected by sunset provisions
such as diversity visas,
- 3. Significant and compelling reasons, such
as critical medical conditions, and
- 4. Loss of social security benefits or other
subsistence at the discretion of the USCIS District Director.
02/21/2007: 2006 PERM Application Certificattion Rate: 75.3%
- DOL has released the PERM applications processing
data for 2006. According to the data (Zip file), they processed
105,960 PERM application cases, out of which they certified 79,782
cases. The rate was higher than speculated in the community.
Before the reengineering of the labor certification system, the
certification rate was approximately 80%. Not too bad at all.
As one can imagine, most of the cases were filed for the Indians
and Chinese, taking over 33% of total filing. For individual
cases including the employer names, case numbers, legal representatives,
job title, salary offered, etc., please review this zip file. It is a huge file!!
02/20/2007: Undocumented Alien Students and "DREAM
Act" Legislation Issues and Prospects
- CRS report review
the legislative history, issues, and prospects relating to the
relief for undocumented alien students.
02/20/2007: USCIS to "Reissue" RFE for I-360 Religious
Worker Special Immigrant Petition
- USCIS announced that it will reissue the
RFEs for those I-360 religous worker immigration cases. Read on.
02/18/2007: Need for Immigration Reform and Concerns with
Growing Gridlock in Legislations in the Congress
- The Democrats launched a new Congress with
aggressive platforms and legislative agenda on January 4, 2007.
Madame Pelosi of the House set the first 100-hour legislative
agenda and the Senate Majority Leader, Harry Reid presented on
the Senate floor ten legislative bills as top priority for the
first few months of the Senate.
- However, immersed in the party politics,
the Congress left the Hill yesterday, Saturday, for a week long
break without achieving a lot because of the gridlock it had
faced in the Congress. Samo, Samo Washington politics involving
the Republicans and Democrats. It practically means that the
Congress wll not resume the active legislative activities until
March 2007.
- S. 9, the Comprehensive Immigration Reform
bill, adopted by the Senate floor, is in the Judiciary Committee
of the Senate. The newly elected Chairman of the Judiciary Committee,
Sen. Leahy, reportedly set the CIR as one of the top agenda of
the Judiciary Committee for March 2007 and the Democratic leaders
reportedly determined to pass the CIR by April 2007 and quickly
send it over to the House for its prompt action. How beautiful
the agenda of the new Congress.
- We want to watch carefully how closely the
leaders of the House and Senate will follow through the agenda.
In a way, from the perspectives of this immigration legislation
agenda, we are relieved that the Congress was over with the most
serious road block to the Congress, to wit, rebuke of Bush's
resurge in Iraq.
02/16/2007: USCIS Atlanta Field Office is Moving
- Atlanta field office is moving effective
02/20/2007 to 2150 Parklake Drive, Atlanta, GA 30045.
Today is the last day they work at the current address. The office
will open to the public effective next wednesday, but the official
address of the office will change to the new address effective
02/20/2007. Please make a note of it.
02/15/2007: NSC's Short Notice of Biometrics Notices and
Importance of Reporting Address Changes and Keeping in Touch with
Their Lawyer's Office
- The I-485 filers must have noticed that the
NSC has been sending out the biometric notice in less than ten
days. Considering the fact that failure to keep the appointment
may result in a serious consequence of denial of the underlying
I-485 application, people should watch attentively their mail
boxes and should not neglect to closely keep in touch with their
legal counsels' offices. They should also report address changes
to the agency such that the notices are not returned to the agency
for "undeliverable." The Oh Law Firm has been receiving
such notices in a very short notice from the NSC.
02/15/2007: Text of Testimony of USCIS Director, Dr. Emilio Gonzalez,
Before the Congress on Fee Increases
02/15/2007: USCIS Announces New Reentry Permit and Refugee
Travel Documents
- USCIS has just announced that they are issuing
new travel booklets (Reentry Permit of permanent residents or
Refugee Travel Document) to enhance security features and to
resist counterfeit of the documents. Those who currently hold
or travels abroad using the current Renentry Permit or Refugree
Travel Documents may continue their travelling until the documents
expire. For the USCIS announcement, please click here.
02/15/2007: Congress Cleared H.J. Res. 20 for the President
to Sign
- Senate passed H.J. Res. 20 of the House without
amendment and passed yesterday. The FY 2007 Continuing Funding
bill through 09/30/2007 has been cleared by the Congress for
the President. The President is expected to sign this bill before
midnight today. As we reported earlier, this bill does not contain
immigration legislation attachments.
02/14/2007: Religious Worker Petitions in Limbo Pending
On-Site Inspections and Policy Changes per GAO Investigation Report
of Massive Frauds
- On March 26, 1999, the GAO issued its investigation
of massive fraud involving the religious worker petitions and
issued recommendation to decrease the opportunity for fraud in
the rfeligious worker program.
- Additionally, the investigation of the DHS
itself also raised a "big" red flags as the frauds
can create the security lapse. Accordingly, on November 28, 2006,
the USCIS suspended the Premium Processing of R-1 petitions for
six months.
- This suspension is likely to remain permanent
considering the fact (1) that the USCIS has already freezed all
the religious worker petitions pending the onsite investigation
and (2) that USCIS is expected to release the proposed regulation
to amend the current regulation incorporating the onsite investigation
as part of the required adjudication process. The requirement
of on-site investigation for adjudication of a petition means
that no petition can be adjudicated within 15 days per the Premium
Processing rule.
- The USCIS is 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.
- There is a concern in the religious community
with its impact on their religious mission involving their world-wide
gospel. Additionally, there is a serious concern in the pending
cases with their fates relating to the sunset of the religous
worker provision of the immigration law that has been sunset
in three years and the Congress has been extending the law every
three years. We hope that the USCIS accelerates the rule-making
process and reinstate the religious worker nonimmigration and
immigration proceedings to minimize the victims of legitimate
religious worker programs and the religious organization missions.
02/14/2007: NSC I-140 Premium Processing Unit Contact Numbers
- AILA has reported that the Nebraska Service
Center has special telephone and fax contact numbers for the
I-140 Premium Processing Unit. The numbers are as follows. Please
make a note of it.
- Telephone: 866-315-5718
- Fax: 402-323-2591
- Readers are warned that these numbers work
only for the I-140 Premium Processing services. Even for the
I-140 premium processing services, people should refrain from
calling the unit unless there is an urgent issue. People should
never call the unit to check the status of processing of their
cases. Abuse of the calls can hurt other people in that they
can change the policy making access more restrictive.
02/13/2007: Timeline of Increased USCIS Fees Implementation
- The "proposed" rule closes the
comments on April 2, 2007 and the USCIS is reportedly to accelerate
the final rule making process such that the new fee schedule
may be implemented in June 2007.
02/13/2007: DOL Not to Allow Appeal or Request for Reconsideration
of Denial of Hold Harmless RIR Conversion Opportunity
- DOL is preparing the closure of the Backlog
Elimination Centers after completing all the backlog cases by
the end of September 2007. To accomplish the target, they launched
the hold harmless RIR conversion. Reportedly they have received
a huge number of requests, but they denied the conversion request
in some of these cases already for the reasons that the cases
were not eligible for the conversion. Now DOL reported to the
AILA that the denials would not be reopened for reconsideration
or appeal. Accordingly, these cases will have to go through the
TR process.
- Considering the fact that the final regulation
eliminating the substitution may be released sooner or later,
probably the amendment of the labor certification applications
at the backlog centers may be practically the last opportunity
to substitute the beneficiaries inasmuch as the cases are still
stuck at the Backlog Elimination Centers. It is expected that
once the substitution elimination rule takes effect, there will
be quite a substantial number of baklog labor certification applications
that may end up in a trash can.
02/13/2007: Launch of Phase III Bi-Specialization Appears
to Be Facing Delays
- Unconfirmed sources of the USCIS indicates
that the USCIS is experiencing some difficulties in moving the
Bi-Specialization program from the current Phase II to the Phase
III. No one knows exactly or whether or not the Phase III program
will be launched, but the sources indicate that it may not be
launched at least until the end of FY 2007.
- Once the Phase III is launched, the nonimmigrant
petitions/applications must be filed in one of the two jurisdictions
(VSC vs. CSC), but reportedly the USCIS is currently considering
all the FY 2008 H-1B cap cases to be filed with the VSC, which
indirectly supports the information of potential delays in launch
of the Phase III within this fiscal year. Whether or not the
USCIS will indeed centralize the filing of all the FY 2008 H-1B
cap cases with the VSC requires a final decision and release
by the USCIS HQ. Please stay tuned.
02/13/2007: Senate Floor Agreed to Cloture Motion for H.J.
Res. 20 Continuing Appropriation Bill Today
- Today, the Senate floor agreed to the cloture
motion and to send it to the Senate Committee of Appropriation
with the request to report back. Accordingly, no amendments can
be attached to this bill henceforth. It appears that no immigration
bills were able to make it to be attached to this bill. The Congress
must pass this continuing resolution bill by midnight of February
15, 2007.
- With the grim prediction of the immigration
visa numbers today by the U.S. Department of State, the immigrant
community is extremely frustrated and agonized as their last
hope for an opportunity to attach certain immigration bills to
this Appropriations bill evaporates.
02/13/2007: DOL Announcement of Processing of H-1C Labor
Attestations
- The Nursing Relief for Disadvantaged Areas
Reauthorization Act of 2005 took effect December 20, 2006. The
Act reauthorized the H-1C nonimmigrant nurses program, a program
originally created by the Nursing Relief for Disadvantaged Areas
Act of 1999. Under this program, eligible hospitals file attestations
with the Department of Labor, Office of Foreign Labor Certification
which, if approved, will support nonimmigrant worker petitions
filed with the Department of Homeland Security, U.S. Citizenship
and Immigration Services. The Department of Health and Human
Services has informed the Office of Foreign Labor Certification
that the same hospitals eligible for the original program continue
to be eligible. These were listed in the Department of Labor's
Interim Final Rule implementing its portion of the H-1C program
published on August 22, 2000 (65 Fed. Reg. 51138). The Employment
and Training Administration, under the authority of the new public
law, is reinstating the H-1C labor attestation program and is
accepting applications by qualified hospitals. Eligible hospitals
should be advised that the now-expired OFLC form (ETA 9081),
Attestations by Facilities Temporarily Employing H-1C Nonimmigrant
Aliens as Registered Nurses, has not been authorized by the Office
of Management and Budget (OMB) for current use. However, the
OFLC will accept applications using the expired form until a
new form is approved by the OMB. The attestations are made enforceable
by the 2005 Act. ETA is in the process of revising the form under
the OMB clearance process, and taking other appropriate regulatory
action. Once approved by OMB, employers will be required to use
only the new form.
02/13/2007: March 2007 Visa Bulletin
- Visa numbers for March 2007 are disastrous.
- EB cases: For all categories and all countries,
not a single day has changed from February bulltin. It predicts
that little, if any, forward movement in the EB-3 is expected
in the near future. It also predicts that according to their
recent discussions with both USCIS and DOL, the demand for numbers
with pre-August 2002 priority dates is likely to be extremely
high in the coming months as both agencies continue
to work on their backlogs. This could easily cause a retrogression
of the current EB-3 cut-off dates, should that demand begin to
materialize at USCIS duringthe spring and summer months. Alas!
- For family cases, Mexico FB-3 retrogressed
from 01/01/95 to 08/01/1994, and Philippines FB-3 retrogressed
from 02/08/1991 to 09/01/1990. It predicts that further retrogression
or unavailability in future months cannot be ruled out.
02/09/2007: Important "Aged-Out" Decision by BIA
Today, Grandfathering of Age-Out Benefit, In re Rodolfo AVILA-Perez, 24 I&N Dec.
78 (BIA 2007), Interim Decision #3551 (February 9, 2007)
- Today the Board of Immigration Appeals handed
down a very important decision for those whose I-130 petition
was filed by a U.S. parent and "approved before 08/06/2002,"
but he or she reached 21 years of age before 08/06/2002, and
failed to file I-485 application with or without good cause before
08/06/2002. Until the today's decision, the USCIS has been denying
I-485 applications filed by such alien beneficiary after August
6, 2002 on the ground that the alien is not eligible for the
Child Status Protection Act (CSPA) after reaching 21 years of
age.
- Today's ruling overtuned such practice of
the USCIS, stating that (1) once the I-130 immediate relative
petition was approved on or before the child reached 21 years
of age and (2) the child reached 21 years of age on or before
August 6, 2002, even if the child failed to file I-485 application
for whatever reasons before August 6, 2002, the child is eligible
to file I-485 application any time after August 6, 2002, still
as a child under 21 years of age, no matter how late it is. In
the case of issue, the U.S. citzen parent'sI-130 petition was
approved on November 1, 1996 and the beneficiary aged out on
August 4, 1997, but for the unkown reasons, he/she did not file
I-485 application until October 15, 2003, more than one year
after the alleged cut-off date of August 6, 2002. The BIA has
ruled today that once the immediate relative petition for a child
under 21 years of age by a U.S. parent is approved and the
child reached 21 years of age before August 6, 2002, the former
child beneficiary is still eligible for I-485 green card application
any time as a child under 21 year of age and not subject to numerial
limitation of immigrant visa. Of course, the benefiary must prove
that the child is admissible at the time of filing of I-485 application
other than the "overstay" (out of status) or "unauthorized
employment" in the U.S. The immediate beneficiary "child"
of a U.S. citizen is eligible for adjustment of status to a permanent
resident even if the beneficiary is out of status or engaged
in unauthorized employment. Other than that, the law does not
waive the grounds of inadmissibility including serious criminal
convictions.
- It appears that there may be a large number
of "adult" aliens who are now eligible for adjustment
of status to a permanent resident under the new ruling of the
BIA. Please seek legal counsel.
02/09/2007: USCIS Monthly Newsletter - February 2007
- Did you know that 15,000 federal and contract
workers work for USCIS at 250 offices worldwide? Did you also
know that each day USCIS conduts 135,000 national security background
checks, but processes 30,000 of immigration benefit applications
altogether including immigrant, nonimmigrant,and other cases?
Hmmm.................................................
02/08/2007: BECs Processing Statistics by Types and by Centers
- Again, the following information is reported
based on the unconfirmed sources and people may ignore some minor
discrepancies in total number of cases.
-
| |
DBEC |
PBEC |
| RIR |
60,000
Pending: 9%
Certified: 73%
Closed: 7%
Rest: Others
|
100,000
Pending: 27%
Certified: 49%
Closed: 13%
Rest Others
|
| TR |
84,000
Pending: 51%
Certified: 5%
Closed: 31%
Rest: Others
|
58,000
Pending: 51%
Certified: 7%
Closed: 31%
Rest: Others
|
- It is interesting to note that there is practically
no difference between the two centers when it comes Traditional
cases, while there is somewhat noticeable difference between
the two centers when it comes to the processing of RIR cases.
Part of the difference could have come from the difference in
total number of cases between the two centers.
02/08/2007: Tancredo Steps Down Chairman of House Immigration
Reform Caucus
- He established the congressional caucus in
1999. Since its creation, the caucus has grown to more than 90
members and played a key role in rallying support in 2006 for
passage of a tough House immigration bill that called for strict
border enforcement measures and penalties for employers that
hired illegal immigrants. However, he will stand very vocal against
immigration and immigrant as his main platform for the presidential
bid.
02/08/2007: Chances for Immigration-Related Attachments
to the FY 2007 Appropriation Legislation Slim
- The House passed on January 29, 2007 the
Appropriation Bill and forwarded it to the Senate. Unless another
Continuing Resolution is agreeed upon between the House and the
Senate, the Senate intends to pass the bill before February 15,
2007, the expiration date of the current Continuing Resolution
that has been funding federal government pending the enactment
of the FY 2007 Appropriation legislation.
- The Appropriation Bill, H.J. Res 20, does not have any immigration-related
attachments. Besides, the Senate Majority Reids announced that
he would oppose any amendments or earmarks introducted in the
Senate and for that purpose, he was willing to introduce Motion
for Cloture quickly. The Congress wants to enact FY 2007 Appropriation
legislation before it is tangled with the President proposed
FY 2008 Budget legislation.
- It is thus likely that the immigration legislation
may have to go through the Comprehensive Immigration Reform legislation
process which may take place next month, March 2007.
02/07/2007: Details of DOL Backlog Cases Processing Statistics
- Yesterday, we reported that the Backlog Elimination
Centers had completed 67% of cases as of 01/27/2007. According
to the "unconfirmed sources", the details appear to
be as follows:
- Total Number of Cases: over 300,000
- Processing status by the Two Backlog Elimination
Centers:
| Total |
100% |
|
Dallas (152,000+) |
Phily (169,000+) |
| Pending |
33% |
|
33% |
36% |
| Completed |
67% |
(1) Certified |
33% |
33% |
| " |
|
(2) Closed |
21% |
20% |
| " |
|
(3)Withdrawn |
11% |
08% |
| " |
|
(4)Denied |
01% |
02% |
- The good news is that there were very small
number of denials. Bad news is a large number cases did not make
it through becuase they were either withdrawn or closed. There
are a very small fraction of cases which are not reflected in
the table.
02/06/2007: HHS 2007 Poverty Income Guideline
- HHS released this guideline on January 24,
2007, but for the immigration proceeding, the USCIS will announce
separately the effective date for Affidavit of Support (I-864).
Please stay tuned.
02/06/2007: DOL Announced Plan to Propose Legislation to
Charge Fees for Labor Certification Applications
- The information which has been released to
the AILA indicates that it has completed 67% of cases as of 01/27/2007
and is prepared to complete all the backlog cases by the end
of September 2007 as scheduled.
- The DOL has made clear its plan to introduce
a legislative bill to charge the filing fees for labor certification
applications. The exact amount has yet to be disclosed.
- Wow, stacking fees and fees. One wonders
how certain groups of constituents can affort to pay all the
filing fees of the DOL and USCIS. In employment-based proceedings,
this will present a serious problem to the small business employers
and aliens to work for small employers, particularly low-end
industries! Small businesses will face a competitive disadvantage
over the big business like Fortune 500 businesses!
02/06/2007: USCIS Minnesota District Office Will Change
Office Schedules
- Currently, the USCIS Field Office is closed
to the public Friday through Sunday. Beginning March 5, 2007,
they will rather close on every Wednesday. Accordingly, they
will remain open on Monday, Tuesday, Thursday, and Friday. This
schedule was adopted by several field offices in the country,
including Omaha, Nebraska. Please make a note of the new schedule
effective 03/05/2007.
02/06/2007: For Unknown Reasons, USCIS Restored Old Web Site
- If readers loved old site and wish to recoup
some valuable in user-friendly manner, it is a good news in a
way.
02/06/2007: Proposed FY 2008 USCIS Budget: 99 % Funded Thru
Fees
- Bush presented FY 2008 budget proposals for
his administration. Under the proposal, the USCIS is proposed
with $2.6 billion, and 99% of the fund is proposed to come from
collection of immigration filing fees. Read on.
02/05/2007: USCIS Expects to Change Rule of RFE and NOID
About End of February or Early March
- The USCIS is expected to implement within
this month or early March a new rule removing the current absolute
requirement for, and the fixed regulatory time limitations on
responses to a USCIS RFE or NOID. These changes will enable USCIS
to set an appropriate deadline rather than fixed 12-week deadline
for responding to an RFE or NOID, specific to the type of case,
benefit category, or classification reducing the time a case
is held awaiting evidence allegedly to reduce average case processing
time. Under current regulations, there are certain situations
in which USCIS must issue an RFE, and in all cases in which an
RFE is issued, USCIS must provide a standard 12-week response
time. USCIS will replace the current 12-week response period
with a more flexible approach, setting response periods based
on various factors such as the type of benefit sought; the type
of application or petition filed; the type of evidence needed
for adjudication; the source and availability of documentation
(both foreign and domestic); etc. USCIS will remove most provisions
that require issuance of an RFE or Notice of Intent to Deny (NOID)
in order to allow USCIS greater flexibility in deciding cases
based on the information received, including initial evidence
and other relevant materials. USCIS, in its discretion, may
deny a petition or application when required initial evidence
is missing. If an applicant or petitioner fails to submit
the required initial evidence, and USCIS decides to deny the
application or petition rather than issue an RFE, the applicant
or petitioner may file a motion to reopen, with fee, as provided
under 8 CFR 103.5 or file a new application or petition. The
applicant or petitioner may also file an appeal of the denial
if other regulatory or statutory authority exists for such appeal.
- Considering the fact that this change may
take place within about a month or so, people should soon pay
attention to the two things: (1) Make sure that all the "initial
evidence" be meticulously collected and filed for each petition
and application in order not to face unexpected denial of the
application or petition without receiving a RFE. "Initial
Evidence" is usually set forth in the filing instruction
sheets for each application or petition. (2) When they receive
a RFE, they should read very carefully the deadline for response
as it can vary rather than the current 12-week time, being defnitely
shorter than 12 weeks in most cases. Under the USCIS rule, failure
to response to the RFE or NOID before the deadline is considered
"abandonment" and case will be automatically denied.
Please stay tuned to this web site for the upcoming announcement
of this change.
02/04/2007: One Small Good News for USCIS Fee Increases
- The USCIS was in the process of rule making
for proposed filing fee increases in the two separate proposed
regulations. One was the one which they published on 02/01/2007
and the other was the proposed rule to raise the Premium Processing
Services fee increase. Currently the Premium Processing Services
fee is $1,000.
- On February 2, 2007, the USCIS withdrew the
proposed rule for Premium Processing Services Fee Increase from
OMB. We welcome the USCIS decision to withdraw this proposed
rule.
- We also agree with the USCIS that the GAO
chided the USCIS for insufficient funding for backlog reductions
for immigration benefits processing which could potentially affect
negatively the homeland security as well as the backlog reductions
which Bush promised in his five-year $500 million backlog reduction
program. Accordingly, in a way, the increase of filing fees is
justified under the circumstances. We also want to clarify that
the blame for the unreasonably high rate of increase should be
placed with the Congress rather than the USCIS in that the Congress
had failed to appropriate tax-based general funding in passing
FY 2007 budget for the DHS to help the USCIS to meet the GAO
recommendations, and thus forcing the USCIS to find the solutions
in the fee revenues to meet the GAO recommendations.
- We want to see how the Congress will react
to the current fee increase problem. It will be wrong to shift
the entire blame from the Congress themselves to the agency.
Members of the Congress have acted "chicken" when it
comes to the funding for "immigration" from tax or
general revenues, obviously for the political reasons! Indeed,
looking back the Legacy INS history, it was the Congress and
not the INS that forced the agency to redirect the fee revenues
to the immigration law enforcement functions from time to time.
Such behaviour of the Congress should be corrected one way or
another.
02/02/2007: Proposed Fee Increase and Growing Uproar in
the Immigration Consumer Community and Immigration Law Community
- The proposed fee adjustment proposal is raising
a number of issues. One practical question is whether the immigrants
will be able to afford the payment of such high filing fees.
Secondly, because of the high fees, growing number of immigrants
can attempt to handle the legal matters without the legal assistance
of the legal professionals as they will not be able to afford
paying tons of money. This may leave the immigrants in the desert
and open sea vulnerable to the frauds of sharks. Eventually,
they can end up facing serious consequences. Thirdly, there is
a serious issue of legality of use of funds against the law and
the Constitution. The so-called user fee is allowed for the government
agencies only when it is charged for semi-private service functions
and not for so-called "government" functions. Nowadays,
growing number of government agencies at all levels including
local, state, and federal government leaders are attempting to
practically impose taxes in the name of fees such as proposed
charge of fees at the gas station, etc. etc. For the agency to
charge user fees, they will have to establish that they are providing
the services not as a "governing" entity but as a semi-private
person or entity and charge the fees for the services just as
any service providers like utility companies, etc. Would the
funds collected as fees be 100% used for such non-governing functions
in the proposed fee increase regulation? There are already concerns
expressed by the communinity including the President of AILA
and other organization that part of these monies are raised to
fund the immigration law enforcement functions which are typical
"government" function and not "service" function.
As we noted earlier, because of the ongoing uproar and the heat
of anger in the community, it is expected that the USCIS will
be flooded with the so-called "comments" in the next
two months.
02/02/2007: What Did Senator Kerry Immigration Reform Bill
Mean to EB Immigrants?
- In hindsight, the failure of the Kerry Amendment
to H.R.2 to pass the Senate could be considered a relief to the
EB immigrants. Close review of the immigration reform bill in
the H.R. 2 will establish that the bill proposed for the employment-based
immigration system practically nothing other than increasing
the annual quota to 290,000. None of the provisons in the SKIL
bill was reflected in the bill, including exemption of the spouses
and children from the numerical limitations, exemption of certain
EB groups from the annual numerical limits, opportunity for filing
I-485/765/131 for the I-140 beneficiary during the visa number
retrogression, etc. etc. etc.! Had this bill been enacted, it
would have affected the upcoming CIR bill or special legislation
for Employment-Based immigration system reform more or less negatively.
This reporter was shocked to learn that this bill provided practically
no relief for the employment-based immigrants other than undocumented
farm workers and the children who will be eligible for the DREAM
Act bill. The bill was extremely imbalanced legislation in a
way from the perspectives of the "Comprehensive" Immigration
Reform.
- We will see whether the Senate leaders will
indeed complete and introduce the CIR proposal next month.
02/02/2007: Senate Passed H.R. 2 Without Immigration Reform
Bills
- During the debate, the immigration reform
bill introduced by Senator Kerry as Title VI was agreed to, but
it appears that at the last minute the immigration reform bills
were sliced off along with all other bills which are not related
to the minimum wage in passing H.R. 2 at 5:00 p.m. by the Senate.
We incorrectly reported the immigration bills were part of the
H.R. 2 which the Senate passed yesterday. The final H.R. 2 bill
passed by the Senate is expected to go to the Senate-House Conference
committee.
02/01/2007 09/00 a.m. : Sen. Session Bill to Amend H.R.
2 to Bar Illegal Alien Hiring Employers from Government Contract
Agreed to in the Senate
- Senator Sessions who takes anti-immigration
position introduced this bill as part of H.R.2, which the Senate
floor passed yesterday 94:0.
02/01/2007 08:45 a.m.: AgJOBS Bill Incorporated Into Title
II of Fair Minimum Wage Act, H.R. 2 in the Senate
- One of the top priority legislation for the
new Congress is the Fair Minimum Wage Act bill. The Senate is
currently debating on this bill. The AgJOBS Act bill is merged
into this bill as Title II. AgJOBS bill will legalize farm and
related wokers in illegal alien status and amend H-2A nonimmigrant
visa legislation to incorporate the AgJOBS. Please stay tuned.
02/01/2007 08:30 a.m.: CBP User Fees Also Go Up 04/01/2007
02/01/2007 08:20 a.m.: Proposed New Fee Schedules Published Today
01/31/2007 12:15p.m.: USCIS Released the Details of Fee
Changes
- The USCIS has released the details including
a copy of the proposed fee change rule which will be published
tomorrow. Please click here.
01/31/2007 11:45 a.m: Proposed USCIS Fee Schedule
- AILA has obtained a copy of the rule to be
released tomorrow. One correction for our prior posting. Comment
period will be 60 days rather than 30 days, ending on 04/02/2007.
It is over 100 PDF-page documents but the proposed fees are as
follows:
- Proposed Fees
| I-90: $290 |
I-485 $905/$805(ch) |
I-817 $440 |
| I-102 $320 |
I-526 $1,435 |
I-824 $340 |
| I-129 $320 |
I-539 $300 |
I-829 $2,850 |
| I-129F $455 |
I-600 $670 |
N300 $235 |
| I-130 $355 |
I-600A $670 |
N336 $605 |
| I-131 $305 |
I-601 $545 |
N400 $595 |
| I-140 $475 |
I-602 $545 |
N470 $305 |
| I-191 $545 |
I-687 $710/570(ch) |
N565 $380 |
| I-192 $545 |
I-690 $185 |
N600 $460/$420 |
| I-193 $545 |
I-694 $545 |
N600K $460/$420 |
| I-212 $545 |
I-695 $130 |
MTR $585(Motion) |
| I-290B $585 |
I-751 $465 |
|
| I-360 $375 |
I-765 $340 |
|
01/31/2007 08:00 a.m: USCIS Proposed New Filing Fee Schedules
to be Published Tomorrow
- The controversial proposed new filing fee
schedules will be published in the federal register tomorrow
with 30-day comment period. It is anticipated that the agency
may be flooded with the comments from the immigration stakeholders
and public during the period. One of the issues that may be raised
is the basis of calculation of fees, to wit, whether it is required
to cover the increased cost for the processing of the immigration
benefits applications as caused by the inflation or, as reported
in the CRS, most of the fee funds will be generated to fund the
other divisions of the DHS such as ICE and CBP. For the CRS report,
readers may want to reread our posting on December 22, 2006 in
our Archive XIV. If it is the latter, there is a room for substantial
dabate in the Congress, the DHS oversight authority, and potential
lawsuits. Please stay tuned.
01/30/2007: Clarification of LC Substitution Elimination
Final Rule Making Process
- After we reported this news, we learned that
there were some readers who gravely misunderstood the "final"
rule making process. They were confused with the "proposed"
rule making process. In the final rule making process, there
is no comment period before the rule takes effect. On the date
when the final rule is published in the federal register, it
becomes a binding rule and the rule-making process is complete.
Certain provisions in the final rule may take effect on certain
specific later date or dates, but the rule itself becomes a binding
law on the date of publication of the rule in the federal register.
Accordingly, unless the DOL changed the proposed rule, substitution
of the beneficiary of the labor certification will be eliminated
on the date of publication which includes the substitution of
the beneficiary in the pending labor certification by amendment
as well as the substitution of the beneficiary in the approved
labor certification. For those who filed the substitution I-140
petition, the proposed rule provided that only "substitution
approved" on the date of publication of the rule would survive.
Substitution approved can be interpreted to mean approval of
the substitution I-140 petition. For the 45-day validity of the
certified labor certification, under the proposed rule, the certified
labor certification on the date of publication was supposed to
have 45 days to file the I-140 petitions. For the labor certifications
which are approved after publication of the final rule must file
the I-140 petitions within 45 days from the date of certification.
- The DOL could have changed part of the proposed
rules in the final rule and the readers are cautioned to wait
for the release of the final rule before they jump into any conclusion
and take a misguided action.
01/30/2007: USCIS HQ Confirmed the Report that Mandamus
Lawsuits Will Not Lead to Their Acceleration of Namechecks
- We reported this news a few days ago. Now
AILA-USCIS Liaison reports that the USCIS will no longer accelerate
for any namechecks because of the Mandamus lawsuits by the applicants.
Hmm.......
01/29/2007: OMB Approved Immigration Fee Increase Proposed
Rule on 01/26/2007
- OMB approved the USCIS proposed rule to raise
the immigration filing fees. This rule will be published with
a 30-day comment period. Unconfirmed sources indicate that the
filing fees will be raised substantially to the level of double
in some cases.
01/29/2007: Special Alert:
DOL Submitted "Final" Regulation
of Substitution Elimination Rule to OMB on 01/26/2007
- Since this is a final rule,
upon approval by OMB, the elimination of substitution and 45-day
validity of certified labor certification will be triggered.
Take this message as a very special alert! This rule will not
only eliminate substitutition on the OMB approval and release
in the Federal Register but also kill the certified labor certification
unless it is used within 45 days from the date of certification!
Please stay tuned to this web site reporting.
- The planned implementation
day appears to be April 2007. But it can be earlier!
- If the final rule retains
the proposed rule, those pending substitution I-140 cases which
fail to obtain approval can be jeopardized!
01/28/2007: At Last! USCIS Removed the Access to the OLD
USCIS Website
- The old USCIS website was last updated at
the end of October 2006 when the USCIS started the current new
website. At the time, it announced that the old website would
be removed at the end of November 2006. However, the old site
remained accessible until a few days back. Now, the USCIS removed
the access to the old site and the public is no longer able to
get access to the old web site.
- The new web sie of the USCIS has yet to complete
the database. Besides, the new web site has received some negative
reactions in the immigration community. Even though we understand
the reasons for removal of the old website, the immigration community
will miss the old USCIS website which permitted a user-friendly
access to all the valuable data and news and well-organized data
management.
01/27/2007: New Documents Required for Air Travel to the
United States from Canada, Mexico or the Caribbean from 01/23/2007
- The USCIS has advised that all individuals entering
the United States by air from Canada, Mexico or the Caribbean
must have a valid passport, Air NEXUS card, U.S. Coast Guard
Merchant Mariner Document, or other acceptable documentation.
- Lawful Permanent Residents of the United
States may produce one of the following as acceptable documentation:
- I-551, Permanent Residence Card ("Green
Card")
Machine-readable immigrant visa with a CBP Admission Stamp
Temporary Residence Stamp (ADIT stamp) contained in a passport
or on Form I-94
Valid Reentry Permit
Unexpired Immigrant Visa
- For more information on these requirements,
please see the U.S. Customs and Border Protection (CBP) website.
USCIS does not administer this program or manage ports of entry.
01/26/2007: American Consulates Ceased to Process I-130
Petitions and K-3 Petitions by U.S. Citizen Spouses Who Are Residents
in the Foreign Countries
- The State Department has sent a cable to
the visa posts throughout the world not to accept and process
such petitions. Until this policy is adopted, the U.S. citizens
who are considered residents in the foreign country could file
such I-130 or K-3 petition at the American Consulate rather than
the time-consuming USCIS process. In light of the importance
of this changed policy, we will post the full text as follows:
- SUBJECT: REFERRAL OF ALL I-130 PETITIONS
TO USCIS SERVICE OFFICES FOR ADJUDICATION
- 1. Summary:
CA and USCIS have completed a thorough analysis of the Adam Walsh
Protection act and come to the conclusion that posts must cease
accepting or adjudicating any I-130 petition for family-based
immigrant status that was not adjudicated by USCIS, and inform
any individual wishing to file such a petition that it is necessary
to file it with the appropriate USCIS office and refrain from
assisting further. This change is effective immediately. In any
case in which a post has already accepted an I-130 from a petitioner
but has not yet issued a visa, post must forward the petition
to the appropriate USCIS overseas office as "not clearly
approvable." We are working with USCIS and will provide
subsequent guidance on processing I-600 petitions and previously
approved I-130 petitions. CA recognizes that this change may
cause difficulties and encourages posts to advise their resident
American citizen communities that new procedures are in place
so that they may plan ahead. End Summary.
- 2. On July
27, 2006, the Adam Walsh Child Protection and Safety Act (Adam
Walsh Act), Pub. L. No. 109-248, became law. Section 402 of that
Act amends INA 204(a)(1) and 101(a)(15)(K), rendering ineligible
to file a petition for immigrant status under INA 203(a) (I-130
or I-600), or for nonimmigrant K status (I-129F), any petitioner
who has convicted of a "specified offense against a minor,"
defined in section 111 of the Adam Walsh Act as an offense involving
any of the following: A) An offense (unless committed by a parent
or guardian) involving kidnapping. B) An offense (unless committed
by a parent or guardian) involving false imprisonment. C) Solicitation
to engage in sexual conduct. D) Use in a sexual performance.
E) Solicitation to practice prostitution. F) Video voyeurism
as described in section 1801 of title 18, United States Code.
G) Possession, production, or distribution of child pornography.
H) Criminal sexual conduct involving a minor, or the use of the
Internet to facilitate or attempt such conduct. I) Any conduct
that by its nature is a sex offense against a minor. Section
402 of the Adam Walsh Act provides that the bar against filing
a petition because of such a conviction will not apply if the
Secretary of Homeland Security, in his sole and unreviewable
discretion, determines that the petitioner poses no risk to the
beneficiary.
- 3. USCIS has
provided interim guidance to its adjudicators to search its IBIS
database for criminal history record information regarding USPER
petitioners in family-based immigrant status cases and K nonimmigrant
status cases. If there is an IBIS hit for one of the specified
offenses against a minor, the USCIS field office must issue a
Request for Evidence for all police arrest records and court
disposition documents, and must schedule the petitioner for fingerprinting.
- 4. Consular
officers do not have access to criminal history record information
regarding USPER petitioners and therefore are unable to determine
whether a petitioner has a conviction for a specified offense
against a minor that renders the petitioner ineligible under
INA 204(a)(1)(A)(viii) or 204(a)(1)(B)(i)(II) to file a petition.
The limited extract information in CLASS downloaded from the
FBI's National Crime Information Center relates solely to aliens,
and INA 105 provides for the use of such information "for
the purpose of determining whether or not a visa applicant or
applicant for admission has a criminal history record indexed
in any such file."
- 5. In the absence
of access to information that is essential to the determination
of whether a petitioner is eligible to file a petition for immigrant
status in a family-based classification, consular officers are
unable to take any action on an unadjudicated I-130 petition.
Rather, posts must advise individuals who seek to file such a
petition that they should submit it directly to the STATE 00007956
002.2 OF 002 appropriate USCIS office. USCIS maintains an office
locator page, based on place of residence, on its website at
http://egov.immigration.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=OS.
In cases in which a post has already accepted an I-130 for filing
but has not yet issued an immigrant visa, the consular officer
must consider the petition "not clearly approvable"
because of the inability of the petitioner's eligibility to file.
Pursuant to 0 FAM 42.41 N4.2-3(d) AND 8 CFR 204.1(e)(3), posts
must forward all such I-130 petitions that petitioners filed
at post, with all supporting documents, to the appropriate USCIS
office. To reiterate, consular officers are no longer authorized
to accept or adjudicate I-130 petitions at post under any circumstances.
9 FAM Appendix N 200 is being revised accordingly. We are preparing
press guidance, which posts will be able to access at http://intranet.ca.state.gov/PPAffairs/ppaffairs.htm.
For the cable, please click here.
01/25/2007: GAO 01/25/07 Report to Congress on DHS Progress
in Terrorist Risk Prevention and Recommended Improvement in Immigration
- The GAO submitted to the Congress a long
report on the subject. In the immigration areas, it assessed
that the government has strengthened the nonimmigrant visa process
as an antiterrorism tool. New measures added rigor to the process
by expanding the name-check system used to screen applicants,
requiring in-person interviews for nearly all applicants, and
revamping consular officials' training to focus on counterterrorism.
To enhance security and screening at legal checkpoints (air,
land, and sea ports) at the nation's borders, agencies are using
technology to verify foreign travelers' identities and detect
fraudulent travel documents such as passports. Accordingly, it
gave a sort of "pass" mark in the nonimmigrant areas.
- However, the GAO expressed remaining high
security issue in the two programs, among others. One is Diversity
Visa (Immigration Lottery Program) and the other is the Visa
Waiver Program. The immigration lottery program was continuously
attached in the last Congress including the IG of DHS. However,
this report is short of recommending termination of the program.
In the CIR of 2006, the immigration lottery was recommended to
be terminated, though. It is likely that this program will be
continuously attacked and remain vulnerable for survival. As
for the Visa Waiver Program, despite the security rsik involved,
because of the national ingterest involved, the GAO does not
recommend to terminate this program. It just recommended that
DHS require visa-waiver countries to provide information to lost
or stolen passports that terrorists could use to gain entry.
Currently, 27 friendly countries take advantage of the Visa Waiver
Program, but the Administration is planning to expand the list
to other countries as late as 2009 adding 13 more countries including
most of the former Eastern block countries that have supported
the U.S. fight in Iraq and South Korea. Even though it may not
be a reward for their collaboration with the U.S. fight in Iraq,
it appears that the Administration finds it a sufficient national
interest involved to enhance the flows of human traffics between
the U.S. and these countries.
- For the full GAO report, please click here.
01/25/2007: Announcement of Phase-Out of American Job Bank
(AJB) on 06/30/2007
- U.S. Department of Labor, ETA, announced
that effective June 30, 2007, the AJB as the recruitment sources
will be completely phased out. ETA's transition plan for the
phase-out of AJB includes developing the ability to direct employers
and job seekers to both public and private sector job banks.
This will be accomplished by providing a `list of Web links'
to qualified Web sites during the AJB phase-out period. The `list
of Web links' (to include all state workforce agency job banks)
will be available for a period of time both before and after
the phase-out of AJB on June 30, 2007. ETA will select Web sites
to be included in the list of links from applications meeting
the requirements of this notice. ETA reserves the right to use
the listings for multiple Federal purposes, to edit, and to remove
the `list of Web links' at its sole discretion. DOL is soliciting
private websites that can serve as the DOL sanctioned Job Search
sites after its review and approval. Once it is approved, the
DOL is scheduled to set up a lint to the private web site as
the authorized Job Search Site. For the announcement, please
click here.
01/25/2007: Effective 02/26/07, Direct Mail of Form N-565,
Application for Replacement Naturalization/Citizenship Document
to TSC or NSC
- USCIS has announced that USCIS is expanding
its Direct Mail Program to provide that filings of Form N-565,
Application for Replacement Naturalization/Citizenship Document,
be filed at a designated Service Center for processing. Applicants
were previously required to file at a USCIS field office having
jurisdiction over their place of current residence. The Direct
Mail Program allows U.S. Citizenship and Immigration Services
to more efficiently process
applications by eliminating duplicative work, maximizing staff
productivity, and introducing better information management tools.
USCIS intends for this Direct Mail process to be implemented
on February 26, 2007 and it will affect all applicants filing
Form N-565.
- Effective February 26, 2007, people should
mail the N-565 applications to:
- To Texas Service Center for those
applicants residing 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, will
forward their application to the Texas Service Center at: DHS/USCIS,
Texas Service Center, PO Box 851182, Mesquite, TX 75185-1182.
- To Nebraska Service Center for Those
individuals residing 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,
will forward their application to the Nebraska Service Center
at: DHS/USCIS, Nebraska Service Center, PO Box 87565, Lincoln,
NE 68501-7565.
For other details, please click here.
01/24/2007: DOL Procedure to Correct Type of BEC Cases
on Status Report Site
- The Office of Foreign Labor Certification
(OFLC) announces a procedure for employers or their authorized
representatives to follow if they believe the case type as reflected
on the Public Disclosure System (PDS) is incorrect (e.g., if
it is listed as TR but they believe it should be RIR, or vice
versa). In such an event, e-mail the general information e-mail
box at the appropriate Backlog Elimination Center (BEC). The
subject line of the e-mail must read "Incorrect Case Type
- Case # [insert case number]." The body of the e-mail should
explain why the employer believes the case type is incorrect.
Any supporting documentation may be attached as a pdf. The BECs
will review the case and reply as soon as possible based on the
volume of requests. For the details, please visit OFLC site.
01/23/2007: Poll Reports Fairly Positive Response to U.S.
Passport Requirement for Air Travel to Adjacent Countries Which
Went Into Effect Today
- According to the CBP, the U.S. citizens have
been fairly well informed of the requirement of U.S. passport
for their travel and return to the country on the air. It also
reports that the U.S.citizen were fairly positive about the passport
requirement as reflected in the following poll results:
- 87% said they are aware of new passport rules
starting Tuesday (Jan.23) requiring air travelers - including
U.S. citizens - to present a valid passport when re-entering
the U.S. by air from countries in the Western Hemisphere, including
Canada and Mexico.
- 76% believe a valid passport should be required
for all travelers entering the U.S. from Canada or Mexico.
- 73% agree a valid passport should be required
for U.S. citizens traveling by land or sea to enter the U.S.
from Canada or Mexico.
- 65% said the new requirements for air travelers
will help increase security.
- 85% said the passport requirements would
make no difference in their plans to travel to Canada while 86%
said the same for traveling to Mexico.
- The poll result is contrasted to the views
of the people in the adjacent countries that show their concern
with its negative impact on the U.S. citizen travel and traffic
and the resultant negative impact in the businesses and industries
that are related to the U.S. traveler traffics.
01/23/2007: USCIS Digitalization of Alien Files and Accessibility
of All Information on an Individual Alien in the Digitalized Format
- The USCIS is reportedly moving ahead with a new system
called the Integrated Digitization Document Management Program
(IDDMP) that will give employees at the Homeland Security Department
online access to immigration files. According to the report,
authorized DHS workers will be able to access digital versions
of individual alien A-Files which contain all the information
on people passing through the immigration and inspection processes.
The IDDMP is a part of an enterprisewide transformation program
at the USCIS to change the agency from a fragmented, paper-based
environment into a more centralized, consolidated organization.
As we reported yesterday, the USCIS has come under scrutiny in
the past year for a perceived lack of focus on its IT modernization
plans. In August, the USCIS formally announced a new records
digitization facility in Williamsburg, Ky. Congress had earlier
authorized funding that would allow the digitization of around
1 million A-Files a year. The USCIS reportedly said the new system
will use the same kinds of online customer accounts used in the
private sector, linking information related to an individual
in a single account.
01/22/2007: Mandamus Action No Longer Panacea to Natulization
Backlog?
- Some of those who applied for the citizenship
(naturalization) faced the clog of security check delays, in
some cases even for years. There was enough blame to go around
between the DHS and the FBI as to who was responsible for the
backlog. As the USCIS acknowledged, the USCIS somehow accelerated
the processing of some security-clogged cases when the applicants
brought a mandamus action before the federal courts asking the
federal court to mandate the USCIS to process the applications.
It more or less opened a flood gate of mandamus actions by the
involved applicants causing a tremendous burden on the agency
and the U.S. Attorneys in terms of the resources and time.
- The news have recently surfaced that the
U.S. Attorneys would fight out rather than back down or settle
in such lawsuits. It is a bad news for those who suffer from
terrible delays in naturalization because of the so-called security
check backlog. In the first place, it will become very expensive
to litigate. Additionally, the outcome of success in such litigation
may not necessarily lead to the quick fix any more of the naturalization
delays.
01/22/2007: President's State of Union and Emphasis of Employment-Based
Immigration Reform
- In the State of Union, the President proposed
American Competitiveness Initiative to make this nation strong
in the world competition. One of the programs which he strongly
proposed states "Attracting and retaining the best and
brightest to enhance entrepreneurship, competitiveness, and job
creation in America by supporting comprehensive immigration reform."
The message gives an encouragement to the employment-based
immigrant community in that at least the White House will not
resist but strongly support the employment-based immigrantion
reform once the Congress passes such legislative bill.
- The immigrant community should keep eye on
the following developments before the end of FY 2007 (09/30/2007):
- Electronic Filing and Processing System
of USCIS: USCIS
has been criticized by the DHS Inspector General, Congressional
Reports, and GAO for its failure to bring about changes in immigration
benefits processing and management. When it comes to the tasks
of the USCIS to reengineer the system, the USCIS is heavily shouldered
with the needs for balancing between achievement of efficiency
and effectiveness of processing and adjudication management system
on the one hand and development of easily and secured accessable
aliens' information for national security purposes. The current
USCIS system appears to have a serious flaw in this regard due
to its manual processing system and diversified organizational
structure. The GAO thus recommended to streamline the processing
system into an unified structure reorganizing the current Service
Centers into a single structure. However, the USCIS resisted
such recommendation with the its plan to streamline into two
sytstems which will be eventually reflected in the Phase III
Bi-Specialization processing system. From the perspectives of
the national security and management efficiency, the USCIS thought
that it would achieve the goals without the drastic reengineering
of the single command-in-line structure. Obviously, the two processing
justrictions Centers may be better than five Service Centers
in achieving the two goals, particularly the national security
management. However, more serious problem appears to be not structures
but processing system which is currently based on manual processing.
Reportedly, the USCIS lost almost 110,000 files while manually
processing and shifting files among different offices. Without
doubt, the initiation of Bi-Specialization Program could have
contributed to the problem when the processsing systems remained
"manual" and "yet to be electronically automated"
systems. For the foregoing problems, there is a concensus that
the earliest initiation of electronic filing and processing will
be extremely important. Had the USCIS initiated the electronic
filing system at the beginning of FY 2007 as initally scheduled,
probably they could have avoided a lot of the problems that ensued
afterwards. The electronization is also very important for achievement
of the management of information and data for the national security
standpoints. The immigrant community should be prepared for the
upcoming new filing system.
- Termination of Concurrent I-140 and
I-485 Filing Procedure: We reported
earlier that this rule-making was within the agenda of this first-half
rule-making agenda, and it is almost certain at some point down
the road, probably before the end of FY 2007, the current system
will disappear. Termination of the concurrent filing system will
bring about terrible hardships upon the employment-based immigrants
under the circumstances of visa number retrogression. Additionally,
it will be more expensive to minimize the hardship by filing
the Premium Processing of I-140 petitions. This will be particularly
true when they plan to raise the filing fees for the Premimum
Processing services.
- Elimination of Substitution of Alien
Beneficiaries: Since the U.S.
Department of Labor has remained silent after they had released
the proposed regulation, this nightmare is currently almost forgotten
in the immigrant community. However, people should realize that
as the DOL approaches the closure of the backlog elimination
system, this issue may become more real to the DHS and the DOL.
It can haunt any time. People should be more vigilant to the
news on development of this issue in the next few months.
- Comprehensive Immigration Reform Legislation:
There are a number of immigration
bills, including DREAM Act, SKIL Act, AgJOBS, etc., etc., which
different groups of immigrant groups have a serious stake. These
bills were eventually incorporated into the Comprehensive Immigration
Reform legislative bill last time and were massacred at the House.
Without doubt, most of these bills will be reintroduced, but
eventually incorporated in the comprehensive immigration reform
legislation process.
- The Year 2007 is indeed expected to be a
turning point, either positively or negatively, for the immigrant
community.
01/20/2007: Q&A
II Updated for Retrogression, H-1B, and EAD
01/19/2007: AgJOBS Indeed Has Strong Support in the Congress!
- Just look at the list of the Senators who
co-sponsor this bill with D. Feinstein! Senators Boxer
(D-CA), Clinton (D-NY), Craig (R-ID), Domenici
(R-MN), Hagel (R-NE), Kennedy (D-MA), Kohl
(D-WI), Leahy (D-VT), Martinez (R-FL), McCain
(R-AZ), Murray (D-WA), Obama (D-IL), Salazar
(D-CO), Schumer (D-NY), Specter (R-PA), and Voinovich
(R-OH).
- Power of Hispanics is sufficiently reflected.
The 2006 election reportedly resulted in a disastrous defeat
for the Republicans because of the Hispanic power. Identical
AgJOBS bills are introduced in both Houses.
- It appears that the anti-immigration members
of the House are reacting to the proimmigrant movement in two
ways, among others. One is to introduce nasty border security
and enforcement only bills and the other tactic is to argue that
all the immigration bills should be handled in a single comprehensive
immigration reform bill. Watch out their tactics!
01/18/2007: Service Centers and Local Field Offices Processing
Times of January 17, 2007
01/15/2007: Employment-Based Immigration Reform and Key
Issues
- For the last two years, the employment-based
immigration reform proposals focused on the following four key
issues. Depending on how the specifics were presented for each
of these four key issues, each proposal had created several groups
whose interests would have been differently affected. Let's review
these key issues:
- Total EB-Numbers Subject to Numberial
Limitation: Different proposals presented
different numbers, ranging from 290,000 to 640,000 (current number:
140,000). However, a careful analysis will reveal that the total
number itself can be misleading when it comes to different groups
of EB-immigrants depending on how the following three other factors
are presented.
- Allocation of Total Numbers to Each Preference
Categories (EB-1 through EB-5): The
CIR which the Senate passed last year changed the allocation
system reducing the % of allocation for EB-1 and EB-2 and drastically
increasing the % for EB-3 in anticipation of the illegal alien
legalization and guest workers immigration programs. On the surface,
it gave the impression that the CIR was only in favor of the
illegal aliens and such allocation would have hurted other legal
EB-immigrants. But that was not necessarily true. For instance,
the so-called SKIL bill which was introduced separately from
the CIR (unlike the SKIL bill which was also incorporated in
the CIR being subject to the new allocation system under the
CIR) provided in favor of the EB-1 and EB-2 immigrant in allocations
at the cost of EB-3 immigrants for the two reasons, among others.
First the SKIL bill proposed to create certain aliens who fitted
mostly to EB-1 and EB-2 exempt from annual visa number limitations,
while no such exemption was offered to the EB-3 immigrants. Considering
the fact that the total EB number which was proposed was relatively
small (290,000), the benefit to the EB-3 immigrants would have
been unfairly dispropotional. Accordingly, for the EB-3 immigrants,
CIR would have been much better than SKIL bill, assuming that
there were no legalization proposals in the CIR. In coming months,
people should watch carefully not only the total numbers for
EB but also internal distribution among different preferences.
- Groups Exempt from Annual Numerical Limitation: Two groups were noticeable affecting the different
groups of immigrants differently. One was excemption of the spouses
and children from the numerial limitation. This exemption would
have practically increased the total allocation for EB-based
immigrant quota tremendously, way beyond the number shown above.
The second group is those with Advanced degrees or medical field.
As explained earlier, the exempt of these latter group from the
numerical limitation de facto increased the EB-1 and EB-2 to
a greater extent than the simple numbers allocated for EB-1 or
EB-2 preference categories. Since this country has been moving
toward the direction limiting the educated immigrants to the
advanced degree holders, it is almost certain that a similar
provision may be offered in the coming comprehensive immigration
reform legislation.
- Availability of I-485 Application for
I-140 Approved Immigrants Whose Visa Numbers Are Unavailable:
This provision will give a tremendous
help to those who will continuously suffer from the visa number
retrogression. However, there are a couple of the groups in the
mainstream America that may resist to such proposal. One is certain
groups of employers. Since this will drastically expand the mobility
of the EB immigrants using AC-21 180-day change of employment
benefits, the labor market will become somewhat unstable from
the perspectives of the employers. The second group is anti-immigration
groups who may argue that such provision would open a flood gate
to foreign labor forces disrupting the American labor market,
since the aleins who would be able to join in the labor market
will increase substantially. However, it would be an unfounded
fear in that these aliens may already be particiting in the American
labor market forces, even though in nonimmigrant status.
- We hope that the upcoming comprehensive immigration
reform bill would cover most of the employment-based immigration
provisions under the previous CIR which the Senate passed last
year.
01/14/2007: Comprehensive Immigration Reform Legislation
Likely Timeline
- Report indicates that the House and Senate
special panel has been working hard to work out the new Comprehensive
Immigration Reform Legislative bill. As everyone knows, this
panel is led by Sen. McCain and S. Kenndy on the Senate side.
It appears that the panel is targeting at introducing the bill
first by March and pushing to pass the Senate by April, and the
House then takes over the Senate passed bill and attempts to
pass it quickly. We will have to wait and see whether or not
this scenario will work as planned, but because of the changed
political landscape, it is general opinion and concensus in the
media and political circles that unlike the tragic experiences
in the past few years, it will have a much better chance to make
it this time on. If it fails to make it through as scheduled,
the chance of the bill will turn slimmer because of the emerging
2008 national election politics and heat of passions involving
politics. The AgJOBS bill which will legalize approximately 1.5
million farm workers on H-2A visa status currently receives a
very strong support from legislators in both sides of the aisle,
even though there is some difference between the White House
and the Congress when it comes to the details. It is unknown
whether this bill will eventually turn into a part of the CIR.
AgJOBS bill is already nicknamed "Temporary Guest Worker"
bill!
- As for the Appropriation bills for the federal
departments other than Defense and DHS, since Continuing Resolution
to temporarily fund these departments will expire on February
15, 2007, there is expected some legislative activity to pass
some of the minor immigration bills including H-1B reform as
part of the appropriation legislative process. Please stay tuned.
01/13/2007: Passport Requirements for Members of Western
Hemisphere Coutries Effective 01/23/2007
- U.S. citizens may want to apply for the U.S.
passport to plan on a trip to the neighboring countries. In the
past, a passport was not required in some of these coutries,
but it is not going to be true in about ten days.
- The U.S. Department of State started issuing
e-passports to the U.S. citizens through the passport agency
in Colorado and is scheduling to expand the services throughout
the country in the future.
- What is e-Passport for the U.S.
Citizen? The proposed U.S. Electronic
Passport is the same as a regular passport with the addition
of a small contactless integrated circuit (computer chip)
embedded in the back cover. The chip will securely store
the same data visually displayed on the photo page of the passport,
and will additionally include a digital photograph. The inclusion
of the digital photograph will enable biometric comparison, through
the use of facial recognition technology at international borders.
The U.S. e-passport will also have a new look, incorporating
additional anti-fraud and security features.
- Passports without chips will still be
valid for the full extent of their validity period. For more details, please click here.
01/13/2007: President Signed into Law CONRAD 30 Extension
Bill Yesterday
- The bill extending the Conrad 30 program
for the next two years was signed by the President yesterday
making it a law. The law is effective retroactively from May
30, 2006. Under this law, each state can sponsor waiver of the
J-1 Home Residency Requirement upto 30 physicains a year to serve
in the medically underserved areas. Contratulations to IMGs who
have been waiting for this waiver options and opportunities.
01/12/2007: USCIS Announced Today Launch of Online Address Change Report Services for the
Aliens (AR-11)
- USCIS has just announced that it has just
launched the services of online address change system. Using
this system, the aliens can file online AR-11 and other required
address change reports to the USCIS This is indeed a terrific
service giving a lot of help for the millions of immigrants and
nonimmigrants in the country.
- Please go to AR-11 Online Address Change Report
01/12/2007: USCIS Issues New Guide to Naturalization
- USCIS released today a new guidance to naturaliztion.
For the new guidances, please click the following:
- M-476, A Guide to Naturalization
- M-599,
Naturalization Information for Military Personnel
01/11/2007: February 2007 Visa Bulletin
- Schedule A special category is gone and EB-2
and EB-3 for entire countries including India and China remain
the same as January.
- More painful is lack of the State Department
prediction for visa number changes in the future! Ominous sign?
- Family categories showed a steady, albeit
about one month or less or more, movement ahead.
01/11/2007: Status of S. 9, Comprehensive Immigration Reform
Act of 2007
- The Title of the bill reads:
- SHORT TITLE(S) AS
INTRODUCED: Comprehensive Immigration Reform Act of 2007
- OFFICIAL TITLE AS INTRODUCED: A bill to recognize
the heritage of the United States as a nation of immigrants and
to amend the Immigration and Nationality Act to provide for more
effective border and employment enforcement, to prevent illegal
immigration, and to reform and rationalize avenues for legal
immigration, and for other purposes.
- The bills was introduced by Senate Majority
Leader, Harry Reid and five cosponsors on January 4, 2007 and
the full Senate floor, with bi-partisan support, referred the
bill to the Senate Judiciary Committee to develop the details
of the bill. There is only provision which states that "it
is the sense of Congress that the Senate and the House of Representatives
should pass, and the President should sign, legislation to recognize
the heritage of the United States as a nation of immigrants and
to amend the Immigration and Nationality Act (8 U.S.C. 1101 et
seq.) to provide for more effective border and employment enforcement,
to prevent illegal immigration, and to reform and rationalize
avenues for legal immigration."
- The Senate Judiciary has yet to debate and
develop the details. The bill which was referred to the Judiciary
Committee did not have any other provisions. Accordingly, the
game is in the court of the Judiciary Committee. We will monitor
the Judiciary Committee's actions.
- Under the tremendous pressures from the Hispanic
community and farm related industries and communities, reportedly
so-called AgJOBS (Agricultural Jobs, Opportunity, Benefits, and
Security Act of 2007) was reintroduced in the Congress with a
strong bi-partisan support. Along the way, the Congress may reintroduce
other immigration bills including H-1B reform and employment-based
immigration bills in the form of SKIL bill or other format. It
is uncertain, though, at this point whether these bills will
be enacted independently and as separate from the CIR. We will
wait and see.
01/11/2007: AAO Decisions Online Library
01/11/2007: State Department Reports Positive Prospects
for CIR Legislation in 2007
- U.S. Department of State has reported a positive
prospect for enactment of CIR this year because of the bi-partisan
support of CIR and the President's strong support of the legislation
as well. Read on.
01/11/2007: DOL Announcement Extending Deadline for E-Mail
Request of Hold-Harmless RIR Converstion to 01/22/2007
- On December 22, 2006, the Office of Foreign
Labor Certification (OFLC) announced the RIR Conversion "Hold
Harmless" Opportunity. Since the original deadline to submit
requests for the RIR Conversion "Hold Harmless" Opportunity
fell on a Saturday, OFLC announces that the deadline to e-mail
a request to the Backlog Elimination Centers to take advantage
of the "Hold Harmless" opportunity will be extended
to Midnight EST, on January 22, 2007. Please see the Backlog
FAQ Round 6 for more information about the RIR Conversion Hold
Harmless Opportunity including language for the request.
01/09/2007: Selected AAO Appeal Processing Times of 01/09/2007
| Case Type |
Processing Times |
|
| I-140 EB-1A |
9 mos |
|
| I-140 EB-1B |
C |
|
| I-140 EB-1C |
C |
|
| I-140 EB-2 |
9 mos |
(D) NIW |
| I-140 EB-3 |
15 mos |
|
| I-129L |
9 mos |
|
| I-129 H-1B |
12 mos |
|
| I-129 H-2 & H-3 |
C |
|
| I-129 O |
C |
|
| I-129 F |
C |
|
| I-129 P-1,P-2,P-3 |
C |
|
| I-129 Q |
C |
|
| I-526 EB-5 |
10 mos |
Investor Immigrant |
| I-360 RW |
10 mos |
|
| I-360 VAWA |
C |
|
| I-612 |
18 mos |
|
| I-131 |
C |
|
| I-485 (LIFE Only) |
20 mos |
|
| N-600 |
C |
|
(Courtesy of AILA)
01/08/2007: President Signed P-1 Visa Expansion and H-C
Visa Extension Bills
- On 12/20/2006, the President signed into
law the H.R. 1285, H-1C extension law, PL. 109-423, and on 12/22/2006,
the P-1 visa eligiibility expansion law, S. 3821, PL. 109-463.
However, there is no information available about the status of
the Conrad 30 extension bill for foreign physicians , H.R. 4997,
which the Congress passed at the last minute. These three bills
are the immigration bills which the Lame Duck Congress passed
last month. Please stay tuned.
- For details of the P-1 Expansion law, click here.
- For details of the H-1C Extension law, click here.
01/08/2007: Comprehensive Immigration Reform Bill, S.9
- It has been confirmed that our January 4
report was correct that the Senator Reid indeed introduced the
CIR Act of 2007 on January 4, 2007. The bill number is S. 9.
The CIR of 2009 is one of the top ten bills which were introduced on the
day. In immigration legislation, the Senator strongly advocates
the CIR and DREAM bills. As soon as we obtain
the text of the bill, we will post it.
- One disappointing news today is that the
Congress will be so much involved in the Bush's "Iraq Resurge"
issue that as reported in the news, the House will not take up
domestic bills as priority bills. Please stay tuned.
01/04/2007: Comprehensive Immigration Bill Introduced Today
by Democrats
- Report indicates that the new Senate Majority
Leader proposed and introduced the Comprehensive Immigration
bill in the Senate today. The details have yet to be released.
Please stay tuned to this web site.
01/04/2007: Line-Up of New Congress Leadership As Sworn-In Today
01/03/2007: Congratulations to Dr. Emilio Gonzalez on the
Occasion of Recognition as an Outstanding American by Choice (Naturalized
U.S. Citizen)
- The DHS announced today that Dr. Gonzalez,
the Director of USCIS, has been reconized as one of the recepients
of the recognization as Outstanding Americans by Choice. Dr.
Emilio is an immigrant from Cuba and a naturalized citizen of
the United States. On behalf of all the immigrants, we would
like to extend our congratulations to Dr. Gonzalez. We look forward
to his dedication, as an immigrant himself, to improvement of
the immigration process and making immigration journeys less
painful for the hundreds of thousands of immigrants. Hats off
to you, Sir!
01/03/2007: Bush Hopes to Work with the New Congress In
Priority Areas Including Comprehensive Immigration Reform
- On January 3, 2007, Bush released a statement
to address his wish to work with the 110th Congress in the areas
of the nation's priorities. We welcome his position to include
the comprehensive immigration as one of the priorities in the
agenda. Read on.44
- Since the 110th Congress under the Democrat
control opens tomorrow, it is a timely gesture from the White
House to work with the Congress rather than to confront with
the Congress in addressing the nation's priorities. One of the
top goals of the new Congress should be to work as a "working"
Congress through the partisan comromises rather than confrontations
and not to repeat despicable 109th Congress behaviours that had
turned every legislative bill into the partisan confrontration
without any effort to compromise. One of the basic and fundamental
principles in a democratic system is giving due deference to
the voice of "minority" in the Congress and work out
legislation through compromise. The rule of the majority without
compromise is a dictatorship rather than a democracy. Every dictatorship
has been characterized as a rule of "majority" at least
institutionally. The new majority party leaders in the Congress
should learn the basic principles of the American democracy and
try to work with the opposite party rather than confront with
the other side in handling the nation's top priority businesses.
- The new House majority leader, Madam Pelosi,
did not include the immigration legislation in the top priority
for the first 100-day business, but the Senate is poised to introduce
a new comprehensive immigration bill soon after the new Congress
opens and it is hoped that she attempts to "collaborate"
with the Senate and the White House in the immigration legislation
by including the immigration as one of the top legislative items
in the first 100-day agenda of the House.
01/03/2007: Frequent Typographical Errors on this Site
- This reporter uses a small computer to update
the web site and has made typographical errors often lately due
to the reporter's deteriorating eye sight and tiny letters he
had to deal with on a small screen. This reporter intends to
change the computer in the future, but it will take time because
of the need for transferring the data to the new computer. This
reporter apologizes for the inconvenience this may cause to the
visitors. We trust that our visitors would value "substance"
over the technical or "procedural" matters.
01/02/2007: Strategies to Make Eligible for AC 21 H-1B Extension
Beyond Six Year Limit
- Lately the USCIS leaders have liberalized
substantially interpretation of the H-visa rules and laws in
favor of the H-1B professionals, allowing the H-1B professionals
to maintain the H-1B status beyond six year limit without jeopardizing
their immigration journey. By now, people understand the rule
of 104(c) of AC21 that allows H-1B extension in three year increments
beyond six year limit inasmuch as one has the I-140 petition
approved and immigrant visa number is not available for him or
her in the Visa Bulletin. People also know that the 106(a) of
AC21 allows them to apply for H-1B extension beyond the six year
limit in one-year increments inasmuch as the labor certification
or peition was filed and pending for 365 days or longer and before
the alien's H-1B six-year limit reaches within 365 days. [One
time, the agency stated that the labor certification should be
filed before the alien's H-1B status reached five years as the
alien must file the 7th year extension before his/her current
H-1B status expires and 365 days must pass after filing of the
labor certification application. However, this statement is not
necessarily true because of the various mechanisms to stretch
out running of H-1B status and reaching the 6th year of H-1B
after reaching the 5th year by using the certain delay tactics
which are described below. The correct statement should be that
the labor certification should be pending longer than 365 days
before reaching 6th year of his/her H-1B to be qualified for
initial 7th year extension of H-1B status.]
- There are however a number of individuals
or situations that face a serious problem in meeting the timeline
to be qualified for these provisions. For instance, there are
a number of people whose labor certificaztion application was
or is filed after reaching five years in H-1B six year limit.
There are a number of people who either filed a labor certification
waiver I-140 petition such as National Interest Waiver or labor
certification approved I-140 petitions at the last minute and
not qualified for either 104(c) or 106(a) relief. We want to
provide here a laundry list of the options such people should
consider and act on it as follows:
- Substitution Labor Certification at the
stage of labor certification application: If
the alien faces close to approval of a labor certification application
for someone else and the employer is willing to substitute the
beneficiary, he will take over the priority date and can be qualified
for the 106(a) H-1B extension beyond six year limit, inasmuch
as the labor certification has been pending more than 365 days.
- Substitution Labor Certification at the
stage of I-140 petition: The same
rule will apply in that the substituting alien takes over the
priority date. However, since the substitution must be approved
by the USCIS, it practically requires the approval of I-140 petition
based on the substitution labor certification application. Currently,
premium processing of I-140 petition is available inasmuch as
the employer can submit "original" approve labor certification.
Accordingly, the people in this category must utilize 104(c)
three-year increment extension route rather than one-year increment
extension route in the event that the immigrant visa number is
not available for him. If the immigrant visa number is available
for him and the priority date is longer than 365 days, the substituting
alien should file H-1B extension in one-year increment under
106(a).
- Devices to Delay the Reach of H-1B Six-year
Limit: Assuming one has to rely on
106(a) route because the pending labor certification has yet
to be certified, one can consider one of the following devices:
- Overseas Trip and Recapture of H-1B Time:
Currently, any period of time spent outside of the U.S. can be
recaptured. This will allow stretch-out or delay of reaching
the six-year limit and making him/her qualified for 7th-year
H-1B extension.
- Change of status back and forth between H-1B
and H-4 if both spouses are H-1B professionals: The Aytes memorandum
decoupled H-4 from H-1B and any period in H-4 status will not
count for H-1B six-year limit. Again this will delay reach of
the H-1B six-year limit. Since they have already taken out H-1B
cap number, they will not be subject to the H-1B annual cap and
will be able to change back to H-1B anytime, even during the
period of running out of annual H-1B cap numbers.
- Change of status back and forth between H-1B
and other nonimmigrant status: Aytes memorandum made it clear
that one does not have to maintain H-1B status to apply for 106(a)
or 104(c) H-1B extension beyond six years. Again this will delay
the reach of H-1B six-year limit and making them eligible for
106(a) or 104(c) extension.
- Premium Processing I-140 Petition for
Recent PERM Approvals or NIW or EB-1 Professionals: Currently premium processing is available for EB-2
other than NIW and EB-1C Multinational Corporate Executive Petitions.
For the PERM labor certification approved professionals, if I-140
is approved via Premium Processing in 15 days, they will be able
to file for 104(c) H-1B extension if the visa number is retrogressed
for them. If the visa number is not retrogressed, they should
utilize the H-1B delay devices which are described above. For
the NIW or EB-1 professionals, unless the I-140 petition has
been pending longer than 365 days, they will not be eligible
for 106(a) extension. Again, should the H-1B six-year limit approach
before the I-140 approval, they should take advantage of the
delay devices which are described above. If the I-140 petition
is denied after reaching 365 days of their priority dates, they
are eligible for 106(a) one-year increment extension pending
the decision of the appeal. Accordingly, those who face the I-140
denial close to their H-1B six-year limit should not seek a motion
to reconsider or motion to reopen as MTRs do not give such benefits.
They should immediately file an appeal of denial of I-140 petition.
Currently, the processing time of I-140 appeal to AAO is longer
than a year. This approach will also allow the alien to seek
a "second chance" before the AAO reaches a decision.
There are a number of aliens who experience a predicament because
of the delay in I-140 petition, which fails to meet either 104(c)
opportunity or 106(a) opportunity. Again these people should
seriously consider the delay devices which are described above.
- H-1B "Remainder" Device: This rule allows the H-1B aliens who have not exhausted
the six-year limit but were absent from the U.S. for longer than
one-year one of the two options. He or she can just apply for
the H-1B extension for the remainder period for the H-1B six-year
limit without being subject to the H-1B annual cap numbers, or
opt to take the option of filing a new H-1B six-year petition
if there is no H-1B annual cap number problem.
- There may be some other options to deal with
the H-1B professionals who face running out of the H-1B six-year
limit. They should seek legal counsel for assistance.
01/02/2007: Follow-Up of Hold Harmless RIR Conversion Opportunity
- As we reported yesterday, the OFLC set a
deadline for request for hold harmless conversion at January
20, 2007. This hold harmless conversion timeline appears to be
determined within the OFLC's overall plan to issue all the Job
Orders for the entire TR cases by April 1, 2007 and finish all
the TR recruitment by June 1, 2007. Since the hold harmless conversion
recruitment result must be filed by the conversion seekers before
April 1, 2007, it is likely that the hold harmless conversion
cases will be finished up very quickly after April 1, 2007.
- The timelines also suggest that unless one
takes advantage of the hold harmless conversion opportunity by
January 20, 2007, any attempt to convert TR to RIR after January
2007 may be practically disappearing as the BECs may start sending
out the recruitment instruction letters and job orders probably
"en masse" after January 20 and at least until April
1, 2007. Since these cases will be subject to the general guidelines
that unless the RIR conversion is filed before the recruitment
instructions are received, the RIR conversion will be denied.
It is thus obvious that January 20, 2007 may turn out to be a
practically deadline or last opportunity to seek the RIR conversion.
Remember their policy that they will issue all the job orders
for TR cases by April 1, 2007.
- It is thus likely that after January 20,
2007, there will be a lot of activities with the BECs and the
decisions of TR cases may start rolling out of the processing
pipelines between April and June 2007. Please stay tuned.
01/02/2007: 301 Million Projected U.S. Population as of 01/01/2007
and 40% Growth Attributed to Foreign-Born
- The U.S. Census Bureau indicates that as
of January 1, 2007, the U.S. population would reach 301 million.
Out of the total growth, the population who were born outside
of the U.S. including the naturalized U.S. citizens accounts
for 40% of the annual growth. Wow, what do you know!? The country
continues to remain a land of "immigrants," keeping
the nation in full vigor from the fresh new bloods from other
countries.
01/01/2007: H-1B Extension Beyond Six-Year Limit Under 12/05/2006
Aytes Memorandum
- The Aytes memorandum clarified the availability
of the H-1B extension beyond six years during the immigration
processings. Following is the summary of this portion of his
memorandum.
- The memorandum clarifies that those who seek
the AC 21 exemptions to H-1B six-year limit must pass the following
three thresholds:
- Threshold 1: They
must prove that they are sufferring in green card process from
(1) either the government delays or (2) unavailability of immigrant
visa numbers. The government delay is established when labor
certification or immigrant proceeding has taken longer than 365
days from the date of filing (priority date). In this case, the
H-1B extension will be available beyond the six-year limit in
one-year increment indefinitely. In the situation of immigrant
visa number unavailability due to the visa number retrogression,
the H-1B extension will be available, regardless the government's
delays in the proceeding, in three-year increment indefinitely
if I-140 petition has been approved. In the first situation,
the priority date is relevant to determine counting of 365 days
of filing, while in the second situation, the priority date is
relevant to determine the visa number availability in the monthly
Visa Bulletin. In either situation, people must prove one of
these two requirements to apply for the H-1B extension beyond
six years either in one-year increment or three-year increment.
- Threshold 2: They
must prove that they have already taken out H-1B cap number and
they are not subject to the H-1B cap. For this purpose, the alien
does not have to be in H-1B status currently. Inasmuch as he/she
took out H-1B visa number previously, the alien will be eligible
for the H-1B extension beyond six year limit.
- Threshold 3: The
alien must prove that the alien (1) is "admissible"
or (2) "has been maintaining nonimmigrant status."
For those aliens who are seeking the H-1B extentions beyond six
years, admissibility or maintenance of nonimmigrant status may
be determined by Section 248 of the immigration regulation. If
the alien is not eligible for change of nonimmigrant status or
extension of nonimmigrant status, such alien will not be eligible
for extension of H-1B status beyond six years. Accordingly, even
though the alien is not required to prove that the alien is in
a valid H-1B status at the time of filing the H-1B extension
application beyond six years, the alien must still prove that
the alien has been maintaining one of the nonimmigrant visa status
under the immigration law. It can be F-1, O-1, L-1, or any other
nonimmigrant visa status. If the alien has fallen out of status,
the alien will not be eligible for the H-1B extension beyond
six year limit. With reference to this threshold, a question
arises as to the eligibility of H-1B status beyond six year for
those H-1B aliens who traveled on Advance Parole and whose current
status is "not nonimmigrant" but a parolee. The memorandum
does not touch on this specific issue. However, relevant to this
question is another memorandum of the USCIS that states that
such parolee is eligible for "reinstatement of H-1B status"
without leaving the country and by filing "H-1B extension
petition." This interpretation is provisional pending enactment
of the AC21 regulation, which can change the rule. Until the
enactment of the AC21, it thus appears that these parolees may
be eligible for H-1B extension petition inasmuch as it is filed
before expiration of his/her current H-1B validity period. Once
the approved current H-1B petition expires, such extension may
not be available as paroloee is not a nonimmigrant and not admissible
to a nonimmigrant status within the U.S. It thus appears that
those I-485 filers who were in a H-1B status before reentering
the U.S. as a parolee may want to file the extension of the H-1B
status before the current H-1B petition expires in order to reinstate
his/her H-1B status and to extend the H-1B status beyond six
year limit. [Caveat]
The foregoing statement on the parolee's issue is the opinion
of an individual attorney and neither a law nor any authoritative
interpretation of the agencies. People should seek legal counsel
before acting on this opinion. This website and reporter will
not be responsible for the consequences of such reliance.]
- Some questions related to
the foregoing posting will be discussed in our Hypothetical Facts
and Analysis afterwards.
01/01/2007: Happy New Year!
- Year 2006 was a difficult year and we are
happy that it is gone. Year 2007 will be a meaningful year for
the immigrants in that it is so called a leap year and our lives
will be less affected by the politics until the later part of
the year. In this regards, we really look forward to the new
Congress action on the immigration legislation early this year.
- In January, there is one important date which
the RIR conversion hopefuls should keep in mind. January 20 will
be deadline to request the RIR conversion in harmless opportunity.
Even after January 20, TR people may be able to continuously
seek RIR conversion, but such conversion attempt will accompany
a high risk as there will no longer be "harmless hold"
protection. The harmless hold RIR will also allow amendment of
the TR application inasmuch as such amendment will not bring
about a material change to the occupation. Substitution of alien
beneficiary is usually not considered a material change and the
current harmless hold RIR conversion will offer a golden opportunity
to substitute the alien beneficiary. There is one caveat if one
decides to seek the harmless hold RIR conversion. Once the request
is filed by January 20, 2007, the employer should submit by all
means the recruitment result by April 1, 2007. Should the employer
fail to file the recruitment result, the employer will not only
lose the opportunity to covert TR to RIR but TR case itself will
be denied and one will lose the priority date. It is critically
important that once one decides to go for the harmless hold RIR
conversion, one should file the recruitment result, even if it
is defective, in order to protect the priority date. Once the
recruitment result report is filed and denied, the case will
fall back to the TR queue and in that regard, the priority date
will not be affected. Important to remember!
For Pre-January
1, 2007 News, Please
Click Here.
12/31/2006: Upcoming Comprehensive Immigration Reform and
Critical Challenges to USCIS Immigration IT Modernization Efforts
- IT industry news sources
indicates that the USCIS is destined to face a critical challenges
to its immigration IT modernization efforts. Such assessment
is derived from the DHS Inspector General's report in November
2006. This report is important in that the USCIS has reportedly
barely removed some of it ailing problems in efficiency and effectiveness
of processing management relating to the manual processing of
files, needs for frequent transfers of files among different
offices and agencies, and inappropriately tuned electronic systems
among the agencies under the USCIS.
- Immigrant community has been suffering from
the immigrant visa number backlogs and hopes not to face other
types of challenges ahead relating to the processing backlogs
flowing from the potential problem IT modernication of the USCIS
immigration benefits processing procedures and management systems.
12/31/2006: DHS Statement on USCIS Achievements in 2006
- On December 29, 2006, the DHS listed the
following as the USCIS achievements:
- USCIS Eliminates Backlog: Through increased
productivity, reengineered processes, and automated services,
USCIS eliminated case backlogs of applications for immigration
services and benefits, reducing the backlog from 3.8 million
cases in January 2004 to less than 10,000 at the end of September
2006. [Matthew Oh Comment: ???]
- USCIS Establishes National Security and Records
Verification Directorate: To combat fraud and criminal activity,
USCIS established the National Security and Records Verification
Directorate, deploying hundreds of officers who specialize in
the detection of fraudulent documentation and immigration scams
to USCIS field offices and centers throughout the United States.
- Basic Pilot Employment Eligibility Verification
Program Enrolls 11,000 Employers: USCIS enrolled more than 12,500
employers and businesses in the Basic Pilot Employment Eligibility
Verification Program. This program verifies the work authorization
of more than one million new hires a year at 47,000 hiring sites
across the United States through online employment authorization
checks against Social Security Administration and DHS databases.
- USCIS Expands Electronic Filing: USCIS expanded
opportunities for customers to file service or benefit applications
electronically, and then track the status of their cases online
through the USCIS.gov Web site. To further simplify immigration
processing, new biometric standards were developed that permit
USCIS to store electronic fingerprints, photographs, and signatures.
- USCIS Welcomes New American Service Members:
USCIS naturalized members of the United States armed forces during
special overseas ceremonies in Afghanistan, Djibouti, Germany,
Greece, Iceland, Iraq, Italy, Japan, Kuwait, Kenya, South Korea,
Spain, the United Kingdom and in the South Pacific aboard the
USS Kitty Hawk. This year, USCIS welcomed more than 1,604 new
Americans during these ceremonies.
- Unless there was a typo in this report, the
immigrant community should congratulate the DHS for reducting
the backlog of entire immigration benefit cases to less than
10,000, which should include all the immigrant and nonimmigrant
benefits cases. We urge the USCIS to double check with this statistics
for the accuracy.
12/29/2006: Closing of Federal Government Offices on 01/02/2007
and Impact on the Deadline Cases
- In announcing closing of the offices by the
USCIS on January 2, 2007, the agency did not make it clear its
impact on those who will face a deadline for whatever proceedings
on January 2, 2007. However, the President's Executive Order
that forces closing of the federal departments and agencies appear
to make January 2, 2007 analogous to a legal holiday and it is
likely for the USCIS and other agencies to interprete the regulations
that determine "timely" filing or service to apply
to the current situation. Accordingly, the deadline may be automatically
moved to fall on the next day. Under the general rule, when a
legally specified deadline falls on a holiday including Saturday,
Sunday, or any other legal holidays, the next working day is
considered the deadline. Without doubt, the agency may relase
some information on this issue soon after the holidays. In the
meanwhile, those who will face the deadline on January 2, 2007
may as well "file" their cases on January 3, 2007.
Here "file" means "physical receipt" of the
cases by the agency. With reference to the deadline filing, we
remind the readers of risk of using U.S. Postal Service Express
Mail because of the USPS holding all the mails including express
mails within its local station until the Service Center agents
pick them up. The Service Center picks up the mails only one
time a day and anithing that failed to be picked up within the
day even if the mails arrived at the USPS local stations is considered
not filed. Just a reminder.
12/29/2006: Upcoming Phase III Bi-Specialization Jurisdictions
- Information indicates that USCIS is going through the draft
of Phase III Bi-Specialization regulation for coordination and
this regulation may be released sooner or later, probably early
next year. The Phase III Bi-Specialization appears to form two
pairs of Service Centers. In each pair, one Service Center will
receive and process all the nonimmigrant petitions and applications
within the pair and the second Service Center will receive and
process all the immigrant petitions and applications with some
possible variations and exceptions. One pair is CSC-NSC and the
other pair is VSC-TSC. In the Pair I, nonimmigrant proceedings
will be handled by CSC and immigrant proceedings will be handled
by NSC. In the Pair II, nonimmigrant proceedings will be handled
by VSC and immigrant proceedings will be handled by TSC. The
list of the states that fall under each pair will be as follows:
| Pair I (CSC-NSC) |
Pair II (VSC-TSC) |
| Alaska, Arizona, California,
Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Michigan, Minnesota, Montana, Nebraska, Nevada, North Dakota,
Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming |
Alabama, Arkansas, Connecticut,
Delaware, Washington, D.C., Florida, Georgia, Kentucky, Louisiana,
Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New
Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania,
Puertop Rico, Rhode Island, South Carolina, Tennessee, Texas,
Vermont, Virginia, Virgin Islands, West Virginia |
- Currently the immigrant proceedings (I-140, I-485, etc) are
filed with the NSC and the cases are split between the NSC and
TSC internally regardless of the territorial jurisdiction. On
the other hands, the nonimmigrant proceedings (I-129, I-539,
etc) are filed with the VSC and the cases are split between the
VSC and CSC internally regardless of the territorial jurisdiction.
Accordingly, once the Phase III is launched, the pair of one's
case (both immigrant and nonimmigrant) will be determined by
the location rather than by the type of cases. Then, within the
pair, nonimmigrant cases will be filed with one of the Service
Centers within the pair and immigrant cases will be filed with
another Service Center within the pair.
- The details have yet to be released in the form of a federal
register, but the basic skeleton of the structure is likely to
follow the foregoing description. Please stay tuned to this web
site for the development of this news.
12/29/2006: USCIS HQ Confirmed Closing
on 01/02/2007
12/29/2006: Minnesota Field Office I-485 and N-400 Interview
Reschedule Update
- The I-485 interviews which are scheduled
on 01/02/2007 will be rescheduled to 01/25/2007, and the N-400
interviews which are scheduled on 01/02/2007 will be rescheduled
to 01/19/2007. The office is in the process of contacting the
applicants telephonically. If you do not receive a call, contact
the Bloomington field office or 800 customer number.
12/29/2006: USCIS Requests OMB to Review/Approve Premium
Processing Fee Increase per Inflation
- Yesterday, the USCIS requested OMB to review
and approve its proposed rule to raise the Premium Processing
Fees. Once it is approved, it will be published with a 60-day
comment period, probably before the spring. The purpose is stated
as follows:
- Section 112 of the District of Columbia Appropriations
Act of 2001 authorized the collection of a premium fee for employment-based
petitions and applications. U.S. Citizenship and Immigration
Services (USCIS) uses this fee to provide certain premium-processing
services to business customers, and to make infrastructure improvements
in the adjudications and customer-service processes. This proposed
rule adjusts the premium processing fee for employment based
petitions and applications, and provides that all future fee
adjustments for Premium Processing Service will be made annually
through publication in the Federal Register as with other USCIS
fees. The premium processing fee is paid in addition to the regular
petition or application fee.
- There is no information available about the
specific amount it will raise. However, a rumor has been going
around that it will be quite substantial. Remember our posting
of CRS Report on 12/22/2006 that under the FY 2007 DHS budget,
USCIS will have to raise the fee income at whoppy $1,986 million!
The amount which the USCIS will have to raise is historic. Beware
of potential raise of all the filing fees to a "substantial"
amount across the board in the coming year.
12/29/2006: Unusually Long Names and Preparation of Petitions
and Applications
- According to the CSC, USCIS databases are
fixed with reference to the number of characters including blank
spaces that can be data-entried and printed in issuance of Receipt
Notces, Approval Notices, and I-94 as follows:
- Last Name: 30 characters/blank spaces
- First Name: 18 characters/blank spaces
- Middle Name: 18 characters/blank spaces
- CSC is urging the petitioners/applicants
to keep this in mind in preparing the petitions and applications.
12/29/2006: Recapture of H-1 Times and Requirement of Specific
Evidence for Approval or Denial Without RFE
- 12/13/2006 AILA-USCIS Liaison Memo indicates
that the CSC may refuse to permit recapture request unless the
petitioner submits "specific" qualified absences at
the initial filing. When such specific evidence are not found
in the petition filing, the CSC may approve the H-1B extension
petition without the recapture or deny such petition if the extension
petition is not eligible unless the recapture is granted, without
issuing a RFE. People should not count on the RFE opportunity
and submit insufficient evidence at the initial filing when they
need H-1B recapture!
12/29/2006: CSC Ceased E-Mail Approval Notice of Preminum
Processing Cases
- According to the AILA, CSC stopped sending
out e-mail notice of Premium Processing cases via e-mail effective
December 1, 2006. This practice will remain in effect. Accordingly,
the PPS filers should check with the USCIS status check site
frequently to check the status of their cases. However, when
the CSC issues a RFE, they are and will send such RFE via fax.
12/29/2006: USCIS Field Office in Minnesota Will be Closed
but ASC (Biometric) Will Remain Open on January 2, 2007
- AILA local chapter in Minnesota was informed
by the USCIS Field Office in Minnesota that the office will be
closed on January 2, 2007 and any I-485 and N-400 which are scheduled
for internew on that date will be rescheduled. However, the information
indicates that the Application Support Center (ASC) will remain
open. Accordingly those who have the biometric collection appointments
with the ASC should keep the appointments. For the details, please
contact the field office to confirm the closing schedule.
- Please stay tuned to this web site for further
information on other field offices.
12/29/2006: President Executive Order to Close Federal Government
Departments on January 2, 2007, Tuesday
- The President issued an executive order to
close the federal government offices on next Tuesday, January
2, 2007 to mourn former President Ford's death.
- This order exempts certain offices in the
DHS, State Department, and Department of Justice, which the Secretary
of the Departments designates to remain in operation because
of the security functions they perform. For the DHS, the Secretary Chertoff has desinated the national
mourning period as the national security event and those offices
under the DHS that perform the security functions will remain
in full operation in an alert situation.
- The USCIS, the Department of State, and Department
of Justice have yet to announce whether the field offices that
perform the visa, immigration benefits, and immigration courts
and appeals functions will remain closed. Even though they are
likely to remain closed as their jobs do not directly involve
national security and law enforcement functions, people should
wait for their annoucements. Please stay tuned.
12/27/2006: P-1 Visa Expansion Bill Signed into Law
- S. 3821, the "Creating Opportunities
for Minor League Professionals Entertainers, and Teams through
Legal Entry Act of 2006" or the "COMPETE Act of 2006,"
which expands eligibility for the P-1 visa program for certain
athletes seeking to temporarily enter the United States to participate
in an athletic competition or performance.
12/27/2006: Here We Go Again, Another Cycle of CIR Circus
Soon?!
- A news report indicates that the Congress may
introduce another form of Comprehensive Immigration Reform bills
soon after the new Congress (110th) opens next year. The Congress
keeps coming back to the immigration bills early each year without
fruits at the end of the year. People are more or less exhausted
of the circus. Let's see what kind of drama will unfold next
couple of months.
12/22/2006: Stunning Report of the Congress' Insensitivity
to Immigration Backlogs
- The Congressional Research Service released
its report on U.S. Immigration Policy on Permanent Admissions
on 12/13/2006. This report brought to the surface insensitivity
of the members of the Congress, particularly in 2006. We want
to report a portion of its report as follows:
- The House-passed FY 2007 DHS appropriations
bill that would have appropriated $162 million for USCIS in FY
2007. There was a Senate amendment to the House bill that would
direct DHS, notably through USCIS, to increase its fees charged
to noncitizens to produce an additional $350 million in receipts
for FY 2007. Most of the funds collected by the fee increase
would have gone not to USCIS but to CBP and ICE. The conferees
in the end passed the bill providing USCIS with $182 million
in direct appropriations, and the USCIS is supposed to raise
the income from the fees to estimated $1,804 million to give
the USCIS a total appropriation of $1,986 million. [Matthew
Oh comment: No wonder why the USCIS is pushed to raise the immigration
filing fees! Obviously there is fallacy in belief that the increased
fees can reduce backlogs!]. [Who said legal immigration is a
burden on U.S. taxpayers!]
- The report indicates that pending caseloads
and processing backlogs continue to plague USCIS. The GAO concluded
that it is unlikely that USCIS will completely eliminate the
backlog of pending applications by the 2006 deadline. [The immigration
Services and Infrastructure Improvements Act of 2000 defined
backlog as the period of time in excess of 180 days that an immigration
benefit applications had been pending before the agency. Meanwhile,
USCIS defines backlog as the number of pending applications in
excess of the number of applications received in the most recent
six months.] Despite progress in cutting the backlog of pending
cases from 3.8 million in January 2004 to 1.2 million in June
2005, GAO speculates that USCIS may have difficulty eliminating
its backlog for the more complex application types that constitute
nearly three-quarters of the backlog.
- Well, readers, what do you think? There are
more to it. During the Christmas holiday weekend, you may want
to read the full report.
12/22/2006: DOL Released FAQ 6 on RIR Conversion Opportunity on 12/22/2006
(Corrected)
- We reported earlier that the DOL had decided
to give TR applicants an opportunity to request a RIR conversion.
Unlike the previous report, the harmless RIR conversion will
be available even if the BEC issued recruitment instruction inasmuch
as the conversion intent is received by the BEC before January
20, 2007. For the details, please read the FAQ 6.
- Our Hypothetical Facts and Analysis II will
also cover this subject during the holiday seasons. Please stay
tuned!
12/21/2006: Hats Off to Mr. Aytes and Other USCIS Leaders
- The USCIS gave a fantastic gift to the employment-based
immigrant community yesterday. Readers may know what this reporter
is talking about here. It is the Aytes Memorandum on H and L
issues. This is a totally unexpected gift from sky! We encourage
the community and immigrants to send "thank you" to
this fine gentleman and other leaders of USCIS at this Holiday
season!
12/21/2006: Bi-Specialization Transfer of 601(J-1 Waiver)
Applications to CSC or VSC
- USCIS has announced that the J-1 foreign
residency requirement waiver applications have been transferred
to either CSC or VSC for the Bi-Specialization program:
- CSC: Transferred effective 11/01/2006 following
cases
- Exceptional Hardship cases
- Persecution Fear cases
- VSC: Transferred effective 10/10/2006
- No Objection Statement cases
- Interested U.S. Government Agency Sponsorship
cases
- State Conrad 30 Cases for IMGs
- Accordingly those who filed the waiver applications
cases in different Service Centers will receive the decisions
from one of these two Service Centers depending on the types
of waiver applications. For the full text of announcement, please
click here.
12/20/2006: New Multiple PERM Filing Policy (AILA-DOL Liaison
Minute)
- 1st Approved PERM and 2nd PERM filing for
the same position: Automatically denied.
- 1st Approved PERM and 2nd PERM filing for
the different position: Audit with request for return of the
first application or an explanation of why there is a second
application being filed and the first application cannot be returned.
12/20/2006: PERM Processing Statistics (AILA-DOL Liaison
Minute)
- Case Processing Statistics:
- Total Received since PERM started on March
28, 2006: 160,000
- Total Certified : 73%
- Total Certified During Period of 10/01/2005-10/01/2006:
80,000
- Total Denials: 24% of total applications
received
- Processing Times:
- 48%: Within 30 days
- 20%: From 31 days to 60 days
- 24%: Denials
- 28%: Currently in Sponsorship and Analysts
Review which were filed before 07/01/2006.
12/20/2006: BEC Status of Processing Cases as of 12/11/2006
- AILA-DOL liaison minute indicates the following
statistics:
- Total Pending Cases: 142,418
- Total Pending RIR Cases: 59,328 (41%)
- Total Pending TR cases: 85,608 (59%)
- For TR Cases:
- All the job orders placed by 04/01/2007
- All the recruitment to be completed by 06/01/2007.
[Matthew Oh note: In the recent AILA seminar, the Chief stated
that they would be able to eliminate all the backlog cases by
the end of September 2007 as scheduled.]
- RIR Conversion Guidance Announcement Imminent:
They will publish it in the FAQ. Watch for the FAQ updates.
12/20/2006: 12/05/2006 Important USCIS Memorandum for
Guidance on Determing Periods of Admission for Aliens Previouslyt
in H-4 or L-2 Status; Aliens Applyting for Additional Periods
of Admission beyond the H-1B Six Year Maximum; and Aliens Who
have not Exhausted the Six-Year Maximum But Who Have Been Absent
from the U.S. for Over One Year
- The USCIS HQ Director of Domestic Operation,
Michael Aytes, issued this memorandum on 12/05/2006 and has made
this memorandum available to the public today. This memorandum
is extremely important as people can see from the following extracts,
among others:
- Time spent as an H-4 and L-2 does not count
against the maximum allowable periods of stay available to principals
in H-1B (six-years) and L-1(five-year for L-1B and seven-year
for L-1A) status;
- H-1B aliens need not be in H-1B status in
seeking H-1B extension beyond the six-year limit if the aliens
are eligible for AC-21 Section 106(a) and 104(c);
- Guidance for how to determine the maximum
period of admission in H-1B status for less than the six-year
maximum period of admission, but who has since been outside the
U.S. for more than one year.
- We find this memorandum extremely important
for the aliens in H or L visa status. We will explore the implications
of this memorandum in the context of hypothetical facts. We ask
the readers to start visiting our "Hypothetical Facts and
Legal Analysis (II)" page to learn more about impact of
this memorandum on individuals. For the full text of the memorandum,
please click here.
12/20/2006: ICE Crack-Down of Religious Worker Frauds Continues
- ICE news release indicates that the agency
arrested 33 individuals largely for religious worker visa fraud.
The arrests were made in the eights states including Boston,
New York, Hartford, Atlanta, St. Paul, Newark, Philadelphia,
Harrisonburg/VA, and Washington, D.C. The arrests are made as
result of its multi-year investigation of the religious worker
fraud which indicated that 32% of the investigated cases turned
out to be fraudulent.
- The report indicates that earlier this month,
Dong Wan Park, 53, the former pastor of a church in Washington
state, appeared in federal court in Tacoma after being deported
to the United States to be sentenced for orchestrating a large-scale
religious worker visa fraud involving South Korean nationals.The
pastor, a South Korean national, had filed fraudulent applications
for South Koreans he claimed were coming to the U.S. to serve
as associate pastors at the Hope Korean Church, where he served
as pastor. None of the visa applicants was ever employed at the
church or had any religious training.
- ICE intends to pursue not only removal of
these aliens but in some cases criminal prosecution. For the
full text of the news release, please click here.
12/19/2006: Expensive Immigration and Naturalization Applications
Ahead
- The USCIS is scheduled to charge an increased
amount of filing fees in the near future. The fee raise rule
is currently under reivew by the OMB since 10/26/2006 which may
be approved soon. This is a proposed regulation and the consumers
may expect to have a comment period before the agency publishes
the final rule, but the fee increase can be substantial especially
for certain proceedings that already involve hundreds of dollars
filing fees. We have already reported that aside from this proposed
rule, the USCIS will propose the increase of Premium Processing
fees early next year.
- The fee is not limited to "raise of
existing charges." They also plan to propose the new fees
to the immigrant visa applicants abroad. When people immigrates
to the U.S. through one of the U.S. Consulate through the consular
immigrant visa application proceeding, the only agency that currently
charges fees is the U.S. Department of State. However, now the
USCIS intends to propose its own fees to these new immigrants
from abroad. This rule will propose charging a new immigrant
visa service fee to every immigrant visa applicant. This action
is arguably necessary, because USCIS incurs significant operating
costs in providing permanent resident maintenance services, such
as Permanent Resident Card production, data entry, record creation,
and other related services. By charging a new immigrant visa
service fee, USCIS intends to recover its full operating costs
of providing maintenance services to all new permanent residents.
This proposed rule may be released in January or soon thereafter
with a 60-day comment period.
- Educated guess indicates that all these fee
increases and new fees may come into effect in the Spring of
2007.
- The U.S. Department of Labor one time proposed
charge of expensive fees for the permanent labor certification
application in the amount of $1,500 several years back. Eventually
fee charge in the reduced amount for the permanent labor certification
application may come into reality sooner or later, even though
it may take quite some time unlike the USCIS fee adjustment schedules.
Readers BEWARE.
12/19/2006: Launch of Newly Designed Citizenship Test Effective
Early January, 2007 in Ten Cities
- The USCIS will launch a newly designed naturalization
test in two phases: The first "pilot" program will
be launched in the selected ten cities, and the second phase
of this program will be implemented nationwide in 2008. It is
thus very important for those natulization applicants residing
in the ten selected cities who will be scheduled for interview
in the first part of January 2007 to follow this new rule
- Ten Pilot Program Locations (effective
Early January 2007):
- Albany, New York sub-office;
- Boston, Massachusetts, District Office;
- Kansas City, Missouri, District Office;
- Charleston, South Carolina sub-office;
- El Paso, Texas District Office;
- San Antonio, Texas District Office;
- Miami, Florida District Office;
- Denver, Colorado District Office;
- Tucson, Arizona Sub-Office; and
- Yakima, Washington Sub-Office.
- Based on the evaluation of the pilot, the
final test will be implemented nationally beginning in 2008.
For the full text of the federal register release, please click here.
12/18/2006: USCIS Local Offices Processing Times of 12/18/2006
12/18/2006: Service Centers Processing Times of 12/18/2006
12/18/2006: Lame Duck Congress Immigration Legislation and
President's Signature
- The President has signed a number of legislative
bills which the Congress passed during the lame duck session.
This includes the U.S.-India Neuclear Energy Cooperation Act
which was signed this morning. However, there are other immigration
bills including Conrad 30 two-year extension bill and nurses
H-1C program extension bill. Without doubt, the President will
sign these bills too.
- Under the U.S. Constitutiion, if the President
refuses to sign any bills passed by the Congress within ten days
during the recess of the Congress, the action constitutes a pocket
veto and the bill will fail to become a law. Since these bills
are not politically charged legislation and critically important
for this country's current shortage in healthcare professionals,
it is very obvious that the President will sign within the time
limit. Please stay tuned to this website. Caveat: Ten days are counted from the date the President
received the bills
and not the date the Congress passed the bills.
12/18/2006: Revised Consular NIV Interview Requirement and
Waiver Rules
- Effective today, the American Consulates
throughout the world will follow the following rules for the
nonimmigrant visa personal appearance and interview requirements:
- General Rule: A
consular officer must now interview persons in the same age ranges
as persons covered by the biometric collection requirement.
- Interview Waiver Blacklist (Waiver Not
Permitted): In addition to the existing
list of situations in which an interview may not be waived, the
personal interview requirement may not be waived for NIV applicants
from third countries and applicants who have been previously
refused visas or found ineligible for visas, where that ineligibility
was not overcome.
- Interview Waiver Visa Lists: A-1, A-2, C-2, C-3, G-1, G-2, G-3 G-4, NATO-1, NATO-2,
NATO-3, NATO-4, NATO-5, or NATO 6 classifications, and applicants
for diplomatic or officials visas as described in 22 CFR 41.26
and 41.27.
- For the full details, please click here.
12/15/2006: FY 2008 Immigration Lottery (DV-2008) Result
- State Department has announced that more
than 6.4 million entries have been received for the 2008 Diversity
Visa Lottery. Once dependents are taken into account, the total
number of participants in the 2008 lottery exceeds 10 million.
This is compared to the DV-2007 which attracted around 5.5 million
applications by primary registrants. The details have yet to
be relased but its announcement indicates that Africa accounts
for 41 percent of the total applications received, Asia accounts
for 38 percent, Europe for 19 percent, and South America, Central
America, and the Caribbean for 2 percent. Bangladesh was the
country with the largest number of applicants, with more than
1.7 million, followed by Nigeria with 684,000 and Ukraine with
619,000.
- The State Department is scheduled to send
out notifications to the winners between April and July 2007.
For the announcement, please click here.
12/13/2006: PPS Attorney Representation Procedure Update
- AILA and USCIS have clarified this issue
today. USCIS will now allow the attorneys to file I-907 with
his/her signature alone if the employer-signed G-28 accompanies
the Premium Processing Request. The Power of Attorney will be
required only when an attorney files I-907 on behalf of the alien
or other party files the I-907. We welcome the clarification
and send "thank you" to the AILA and the USCIS HQ leaders.
For the full text of the USCIS instructions, please click here.
12/12/2006: Attorney Cannot File Premium Processing Without
Client's Power of Attorney?!
- AILA has been informed by the USCIS HQ that
they will no longer allow attorneys to file I-907 Premium Processing
Request with their signature alone unless the client's power
of attorney is also attached. One wonders why they also require
filing of the G-28 as well to file I-907.
12/12/2006: January 2007 Visa Bulletin
- SCHEDULE A
WORKER VISA CATEGORY: Surprise
- A small amount of Schedule A Worker numbers
which had been provided to consular offices for November use
were returned unused after the end of the month and thus became
available for reallocation. All remaining Schedule A Worker numbers
have been made available to applicants whose priority dates are
within the January cut-off date (15JUN04). The Schedule A Worker
category will be removed from the listings beginning with the
February cut-off dates.
- FAMILY PREDICTION:
- Demand for numbers in the Mexico and Philippines
Family Third preference category has been very heavy during the
first quarter. No movement of those cut-off dates can be expected,
and continued heavy demand may require the retrogression of the
dates at some point in the future.
- EMPLOYMENT PREDICTION:
- Demand for numbers in the Employment Third
Other Workers category, as well as the China and
India Employment Second preference categories, has been escalating.
No movement in those cut-off dates will be possible until the
current level of demand subsides. Aiyaya!
January was bad enough!
12/11/2006: Rule-Making Agenda for DOL Elimination of Substitution
Labor Certification
- DOL is publishing this agenda in a separate
edition of Part II, which is not available on today's release.
As soon as we obtain the information, we will make it available
at this site.
- The substitution LC elimination must be implemented
by both DOL and USCIS. According to the USCIS agenda, the USCIS
"proposed" rule for the substitution elimination is
not scheduled to be published until March 2007 with 60-day day
comment period. The USCIS rule-making agenda and the DOL's delay
of final rule announcement more or less indicate that this elilimnation
policy is currently on hold and not imminent. Since the USCIS
is not scheduled to end the comment period for the proposed rule
until May 2007, if the DOL and USCIS sticks to this agenda, the
rule may not be enacted until later part of 2007. Or who knows
that they may abandon it.
- Caveat: There can develop a surprise and
they may shorten the rule-making process. Just caveat.
12/11/2006: USCIS Considers Termination of Concurrent Filing
(140/485)
- According to the USCIS rule-making agenda,
the USCIS is to propose to terminate current concurrent I-140
and I-485 filing. The proposed rule is scheduled to be published
in March 2007 with 60-day comment period. It is thus not imminent,
but in the later part of next year(Oops!), the immigrant community
may see a totally different filing procedure including electronic
registration and filing just like current PERM labor certificaiton
application procedure. Once the concurrent filing is terminated,
the immigrants may experience a terrible pain as related to maintenance
of nonimmigrant status pending I-140 petition, eligibility for
245K benefit, plus unavailability of EAD and AP pending I-140
petition, AC-21 180-day portability, etc. etc. Should the I-140
petition processing be dragged, the pain will be extremely unbearable!
12/11/2006: USCIS to Raise Premium Processing Fee
- According to the USCIS rule-making agenda,
the USCIS is planning to raise the Premium Processing Fee to
reflect the inflation.
12/11/2006: DOL to Proposes Change of Backlog Elimination
Date (Errata. Retracted)
- There was an error in reporting
that the backlog elimination date will be changed. We apologize
for any inconvenience this may have caused to the readers.
12/11/2006: FY 2007 Semi-Annual Rule-Making Agenda of Immigration
Stake-Holder Agencies
12/10/2006: December 2006 USCIS News Letter: USCIS Today
12/10/2006: Lame Duck Congress Passed Compete Act of 2006,
S. 3821 (Expansion of Scope of Eligible Athlets and Entertainers
for P-1 Nonimmigrant Visas)
- Creating Opportunities for Minor League Professionals,
Entertainers, and Teams through Legal Entry Act of 2006 or the
COMPETE Act of 2006: Amended immigration to enlarge the scope
of P-1 (athletes and entertainers) nonimmigrant visas to include:
(1) a professional athlete; (2) a person who performs as an athlete,
coach, or part of a team that is located in the United States
and is a member of certain amateur foreign leagues or associations
from which a significant number of individuals are drafted by
major sports leagues or their minor league affiliates; and (2)
a professional or amateur athlete who performs individually or
as part of a group in a theatrical ice skating production coming
to the United States in a specific ice skating production or
tour. Currently such provision is limited to athletes performing
at an "internationally recognized level of performance."
This legislation also requires the Secretary of Homeland Security
to permit: (1) a petition to seek P-1 classification for multiple
alien athletes; and (2) athletes or their employers to seek admission
for such athletes under other than P-1 provisions of INA. The
following is the full text of the bill.
- SECTION 1. SHORT TITLE.
- This Act may be cited as either the `Creating
Opportunities for Minor League Professionals, Entertainers, and
Teams through Legal Entry Act of 2006' or the `COMPETE Act of
2006'.
- SEC. 2. NONIMMIGRANT ALIEN STATUS FOR
CERTAIN ATHLETES.
- (a)
In General- Section 214(c)(4)(A) of the Immigration and Nationality
Act (8 U.S.C. 1184(c)(4)(A)) is amended by striking clauses (i)
and (ii) and inserting the following:
- `(i)(I) performs as an athlete, individually
or as part of a group or team, at an internationally recognized
level of performance;
- `(II) is a professional athlete, as defined
in section 204(i)(2);
- `(III) performs as an athlete, or as a coach,
as part of a team or franchise that is located in the United
States and a member of a foreign league or association of 15
or more amateur sports teams, if--
- `(aa) the foreign league or association is
the highest level of amateur performance of that sport in the
relevant foreign country;
- `(bb) participation in such league or association
renders players ineligible, whether on a temporary or permanent
basis, to earn a scholarship in, or participate in, that sport
at a college or university in the United States under the rules
of the National Collegiate Athletic Association; and
- `(cc) a significant number of the individuals
who play in such league or association are drafted by a major
sports league or a minor league affiliate of such a sports league;
or
- `(IV) is a professional athlete or amateur
athlete who performs individually or as part of a group in a
theatrical ice skating production; and
- `(ii) seeks to enter the United States temporarily
and solely for the purpose of performing--
- `(I) as such an athlete with respect to a
specific athletic competition; or
- `(II) in the case of an individual described
in clause (i)(IV), in a specific theatrical ice skating production
or tour.'.
- (b) Limitation-
Section 214(c)(4) of the Immigration and Nationality Act (8 U.S.C.
1184(c)(4)) is amended by adding at the end the following:
- `(F)(i) No nonimmigrant visa under section
101(a)(15)(P)(i)(a) shall be issued to any alien who is a national
of a country that is a state sponsor of international terrorism
unless the Secretary of State determines, in consultation with
the Secretary of Homeland Security and the heads of other appropriate
United States agencies, that such alien does not pose a threat
to the safety, national security, or national interest of the
United States. In making a determination under this subparagraph,
the Secretary of State shall apply standards developed by the
Secretary of State, in consultation with the Secretary of Homeland
Security and the heads of other appropriate United States agencies,
that are applicable to the nationals of such states.
- `(ii) In this subparagraph, the term `state
sponsor of international terrorism' means any country the government
of which has been determined by the Secretary of State under
any of the laws specified in clause (iii) to have repeatedly
provided support for acts of international terrorism.
- `(iii) The laws specified in this clause
are the following:
- `(I) Section 6(j)(1)(A) of the Export Administration
Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)) (or successor statute).
- `(II) Section 40(d) of the Arms Export Control
Act (22 U.S.C. 2780(d)).
- `(III) Section 620A(a) of the Foreign Assistance
Act of 1961 (22 U.S.C. 2371(a)).'.
- (c) Petitions
for Multiple Aliens- Section 214(c)(4) of the Immigration and
Nationality Act (8 U.S.C. 1184(c)(4)), as amended by subsection
(b), is further amended by adding at the end the following:
- `(G) The Secretary of Homeland Security shall
permit a petition under this subsection to seek classification
of more than 1 alien as a nonimmigrant under section 101(a)(15)(P)(i)(a).'.
- (d) Relationship
to Other Provisions of the Immigration and Nationality Act- Section
214(c)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(4)),
as amended by subsections (b) and (c), is further amended by
adding at the end the following:
- `(H) The Secretary of Homeland Security shall
permit an athlete, or the employer of an athlete, to seek admission
to the United States for such athlete under a provision of this
Act other than section 101(a)(15)(P)(i) if the athlete is eligible
under such other provision.'.
- Congratulations to the eligible expanded
foreign athletes and entertainers for P-1 visas.
12/10/2006: Congress Passed U.S.-India Civilian Nuclear
Cooperation Bill: Passage Secures U.S. Goal with World's Largest
Democracy
- The Indian immigrant community in the U.S.
was following the Lame Duck Congress actions very closely in
two areas. One was without doubt SKIL bill and the other was
the Nuclear Cooperation Bill who has a big stake for their homeland
and their stance in the U.S. They hit one and lost the other.
The passage of this bill was delayed until the last minute, but
because of the U.S. regional defense alliance and huge strategic
insterest in the area, the Lame Duck Congress could not afford
anything but passing this bill. This bill will have a lasting
impact on the India's future in the region as well as in the
world. Congratulations to the Indian community in the U.S. They
should be proud of their motherland's Trojan march in the world's
economy and political power. For the White House wecome address,
please click here.
12/10/2006: Conrad 30 Program for Foreign Physicians Extended
Until June 1, 2008
- The Senate agreed to H.R. 4997 as amended
which was passed by the House earlier this week. Initially, the
bill was proposed to make this program "permanent,"
but this part was amended to extend to June 1, 2008 from June
1, 2006. The current Conrad Program expired on May 30, 2006.
However, this bill will be retroactively applied to May 30, 2006
and upon the President's signature, it will become a law. The
President is expected to sign this bill without any problem.
- Conrad 30 Program has been providing a channel
for immigration for the foreign physicians by allowing each state
to sponsor J-1 Waiver upto 30 foreign physicians a year. The
U.S. immigration law does not allow most of foreign physicians
in clinical practice to obtain permanent resident status unless
they obtain a waiver of their J-1 home residency requirement.
We hoped that the Congress would pass the bill without amendment
making the program permanent, but at least for now the foreign
physicians should take the Lame Duck Congress action as a relief.
Had the Lame Duck Congress passed the SKIL bill, they could have
received additional benefits in several ways. For these additional
relief, they will have to wait until the new Congress act in
the coming year. Congratulations, IMGs!
12/10/2006: The President Signed Yesterday Continuing Resolution
Bill, H.J. 102
- The President swiftly signed this bill yesterday
so that operation of the federal government be not negatively
affected nor disrupted. None of immigration-related bills was
apparently attached to this bill. When the new Congress returns
on January 4, 2007, one of the top agenda will remain pending
appropriation bills for various federal departments and agencies,
which they should take care of by February 15, 2007. There is
a chance that some immigration legislations such as H-1B relief
can still be attached to one of these appropriation bills. People
may recall that when the Senate-passed S.1932 died not too long
past for its failure to pass the House, the H-1B and L-1 Reform
Acts were introduced by Rep. Lamar Smith (TX) and the Congress
easily passed the bill as a rider to the Omnibus Spending bill!
Considering the fact that the business and academic communities
can feel urgency more tangibly in the H-1B crisis as an imminent
issue affecting their businesses "here and now," as
opposed to EB immigrant issue which may be considered a long-term
issue, the negative impact of which may be not necessarily imminently
visible and tangible as relaed to their businesses "here
and now." In this regard, the H-1B legislation can be taken
out of the ill-fated SKIL bill and passed earlier than SKIL-type
of EB immigration bill or CIR. We will see how things will unfold.
12/09/2006: Good Bye, Lame Duck!
- The Congress closed its 109th Congress curtain
after passing Continuing Resolution to fund the government until
February 15, 2007 pending Appropriation legislations for each
department. SKIL bill failed to make it and no legislation was
passed to give a relief to the current H-1B problem. All legislative
bills that failed to make it until today will automatically lapse
and the bills will have to be reintroduced in the new Congress.
- The employment-based immigrant community
may face a risk of most of the EB-immigration bills being stuck
in the CIR, probably other than H-1B relief legislation following
the same path of S.1932. It is extremely unfortunate that the
SKIL did not make it during the Lame Duck Congress. The EB-quota
system is so choked that it is likely that EB-immigrants may
have to go through a frustrating and agonizing experience for
a while.
12/08/2006: Last Minute Lame Duck Congress Action Tracking
- Lame Duck Congress may close at the end of
this week after passing Continuing Resolution to fund the federal
government throughJanuary or February 2007.
- The immigrant community is very curious on
the potential last minute passage of the immigration legislations
including SKILbill. The Conrad 30 extension bill for the physicians
must also be passed by the full Senate before the Lame Duck Congress
recesses. Surprises can take place in association with any appropriation
bill or continuing resolution or any other bills in the form
of a rider or as an independent bill. We have thus setup special
links to the House and Senate vote tracking at our home page
so that the visitors can frequently check the status of the House
and the Senate actions today.
- Currently Continuing Resolution expires today,
12/08/2006, and both House and Senate must pass H.J. 102, Continuiing
Resolution, funding federal government through 02/15/2007 without
passing the each department's appropriation bill. Since the federal
government other than DOD and DHS must shut down from tomorrow
unless this resolution is passed today, the Congress is expected
to pass this resolution very swiftly this afternoon or evening.
12/08/2006: Semi-Annual Rule-Making Agenda Due Release on
Monday 12/11/2006
- The federal agencies including DHS, DOS,
DOL, and other departments release their rule-making agenda twice
a year. This year, the rule-making agenda of the first half of
FY 2007 has witnessed a little bit of delay. From the perspectives
of the immigrant community, we are particularly interested in
certain rules including DOL's elimination of substitution
labor certification applications. Sometimes, they withdraw
certain rule-making without releasing the information to the
public. This agenda will provide us with this critical information
on Monday. There are many other rules of USCIS, CBP, ICE, EOIR,
DOS, SSA, etc. that the immigrant community are interested in
as the semi-annual agenda provides information on the agenc ies'
direction and timeline for future policies. We will post the
details as soon as the information becomes available on Monday,
December 11, 2006.
12/07/2006: IPC Article on Skill-Based Immigration Policy
12/07/2006: First-Half FY 2007 H-2B Cap Reached on 11/28/2006
and New H-2B Filing Unavailable Until 04/01/2007
- For the details of the USCIS announcement,
please click here.
12/07/2006: OFLC Intends to Open Safety Window for Conversion
of TR to RIR
- AILA has announced that the OFLC is expected
to announce an important policy next week to hold issuing a Job
Order and Recruitment Instructions for the TR applicant upon
receiving a notice that the applicant intends to go for the RIR
conversion. Under the current conversion rule, the employer is
disqualified for the conversion upon receiving the recruitment
instructions for the TR cases and unless the employers take a
big risk of spending tons of cost for recruitment and facing
disqualification because of the receipt of recuritment instructions
from the BECs druing the voluntary recruitment process, the employers
have been hesitant to initiate the RIR conversion attempts. Obviously
this slapped the face of the OFLC's recent policy change to encourage
RIR conversion and thereby to achieve backlog recductionh within
a short time. The OFLC is currently under a tremendous pressure
from its mandate to remove all the backlogs within less than
10 months. Please stay tuned.
- We do not know whether the last week's OFLC-SWA
officials' training conference in St. Antonio, Texas which focused
on the prevailing wage determination was an overture to launch
this RIR conversion policy change. But from the perspectives
of the TR employers and aliens, this policy change will give
a golden opportunity to short-cut the process of pending labor
certification applications at the BECs. Unlike TR process, in
the RIR process, obviously the prevailing wage determination
for the voluntary recruitment process ought to be made by the
State SWAs and the state SWAs will be pull back into the backlog
reduction process in this regard. It is hoped that the upcoming
announcement of OFLC next week will give specific guidelines
for the voluntary recruitment standards so that the employers
achieve the RIR conversion with the least amount of risk and
in the shortest period of time. Otherwise, this upcoming policy
change will doom to fail as it will fail to give an incentive
to the employers to try this process at the last minute when
the whole cases must be decided by OFLC in less than ten months.
12/07/2006: SKIL Bill Sponsor, Sen. John Cornyn (TX) Attempts
a Last Minute Push for Passage of This Bill in the Senate
- Report
indicates that the Sen. Cornyn is attempting to push passage
of this bill in the Senate during the Lame Duck Session. However,
within the Republican court of the Senate, there are some Republican
Senators that oppose this bill. Besides, considering the fact
that the Lame Duck Congress may go out of session at the end
of this week, unless a miracle happens, passage of this bill
both in the House and the Senate may not materialize. Please
stay tuned for this important development of news for the employment-based
immigrant community.
- However, it will be worthwhile for the community
and businesses to send out a massive fax and emails to the members
of the House and the Senate tonight and tomorrow morning encouraging
them to show their last minute support for this important legislation.
12/07/2006: Rep. Lamar Smith (TX) to Replace Rep. Sensenbrenner
(WI) in Republican Leadership in House Judiciary Committee During
the 110th Congress
- Reportedly Republicans voted yesterday to
name Rep. Lamar Smith to replace Rep. Sensenbrenner for the Republican
leadership. The Judiciary Committee plays a key role in determining
the nation's immigration policy and legislation. Both of these
Congressmen have represented extremely conservative and restrictive
immigration positions. In this regard, this event marks a will
of the Republican leadership of the future House to continue
its conservative and restrictive policies in legislation.
12/07/2006: House Passes Conrad 30 Extension Legislation
(H.R. 4997) for Internatonal Medical Graduates in Underserved
Areas
- The House passed this important bill yesterday
to extend for two years for the IMGs. The Senate has yet to act
on this bill and it is likely that the Senate may also pass this
bill within this week before they go out of the Lame Duck session.
Please stay tuned.
12/07/2006: Senate Passed Three-Year Extension for H-1C
Visa Availability
- The H-1C visa has provided 500 temporary
worker visas with the nurses in medically underserved area. Yesterday,
the Senate passed a legislation to reauthorize the legislation
for the next three years. The House already passed this bill
on June 20, 2006. Accordingly, as soon as the President signs
this bill, it will become a law and the foreign nurses will continuously
take advantage of the temporary employment opportunities, albeit
in limited number, each year. Please stay tuned for summary of
this legislation, H.R. 1285.
12/05/2006: Waning Hope for Any Relief for Employment-Based
Immigration Legislation During Lame Duck Session
- Employment-based immigrants have been hoping
that the SKIL Act be enacted in the form of a rider to the pending
Appropriation Bills. However, report indicates that there are
allegedly thousands of such "earmarks" attempting to
be enacted as a legislation in the form of a rider to the Appropriation
bills. People may recall that the Senate refused to pass the
Appropriation bills before they got into the Thanksgiving break
exactly on the same grounds. There is a prediction that the Lame
Duck Congress may not be able to pass any additional Appropriation
bills for the stratetic reasons as well as practical reasons.
So far, the Lame Duck Congress has failed to move on any key
or top priority legislations and is labelled as "Lazy Duck,"
when it comes to the key legislations. Reportedly Democrats are
scheduled to go into a closed-door meetings but information indicates
that it is intended for the new Congress strategies rather than
the Lame Duck Congress strategies. Another sad story of S. 1932!
12/05/2006: USCIS Proposes to Operate Centralized Background
Check Systems to Reduce Backlogs Effective 01/03/2007
- The immigration and naturalization proceedings
have witnessed a substantial delays in some cases because of
the so-called background check delays. In naturalization proceedings,
such backlog has produced a substantial number of federal district
court litigation in the form of Mandamus action to force the
agency to perform the job.
- In order to process and adjudicate immigration
proceedings, USCIS conducts three different background checks
on applicants/petitioners applying for USCIS benefits: (1) A
Federal Bureau of Investigation (FBI) Fingerprint Check, (2)
a FBI Name Check, and (3) a Customs and Border Protection (CBP)
Treasury Enforcement Communication System/Interagency Border
Inspection System (TECS/IBIS) Name Check. In order to assist
in this task, USCIS established a new
system of records that will consolidate all background check
requests and results on immigration benefit applicants/petitioners.
This new system of records is called the Background Check Service
(BCS). The Background Check Service allows authorized U.S. Citizenship
and Immigration Services representatives to request background
checks and access the data stored in the Background Check Service
during the adjudication process in order to facilitate informed
decision-making. As a centralized repository containing all background
check activity, BCS will provide the status and results of background
checks required for completion of immigration eligibility petitions
and applicationdeterminations from one web-based system to geographically
dispersed field offices. This system supports USCIS's initiatives
to reduce immigration benefit/petition case backlog and provide
significant efficiencies in vetting and resolving the background
checks that are required for USCIS benefits. Prior to BCS, information
relating to the FBI Fingerprint Checks and the FBI Name Checks
were stored in the FD-258 system and FBI Query system respectively.
Information relating to the TECS/IBIS Name Checks was not stored
in any system.
USCIS asserts that this consolidated and centralized
Background Check Services will contribute to the reduction of
backlogs. This established system of records will be effective
January 3, 2007 unless comments are received that result in a
contrary determination. For the full text of the notice, please
click here.
12/05/2006: Service Centers Processing Times of December
5, 2006
12/01/2006: CRS Thorough Report on Immigration Legislation
& Issues in the 109th Congress
- The 109th Congress will sunset in a matter
of less than one month with disgraced label of "Doing Nothing
Congress" due to the honotable institution enmeshed in the
election politics. This Congressional Report reviews major immigration
legislative bills and issues that were presented to the Congress.
It is painful to go over these bills and issues as they remind
us of the frustration the nation had to endure.
12/01/2006: Old Site of USCIS Still Working
- We do not know whether the USCIS has changed
its mind and decided to keep the old web site as an achive. However,
it is working today. We want to applaud the USCIS if it had changed
its mind and decided to have the old site accessible and available
to the publis as an archive.
12/01/2006: CRS Report of 11/30/2006 on Usage of J-1 Waiver by International Medical
Graduates (IMGs)
12/27/2006: P-1 Visa Expansion Bill Signed into Law
- S. 3821, the "Creating Opportunities
for Minor League Professionals Entertainers, and Teams through
Legal Entry Act of 2006" or the "COMPETE Act of 2006,"
which expands eligibility for the P-1 visa program for certain
athletes seeking to temporarily enter the United States to participate
in an athletic competition or performance.
12/27/2006: Here We Go Again, Another Cycle of CIR Circus
Soon?!
- A news report indicates that the Congress may
introduce another form of Comprehensive Immigration Reform bills
soon after the new Congress (110th) opens next year. The Congress
keeps coming back to the immigration bills early each year without
fruits at the end of the year. People are more or less exhausted
of the circus. Let's see what kind of drama will unfold next
couple of months.
12/22/2006: Stunning Report of the Congress' Insensitivity
to Immigration Backlogs
- The Congressional Research Service released
its report on U.S. Immigration Policy on Permanent Admissions
on 12/13/2006. This report brought to the surface insensitivity
of the members of the Congress, particularly in 2006. We want
to report a portion of its report as follows:
- The House-passed FY 2007 DHS appropriations
bill that would have appropriated $162 million for USCIS in FY
2007. There was a Senate amendment to the House bill that would
direct DHS, notably through USCIS, to increase its fees charged
to noncitizens to produce an additional $350 million in receipts
for FY 2007. Most of the funds collected by the fee increase
would have gone not to USCIS but to CBP and ICE. The conferees
in the end passed the bill providing USCIS with $182 million
in direct appropriations, and the USCIS is supposed to raise
the income from the fees to estimated $1,804 million to give
the USCIS a total appropriation of $1,986 million. [Matthew
Oh comment: No wonder why the USCIS is pushed to raise the immigration
filing fees! Obviously there is fallacy in belief that the increased
fees can reduce backlogs!]. [Who said legal immigration is a
burden on U.S. taxpayers!]
- The report indicates that pending caseloads
and processing backlogs continue to plague USCIS. The GAO concluded
that it is unlikely that USCIS will completely eliminate the
backlog of pending applications by the 2006 deadline. [The immigration
Services and Infrastructure Improvements Act of 2000 defined
backlog as the period of time in excess of 180 days that an immigration
benefit applications had been pending before the agency. Meanwhile,
USCIS defines backlog as the number of pending applications in
excess of the number of applications received in the most recent
six months.] Despite progress in cutting the backlog of pending
cases from 3.8 million in January 2004 to 1.2 million in June
2005, GAO speculates that USCIS may have difficulty eliminating
its backlog for the more complex application types that constitute
nearly three-quarters of the backlog.
- Well, readers, what do you think? There are
more to it. During the Christmas holiday weekend, you may want
to read the full report.
12/22/2006: DOL Released FAQ 6 on RIR Conversion Opportunity on 12/22/2006
(Corrected)
- We reported earlier that the DOL had decided
to give TR applicants an opportunity to request a RIR conversion.
Unlike the previous report, the harmless RIR conversion will
be available even if the BEC issued recruitment instruction inasmuch
as the conversion intent is received by the BEC before January
20, 2007. For the details, please read the FAQ 6.
- Our Hypothetical Facts and Analysis II will
also cover this subject during the holiday seasons. Please stay
tuned!
12/21/2006: Hats Off to Mr. Aytes and Other USCIS Leaders
- The USCIS gave a fantastic gift to the employment-based
immigrant community yesterday. Readers may know what this reporter
is talking about here. It is the Aytes Memorandum on H and L
issues. This is a totally unexpected gift from sky! We encourage
the community and immigrants to send "thank you" to
this fine gentleman and other leaders of USCIS at this Holiday
season!
12/21/2006: Bi-Specialization Transfer of 601(J-1 Waiver)
Applications to CSC or VSC
- USCIS has announced that the J-1 foreign
residency requirement waiver applications have been transferred
to either CSC or VSC for the Bi-Specialization program:
- CSC: Transferred effective 11/01/2006 following
cases
- Exceptional Hardship cases
- Persecution Fear cases
- VSC: Transferred effective 10/10/2006
- No Objection Statement cases
- Interested U.S. Government Agency Sponsorship
cases
- State Conrad 30 Cases for IMGs
- Accordingly those who filed the waiver applications
cases in different Service Centers will receive the decisions
from one of these two Service Centers depending on the types
of waiver applications. For the full text of announcement, please
click here.
12/20/2006: New Multiple PERM Filing Policy (AILA-DOL Liaison
Minute)
- 1st Approved PERM and 2nd PERM filing for
the same position: Automatically denied.
- 1st Approved PERM and 2nd PERM filing for
the different position: Audit with request for return of the
first application or an explanation of why there is a second
application being filed and the first application cannot be returned.
12/20/2006: PERM Processing Statistics (AILA-DOL Liaison
Minute)
- Case Processing Statistics:
- Total Received since PERM started on March
28, 2006: 160,000
- Total Certified : 73%
- Total Certified During Period of 10/01/2005-10/01/2006:
80,000
- Total Denials: 24% of total applications
received
- Processing Times:
- 48%: Within 30 days
- 20%: From 31 days to 60 days
- 24%: Denials
- 28%: Currently in Sponsorship and Analysts
Review which were filed before 07/01/2006.
12/20/2006: BEC Status of Processing Cases as of 12/11/2006
- AILA-DOL liaison minute indicates the following
statistics:
- Total Pending Cases: 142,418
- Total Pending RIR Cases: 59,328 (41%)
- Total Pending TR cases: 85,608 (59%)
- For TR Cases:
- All the job orders placed by 04/01/2007
- All the recruitment to be completed by 06/01/2007.
[Matthew Oh note: In the recent AILA seminar, the Chief stated
that they would be able to eliminate all the backlog cases by
the end of September 2007 as scheduled.]
- RIR Conversion Guidance Announcement Imminent:
They will publish it in the FAQ. Watch for the FAQ updates.
12/20/2006: 12/05/2006 Important USCIS Memorandum for
Guidance on Determing Periods of Admission for Aliens Previouslyt
in H-4 or L-2 Status; Aliens Applyting for Additional Periods
of Admission beyond the H-1B Six Year Maximum; and Aliens Who
have not Exhausted the Six-Year Maximum But Who Have Been Absent
from the U.S. for Over One Year
- The USCIS HQ Director of Domestic Operation,
Michael Aytes, issued this memorandum on 12/05/2006 and has made
this memorandum available to the public today. This memorandum
is extremely important as people can see from the following extracts,
among others:
- Time spent as an H-4 and L-2 does not count
against the maximum allowable periods of stay available to principals
in H-1B (six-years) and L-1(five-year for L-1B and seven-year
for L-1A) status;
- H-1B aliens need not be in H-1B status in
seeking H-1B extension beyond the six-year limit if the aliens
are eligible for AC-21 Section 106(a) and 104(c);
- Guidance for how to determine the maximum
period of admission in H-1B status for less than the six-year
maximum period of admission, but who has since been outside the
U.S. for more than one year.
- We find this memorandum extremely important
for the aliens in H or L visa status. We will explore the implications
of this memorandum in the context of hypothetical facts. We ask
the readers to start visiting our "Hypothetical Facts and
Legal Analysis (II)" page to learn more about impact of
this memorandum on individuals. For the full text of the memorandum,
please click here.
12/20/2006: ICE Crack-Down of Religious Worker Frauds Continues
- ICE news release indicates that the agency
arrested 33 individuals largely for religious worker visa fraud.
The arrests were made in the eights states including Boston,
New York, Hartford, Atlanta, St. Paul, Newark, Philadelphia,
Harrisonburg/VA, and Washington, D.C. The arrests are made as
result of its multi-year investigation of the religious worker
fraud which indicated that 32% of the investigated cases turned
out to be fraudulent.
- The report indicates that earlier this month,
Dong Wan Park, 53, the former pastor of a church in Washington
state, appeared in federal court in Tacoma after being deported
to the United States to be sentenced for orchestrating a large-scale
religious worker visa fraud involving South Korean nationals.The
pastor, a South Korean national, had filed fraudulent applications
for South Koreans he claimed were coming to the U.S. to serve
as associate pastors at the Hope Korean Church, where he served
as pastor. None of the visa applicants was ever employed at the
church or had any religious training.
- ICE intends to pursue not only removal of
these aliens but in some cases criminal prosecution. For the
full text of the news release, please click here.
12/19/2006: Expensive Immigration and Naturalization Applications
Ahead
- The USCIS is scheduled to charge an increased
amount of filing fees in the near future. The fee raise rule
is currently under reivew by the OMB since 10/26/2006 which may
be approved soon. This is a proposed regulation and the consumers
may expect to have a comment period before the agency publishes
the final rule, but the fee increase can be substantial especially
for certain proceedings that already involve hundreds of dollars
filing fees. We have already reported that aside from this proposed
rule, the USCIS will propose the increase of Premium Processing
fees early next year.
- The fee is not limited to "raise of
existing charges." They also plan to propose the new fees
to the immigrant visa applicants abroad. When people immigrates
to the U.S. through one of the U.S. Consulate through the consular
immigrant visa application proceeding, the only agency that currently
charges fees is the U.S. Department of State. However, now the
USCIS intends to propose its own fees to these new immigrants
from abroad. This rule will propose charging a new immigrant
visa service fee to every immigrant visa applicant. This action
is arguably necessary, because USCIS incurs significant operating
costs in providing permanent resident maintenance services, such
as Permanent Resident Card production, data entry, record creation,
and other related services. By charging a new immigrant visa
service fee, USCIS intends to recover its full operating costs
of providing maintenance services to all new permanent residents.
This proposed rule may be released in January or soon thereafter
with a 60-day comment period.
- Educated guess indicates that all these fee
increases and new fees may come into effect in the Spring of
2007.
- The U.S. Department of Labor one time proposed
charge of expensive fees for the permanent labor certification
application in the amount of $1,500 several years back. Eventually
fee charge in the reduced amount for the permanent labor certification
application may come into reality sooner or later, even though
it may take quite some time unlike the USCIS fee adjustment schedules.
Readers BEWARE.
12/19/2006: Launch of Newly Designed Citizenship Test Effective
Early January, 2007 in Ten Cities
- The USCIS will launch a newly designed naturalization
test in two phases: The first "pilot" program will
be launched in the selected ten cities, and the second phase
of this program will be implemented nationwide in 2008. It is
thus very important for those natulization applicants residing
in the ten selected cities who will be scheduled for interview
in the first part of January 2007 to follow this new rule
- Ten Pilot Program Locations (effective
Early January 2007):
- Albany, New York sub-office;
- Boston, Massachusetts, District Office;
- Kansas City, Missouri, District Office;
- Charleston, South Carolina sub-office;
- El Paso, Texas District Office;
- San Antonio, Texas District Office;
- Miami, Florida District Office;
- Denver, Colorado District Office;
- Tucson, Arizona Sub-Office; and
- Yakima, Washington Sub-Office.
- Based on the evaluation of the pilot, the
final test will be implemented nationally beginning in 2008.
For the full text of the federal register release, please click here.
12/18/2006: USCIS Local Offices Processing Times of 12/18/2006
12/18/2006: Service Centers Processing Times of 12/18/2006
12/18/2006: Lame Duck Congress Immigration Legislation and
President's Signature
- The President has signed a number of legislative
bills which the Congress passed during the lame duck session.
This includes the U.S.-India Neuclear Energy Cooperation Act
which was signed this morning. However, there are other immigration
bills including Conrad 30 two-year extension bill and nurses
H-1C program extension bill. Without doubt, the President will
sign these bills too.
- Under the U.S. Constitutiion, if the President
refuses to sign any bills passed by the Congress within ten days
during the recess of the Congress, the action constitutes a pocket
veto and the bill will fail to become a law. Since these bills
are not politically charged legislation and critically important
for this country's current shortage in healthcare professionals,
it is very obvious that the President will sign within the time
limit. Please stay tuned to this website. Caveat: Ten days are counted from the date the President
received the bills
and not the date the Congress passed the bills.
12/18/2006: Revised Consular NIV Interview Requirement and
Waiver Rules
- Effective today, the American Consulates
throughout the world will follow the following rules for the
nonimmigrant visa personal appearance and interview requirements:
- General Rule: A
consular officer must now interview persons in the same age ranges
as persons covered by the biometric collection requirement.
- Interview Waiver Blacklist (Waiver Not
Permitted): In addition to the existing
list of situations in which an interview may not be waived, the
personal interview requirement may not be waived for NIV applicants
from third countries and applicants who have been previously
refused visas or found ineligible for visas, where that ineligibility
was not overcome.
- Interview Waiver Visa Lists: A-1, A-2, C-2, C-3, G-1, G-2, G-3 G-4, NATO-1, NATO-2,
NATO-3, NATO-4, NATO-5, or NATO 6 classifications, and applicants
for diplomatic or officials visas as described in 22 CFR 41.26
and 41.27.
- For the full details, please click here.
12/15/2006: FY 2008 Immigration Lottery (DV-2008) Result
- State Department has announced that more
than 6.4 million entries have been received for the 2008 Diversity
Visa Lottery. Once dependents are taken into account, the total
number of participants in the 2008 lottery exceeds 10 million.
This is compared to the DV-2007 which attracted around 5.5 million
applications by primary registrants. The details have yet to
be relased but its announcement indicates that Africa accounts
for 41 percent of the total applications received, Asia accounts
for 38 percent, Europe for 19 percent, and South America, Central
America, and the Caribbean for 2 percent. Bangladesh was the
country with the largest number of applicants, with more than
1.7 million, followed by Nigeria with 684,000 and Ukraine with
619,000.
- The State Department is scheduled to send
out notifications to the winners between April and July 2007.
For the announcement, please click here.
12/13/2006: PPS Attorney Representation Procedure Update
- AILA and USCIS have clarified this issue
today. USCIS will now allow the attorneys to file I-907 with
his/her signature alone if the employer-signed G-28 accompanies
the Premium Processing Request. The Power of Attorney will be
required only when an attorney files I-907 on behalf of the alien
or other party files the I-907. We welcome the clarification
and send "thank you" to the AILA and the USCIS HQ leaders.
For the full text of the USCIS instructions, please click here.
12/12/2006: Attorney Cannot File Premium Processing Without
Client's Power of Attorney?!
- AILA has been informed by the USCIS HQ that
they will no longer allow attorneys to file I-907 Premium Processing
Request with their signature alone unless the client's power
of attorney is also attached. One wonders why they also require
filing of the G-28 as well to file I-907.
12/12/2006: January 2007 Visa Bulletin
- SCHEDULE A
WORKER VISA CATEGORY: Surprise
- A small amount of Schedule A Worker numbers
which had been provided to consular offices for November use
were returned unused after the end of the month and thus became
available for reallocation. All remaining Schedule A Worker numbers
have been made available to applicants whose priority dates are
within the January cut-off date (15JUN04). The Schedule A Worker
category will be removed from the listings beginning with the
February cut-off dates.
- FAMILY PREDICTION:
- Demand for numbers in the Mexico and Philippines
Family Third preference category has been very heavy during the
first quarter. No movement of those cut-off dates can be expected,
and continued heavy demand may require the retrogression of the
dates at some point in the future.
- EMPLOYMENT PREDICTION:
- Demand for numbers in the Employment Third
Other Workers category, as well as the China and
India Employment Second preference categories, has been escalating.
No movement in those cut-off dates will be possible until the
current level of demand subsides. Aiyaya!
January was bad enough!
12/11/2006: Rule-Making Agenda for DOL Elimination of Substitution
Labor Certification
- DOL is publishing this agenda in a separate
edition of Part II, which is not available on today's release.
As soon as we obtain the information, we will make it available
at this site.
- The substitution LC elimination must be implemented
by both DOL and USCIS. According to the USCIS agenda, the USCIS
"proposed" rule for the substitution elimination is
not scheduled to be published until March 2007 with 60-day day
comment period. The USCIS rule-making agenda and the DOL's delay
of final rule announcement more or less indicate that this elilimnation
policy is currently on hold and not imminent. Since the USCIS
is not scheduled to end the comment period for the proposed rule
until May 2007, if the DOL and USCIS sticks to this agenda, the
rule may not be enacted until later part of 2007. Or who knows
that they may abandon it.
- Caveat: There can develop a surprise and
they may shorten the rule-making process. Just caveat.
12/11/2006: USCIS Considers Termination of Concurrent Filing
(140/485)
- According to the USCIS rule-making agenda,
the USCIS is to propose to terminate current concurrent I-140
and I-485 filing. The proposed rule is scheduled to be published
in March 2007 with 60-day comment period. It is thus not imminent,
but in the later part of next year(Oops!), the immigrant community
may see a totally different filing procedure including electronic
registration and filing just like current PERM labor certificaiton
application procedure. Once the concurrent filing is terminated,
the immigrants may experience a terrible pain as related to maintenance
of nonimmigrant status pending I-140 petition, eligibility for
245K benefit, plus unavailability of EAD and AP pending I-140
petition, AC-21 180-day portability, etc. etc. Should the I-140
petition processing be dragged, the pain will be extremely unbearable!
12/11/2006: USCIS to Raise Premium Processing Fee
- According to the USCIS rule-making agenda,
the USCIS is planning to raise the Premium Processing Fee to
reflect the inflation.
12/11/2006: DOL to Proposes Change of Backlog Elimination
Date (Errata. Retracted)
- There was an error in reporting
that the backlog elimination date will be changed. We apologize
for any inconvenience this may have caused to the readers.
12/11/2006: FY 2007 Semi-Annual Rule-Making Agenda of Immigration
Stake-Holder Agencies
12/10/2006: December 2006 USCIS News Letter: USCIS Today
12/10/2006: Lame Duck Congress Passed Compete Act of 2006,
S. 3821 (Expansion of Scope of Eligible Athlets and Entertainers
for P-1 Nonimmigrant Visas)
- Creating Opportunities for Minor League Professionals,
Entertainers, and Teams through Legal Entry Act of 2006 or the
COMPETE Act of 2006: Amended immigration to enlarge the scope
of P-1 (athletes and entertainers) nonimmigrant visas to include:
(1) a professional athlete; (2) a person who performs as an athlete,
coach, or part of a team that is located in the United States
and is a member of certain amateur foreign leagues or associations
from which a significant number of individuals are drafted by
major sports leagues or their minor league affiliates; and (2)
a professional or amateur athlete who performs individually or
as part of a group in a theatrical ice skating production coming
to the United States in a specific ice skating production or
tour. Currently such provision is limited to athletes performing
at an "internationally recognized level of performance."
This legislation also requires the Secretary of Homeland Security
to permit: (1) a petition to seek P-1 classification for multiple
alien athletes; and (2) athletes or their employers to seek admission
for such athletes under other than P-1 provisions of INA. The
following is the full text of the bill.
- SECTION 1. SHORT TITLE.
- This Act may be cited as either the `Creating
Opportunities for Minor League Professionals, Entertainers, and
Teams through Legal Entry Act of 2006' or the `COMPETE Act of
2006'.
- SEC. 2. NONIMMIGRANT ALIEN STATUS FOR
CERTAIN ATHLETES.
- (a)
In General- Section 214(c)(4)(A) of the Immigration and Nationality
Act (8 U.S.C. 1184(c)(4)(A)) is amended by striking clauses (i)
and (ii) and inserting the following:
- `(i)(I) performs as an athlete, individually
or as part of a group or team, at an internationally recognized
level of performance;
- `(II) is a professional athlete, as defined
in section 204(i)(2);
- `(III) performs as an athlete, or as a coach,
as part of a team or franchise that is located in the United
States and a member of a foreign league or association of 15
or more amateur sports teams, if--
- `(aa) the foreign league or association is
the highest level of amateur performance of that sport in the
relevant foreign country;
- `(bb) participation in such league or association
renders players ineligible, whether on a temporary or permanent
basis, to earn a scholarship in, or participate in, that sport
at a college or university in the United States under the rules
of the National Collegiate Athletic Association; and
- `(cc) a significant number of the individuals
who play in such league or association are drafted by a major
sports league or a minor league affiliate of such a sports league;
or
- `(IV) is a professional athlete or amateur
athlete who performs individually or as part of a group in a
theatrical ice skating production; and
- `(ii) seeks to enter the United States temporarily
and solely for the purpose of performing--
- `(I) as such an athlete with respect to a
specific athletic competition; or
- `(II) in the case of an individual described
in clause (i)(IV), in a specific theatrical ice skating production
or tour.'.
- (b) Limitation-
Section 214(c)(4) of the Immigration and Nationality Act (8 U.S.C.
1184(c)(4)) is amended by adding at the end the following:
- `(F)(i) No nonimmigrant visa under section
101(a)(15)(P)(i)(a) shall be issued to any alien who is a national
of a country that is a state sponsor of international terrorism
unless the Secretary of State determines, in consultation with
the Secretary of Homeland Security and the heads of other appropriate
United States agencies, that such alien does not pose a threat
to the safety, national security, or national interest of the
United States. In making a determination under this subparagraph,
the Secretary of State shall apply standards developed by the
Secretary of State, in consultation with the Secretary of Homeland
Security and the heads of other appropriate United States agencies,
that are applicable to the nationals of such states.
- `(ii) In this subparagraph, the term `state
sponsor of international terrorism' means any country the government
of which has been determined by the Secretary of State under
any of the laws specified in clause (iii) to have repeatedly
provided support for acts of international terrorism.
- `(iii) The laws specified in this clause
are the following:
- `(I) Section 6(j)(1)(A) of the Export Administration
Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)) (or successor statute).
- `(II) Section 40(d) of the Arms Export Control
Act (22 U.S.C. 2780(d)).
- `(III) Section 620A(a) of the Foreign Assistance
Act of 1961 (22 U.S.C. 2371(a)).'.
- (c) Petitions
for Multiple Aliens- Section 214(c)(4) of the Immigration and
Nationality Act (8 U.S.C. 1184(c)(4)), as amended by subsection
(b), is further amended by adding at the end the following:
- `(G) The Secretary of Homeland Security shall
permit a petition under this subsection to seek classification
of more than 1 alien as a nonimmigrant under section 101(a)(15)(P)(i)(a).'.
- (d) Relationship
to Other Provisions of the Immigration and Nationality Act- Section
214(c)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(4)),
as amended by subsections (b) and (c), is further amended by
adding at the end the following:
- `(H) The Secretary of Homeland Security shall
permit an athlete, or the employer of an athlete, to seek admission
to the United States for such athlete under a provision of this
Act other than section 101(a)(15)(P)(i) if the athlete is eligible
under such other provision.'.
- Congratulations to the eligible expanded
foreign athletes and entertainers for P-1 visas.
12/10/2006: Congress Passed U.S.-India Civilian Nuclear
Cooperation Bill: Passage Secures U.S. Goal with World's Largest
Democracy
- The Indian immigrant community in the U.S.
was following the Lame Duck Congress actions very closely in
two areas. One was without doubt SKIL bill and the other was
the Nuclear Cooperation Bill who has a big stake for their homeland
and their stance in the U.S. They hit one and lost the other.
The passage of this bill was delayed until the last minute, but
because of the U.S. regional defense alliance and huge strategic
insterest in the area, the Lame Duck Congress could not afford
anything but passing this bill. This bill will have a lasting
impact on the India's future in the region as well as in the
world. Congratulations to the Indian community in the U.S. They
should be proud of their motherland's Trojan march in the world's
economy and political power. For the White House wecome address,
please click here.
12/10/2006: Conrad 30 Program for Foreign Physicians Extended
Until June 1, 2008
- The Senate agreed to H.R. 4997 as amended
which was passed by the House earlier this week. Initially, the
bill was proposed to make this program "permanent,"
but this part was amended to extend to June 1, 2008 from June
1, 2006. The current Conrad Program expired on May 30, 2006.
However, this bill will be retroactively applied to May 30, 2006
and upon the President's signature, it will become a law. The
President is expected to sign this bill without any problem.
- Conrad 30 Program has been providing a channel
for immigration for the foreign physicians by allowing each state
to sponsor J-1 Waiver upto 30 foreign physicians a year. The
U.S. immigration law does not allow most of foreign physicians
in clinical practice to obtain permanent resident status unless
they obtain a waiver of their J-1 home residency requirement.
We hoped that the Congress would pass the bill without amendment
making the program permanent, but at least for now the foreign
physicians should take the Lame Duck Congress action as a relief.
Had the Lame Duck Congress passed the SKIL bill, they could have
received additional benefits in several ways. For these additional
relief, they will have to wait until the new Congress act in
the coming year. Congratulations, IMGs!
12/10/2006: The President Signed Yesterday Continuing Resolution
Bill, H.J. 102
- The President swiftly signed this bill yesterday
so that operation of the federal government be not negatively
affected nor disrupted. None of immigration-related bills was
apparently attached to this bill. When the new Congress returns
on January 4, 2007, one of the top agenda will remain pending
appropriation bills for various federal departments and agencies,
which they should take care of by February 15, 2007. There is
a chance that some immigration legislations such as H-1B relief
can still be attached to one of these appropriation bills. People
may recall that when the Senate-passed S.1932 died not too long
past for its failure to pass the House, the H-1B and L-1 Reform
Acts were introduced by Rep. Lamar Smith (TX) and the Congress
easily passed the bill as a rider to the Omnibus Spending bill!
Considering the fact that the business and academic communities
can feel urgency more tangibly in the H-1B crisis as an imminent
issue affecting their businesses "here and now," as
opposed to EB immigrant issue which may be considered a long-term
issue, the negative impact of which may be not necessarily imminently
visible and tangible as relaed to their businesses "here
and now." In this regard, the H-1B legislation can be taken
out of the ill-fated SKIL bill and passed earlier than SKIL-type
of EB immigration bill or CIR. We will see how things will unfold.
12/09/2006: Good Bye, Lame Duck!
- The Congress closed its 109th Congress curtain
after passing Continuing Resolution to fund the government until
February 15, 2007 pending Appropriation legislations for each
department. SKIL bill failed to make it and no legislation was
passed to give a relief to the current H-1B problem. All legislative
bills that failed to make it until today will automatically lapse
and the bills will have to be reintroduced in the new Congress.
- The employment-based immigrant community
may face a risk of most of the EB-immigration bills being stuck
in the CIR, probably other than H-1B relief legislation following
the same path of S.1932. It is extremely unfortunate that the
SKIL did not make it during the Lame Duck Congress. The EB-quota
system is so choked that it is likely that EB-immigrants may
have to go through a frustrating and agonizing experience for
a while.
12/08/2006: Last Minute Lame Duck Congress Action Tracking
- Lame Duck Congress may close at the end of
this week after passing Continuing Resolution to fund the federal
government throughJanuary or February 2007.
- The immigrant community is very curious on
the potential last minute passage of the immigration legislations
including SKILbill. The Conrad 30 extension bill for the physicians
must also be passed by the full Senate before the Lame Duck Congress
recesses. Surprises can take place in association with any appropriation
bill or continuing resolution or any other bills in the form
of a rider or as an independent bill. We have thus setup special
links to the House and Senate vote tracking at our home page
so that the visitors can frequently check the status of the House
and the Senate actions today.
- Currently Continuing Resolution expires today,
12/08/2006, and both House and Senate must pass H.J. 102, Continuiing
Resolution, funding federal government through 02/15/2007 without
passing the each department's appropriation bill. Since the federal
government other than DOD and DHS must shut down from tomorrow
unless this resolution is passed today, the Congress is expected
to pass this resolution very swiftly this afternoon or evening.
12/08/2006: Semi-Annual Rule-Making Agenda Due Release on
Monday 12/11/2006
- The federal agencies including DHS, DOS,
DOL, and other departments release their rule-making agenda twice
a year. This year, the rule-making agenda of the first half of
FY 2007 has witnessed a little bit of delay. From the perspectives
of the immigrant community, we are particularly interested in
certain rules including DOL's elimination of substitution
labor certification applications. Sometimes, they withdraw
certain rule-making without releasing the information to the
public. This agenda will provide us with this critical information
on Monday. There are many other rules of USCIS, CBP, ICE, EOIR,
DOS, SSA, etc. that the immigrant community are interested in
as the semi-annual agenda provides information on the agenc ies'
direction and timeline for future policies. We will post the
details as soon as the information becomes available on Monday,
December 11, 2006.
12/07/2006: IPC Article on Skill-Based Immigration Policy
12/07/2006: First-Half FY 2007 H-2B Cap Reached on 11/28/2006
and New H-2B Filing Unavailable Until 04/01/2007
- For the details of the USCIS announcement,
please click here.
12/07/2006: OFLC Intends to Open Safety Window for Conversion
of TR to RIR
- AILA has announced that the OFLC is expected
to announce an important policy next week to hold issuing a Job
Order and Recruitment Instructions for the TR applicant upon
receiving a notice that the applicant intends to go for the RIR
conversion. Under the current conversion rule, the employer is
disqualified for the conversion upon receiving the recruitment
instructions for the TR cases and unless the employers take a
big risk of spending tons of cost for recruitment and facing
disqualification because of the receipt of recuritment instructions
from the BECs druing the voluntary recruitment process, the employers
have been hesitant to initiate the RIR conversion attempts. Obviously
this slapped the face of the OFLC's recent policy change to encourage
RIR conversion and thereby to achieve backlog recductionh within
a short time. The OFLC is currently under a tremendous pressure
from its mandate to remove all the backlogs within less than
10 months. Please stay tuned.
- We do not know whether the last week's OFLC-SWA
officials' training conference in St. Antonio, Texas which focused
on the prevailing wage determination was an overture to launch
this RIR conversion policy change. But from the perspectives
of the TR employers and aliens, this policy change will give
a golden opportunity to short-cut the process of pending labor
certification applications at the BECs. Unlike TR process, in
the RIR process, obviously the prevailing wage determination
for the voluntary recruitment process ought to be made by the
State SWAs and the state SWAs will be pull back into the backlog
reduction process in this regard. It is hoped that the upcoming
announcement of OFLC next week will give specific guidelines
for the voluntary recruitment standards so that the employers
achieve the RIR conversion with the least amount of risk and
in the shortest period of time. Otherwise, this upcoming policy
change will doom to fail as it will fail to give an incentive
to the employers to try this process at the last minute when
the whole cases must be decided by OFLC in less than ten months.
12/07/2006: SKIL Bill Sponsor, Sen. John Cornyn (TX) Attempts
a Last Minute Push for Passage of This Bill in the Senate
- Report
indicates that the Sen. Cornyn is attempting to push passage
of this bill in the Senate during the Lame Duck Session. However,
within the Republican court of the Senate, there are some Republican
Senators that oppose this bill. Besides, considering the fact
that the Lame Duck Congress may go out of session at the end
of this week, unless a miracle happens, passage of this bill
both in the House and the Senate may not materialize. Please
stay tuned for this important development of news for the employment-based
immigrant community.
- However, it will be worthwhile for the community
and businesses to send out a massive fax and emails to the members
of the House and the Senate tonight and tomorrow morning encouraging
them to show their last minute support for this important legislation.
12/07/2006: Rep. Lamar Smith (TX) to Replace Rep. Sensenbrenner
(WI) in Republican Leadership in House Judiciary Committee During
the 110th Congress
- Reportedly Republicans voted yesterday to
name Rep. Lamar Smith to replace Rep. Sensenbrenner for the Republican
leadership. The Judiciary Committee plays a key role in determining
the nation's immigration policy and legislation. Both of these
Congressmen have represented extremely conservative and restrictive
immigration positions. In this regard, this event marks a will
of the Republican leadership of the future House to continue
its conservative and restrictive policies in legislation.
12/07/2006: House Passes Conrad 30 Extension Legislation
(H.R. 4997) for Internatonal Medical Graduates in Underserved
Areas
- The House passed this important bill yesterday
to extend for two years for the IMGs. The Senate has yet to act
on this bill and it is likely that the Senate may also pass this
bill within this week before they go out of the Lame Duck session.
Please stay tuned.
12/07/2006: Senate Passed Three-Year Extension for H-1C
Visa Availability
- The H-1C visa has provided 500 temporary
worker visas with the nurses in medically underserved area. Yesterday,
the Senate passed a legislation to reauthorize the legislation
for the next three years. The House already passed this bill
on June 20, 2006. Accordingly, as soon as the President signs
this bill, it will become a law and the foreign nurses will continuously
take advantage of the temporary employment opportunities, albeit
in limited number, each year. Please stay tuned for summary of
this legislation, H.R. 1285.
12/05/2006: Waning Hope for Any Relief for Employment-Based
Immigration Legislation During Lame Duck Session
- Employment-based immigrants have been hoping
that the SKIL Act be enacted in the form of a rider to the pending
Appropriation Bills. However, report indicates that there are
allegedly thousands of such "earmarks" attempting to
be enacted as a legislation in the form of a rider to the Appropriation
bills. People may recall that the Senate refused to pass the
Appropriation bills before they got into the Thanksgiving break
exactly on the same grounds. There is a prediction that the Lame
Duck Congress may not be able to pass any additional Appropriation
bills for the stratetic reasons as well as practical reasons.
So far, the Lame Duck Congress has failed to move on any key
or top priority legislations and is labelled as "Lazy Duck,"
when it comes to the key legislations. Reportedly Democrats are
scheduled to go into a closed-door meetings but information indicates
that it is intended for the new Congress strategies rather than
the Lame Duck Congress strategies. Another sad story of S. 1932!
12/05/2006: USCIS Proposes to Operate Centralized Background
Check Systems to Reduce Backlogs Effective 01/03/2007
- The immigration and naturalization proceedings
have witnessed a substantial delays in some cases because of
the so-called background check delays. In naturalization proceedings,
such backlog has produced a substantial number of federal district
court litigation in the form of Mandamus action to force the
agency to perform the job.
- In order to process and adjudicate immigration
proceedings, USCIS conducts three different background checks
on applicants/petitioners applying for USCIS benefits: (1) A
Federal Bureau of Investigation (FBI) Fingerprint Check, (2)
a FBI Name Check, and (3) a Customs and Border Protection (CBP)
Treasury Enforcement Communication System/Interagency Border
Inspection System (TECS/IBIS) Name Check. In order to assist
in this task, USCIS established a new
system of records that will consolidate all background check
requests and results on immigration benefit applicants/petitioners.
This new system of records is called the Background Check Service
(BCS). The Background Check Service allows authorized U.S. Citizenship
and Immigration Services representatives to request background
checks and access the data stored in the Background Check Service
during the adjudication process in order to facilitate informed
decision-making. As a centralized repository containing all background
check activity, BCS will provide the status and results of background
checks required for completion of immigration eligibility petitions
and applicationdeterminations from one web-based system to geographically
dispersed field offices. This system supports USCIS's initiatives
to reduce immigration benefit/petition case backlog and provide
significant efficiencies in vetting and resolving the background
checks that are required for USCIS benefits. Prior to BCS, information
relating to the FBI Fingerprint Checks and the FBI Name Checks
were stored in the FD-258 system and FBI Query system respectively.
Information relating to the TECS/IBIS Name Checks was not stored
in any system.
- USCIS asserts that this consolidated and
centralized Background Check Services will contribute to the
reduction of backlogs. This established system of records will
be effective January 3, 2007 unless comments are received that
result in a contrary determination. For the full text of the
notice, please click here.
12/05/2006: Service Centers Processing Times of December
5, 2006
12/01/2006: CRS Thorough Report on Immigration Legislation
& Issues in the 109th Congress
- The 109th Congress will sunset in a matter
of less than one month with disgraced label of "Doing Nothing
Congress" due to the honotable institution enmeshed in the
election politics. This Congressional Report reviews major immigration
legislative bills and issues that were presented to the Congress.
It is painful to go over these bills and issues as they remind
us of the frustration the nation had to endure.
12/01/2006: Old Site of USCIS Still Working
- We do not know whether the USCIS has changed
its mind and decided to keep the old web site as an achive. However,
it is working today. We want to applaud the USCIS if it had changed
its mind and decided to have the old site accessible and available
to the publis as an archive.
12/01/2006: CRS Report of 11/30/2006 on Usage of J-1 Waiver by International Medical
Graduates (IMGs)
11/30/2006: Can You Believe It That BECs Must Eliminate
All the Backlog Cases in About 10 Months From Now?
- BECs have yet to release information on the
total number of pending backlog cases, but various reports indicate
that the BECs still process supervised recruitments for TR cases
with priority dates ranging from 2001 to early 2002. Without
doubt, they still must have a huge number of TR cases to process.
Unlike RIR cases, each TR case requires a "time consuming"
supervised recruitment process before they can adjudicate it.
We wonder what "magic" plan they have to achieve the
goal. We will have to review and analyze their FY 2007 budget
proposal which has yet to pass the Congress, but as it stands
now, there is no funding for the BECs beyond 09/30/2007, meaning
that literally all cases must be eliminated and the BECs must
shut down by the date. We hope that something will come out of
their scheduled state-BEC workforce training meetings in San
Antonio, Texas, next week. So far, it appears that the RIR backlog
cases have been moving along fairly satisfactorily. Please stay
tuned for the development of this news.
11/30/2006: Potential Blanket VisaScreen Denial by CGFNS
for Filipino Nurses Registered Post June 2006
- According to the CGFNS announcement of October 2006, the Board
of Trustees of the CGFNS International met October 22-23, 2006
and considered whether Philippine nurses who have passed the
Professional Regulation Commission's (PRC) June 2006 nursing
licensing exam are eligible for VisaScreen® Certification.
Based on the decision, the Board directed its staff and counsel
to review and assess whether the licensure process followed in
light of the challenged results of the June 2006 exam is "comparable"
with that required for nurses licensed in America, as required
by U.S. law. CGFNS will then make a final determination of whether
passers of the June 2006 exam are eligible for VisaScreen®
certification. CGFNS expects to reach a final decision on the
question of comparability in the near future. Any VisaScreen®
applications that CGFNS receives from June 2006 passers will
be accepted but deferred for a final decision until this assessment
process is complete. If the assessment concludes that the license
is not comparable, the VisaScreen® application from a June
2006 passer will be denied.
11/30/2006: OFLC PERM 9th Round FAQ Released (11/29/2006)
- This FAQ answers very important questions
on the following issues:
- Withdrawal Procedure Details
- Alien's Training and PERM
- Various Timeframes in Recruitments
- Acceptable Publications for Recruitment
11/30/2006: USCIS Announcement of New Design of Naturalization
Examination
- USCIS Director announced this morning that
the USCIS has redesigned the naturalization examination questions
and answers and released 144 questions and answers for the pilot
test which will be administered as the pilot exam beginning from
January 2007 to about 5,000 volunteer citizenship applicants
in 10 cities. For the details, please visit the following sites:
11/29/2006: Open Letter to the Members of Lame Duck Congress
- Sen. Cornyn intoduced S. 2691, SKIL Act,
on May 2, 2006 in the Judiciary Committee. The subject of this
bill originated in the so-called PACE Act. The SKIL Act received
bi-partisan support either by Senate Majority Leader Bill Frist
or Senate Minority Leader, individually, and passed the Senate
without any objections as part of the Comprehensive Immigration
Reform Act, S. 2611. Through such act, the Senate had already
expressed its strong support for this bill.
- On June 29, 2006, the House version of SKIL
bill, H.R. 5744, was introduced to the House Judiciary Committee.
This bill is a copy cat of the Senate bill. The sense of the
House on this bill did not have any chances to be articulated
in the form of the House Judiciary Committee action beccause
of the House Leaders misguided actions during the Summer 2006.
However, the so-called 19 community hearings of the House committees
indirectly expressed their position on this bill by 100% focusing
on CIR adjustment issues and not even a single hearing focusing
on the SKIL part of the CIR. This indirectly reflected the House
members' general sense on the need for this bill and no likely
objection.
- These bills are independently at this time
pending in the Judiciary Committees both in the Senate and the
House. Considering the fact that both Houses either directly
and indirectly expressed their sense of the need for this legilslation,
there is no reason why the Lame Duck Congress should not take
care of this bill. The CIR involves very complex legal and political
issues and may need a close look and cautious action in the next
Congress in 2007. However, there is absolutely no reason why
the SKIL bill should remain a hostage to the CIR debate when
both Houses have already directly or indirectly expressed their
sense on urgent need for this legislation. This bill will resolve
the critically needed H-1B adjustment and the broken employment-based
immigration system that chokes the throat of inflow of critically
needed foreign brains. We do not necessarily advocate the need
for this legislation for the aliens themselves but for the suffering"U.S."
businesses, academic communities, and other employers, whose
survial in the international competition is threatened by the
drain of brains and out-of-control international outsourcing.
The Chairman of Federal Reserve has just predicted that our economy
will gradually walk the path of slow-down hereon. We urge the
leaders of both parties to consider this bill as one of the priority
legislation when they return to the Congress next Week and pass
the legislation in one form or another without any delays. Again,
we just want to remind them that the Congress has already directly
and indirectly agreed to the need for this legislation apart
from the CIR. The Congress should not repeat the terrible mistake
which was committed in S. 1932 debate at the end of 2005. The
sense of the need for the reform of the employment-based immigration
system indeed was sufficiently expressed even in 2005 by the
passage of S. 1932 by the Senate in as early as 2005 and the
Lame Duck Congress should not repeat another mistake.
11/29/2006: GAO Reports Some Naturalization Application
Files Were Missing and USCIS Issued Some Naturalization Without
the Applicants' "A" Files
- To document the interactions of aliens with
the Department of Homeland Security's (DHS) United States Citizenship
and Immigration Services (USCIS) and other government entities,
USCIS creates alien files, or A-files. While deemed critical,
especially in making citizenship decisions, A-files are sometimes
missing during adjudications. In 2002, naturalization was granted
to an alien whose A-file was missing and who was later found
to be associated with a terrorist organization. GAO focused its
review on (1) how often USCIS adjudicates naturalization applications
without an A-file and why, (2) the effect that missing A-files
can have on the adjudication process, and (3) steps taken to
help mitigate the risk of missing A-files. To address these questions,
GAO interviewed officials and staff from USCIS and reviewed relevant
data, policies, and procedures related to processing naturalization
applications and the automated file-tracking system DHS established
to track the movement of A-files. A-files were not available
to adjudicate naturalization applications in a small percentage
of cases. GAO found that of the naturalization applications adjudicated
in 2005, about 30,000--or about 4 percent of them--may have been
adjudicated without A-files. However, this number may be less
because USCIS staff are not required to record whether an A-file
was available. USCIS officials said that a major reason A-files
were not available for naturalization application adjudications
is that staff are not using the automated file-tracking system.
USCIS officials suggested that staff might not be using the automated
file-tracking system for lack of sufficient training on how to
use the system, while local management may not be adequately
emphasizing the importance of complying with A-file tracking
policies and procedures. Missing A-files can have an impact on
the process of adjudicating naturalization applications in several
ways. For example, when an A-file is not available at the location
indicated in the automated file-tracking system, additional time
is spent trying to locate the file, which slows the adjudication
process and applicants may wait longer for USCIS to process their
application. In addition, missing A-files can hinder USCIS's
ability to uncover immigration benefit fraud and limit DHS' ability
to take enforcement actions. USCIS has steps in place to help
mitigate the risk of adjudicating a naturalization application
without an A-file. These steps include verifying the applicant's
lawful admission to the United States and conducting extra supervisory
reviews to ensure that naturalization processing procedures have
been followed.
- For the full report, click here.
11/29/2006: USCIS Suspends Premium Processing Services for
I-129 for R-1 and Q-1 Religious Worker Petitions for 6 Months
Effective 11/28/2006
- USCIS has announced that they are suspending
the Premium Processing Services for nonimmigrant religious worker
petitions for six months beginning from yesterday because of
detected potential frauds. Since the announcement took effect
yesterday, any papers which they received yesterday for premium
processing for these R-1 and Q-1 may be rejected for premium
processing. If one check was remitted including $1,000 and $190,
the filing may be rejected and returned. If two separate checks
were remitted, it is likely that the agency may continue to process
as a regular processing case. For the announcement, please click here.
11/29/2006: Visa Waiver Program, e-Passport Requirement,
and Traveler Guidance
- Since 10/26/2006, a new requirement for visa
waiver entry to the U.S. has been in effect. These travelers
may want to familiarize themselves with the requireemnt.
11/29/2006: DHS to Recommend a Legislation to Expand Visa
Waiver Programs for Countries That Comply with Added Conditions
- DHS Sectretary has announced that it will
work with the Congress to improve the Visa Waiver Program adding
certain conditions and to expand the Visa Waiver Program countries
that comply with these new conditions. The details have yet to
be released. Please stay tuned to this website for the development
of this news. For the announcement, please click here.
11/27/2006: No Action Required for Reinstatement of Erroneously
Withdrawn TR Cases on Multiple Filing Grounds
- AILA has received a message from the OFLC
that the involved employers or alien beneficiaries do not have
to take any action to reinstate the erroneously withdrawn TR
labor certification applications in BECs. Reportedly, the BECs
are working on these cases from their end.
11/27/2006: State Department Starts Issuing e-Passports
to U.S. Citizens
- To enhance border security and facilitate
travel, the Department of State began issuing Electronic Passports
(e-passports) to the public . Production has started at the Colorado
Passport Agency and will be expanded to other production facilities
over the next few months. For the details, please click here.
11/27/2006: Wallet-Size U.S. Passport Card Announcement
by the State Department
- To meet the documentary requirements of the
Western Hemisphere Travel Initiative (WHTI), the Department of
State, in consultation with the Department of Homeland Security
(DHS), announced proposed development of a card-format passport
for international travel by U.S. citizens through land and sea
ports of entry between the United States, Canada, Mexico, the
Caribbean, and Bermuda. The limited-use passport card will be
adjudicated to the same standards as a traditional passport book.
The rule published today proposes a wallet-sized card that would
cost $10 for children and $20 for adults, plus a $25 execution
fee. For the announcement, please click here.
11/24/2006: USCIS to Remove the Current Rule Requiring Response
to RFE & NOID within "Fixed" Time
- Today,the USCIS requested the OMB to approve
its final rule that proposes to amend Department of Homeland
Security regulations by removing the absolute requirement for,
and the fixed regulatory time limitations on responses to, a
U.S. Citizenship and Immigration Services issued Request for
Evidence (RFE) or Notice of Intent to Deny (NOID). These changes
will enable USCIS to set an appropriate deadline for responding
to an RFE or NOID, specific to the type of case, benefit category,
or classification, and thus improve the process of adjudication
of applications and petitions by reducing the time a case is
held awaiting evidence, and by reducing average case processing
time. This rule will result in improved efficiency in the USCIS
adjudication process.
- Once this rule is enacted and goes into effect,
there will be many RFEs that require responses in much short
time than those which current rule provides. The current rule
gives 12 weeks to respond to the RFE. Please stay stuned to this
website for this final rule and read carefully the RFE to file
response "timely."
11/24/2006: Final Rule for New Document Requirement for
Air Travel in Western Hemisphere
- This rule will go into effect on 01/23/2007. For the full
text, please click here.
11/22/2006: The People's Mandates and Messages from Midterm
Elections and Need for New Leaders to Collect Themselves and Act
Quickly
- The 2006 Midterm Elections have sent clear
messages to the leaders. First, the leaders of the new majority
party should remember that the people did not necessarily vote
for them. People rather voted against the GOP and Democrats turned
out to be unexpected beneficiary of the peoples' revolt. It was
not a vote of ideological difference and probably not even the
issue of Iraq war, but a revolt against arrogance and deaf-ears
of the members of the GOP positioning themselves as the "masters"
rather than "servants," with accompanying corruption,
moral decay, do-nothing Congress doing nothing but playing politics
for self-interest rather than the welfare of the people.
- We see nowadays in the electronic and paper
media the leaders of Democrats celebrating in a party mood lifting
and waiving arms with a big smile. We submit that the party should
be over and they should focus on the messages of the people in
the Midterm election. After all, they were also part of the out-of-control
system and do-nothing Congress. There are so many areas that
have been sufferring because of the deaf ears, arrogance, corruption,
and do-nothing system that it should not be difficult for them
to figure out and understand the mandates from the people.
- Broken immigration sytem is just a tip of
iceburg that should be fixed. According to the survey, the public
demands the elected officials to do the job. International competion
of the nation is seriously suffering in businesses, research,
technology, economy, or for that matter whole areas of the lives
of the people of the nation. However, we do not see any clear
agenda presented by the new majority party leaders how and when
they are going to fix it. In the election, people asked loudly
who brought about the broken borders. It was ludicrous for them
to pretend that it was caused by all others but themselves. They
pretended that they were trying to fix other's guilt by enacting
save-border legislations. People were too smart to be fooled
around by such tricks. They underestimated the people's inelligence.
- We submit that the party should be over because
if the new majority party leaders did not get the clear messages
from the Midterms elections, they should and will face "judgment"
of the people themselvesin the coming 2008 national election.
We urge the new leaders to turn the Congress around from the
"do-nothing" Congress to "working" Congress
as soon as possible. No more cute smiles and no more waiving
hands. Please work out the agenda to meet the mandates and messages
of the people and put into actions as quickly as possible.
11/22/2006: New Document Requirement for "Air"
Travel in Western Hemisphere Goes Into Effect in Two Phases Beginning
from January 2007
- Those nationals in the Western Hemisphere
will need certain travel documents to travel to and from a country
in the Western Hemisphere beginning from January 2007. This includes
U.S. citizens who travel in one of the countries in the Western
Hemisphere.
- We will report the federal register release
of this rule on 11/24/2006.
11/22/2006: USCIS Local Offices Realignment Effective Today
- As we reported yesterday, the USCIS released
a federal register notice today to realign regional, disrict,
and field offices. This realignment took effect today. Under
the realignment, current districts in proximity is grouped together
into a district and each of the current local disctrict office
is renamed as a "field office." There are thus changes
in the line of command. Each field office will have a field office
director who will be under the command of a District Director
who commands several field office directors in the District.
- Consumer will not notice any visible changes
in daily contact with the local USCIS offices, but one of the
benefits this change will bring about is the flexibility in scheduling
interviews, fingerprinting, and other services by expanding the
jurisdiction for such services from the past one-state geographical
area to a group of states in geographical proximity. Additional
benefit will be enhanced uniforminity and consistency of practice
and policy of the local offices from over 50 local district offices
to 26 district offices. Under the new alignment, the District
Offices are reduced to 26, which is one half of the previous
numbers. Under the alignment, the St. Paul field office (where
this reporter is located) director will be placed under the command
of the District Director who whill be located in Kansas City.
- This web site welcomes the new alignment.
For the federal register notice, please click here.
11/21/2006: USCIS Expansion of Electronic Filing Program
Experiences Delays
- Beginning last year, the USCIS has pushed
forward the electronic filing system for most of the petitions
and applications including development of database for employers,
attorneys, and aliens. However, the USCIS sources indicate that
this program is experiencing delays and it is not likely that
the immigrants will see the change in the near future. Accordingly,
the current mode of filing and manual processing and adjudication
will continue.
11/21/2006: USCIS to Publish in Federal Register Tomorrow
Organizational Structure Changes for Field Operations
- It has already released the proposed changes
in field offices structure and operations. Probably the federal
register notice may cover the same.
- Phase III Bi-Specialization dividing the
nation into two territorial jurisdictions, one jurisdiction covering
the current jurisdiction of California Service Center and Nebraska
Service Centrer and the other jurisdiction covering the current
jursdiction of Vermont Service Center and Texas Service Center
has yet to be announced. In the first jurisdiction, nonimmigrant
cases will be filed, processed, and adjudicated by the California
Service Center and immigrant cases including I-140 and I-485
cases will be filed, processed, and adjudicated by the Nebraska
Service Center. In the second jurisdiction, the nonimmigrant
cases will be filed, processed, and adjudicated by the Vermont
Service Center and the immigrant cases will be filed, processed
and adjudicated by the Texas Service Center. Caveat: The Phase
III program has yet to be announced and implemented. It does
not appear that tomorrow's structure change notice will cover
Phase III Bi-Specialization Program. Please stay tuned to this
web site for the tomorrow's federal register release.
11/21/2006: Pelosi House Floor Agenda for January 2007
- Report indicates
that Speaker-designate Nancy Pelosi announced today that the
House of Representatives will open the first session of the 110th
Congress on Jan. 4, 2007 and will remain in session for several
weeks in January to take up crucial legislation that will address
the urgent priorities of the American people. Included in House
Democrats' first 100 legislative hours are:
- -- Draining the swamp -- break the link between
lobbyists and legislation and commit to pay-as-you-go budgeting,
no new deficit spending
- -- Making America more secure -- implement
the independent 9/11 Commission recommendations
- -- Giving Americans a raise -- increase the
minimum wage
- -- Making college more affordable -- cut
the interest rate in half on federally subsidized student loans
- -- Making health care more affordable --
negotiate for lower prescription drug prices
- -- Ending subsidies for Big Oil
- -- Giving hope to families with devastating
diseases -- allow stem cell research
- Immigration legislation is likely to remain
a back-burner.
11/20/2006: Service Centers Processing Times of November
17, 2006
11/20/2006: USCIS Local District Office Processing Times
of November 17, 2006
11/19/2006: Fate of Appropriation Bills During Lame Duck
Congress
- Prospects for passage of remaining spending
bills in lame-duck session reportedly grow dim . This week, Senate GOP
conservatives blocked action on several spending bills, arguing
that they could become vehicles for an earmark-laden omnibus
or "minibus." Adieu the Lame Duck!
- This may practically mean that any piecemeal
legislation of immigration bills is losing ground for any chances,
and the immigration legislation may return to the CIR debate
under the Democrat-controlled 110th Congress. Immigrants may
as well be prepared to deal with the current immigrant visa backlogs
for a while. The State Department has yet to release the prediction
for visa number movement during the rest of FY 2007, but considering
the fact that a huge traffic of EB-2 cases have been processed
during the last one year, the progress of EB-2 numbers can slow
down as time goes on. We really hope that the Congress passes
the CIR legisation as early as possible in coming year. Unfortunately,
anti-immigration forces have already sharpened their knives to
bash illegal immigrants and through such tactics to delay or
block success of any immigration legislations (not just illegal
immigration) along the way. Immigrant community should watch
out against such forces and never join them in one way or another
bashing the illegal immigrants, resulting in division of the
immigrant community and their own suicide. They are enticing
part of employment-based immigration aspirants with a slogan
that they support legal immigration but they do not support illegal
immigration. When the reality will be that piecemeal immigration
legislations may continuously face strong challenge and both
legal and illegal immigration issues may be handled in a packet,
the tactics is practically to kill any chances for enactment
of employment-based immigration bills as well. People may recall
how S.1932 was killed. (Legal/Employment Based Immigration Bill
which the Senate passed at the end of 2005 but killed at the
House.) The anti-immigration legislators in the House at the
time engaged in a media campaign and immigrant community with
the argument that the whole immigration issues should be handled
in a packet. What an irony that the similar group is now arguing
that the employment-based immigration bills should be enacted
in a piecemeal fashion, when they know that the 110th Congress
may act exactly what they had avocated in S. 1932. What a flip
-flop! Watch out. Xenophoebic segment of the population makes
no distinction between legal and illegal immigrants. They are
not color-blind.
11/18/2006: Unknown Fate of LC Substitution Elimination
Final Rule Making Agenda
- The stakeholder agencies of USDOL and USCIS
have remained very quite with reference to the finalization of
this rule, making people growingly nervous. The proposed rule
included more than elimination of the substitution. It proposed
to limit the validity of the certified labor certification applications
only for 45 days and to sanction practitioners for certain acts
which have been considered very normal. The final rule making
process normally takes 30 days or longer after they submit it
to the OMB for review, but the time can be flexible depending
on the special circumstances. Release of the final rule after
a short period of review by OMB will turn out to be a dropping
of a huge bombshell as people are currently not well prepared
for such a surprise. One thing clear is that unless the final
rule is presented before early April 2007, the rule-making process
can end. We only have about four months within which we will
definitely learn the fate of this rule making process. However,
prudent people may want to acclerate filing and obtaining substitution
I-140 petitions before a bombshell is dropped from the sky out
of the blue. Remember that under the proposed rule, only "substitution
approved" LC can survive from the massacre of substitutions.
11/18/2006: Approaching Deadline for Immigration Lottery
- 12/03/2006 (Sunday)
- Currently immigrant visa quota are clogged
so bad almost across the board that the immigration lottery is
considered one of the channels to bypass the clogged quota system
for certain nationals who are eligible for the lottery. The two-month
period of lottery has been flying very fast, approaching the
deadline soon. Next week will mark a big Thanksgiving holiday
week and people can neglect the approaching lottery deadline.
Please do not fail to register as soon as possible.
11/18/2006: Senate Adjourned and To Return on 12/04/2006
- Immigration community hoped the Congress
to take one of the two actions before the end of the year. One
was for the House to agree to the Senate-House Conference Committee
on CIR which the Senate passed. People know that the House did
not agree to the Conference and instead conducted 19 community
hearings as a tactic to drag the process. After the election,
there was a report that the House might now agree to the Conference
Committee, but as time passes, the hope for the CIR Conference
appears to be slowly fading away. The second hope the community
had was to pass some kind of employment-based immigration bills
including H-1B or SKIL bill. Since there remains a very limited
time before the 109th Congress would close down, people hoped
that one or both of these bills be attached to one of the pending
federal department bills. We have yet to see whether the latter
event would materialize, but again this hope is also just blinking
on and off.
11/17/2006: Arrest of 33 "Religious Worker" Visa
Holders on Illegal Immigrant Sweep
- Report indicates
that 33 people were arrested for the religious visa holders who
performed jobs which have nothing to do with religion such as
cab driver, etc. Certainly not a good news for the employment-based
immigrant community, particularly this special juncture.
11/17/2006: Golden Opportunity to Contact and Work with
Senators and Representatives During Next 17 Days
- They will return to their home town for the
holiday breaks. Usually, they themselves advance contact with
the constituents. This is the best time for the businesses, organizations,
academic institution representatives, and other stake-holders
to actively contact and persuade them for the needs of an urgent
action for the broken employment-based immigration system and
potential threat of out-of-control outsourcing of American businesses
and job opportunities. We do not encourage the immigrants to
be too visible or vocal in the endeavor as it can backfire and
bring about the negative consequences of inciting emotional reactions
by the organized anti-immigration groups, including labor unions,
and conservative members of the community.
11/17/2006: OFLC Response to Loss in LC Technical Error
Denial Lawsuit
- OFLC has announced that it has improved the
H-1B LCA (ETA 9035E) and the PERM (ETA 9089) online filing system.
Under the improved system, the computer will alert the filers
when it detects likely technical errors before the filers can
move to the next page. Additionally, the filers are given plenty
of opportunity to go back and correct the errors before submitting
applications online.
- We welcome the OFLC move which will help
tremendously the filers to file it correctly. When the PERM online
filing system was launched, understandably the filers made all
sorts of "stupid(?)" technical errors. Since the system
did not allow to go back and correct the technical errors, the
only recourse for the remedy was filing Motion to Reconsider.
Unfortunately, such MTR was denied. Then the lawyers brought
lawsuits before BALCA and won big on the technical error issues.
It appears that the technial improvement of the online filing
systems must have been motivated by the litigations, among other
reasons. The event eventually has made everyone a winner including
lawyers, employers, alien beneficiaries, the OFLC, and most importantly,
taxpayers!! Hats-off to the involved lawyers and the leaders
of the OFLC!!
- The downside of this improvement is no good
cause for litigation on the technical error grounds. From here
on, the filers should watch very carefully all the signals of
alerts and warning for the technical errors and must meticulously
follow the OFLC instructions on the technical enhancement of
the system against the technical errors. Please visit OFLC site
to read the details.
11/17/2006: SHOCKS! The House Will Stay Adjourned From 11/20/06
(Monday) thru 12/04/2006!!
- It is shocking that the House will go into
a dormant stage beginning from November 20, next Monday, through
December 04, 2006, Monday, and there will be no floor session
until December 5, 2006, Tuesday. We thought they would spend
busy days next two or three weeks.
11/16/2006: USCIS Internal Adjudication Manual for Employment-Based
Immigration Petitions (I-140, I-360, ETC)
- The immigrant petitions are increasingly
scrutinized and under the close microscope in the adjudication
of the petitions. This manual gives the USCIS Internal Guidelines
as to "What Should Look For" in adjudication of these
petitions. This Manual will be very helpful in developing and
preparing the immigrant petitions, particularly I-140 petitions.
Read on.
11/16/2006: USCIS Internal Memorandum on Timelines/Timeframes for Processing
Interviews, RFE, NOID, ETC
- This memorandum sets forth the internal guidelines
for the field offices concerning the timelines for processing
various matters. It gives the immigration stakeholders and immigrants
some perspectives in managing their immigration petitions or
applications. For instance, RFE cannot be extended, but NOID
can be extended if they receive the request for extention. Read
on.
11/16/2006: Lame Duck Congress Further Update
- Yesterday, the House passed the Continuing
Resolution to fund the federal government until December 8, 2006,
implying that the House is determined to pass all the pending
appropriation bills by the date. For the next three weeks, the
Lame Duck Congress will be very busy to pass the top priority
legislations.
- Business community is picking up a steam
to push H-1B and Employment-based legislation. Please read the news report.
11/16/2006: USCIS' Another Move in Preparation of Phase
III Bi-Specialization Program
- As we reported earlier, Phase I and Phase
II of the Bi-Specialization Program of the USCIS created a huge
problem of shipping around of mountains of files because of the
program's failure to consider the potential problems that are
associated with the separation of offices that receive the petitions
and applications and that process and adjudicate the petitions
and applications. In order to rectify this deficiency in the
existing Bi-Specialization Program, the USCIS has worked out
new structure of Bi-Specialization Program and is scheduled to
launch sooner or later. Under the Phase III Program, the filing
and adjudication will be undertaken by the same office in the
same location such that the files do not have to be shipped around
after receiving the petitions and applications. All the nonimmigrant
cases in Estern Geographic half of the nation will be filed and
adjucated by the Vermont Service Center and the same for the
Western half of the nation will be filed and adjudicated by the
California Service Center. When it comes to the "immigrant
proceedings" such as I-140 and I-485, etc. will be filed
with either the Nebraska Service or Texas Service Center depending
on which part (East or West) of the nation one is located, and
the same office will adjudicate the cases such that again the
files do not have to be shipped around after receiving the petitions
and applications.
- In preparation for the launch of Phase III
program, the USCIS has already been transferring various types
of case files among the Service Centers. The latest is the transfer of K-3 nonimmigrant files from National
Benefits Center to either CSC or VSC depending on the location
of the filers (East or West). At this time, such transfer of
files remains an "internal" business and the filers
must still file with the Service Center that has jurisdiction
under the current Phase II Program. People should not make mistake
about that. Once the Phase III is launched, people will experience
less confusion about the offices they will have to contact and
work with for their cases. This is just a transitional period,
during which unfortunately the files will still have to be shipped
around. We hope that this transition period ends in a short period
of time.
11/16/2006: USCIS Organization Chart
- People often heard abour the USCIS HQ without
any idea of the organization. Most of visitors to this site are
employment-based immigrants or their employers or stake-holder
agencies and the chart will show that the offices that make important
HQ decisions in the operation of field offices fall under Domestic
Operation Directorate in the chart. The Service Centers operation
is currently headed by a veteran immigration official, Paul Novak,
who is very experienced and kowledgeable about the Service Center
operations. We thought our visitors may be interested in this
chart.
11/16/2006: Update of Lame Duck Congress Agenda
11/15/2006: Update of Reinstatement of BEC Cases Withdrawn
by Computer Glitch
- For this posting, please refer to our report
on 11/10/2006. AILA has reported that the BECs will take time
to reinstate these cases and the job may not be complete until
11/30/2006. Accordingly, until December 1, 2006, online BEC tracking
system will not show any changes. BECs are urging the involved
employers and the alien beneficiaries wait until December 1,
2006 to visit and check the status of reinstatement, and also
urge them not to visit the status site as the huge number of
clicks probably by these people currently creates the traffic
problem for the BECs computer system. Please keep your patience.
- The following is the official announcement
in the DOL web site:
- November 15, 2006, Backlog Cases Inadvertently
Withdrawn as Re-Files
- It has come to the attention of the Office
of Foreign Labor Certification (OFLC) that due to a technical
issue, a number of cases were inadvertently identified as pending
PERM re-file applications and were withdrawn from the backlog.
OFLC is working to rectify this situation immediately by identifying
the affected cases, and reinstating them back to the appropriate
processing status in proper order. This effort will be completed
by November 30, 2006.
- Although affected employers and their attorneys
will NOT be receiving an additional notice of reinstatement,
they may verify their case has been reinstated using the Public
Disclosure System (PDS) starting December 1st. Since verification
will be available online, employers and attorneys are requested
not to contact the Backlog Elimination Centers regarding status.
- Please cooperate with the DOL.
11/14/2006: 900 Businesses Wrote a Letter to Congress to
Improve H-1B and EB Number Problems
- AILA has reported that approximately 900
businesses jointly wrote a letter to the Congress to do something
to relieve the businesses from suffering from the ailing H-1B
and EB immigration clog problem. We hope the Congress and the
President to listen to their voices and to act on the broken
employment-based immigration system. We hope the AILA to continue
its initiative to lead the business community to actively participate
in the employment-based immigration issues.
11/14/2006: Salute to USCIS for Improvement in Telephone
Inquiries Answered by the Live Service Center Officials
- We wonder whether people have noticed that
if one calls 800 number and request a contact with a live official,
the phone goes to the relevant Service Center and it is answered
by the officials of the Service Centers live. We found this change,
if any, a tremendous improvement in the USCIS service for the
customers. It appears that for this service, one needs the Service
Center file numbers. The USCIS deserves a big applause. Thank
you, thank you, and THANK YOU!
11/14/2006: December 2006 Visa Bulletin
- Family cases made a modest progress in almost
all the categories.
- Employment based categories show a disappointing
stagnation:
- EB-1=C
- EB-2:
- India: moved only one week. China: One week
(Oops!). Other Countries: Remain Current
- EB-3:
- India: no move. China=07/01/2002. Other Countries=07/01/2002
- Other Workers: 05/01/2001 all countries
- Schedule A: Unavailable. Schedule A report
will be removed from the next Visa Bulletin. Schedule A should
look at EB-3 visa numbers from here on.
11/14/2006: Premium Processing of I-140 for Substituting
Aliens with Original LC
- Before the USCIS launched the new website,
there was a premium processing guidance in the old website that
clearly stated that the premium processing would be available
if one submittted the original LC. When the new web site was
launched, this part of the guidance was removed. Now it is back!
11/14/2006: House Floor Agenda Update
- House is scheduled to act on Continuing Resolution
tomorrow. As we reported earlier, current federal funding expires
on Friday, November 17, 2006. For the federal government to stay
open, the Congress must pass another Continuing Resolution before
Friday. Otherwise, federal departments other than Defense Department
must close the offices.
- House will have no votes Thursday and Friday
after passing the Continuing Resolution on Wednesday. No appropriation
bills are tabled for action within this week. Unlike other legislative
bills, the Constitution of the United States grants power to
initiate a legislation over the House when it comes budget and
funding. It is anticipated that the appropriation bills may be
tabled and actively acted upon from next week unless the Democrats
want to have a handle on the budget matter after the next Congress
opens in January 2007. It is thus possible that this Congress
(Lame Duck) may quickly wrap up a few top priority issues which
both parties more or less have agreed and pull down the cutain
of 109th Congress earlier than expected. Should this happen,
immigration matters will be turned over to the 110th Congress
next year. When 109th Congress closes, all the pending legislative
bills will also be dead and the members of the 110th Congress
will reintroduce most of these bills. It is likely to happen
that CIR or SKIL Act may be taken care of early next year as
both parties agree a need for action on immigration reform. Please
stay tuned to this web site for the development of immigration
legislation.
11/10/2006: November 2006 USCIS Today Newsletter
- Not as informative as previous two months,
but it lists some of the recent USCIS announcement and release
links during the last two or three months.
11/10/2006: USCIS Realignment of Local District Offices
Into 26 Districts Effective November 2006
- Effective this month, the USCIS has realigned
the field offices. From hereon, they will use the District Number
rather than the City Name to refer to the district offices. People
may want to review the list of 26 districts and familialize themselves
with the new Distrct designation for their areas of jurisdiction.
For the realignment fact sheet, please click here.
11/10/2006: Update of Potential Lameduck Congress Agenda
- Report indicates that the Lame Duck may pass
through the Thanksgiving. However, Senate Minority Leader Harry
Reid reported spoke with Majority Leader Bill First, Majority
Whip Mitch McConnell, and President Bursh on Wednesday addressing
Democrats desire to accomplish 5 (five) legislative items during
the lame duck as follows:
- Continuing Resolution
- Bioterror Legislation
- Off-Shore Drill Legislation
- Agreement on Nuclear Weapons Proliferation
- Popular Tax Cuts Package
- Should the Democrats stick to these agenda,
the immigration legislation will have to be pushed over to next
yeer. For the report, please click here.
11/10/2006: Update of Multiple Labor Certification Filings
- We reported a few days ago that there had
been incidents of withdrawal of BEC TR applications when the
employer filed a PERM application for the same employee and even
if the employer did not check in the PERM application that the
employer wanted to retain the priority date of another pending
TR application at the BEC.
- We have a good news. AILA has just reported
that the OFLC confirmed that it had happened not because of the
policy but because of the computer glitch!! The OFLC intends
to reinstate these withdrawal cases.
- Thanks to AILA for the job well done.
11/10/2006: BIA Published Summary of Each of 25 Precedent Cases Handed
Down in FY 2006
- According to the Board of Immigration Appeals,
the appellate tribunal handed down total of 25 precedent decisions
in FY 2006. The Board has published the summary of each of these
cases. This summary will give a handy and valuable reference
to the BIA decisions to those practitioners who do not practice
before the Board or Immigration Courts.
11/09/2006: Priorities for Lameduck Congress
- Report indicates that overhauling immigration
may be in the list of the Democrats priority and President Bush
has also expressed his readiness and willingness to go along
with the Democrats on the legislation. Immediately after the
result of the election became obvious, apparently the President
called into the White House the leaders of GOP to discuss the
priorities for the Lameduck session.
- Taking such discussion and the President's
meeting with Rep. Pelosi, future Speaker of the House and exhange
views on priorities for the two parties as a positive signial,
the immigration stakeholders started igniting some hope, albeit
uncertain, for potential action by the Congress and are cautiously
preparing for their move in support of the immigration legislation.
For the report on meeting between the President Bush and Rep.
Pelosi, please click here.
11/09/2006: USCIS to Close Public's Access to the OLD
USCIS Site on November 30, 2006!!
- USCIS launched a new web site on November
1, 2006. Unfortunately the new site failed to give public access
to all the data in the old web site. The immigrant community
was able to obtain access to the old site of the USCIS afterwards,
which has given a tremendous relief to the public. Now, USCIS
has just announced that they will remove the internet access
to their old web site at the end of November 2006. People are
alerted to this unusual move of the USCIS. People should find
a way to save the database of the old USCIS website before the
end of November!
11/09/2006: USCIS Proposed Rule on Renewal of Green Card
Procedure and Requirement
- Currently there is a population of lawful
permanent residents who possess cards that do not have expiration
dates. USCIS rule propose to terminate the validity of Form I-551
that do not have expiration dates. This rule establishes a 120-day
period for aliens with Forms I-551 that do not bear expiration
dates to apply for replacement cards. This rule also amends the
regulations to remove references to outdated application procedures
for the I-551. The application process required by this rule
will enable USCIS to issue more secure Forms I-551 to affected
aliens, update cardholder information, conduct background checks,
and electronically store applicants' biometric information that
can be used for biometric comparison and authentication purposes
consistent with the goals of the Enhanced Border Security and
Visa Entry Reform Act of 2002. In addition, this rule establishes
the mechanism by which USCIS will notify the public of the termination
date for forms I-551 that do not have expiration dates. This
rule also amends the regulations to add two documents to the
list of forms that constitute evidence of registration: Receipt
for the form I-90, Application to Replace Permanent Resident
Card, and Receipt for pending Form N-400, Application for Naturalization.
Finally, this rule amends the regulations to correct the title
and edition date of form I-551 and form I-90.
- This proposed rule has been under review
by the OMB since November 3, 2006. We will report the result
as soon as the review is completed.
11/08/2006: AILA to Push EB and H-1B Bills During Lameduck
Session
- The details of agenda during the Lameduck
session has yet to be released. However, should appropriations
be taken care of during the Lameduck Congress, the immigrant
community may have some chance to work with the Congress to pass
some EB and H-1B bills. AILA has disclosed its intent to push
it during the session.
- It is good time for the members of the "Do-Nothing"
Congress to show "Working Congress" by working hard
during the Lameduck session. Senator Bill Frist and Mr. Speaker
Hasterd, you heard the loud voice of the people. We expect you
to show some level of integrity working for the people,and the
nation, not just for the party and politics, before you go away.
11/08/2006: Premium Processing Available for EB-1A (Extraordinary
Worker) Effective 11/13/2006
- USCIS has announced that it will start accepting
I-907 Premium Processing Service application for EB-1A I-140
petition (Extraordinary Worker) beginning from November 13, 2006.
Read the announcement.
11/07/2006: Multiple Labor Certification Filing Alert
- There are growing number of reports that
the BEC was sending out a "withdrawal" notice to the
employer if the same employer filed a PERM application for the
same job and the same alien "if" prior old priority
date labor certification is pending at the BEC for the same employer
for the same employee and for the same job. This withdrawal notice
was sent out even if the employer did not request "retention
of priority date of previous application" in the PERM application.
Should this happen, the consequences will be so fatal and devastating
if the BEC case has a very old priority date, the readers are
cautioned to take this posting as an important alert. Reportedly
this practice of the BECs loomed up only very lately.
- If the people read the FAQ of OFLC, this
question was left opened and unanswered. They were supposed to
make a policy decision on this issue, but without official announcement
of policy change, apparently the BEC has adopted it as a new
practice. Until this policy is resolved and clarified, people
may hesitate to file a PERM application for the same job if a
valuable old case is still pending at the BECs. Sooner or later,
OFDC should come forward and clarify on the issue, and until
that time. this reporter calls extra caution to the people.
11/06/2006: New U.S. Citizen Immigrants, Please Vote Tomorrow
Morning in This Critical Midterm Election and Let the Political
Process Hear the Voices of Immigrants!!
11/06/2006: Increased Number of Graduate Schools in the
U.S. Accept Non-European Foreign Students with 3-Year Degree
- Report
indicates that 44 percent of U.S. graduate schools now say they
are willing to consider students from non-European countries
who hold three-year degrees. Three-year degrees are common in
India, which sends more graduate students to the United States
than any other country, and in other countries influenced by
the British model of education. In time more universal
acceptance of students with these degrees into American graduate
studies may occur, given the rising proportion of schools
that have discussed or adopted policies regarding students with
three-year bachelors degrees, the CGS report authors conclude.
- This trend goes against the USCIS field office
practice and AAO which do not recognize such degree to qualify
for a U.S. Bachelor's degree equivalent. It is time for the USCIS
headquarter leaders to relook at the current practice in field
offices considering this important report.
- Relating to this report, there is another
good news concerning the Grace Korean Methodist Church
decision in the State of Oregon that disagreed with the USCIS
restrictive practice on the Bachelor's equivalent issue. The
USCIS has refused to give a due deference to this federal district
court decision and refused to apply in other cases outside the
district court jurisdiction. However, the new relates that the
court sysem has decided to publish it in the official federal
court decision reporter (437 F. Supp. 2d 1174 (D. Ore. 2005)
making the decision gain additional weight as the precedent decision.
We urge the USCIS leaders to relook at its current policy and
practice on this issue.
11/06/2006: Nonimmigrant and Immigrant Religious Worker
Law Sunset and Extension to October 1, 2008
- USCIS is in the process of enacting a regulation
to propose application of extension of sunset laws on the special
immigrant to the nonimmigrant R-1 areas. On June 8, 1995, at
60 FR 29751, the Department of Justice published a final rule
that provided that all persons, other than ministers immigrating
to the United States as religious workers must immigrate or adjust
status to permanent residence before October 1, 1997. By statute,
this special immigrant category for religious workers expired
but was subsequently extended by Congress and is now expiring
October 1, 2008. DHS is promulgating this regulation to implement
the extension of this category and clarify certain employment
experience requirements for those persons affected by this provision
of immigration regulations. In order to maintain consistency
in the adjudication of nonimmigrant and special immigrant religious
worker classifications, the nonimmigrant religious workers classification
will, where appropriate, reflect the special immigration religious
worker changes.
- This rule is expected to be published with
60-day comment period in the near future. Please stay tuned to
this website for this news.
11/06/2006: PPS for I-140 with Original Labor Certification
Application
- We have posted more than one time that the
USCIS changed posting of the information on ineligible Premium
Processing applications. The change included that when the employer
submitted the "original" labor certification, such
I-140 would be eligible for the PPS. Since then, we have been
receiving a number of reports from the visitors that the Service
Centers were rejecting the PPS and returning such PPS I-140 petition.
- Due to the serious nature of the inconsistency
between the USCIS website information and field offices practice,
we posted another message urging the USCIS to straighten out
the inconsistency and confusion. We now have a source of information
that the USCIS HQ has just started looking into the problem and
would act on it one way or another. Please stay tuned to this
website for the development of this important news.
11/03/2006: New USCIS Site and Its Links in Other Government
Sites
- The new USCIS website has created inconvenience
not only to the private sectors but also other government sites
that installed the link to the USCIS website. All of these links
are not working. One wonders how much the USCIS website is currently
affected in terms of the number of hits each day after November
1, 2006.
- It is still do-able for the USCIS technical
team to reconfigure the new website such that old links will
still work. Indeed, some of the previous pages are still working.
We urge the USCIS web master and technical team to correct the
problems this new web site has created.
11/03/2006: Pending Appropriation Bills and Lameduck Session
of Congress
- The Congress is in recess until November
12, 2006. The Congress has to return to the session on November
13, 2006 because of the appropriation bills. Before the Congress
went into recess for election campaign, the Congress was able
to pass and enact only one appropriation bill, Defense Appropriation
bill. In order for other federal departments to stay opened,
the Congress passed Continuing Resolution to fund the federal
departments through November 17, 2006. Accordingly, the Congress
will return on November 13, 2006.
- Since there is no chance that all the appropriation
bills be taken care of in two or three days, the Congress is
expected to pass another Continuing Resolution to extend funding
for the government offices operation. There are three possibilities.
One is to pass the Continuing Resolution through January 2007
and the Congress goes into recess for the rest of the year, which
is least likely to happen. Second possibility is to introduce
Omnibus Appropriation bill to pass all the appropriation bills
in a package. Should this happen, the Congress will have to be
in session for an extended period of time before going into the
recess. Usually a number of rider bills are introduced in the
process and some unrelated bills can be passed as attachment
to the Omnibus bill. Third chance is that the Congress will try
to pass each appropriation bill separately as best as they can
and turn the rest of the unsuccessful appropriation bills to
the next Congress along with the Continuing Resolution through
January 2007. For each separate appropriation bill, rider bills
can also be introduced, but considering the tight schedule of
the Lameduck Session, the chance of success of such rider bills
is likely slim.
- For the state of the pending appropriation
bills, please click here.
11/03/2006: Travel Document Requirement for Travel in Western
Hemisphere
- DHS/CBP released this proposal in the form
of "proposed" rule on September 1, 2005. After delays
in finalization, the CBP is expected to release the final rule
in the near future, as soon as it is cleared by the OMB. The
final version of the rule was sent to the OMB today.
- The final rule will require U.S. citizens
who previously were exempt from presenting a passport or other
authorized travel document to present such documents that denote
identity and citizenship when entering the United States. The
final rule will also require that United States citizens and
nonimmigrant aliens from Canada, Bermuda and Mexico entering
the United States at air and sea ports-of-entry from Western
Hemisphere countries would be required to present a valid passport
or other authorized travel document that denotes identity and
citizenship in circumstances where travel was previously permitted
without such a document. Travel industry should be mindful of
the upcoming change in the Western Hemishphere. Please stay tuned
to this website for the final rule release.
11/02/2006: Pending System Changes, Foreign Labor Certification
Website is Down!
- Does November 1 mean something? The changes
in the USCIS website on November 1 have given people enough nightmares
for their access to the agency information. Now DOL/ETA Foreign
Labor Certification website is undergoing changes, and according
to the announcement, the URL will change. Pending the change,
the website is down. However, the PERM and H-1B LCA filing sites
are still up and running. Unreal!!
11/02/2006: USCIS New Website and Disruption of Links to
the USCIS Site
- As people know it, the USCIS launched a new
web site. This change practically destroyed most of our links
to the USCIS site in our home page. This change currently creates
a substantial confusion and inconvenience to the immigration
practitioners as well as immigration stake-holders because of
their links to the USCIS web site. We will work on the new links,
but it will take time. We ask your patience while we go through
the painful process. It is unbelievable that a government site
that serves millions of people all over the world (135,000 daily)
has changed its web site without giving sufficient consideration
over the potential impact on the stakeholders and immigrant community.
- A few important links are as follows:
11/01/2006: Presidential Determination of 11/01/2006 for
FY 2007 Refugee Admission Numbers
- Total: 70,000
- Africa: 22,000
- East Asia: 11,000
- Europe & Central Asia: 6,500
- Latin America/Cariggean: 5,000
- Near East/South Asia: 5,500
- Unallocated: 20,000
11/01/2006: USCIS Changed Website Effective Today
- Effective today, USCIS changed the website.
Please visit and familialize with the changes new USCIS site.
11/01/2006: October 30 USCIS Service Centers Processing
Times
11/01/2006: Lameduck Congress Session Beginning 11/13/2006
and EB Bills Chances
- The Congress is likely to return for the
lameduck session on November 13, 2006. Since it will last less
than one month, the chances are that they may focus on the appropriation
bills. If time runs out, the Congress may take care of all the
appropriation bills under the umbrella of another omnibus appropriation
legislative bill.
- There is either slim or no chance that the
employment-based immigration bills including SKIL Act or H-1B
legislation will be passed as separate bills because of the limited
time. Consequently, the only chances these bills pass during
the lameduck session is to attach as a rider to Homeland Security
Appropriaion bill or Omnibus Appropriation bill (if it is introduced).
The employment-based immigration community should immediately
start contacting and working with their employers to push these
bills as riders to the appropriation bills. Time is of essence.
Direct lobbying by the immigrants or aliens is not as effective
as the lobbying through the businesses and business lobbying
organizations.
- Remember that the House members and the Senators
whom the employers should immediately contact are not the newly
elected members in November election but the current members
of the Congress. Please immediately start contacting your employers,
no matter small or large.
10/31/2006: Server for ohlaw@immigration-law.com Down
- Our office e-mail server is down today. We
apologize for the inconvenience which may cause to our visitors.
For emergencies, please use our private email address of matthewoh.attorney@gmail.com.
10/30/2006: Do Not Staple Documents When the Documents Are
Forwarded to the Lawyer's Offices and the Government Agencies
- There is one common misunderstanding that
people are helping their lawyers and government agencies by neatly
stapling each set of document. The result is the opposite. The
agencies have repeatedly advised the lawyers not to staple the
documents as they may have to make a copy and use auto-feed process
in copying. The same is true with the lawyers. Before filing,
the lawyers must make copies of the documents and often use copy
machines with auto-feed capacity. Stapled documents from the
clients create a headache and present a number of problems, especially
when the documentation involves "volumes!" Please help
lawyers and agencies by not stapling documents!!!
10/30/2006: Last Day to File October 2006 Immigrant Visa
Quota I-485 Applications
- Beginning November 1, 2006, the November
2006 visa table will become effective and any I-485 applications
with a priority date that is not available under the November
Visa Bulletin will be rejected by the USCIS. For "filing,"
the I-485 application must reach "physical facility"
of the Nebraska Service Center in the employment-based applications.
It is thus critically important for the last minute filers of
the Schedule A I-485 applications that they should not, repeat
not ship out the application via U.S. Express Mail. According
to the Nebraska Service Center, it is the practice of the U.S.
Postal Service station in Lincoln, Nebraska that all the mails
which addressed to the NSC are placed in the PO boxes of the
NSC in the postal service building even if it is addressed to
the street address of the NSC. Additionally, the NSC picks up
the mails only one time in the morning. Accordingly, any U.S.
Express Mails which reach the Lincoln postal statition after
the NSC pickup time will not be picked up by the NSC until the
NSC picks it up next morning. NSC has confirmed that the delivery
of the mails including U.S. Express Mails to the Lincoln postal
station does not constitute a "delivery" and in the
foregoing scenario, the filing will be rejected unless the immigrant
visa number is available in the November 2006 Visa Bulltin. Obviously,
there may be some I-485 filers including Schedule A cases who
attempt to ship out their I-485 applications using overnight
delivery services as late as 3:00 p.m. or later. They should
make it sure that they use commercial overnight delivery services
such as FEDEX, DHS, UPS.
10/28/2006: Startling Statistics on Number of Foreign Doctorate
Graduates and Urgent Need for National Strategy to Keep the Foreign
Brains in the U.S.
- According to the report of the U.S. Department of State, in
the 20th century, the United States became an educator of the
world, according to a new report by the National Science Foundation
(NSF). Although international students earned less than 10 percent
of all doctorates awarded in the United States in 1960, by 1999,
they were earning more than one-third of all doctorates in the
fields of science and engineering and 17 percent of doctorates
in other fields, according to the October 10 report, U.S. Doctorates
in the 20th Century. The largest groups of international students
earning doctorates have come from China, India, Taiwan and South
Korea. Students from the People's Republic of China, the largest
international group, received more than 24,000 of the doctorates
awarded by U.S. universities in the 1990s. Recent trends in international
student enrollment in the United States reported by the American
Council on Education (ACE) in Students on the Move: the Future
of International Students in the United States show that by 2003
international students earned 55.3 percent of doctoral degrees
in engineering, 44.3 percent in mathematics, and 43.8 percent
in computer sciences. Between the 19992000 and 20042005
school years, international student enrollment grew nearly 17
percent in the United States, according to Students on the Move.
- This report supports urgent need for national
strategy and legislation to keep these brains in the U.S. for
the strategic interest of this nation in the international competition.
We hope the Congress recognizes such national strategic interest
in these doctorate graduates and picks up SKIL Act during the
Lameduck session in November 2006.
10/28/2006: Deadline of BEC Program on 09/30/2007 and DOL Memorandum to BECs and SWAs on Management
of RIR Conversion Program
- DOL is really pressured by the deadline of
the backlog labor certification elimination program by September
30, 2007. In order to achieve the goal, DOL has extended RIR
conversion program to encourage employers whose traditional applications
are pending at the Backlog Elimination Centers in Dallas and
Philadelphia. The OFLS has already released guidelines for such
employers. The DOL memorandum is apparently intended to achieve
smooth operation of conversion requests and consistancies in
management such that the employers are not discouraged from the
conversion.
10/28/2006: State Labor Certification (SWA) Officials Scheduled
for Training in Temporary Labor Certification and PERM Wage Determination
- The Office of Foreign Labor Certification
is scheduling a nation-wide SWA officials training sessions in
the first week of December 2006 at San Antonio, Texas. The temporary
labor certification (H-2A and H-2B) programs have been transferred
from the Regional Offices to the National Processing Centers,
but at the state level, the SWA acts as the window for filing
and processing such applications and plays a key role in management
of this program. Additionally, for the PERM program, the SWA
is involved in the prevailing wage determination process. Since
50 state offices are involved, there have been some inconsistancies
among the SWAs and the scheduled training is to achieve the consistency
and uniforminity in applying the standards in their duties. For
the DOL memorandum on the scheduled training. please click here.
10/27/2006: Thanks to All of Those Who Have Sent Their Wishes
for This Reporter's Early Recovery
- This reporter does not know how to describe
the warmth that this reporter felt in his heart whenever he read
the messages. This reporter is fully recovered now and will continue
dialogue with the visitors. Thank you, and THANK YOU!
10/27/2006: Hypothetical Facts and Legal Analysis Series
of this Website
- We have put together our previous postings
on various questions and answers sessions under the new title
of Hypothetical Facts and Legal Analysis (I) as seen above. The
site contains discussions and analysis on the laws, rules, and
policies which were in effect from 2005 upto mid 2006. In this
regards, the information in the posting should be taken an archive.
However, there are two underlying themes that may be relevant
to the issues in the coming year. One is retrogression. As the
visa retrogression continues to exist and is likely to continue
in the future, the issues and analysis on the visa retrogression
may be of some help to the readers. The other theme is the immigration
reform legislation. On the surface, the employment-based immigration
bills, including CIR, SKIL Act, and other bills are dead, but
it is likely that similar bills will definitely be introducted
in the Congress no matter whoever wins in the November election.
The text of the new bills cannot be too much different from the
bills that faced a massacre by the House community hearings during
the Summer. This reporter hopes that the readers enjoy the discussion
and promises to start a new session in a different site in the
near future.
10/27/2006: Distribution of Undocumented Aliens by Congressional
Districts in 2000 and 2005
- The IPC October 2006 publication gives a
glimpse of the location of so-called illegal aliens or undocumented
aliens in the U.S. This statistics also provide background information
as to why certain members of the Congress are vulnerable to the
political risks involving illegal aliens and why they take certain
liberal or conservative/restrictive stances when it comes to
the illegal immigration issue. Read on.
10/27/2006: USCIS Filing Fees to Go Up Again
- USCIS is planning to adjust the filing fees
for the immigration benefits petitions and applications. On October
26, 2005, the USCIS adjusted the fees. On October 26, 2006, the
USCIS requested the OMB to approve the adjustment of the fees
again. The details have yet to be disclosed. Please stay tuned.
10/26/2006: Hats-Off to OFLC and PERM Center Leaders for
Improvement of Sponsorship Inquiry Process
- When the PERM application is filed, the National
Processing Centers send out so-called Sponsorship Inquiry emails
to the employers. If this e-mail inquiry is not responded within
a week, they call the employer contact. If the employer contact
is not accessible, they deny the application after taking months.
There were a number of employers who experienced such painful
denial for failure or inappropriate responses after waiting months
and months.
- Now, they have improved the process such
that the employers are less likely to experience such problem.
Under the new procedure, almost instantly the National Processing
Centers send e-mails to the employer as well as the legal counsel
at three different steps: (1) Confirmation of online filing of
ETA 9089/ (2) Confirmation of e-mail sponsorship inquiry transmittal
to the employer; and (3) Confirmation of receipt of e-mail sponsorphip
inquiry response from the employer. This process works like a
magic. We salute the OFLC and PERM Center leaders for their job
well done. Thank you, and thank you!!
10/26/2006: E-Passport Requirement for Visa Waiver
Entry Country Nationals Effective Today
- Currently there are 27 VWP countries whose
nationals can enter the U.S. without a visa. However, effective
today, these nationals cannot enter the U.S. without a visa unless
they carry an e-passport. The 27 countries participating
in the VWP include: Andorra, Australia, Austria, Belgium, Brunei,
Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan,
Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand,
Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden,
Switzerland and the United Kingdom. The Visa Waiver Program applies
to citizens of these 27 countries traveling to the United States
for 90 days or less for tourism or business. Approximately 15
million people each year travel to the United States under the
VWP to conduct business, visit family or tour the country.
- According to the DHS press release today,
all of these countries except three countries of Andorra, Brunei,
and Liechtenstein have complied with the today's deadline. Accordingly,
the nationals of these three countries will not be able to enter
the U.S. without a visa if they carry a passport which is issued
today or thereafter. For the full press report, please click here.
10/26/2006: Processing Jurisdiction Change for Student Reinstatement
Application Effective 10/30/2006
- Currently the student reinstatemnt applications
are filed with the local USCIS office. However, effective 10/30/2006,
the local district offices will forward all the applications
which are received on or after 10/30/2006 will be forwarded to
one of the two Service Centers: For East Jurisdiction in the
Phase III Bi-Specializtion Plan to Vermont Service Center, and
for West Jurisdiction in the Plan, to California Service Center.
Any reinstatement cases which are filed on or before 10/29/2006
will remain in the local USCIS offices.
- This announcement implies that the USCIS may launch
the Phase III sonner or later.
10/26/2006: BEC to Start Website Reporting of Traditional
Case Processing Time Beginning Next Month
- Even though the processing time of traditional
cases at the BECs is frustrating, the launch of the website processing
times report will allow the traditional case applicants to check
the status of processing of cases in the BECs.
10/26/2006: BEC Traditional Labor Certification Processing
Time to Remain April 2001 for Sometime to Come
- AILA has reported that the BECs are still
processing April 2001 traditional cases for the traditional case
track and it is not expected to move ahead for sometime due to
the huge number of 245(i) cases which were filed in April 2001.
10/25/2006: Will "Do Nothing Congress" Stop Partisan
Politics, Restore the Constitutional Mandate, and Get Back to
Work after the Election?
- This Congress is probably recorded as one
of a handful federal legislatures in the entire history of this
country that are labelled as either failed or do-nothing legislatures.
The blame should go to both parties. Discarding the sacred Constitutional
mandate, they have been totally immersed in party politics for
seize of power with accompanying chase by bleeding sharks named
lobbysts and dirty money. Obviously the November election will
change the landscape of the political power structure. However,
such chage of landscape will end up with just changing the clothes,
unless the members of the Congress restore their sobriety and
morality. Whoever wins, we urge them to roll up their sleeves
and start working next day in the Congress to take care of mountains
of legislative bills including such critical immigration bills
as SKIL Act, Dream Act, H-1B Reform, etc. etc. They should not
even think about staying for a few days in the Congress under
the name of Lame Duck session to act as geishas but to stay long
and hard to restore the disgraced Congress.
10/25/2006: Confusion on Availability of Substitution I-140
Premium Processing for Holders of Original Approved Labor Certification
- We reported earlier that the USCIS had initially
blocked any substitution I-140 cases from the premium processing
eligibility. But later the USCIS website changed it and has been
reporting to the people that if the substitution I-140 petitioners
submit the original of the approved substitution labor certificatiobn
application, they will be eligible for the premium processing
services. The USCIS information on ineligible cases is as
follows:
- (1) A second filing of a Form I-140 petition while an initial
Form I-140 remains pending;
(2) Labor Certification substitution requests, unless the
original labor certification is submitted with the Form I-140
requesting the substitution; and
(3) Duplicate Labor Certification requests (i.e., cases filed
without an original labor certification from the Department of
labor).
After we reported such website instruction
changes, we received some reports from the readers that the field
offices were unaware of the policy change. We urge the USCIS
HQ to give a guidance letter to the Service Centers on this change.
If the website information is incorrect, they should correct
the information not to mislead or confuse the consumers.
10/25/2006: Who Will be Lucky 89 FY 2007 H-1B Cap Subject
Cases Who Will Get A Second Chance to Apply for FY 2007 H-1B Cap
Petition?
- People will remember that before the FY 2007
H-1B cap numbers were reached, there was random selection of
the last minute filers on 05/26/2006. The selected winners then
were able to obtain the H-1B status. However, USCIS HQ reports
to the AILA today that there are 89 unused Chile-Singapore Free
Trade special H-1B numbers and the USCIS intends to issue the
additional 89 H-1B cap numbers to those who submitted at the
last minute and failed to be picked at the time. Obviously, the
filing fee checks were not cashed or refunded to these potential
lucky candidates. Whoever these people are, the USCIS will soon
send a letter to send in filing fee payment, and upon receipt
of the filing fee check, the USCIS will adjudicate and grant,
if eligible, the H-1B status. What Do You Know!? If you were
one of those, please cross your fingers and wait for the thrill!
10/22/2006: Mr. Oh is in the Process of Recovery from Health
Problem
- Thank you for sending us so many e-mails
inquiring of the long pause of this web site. Mr. Oh has been
suffering from severe flu and is in the process of recovery.
As soon as he is fully recovered, he will return to his work
to update the site.
10/10/2006: November Visa Bulletin
- India: EB-2=01/01/2003
- China: EB-2=04/15/2005
- Other Countries: EB-2=C
- Schedule A Cut-Off Date: 10/01/2005
- The Schedule A Workers category has become
oversubscribed for November and a cut-off date established to
hold number use within the 50,000 numerical limit. It is expected
that demand will bring allocations up to the program limit during
November. Once the limit is reached no further allocations will
be possible, and the category listing will be removed from future
cut-off date tables.
- EB Number Predictions in Coming Months:
- Cut-off date movements in recent months have
been greater than might ordinarily be expected, in an effort
to maximize number use within the annual numerical limits. This
has been necessary because demand being received from Citizenship
and Immigration Services (CIS) Offices for adjustment of status
cases has been relatively light. As these dates have advanced,
however, many thousands of applicants have become eligible for
processing at CIS Offices. Once number use increases significantly
as CIS addresses its backlog, cut-off date movement will necessarily
slow or stop. Moreover, in some categories cut-off date retrogression
is a particular possibility.
10/09/2006: Shocking News of Departure of Robert Divine
and Other Changes in USCIS Leadership Team
- AILA has reported that Mr. Robert Divine
is resignating from his current post of USCIS, Chief General
Counsel. People will remember that he was one time Acting Deputy
Director of USCIS and took charge of the USCIS management during
the vacuum in the leadership. He is an expert and veteran in
immigration law in the nation and during his short period of
leadership in the USCIS, he published a number of memorandums
untangling a web of restrictive immigration policies. This web
site called Yates and Divine a dream team. We are shocked and
astonished by the news that he will leave the USCIS.
- There is another shocking news that the current
replacement of Bill Yates, Michael Aytes, will also be transferred
to another post. These two positions will remain unfilled when
they depart from the current posts. With sadness, we wish them
well.
10/06/2006: Consequences of RIR Conversion Request
- The decision of RIR eligibility by the BEC
will result in the following consequences:
- If approved, the case will move to the RIR
queue per the priority date, and not the decision date. Therefore,
the cases will be processed fairly quickly.
- If RIR eligibility is denied, the case will
remain in the TR queue. Besides, the alien beneficiary will not
lose the priority date. Remember that this rule is limited to
the situation where the application is denied on RIR eligibility
issues and not other substantive issues.
- All in all, risks of denial of RIR conversion
request appear to be almost none or limited, unlike the PERM
conversation case where the denial will result in loss of priority
date and loss of both PERM and BEC cases.
- For details, read RIR Conversion FAQ.
10/06/2006: Reasons for Filing RIR Conversion Request ASAP
- There is no cut-off date for filing conversion
request, but for a number of reasons, the eligible applicants
should file it as soon as possible.
- Once BEC starts recruitment process, the
case will not be eligible for conversion. Since the BEC is not
going to entertain the request for delay of recruitment process,
time will be of essence to take advantage of the conversion.
- Conversion request will be processed first-in
first-out basis.
- For details, read RIR Conversion FAQ.
10/06/2006: USCIS Director Updates Backlog Elimination as
of September 2006
- Dr. Emilio Gonzalez has just released the
latest statistics of the USCIS backlog elimination status. The
statistics show number of pending cases by different causes as
follows:
- Total Pending Cases:
1,131,333
- Cases Pending Customer Follow-Up Action: 200,828
- RFE or Fault in Initial or Other Required
Documentation: 187,457
- Others: 13,371
- Cases Affected by Limits on Annual Immigration
such as Retrogression: 793,722
- Family Based Cases: 682,936
- Employment-based or Other: 110,786
- Cases Pending Other Agency Action: 136,763
- 4,905: Other Agencies Investigation Result
Waiting
- 130,091: Interview Completed but Waiting
for Name Check Clearance
10/06/2006: October Edition of USCIS Today
10/06/2006: BEC RIR Conversion Regulation Published and
in Effect as of Today
- The USDOL/ETA published this notice in the
federal register. This conversion rule is taking effect today.
Those who are eligible for conversion under the new rule will
practically have a choice of two opportunities for the labor
certification application. One is filing a PERM application requesting
retention of the priority date of the pending BEC case. The other
is filing request for conversion of the pending BEC traditional
case to an RIR case with the retention of the original priority
date. Choice of these two options requires a careful review of
the two different regulations - PERM regulation and previous
labor certification regulation which is still in effect for the
BEC cases. There are some differences in legal standards, requirements,
and procedures. People may also want to relook at the old RIR
conversion regulation. Besides, there are many unanswered open
questions for the conversion as to the details of the RIR recruitment
requirement in terms of the number of ads, other details. There
were tremendous differences among the six Regions before March
28, 2005. The OFLC should release a Q&A on the conversion
as soon as possible to lay out the details of recruitment requirement
for the conversion. Otherwise, the intent of the agency to encourage
conversion for achievement of its goal to remove the entire backlog
cases by September 30, 2007 may be compromised. One other question
the agency should answer is whether the same recruitment materials
can be used for the PERM, should the RIR converted backlog case
be for some reasons denied. Otherwise, we welcome the agency's
move, albeit somewhat belated, to initiate an effort to reduce
backlog cases as soon as possible.
- The notice refers to GAL 02-02 for the general
procedural guidelines. Please click here to review Q&A in GAL 02-02.
10/06/2006: Approaching Holiday Season and USCIS Reminder
of Importance of Advance Parole for 485 Applicants
- As the country is approaching the longest
holiday season in a year, it is expected that largest number
of foreigners are anticipated to travel back home. Some of them
may be in the adjustment of status to a lawful permanent resident
proceeding and unless they have a valid H or L visa status, their
travel outside of the U.S. with or without other valid nonimmigrant
visa will result in abandonment and denial of pending I-485 application
unless they travel on AP. According to the reminder, people should
apply for the AP sufficiently ahead of time as it will take from
90 days to 150 days to process. There has also been a change
in application procedure. All the AP applications are now applied
through one of the Service Centers rather than a local district
office. People should also be mindful of the deadly consequences
of overseas travel with or without AP if they are subject to
the three-year bar or ten-year bar because of their unlawful
presence in the U.S.
10/05/2006: Traditional Labor Conversion to RIR Rule to
be Published Tomorrow, 10/06/2006
- According to the advance copy of the federal
register which the AILA has obtained, the DOL will change the
rule such that the traditional (regular) labor certification
application may be allowed to be convered to RIR for all those
cases which have been pending since March 27, 2005 except those
applications the state had already started the recruitment by
job order or the BEC has started the recruitment processing by
issuing the job order and recruitment instructions. Consequently,
if people have already received the recruitment instructions,
these cases will not be eligible for the conversion. Additionally,
those cases, which the SWA had already started the recruitment
process before March 28, 2005 when they ceased their work and
transferred the files to the BEC will also be excluded from the
conversion opportunity. If the cases had already been completed
by the SWAs and forwarded to the Region's Certifying Officers,
and then later shipped to the BEC, these cases will also be excluded.
The notice does not make it clear, but it is obvious that if
the SWA forwarded RIR application to the Regions for the CO's
review of eligibility of RIR, which have later been remanded
to the SWA by the CO after denying RIR and the cases had been
automatically converted to a traditioanl application and pending
in BEC for processing as traditional cases under the traditional
case queue, these cases are likely to be eligible for conversion
and no recruitment has been commenced as a traditional application.
For the to-be-released federal notice tomorrow, please stay tuned
to this web site.
10/05/2006: State Department Official Release DV-2008 Program in Federal Register
- The lottery started yesterday, but the federal
register notice was published this morning.
10/03/2006: H-1B Processing Backlogs and Potential Light
at the End of Tunnel
- The Service Centers, particularly VSC, are
experiencing a substantial delays in the processing and adjudication
of the petitions. The backlog has presented a number of problems
to the H-1B employers and aliens.
- Unconfirmed sources indicate that the agency
is targeting at removing the backlog by the end of October 2006.
VSC has been experiencing processing delays due to the surging
H-1B petition filings.
10/03/2006: Premium Processing Available for I-140 Concurrently
Filed with I-485
- At this time, all the concurrent I-140/I-485
package must be filed with the Nebraska Service Center because
of the Phase II Bi-Specialization procedure. I-485 cannot be
filed with any other Service Centers. According to AILA, the
NSC has just confirmed that the NSC will process the I-140 petitions
which are concurrently filed with I-485 applications. However,
people should remember that in such filing, only 1-140 petition
is processed in premium processing and accompanying I-485, EAD,
and AP applications will be processed under the normal processing
pace.
- Availalbility of PPS for I-140 concurrently
filed with I-485 will be extremely helpful for those who need
to port to another employer after 180 days of the concurrent
I-140/I-485 filing date.
10/03/2006: Form G-325A
- In the immigrant proceedings, probably the
most important immigration form which I-485 applicant files is
G-325A Biographic Information. It is a four-page form that is
used by CIA for check ing international terrorism and other adverse
information, by FBI for criminal record check, by American consulate
for visa fraud record check, and by USCIS HQ for any adverse
record within the DHS system. Clearance of these checks is probably
the most important phase in the processing of I-485 applications
by the agency and people will have to carefully prepare and file
this form.
- According to the AILA, this form was changed
in July 2006 and unless people file the July 2006 version of
the form, the agency will reject the filing of this form after
one month from now. There are lots of old version G-325A forms
in papers or commercial form sites. People may want to double
check the form before they file it.
10/02/2006: Case Transfers Among Service Centers and Bi-Specialization
- The USCIS has been undertaking reengineering
of the filing, processing, and adjudication of petitions/applications
which are under the jurisdiction of the four Service Centers
(CSC, VSC, NSC, and TSC) under the name "bi-specialization
program" as follows:
- Phase I [April 2006]:
New Nonimmigrant Petitions of I-129 and related I-539 applications,
filed with VSC and adjudicated by either VSC or CSC depending
on the types of cases. New Immigrant petitions of I-140 petitions
and related I-485 applications, I-765 EAD applications, and I-131
Advance Parole applications, filed with NSC and adjudicated by
either NSC or TSC. Under the Phase I programs, all the petitions
and related applications of nonimmigrant and immigrant cases
which were pending at one of the four Service Centers were supposed
to be continuously processed and adjudicated by the Service Center
where the cases had been pending.
- Phase II[August 2006]: Changed Phase I immigrant I-485 filing procedure
by requiring filing of all the I-485 applications, no matter
whether they were concurrent filing or stand-alone filing or
no matter where the underlying I-140 petitions had been pending
prior to the start of the Phase II program in August 2006, with
the NSC. Accordingly, all the new I-485 applications had to be
filed with the NSC even if their I-140 petitions had been pending
in other Service Centers. Along with this changes, the applications
of EAD and Advance Parole which are ancillary to the I-485 applications
also had to be filed with the Service Center where their I-485
applications were filed and pending.
- Phase III[Soon to be announced]: The Phase I and Phase II have produced shipment
of hugh volumes of petitions and applications between the pairs
of sister Service Centers (NSC-TSC in immigrant proceeding and
VSC-CSC in nonimmigrant proceeding). In order to eliminate such
shipment of cases among Service Centers, the USCIS will soon
divide the nation into the two territories or geographical jurisdictions:
One jurisdiction is determined by the current geographical jurisdictions
of CSC and NSC. The other jurisdiction is determined by the current
geographical jurisdictions of VSC and TSC. Within each of the
two new geographical jurisdictions, they will continue bi-specialization
program. Accordingly, those in North-West jurisdiction will be
required to file nonimmigrant cases with CSC which will also
process and adjudicate the nonimmigrant petitions and applications
within the new jurisdiction. Those in East-South jurisdiction
will be required to filed nonimmigrant cases with VSC which will
process and adjudicate the filed nonimmigrant petitions and applications,
and immigrant cases will be required to be filed with TSC which
will then process and adjudicate the immigrant petitions and
applications in the East-South jurisdiction.
- The Bi-Specialization Programs have caused
a tremendous confusion in the immigrant community. Had the USCIS
strictly followed the foregoing procedures, the confusion could
have been more or less bearable and manageable. However, the
reality has been different. Regardless of the bi-specialization
programs, the Service Centers have been swifting around and transferring
files among the Service Centers to manage the caseloads of each
Service Center. According to the USCIS, during the last three
months, the following transfers of files have taken place:
- VSC transferred FY 2007 H-1B cap cases to
TSC (20,000) and NSC(6,000).
- VSC transferred all the I-130 petitions to
CSC.
- VSC, NSC, and TSC transferred all the I-360
cases to CSC.
- CSC transferred entire I-485 applications
to NSC.
- The transfer of files among Service Centers
has created nightmares to the customers in two areas, among others.
- Since I-907 Premium Processing and I-485
ancillary applications of EAD and Advance Parole are required
to be filed with the Service Center where the primary petitions
or applications are located, unless they constantly keep eye
on the mails and USCIS website status processing report for their
cases, they could be easily lost as to the proper jurisdictions
where they will have to file related applications.
- Second problem is the increased communciation
to the consumers in writing by the new Service Center with the
transferred cases including new Receipt Notices, RFEs, etc. When
people move, people may not get these important notices properly
and timely since the USCIS mails cannot be forwarded by the U.S.
postal services. Consequently, these people may not even know
where their files are located and how to contact the right Service
Center.
- In this day and age, people will just have
to keep their eyes wide open and watch carefully all the changes
that take place almost daily in the immigration proceedings.
09/30/2006: November Election and Time for Immigrant Community
to Heal Division and To Unite
- The immigration reform involves very complicated
issues that affect the interests of different groups differently.
In fact, it has always been a reality in immigration business
that a good news for a certain immigration group accompanied
more or less a negative impact on other groups in short term.
For instance, the agency's backlog reduction for certain types
of immigrant or nonimmigrant petitions or applications affected
other types of immigrant or nonimmigrant petitions or applications
for diffeent groups. However, such reality has never created
any visible division or antagonism within the immigrant community
as the immigrant community has always looked at immigration issues
in a broader perspective with a long-term impact on immigrant
community and a long term goal as a whole in mind.
- Sometimes, the immigrant groups can be misled
by ill-informed and short-sighted information and views and can
even be taken advantage of by the anti-immigration forces. In
this regard, availability of correct information on immigration
issues and policies appears to be critically important to help
the diverse immigrant groups to understand the common goals and
directions. It is hoped that the immigration law community and
the immigration law experts do better job to reach the immigrants
for education such that the immigrants are better informed.
09/30/2006: Hispanic Voter Mobilization Campaign Poised
to Support Post-November Election Comprehensive Immigration Reform
Legislation
- Report indicates that the Hispanic forces
take the Congress' failure to pass the restrictive immigration
bills as riders to the DHS and DOD Spending bills and piecemeal
immigration bills as the victory. In order to press on the momentum
which has been created by the movement, the Hispanic community
has started a massive campaign of Hispanic voter-get-out and
vote.
09/30/2006: Reminder of 2008 Visa Lottery Starting from Wednesday,
10/04/2006
09/29/2006: All the House Attempts to Attach Immigration
Bills to DHS and DOD 2007 Spending Bills Failed
- Report indicates that the House attempt to
attach any immigration bills, legal or illegal, to the Department
of Homeland Security and Department of Defense 2007 Spending
Bills, at the last minute before the October recess failed. There
were strong oppositions to any piecemeal immigration legislations
that could negatively affect the nation's critical need for a
comprehensive solution to the broken immigration system.
- The result of the House's agenda as demonstrated
during the Summer will be judged by the outcome of the November
election. Should balance of the seats in the House and the Senate
tips towards the Democrats, the opposition to the piecemeal immigration
legislations is expected to pick up the strength and the political
forces that demand the comprehensive immigration reform may also
gain the strength. One way or another, there will be a judgment
for the failed Congress. Please sit back, relax, and watch how
the judgment will unfold in November.
09/27/2006: Bravo, USCIS, for Amending Yates AC 21 Memorandum
Precluding Service Centers from Issuing RFEs for Post-Filing Issues
for I-485 Portability Prior to I-140 Approval
- AILA has just released USCIS AC 21 Memorandum
of Michael Aytes, then Acting Director of Domestic Operations
on December 27, 2005 which amended the so-called Yates
AC-21 Memorandum of May 12, 2005. The Aytes Memorandum
states that the new memorandum just reinterated the Yates memorandun
except the change in its policy on processing and adjudication
of ported I-140 petition and I-485 application before the approval
of I-140 petition.
- The change was unknown to the immigrant community
until it is released today. Indeed the change has been in effect
since December 27, 2005. The change include the issue of whether
the Service Centers could issue RFEs for the post-filing issues
of I-140 petitions which have been ported afterwards before it
was approved. The most important post-filing issue since that
time was employer's financial ability to pay. The employer's
income or financial ability could have changed after filing of
I-140 petition. Under the Yates memorandum, the Service Centers
were permitted to issue such RFEs to resolve the issue, but Aytes
memorandum precluded the Service Centers from issuing the RFEs.
- This raises an interesting question of potential
motion to reopen of certain denials of I-140 petitions on the
Service Centers' issuance of RFEs and denied I-140 portability
and denied accompanying I-485 applications. People who experienced
such denial in violation of the Aytes Memorandum after December
27, 2005 may immediately seek legal counsel to review availability
of relief.
09/26/2006: USCIS Changed Policy on I-140 Premium Processing
Eligibility Involving Substitution
- Without publicity, the USCIS changed its
policy on the availability of I-140 petition PPS involving labor
certification substitution. As seen below, now the USCIS is accepting
I-140 premium processing inasmuch as the petitioner has the original
certified labor certification application. This reporter thanks
to a visitor who reminded me of the change. For the USCIS guidance,
please see the following information:
- Premium Processing Service is available for
the Form I-140 classifications indicated on the chart above provided
that the case does not involve:
- (1)A second filing of a Form I-140 petition
while an initial Form I-140 remains pending;
(2)Labor Certification substitution requests, unless the
original labor certification is submitted with the Form I-140
requesting the substitution; and
(3)Duplicate Labor Certification requests (i.e., cases filed
without an original labor certification from the Department of
labor).
09/26/2006: House and Senate Republicans Collide over House
Attempt of Attaching Immigration Bills to Defense Spending Bills
- The House leaders are threatening the Senate
that unless the recently House passed "border security-only"
and "enforcement-only" bills are included in the Defense
Spending Bills, the House will not pass the Defense Appropriation
Bill. On the other hand, some powerful Republican Senators in
the Defense Committee are strongly opposing to attach such bills
which are unrelated to the defense to the Defense Appropriation
Bill. Additionally, the Democrats in the Senate are strongly
opposing such attempt of the House Republicans. Accordingly,
there is growing concensus of opinion that there is a slim chance
of any immigration bills passing the Congress before the November
election.
09/25/2006: AAO Appeal Processing Times of 09/25/2006
- Following types of appeal are experiencing
backlogs:
- I-140 (EB-1A)=7 months
- I-140(EB-1C_=11 months
- I-140(NIW)=9 months
- I-140(EB-3)=16 months
- I-687, I-698, I-700=16 months
- I-129L=13 months
- I-129H-1B=10 months
- I-360RW=8 months
- I-821TPS=18 months
- I-601=15 months
- I-485(Life)=20 months.
- All other types of appeal remain "current."
09/25/2006: Reshaping of Bi-Specialization on the Horizon
- Vermont Service Center authorities revealed
that USCIS was developing a tentative plan to reshape the bi-specialization.
The new concept will combine territorial division and bi-specialization
in each territory. The country will be divided into the two territories.
One territory will consist of the jurisdiction combining former
California Service Center and Nebraska Service Center (for our
purpose, we will call it North-West jurisdiction), and the other
territory will consist of the jurisdiction combing former Vermont
Service Center and Texas Service Center (for our purpose, we
will call it South-East jurisdiction). In each of these two territories,
one service center will specialize in I-129 and related nonimmigrant
proceedings and the other service center will specialize in 140/485
immigrant proceedings. In North-West jurisdiction, California
Service Center will handle all the I-129 and related petitions/applications
in the jurisdiction and all the I-140 and I-485 proceedings will
be handled by Nebraska Service Center. In the South-East jurisdiction,
Vermont Service Center will handle all the I-129 and related
petitions/applications in the jurisdiction and all the I-140
and I-485 proceedings will be handled by Texas Service Center.
- There is no information available about the
detailed schedule of the change, but once this plan (whichis
Phase III) is implemented, people in North East jurisdiction
will file I-129 with California Service Center, and those in
South East jurisdiction will file I-129 with Vermont Service
Center. As for I-140 and I-485, people in North East jurisdiction
will file it with Nebraska Service Center and those in South
East jurisdcition will file it with Texas Service Center.
09/23/2006: DOL Policy on Multiple PERM Applications by
Same Employer for Same Employee
- The current policy is that when the same
employer files a second PERM application for the same employee
when there is a prior PERM application filed by the same employer
for the same employee which is still pending or approved, National
Processing Centers automatically deny the second PERM application.
DOl intends to change this practice, but until such change is
materialized, the DOL will continue its current policy not allowing
more than one PERM application certifications for the same employer
and same employee in the following manner:
- If the employer has already obtained certification
of one PERM application and filed a second PERM application,
the National Processing Center will continuously deny the second
application. Once the second PERM application is denied such,
the employer can file a motion to reconsider the denial, but
such motion will not be considered unless the employer first
files the requiest to withdraw the first certified PERM application
and surrender the "original" certified PERM application
form, ETA 9089. If the employer has already filed I-140 petition
based on the first certified PERM application, since the employer
no longer possesses the "original" certified ETA 9089,
the withdrawal of the first certified application may be undertaken
in order to save the second PERM application vis a motion to
reconsider by submitting proof of the employer's withdrawal of
pending or approved I-140 petition. Otherwise, the second PERM
application will be denied.
- If the employer has already obtained certification
of one PERM application,but wants to file a second PERM application,
the employer is required to withdraw the certified first application
and surrender the original certified ETA 9089 before the employer
can file the second PERM application. Otherwise, the second PERM
application will be denied.
- If the employer has filed a PERM application
which is still pending, and if the employer wants to file a second
PERM application, the employer must file a request for withdrawal
before filing a second PERM application. Otherwise, the second
application will be denied.
- The foregoing policy has no effect on the
certified PERM applications whatsoever as the certified labor
certification application can not be invalidated unless there
was a fraud. The foregoing policy is related to the second PERM
application which has yet to be filed or certified. Accordingly,
the first application which is either pending or certified will
not be affected even if a second application is filed and denied.
- The DOL is currently working on changes in
the software logic to launch as early as October 2006 which will
change the current practice and policy. Under the new system,
the machine will not automatically deny the second application.
Once the machine detects the multiple filings by the same employer
for the same employer, the analysts will review the two applications
comparing the two cases, and if necessary, will launch an audit
to learn the reasons for second filing. Consequently, the employer
will no longer see automatic denial of second application by
the decision matrix once the new system is in place.
09/23/2006: Consequences of PERM Filing with "Refile"
Option on Pending BEC case
- The 09/12/2006 Liaison Minute clarified the
DOL policy on the issue as follows:
- PERM database and BEC database are growingly
communicating quicker and BEC will almost immediately take out
as withdrawn.
- If BEC case is approved either before the
PERM case is adjudicated or BEC takes action taking out such
case as withdrawn, such certified BEC application will remain
valid. In such cases, employers will be allowed to withdraw the
pending PERM application.
- If BEC case is still pending and such PERM
is denied, two consequences will take place. The beneficiary
loses the priority date of the BEC case. Additionally, the BEC
case is considered automatically withdrawn. Quickly refiling
of another PERM application will not change the deadly consequences
on both PERM application and BEC application. However, employer
can file a motion to reconsider if justifiable. If the motion
is granted and certifies the original PERM application, the old
priority date will not be affected.
09/22/2006: BEC Backlog Processing Update
- AILA-DOL Liaison Meeting Minute of 09/12/2006
gives update on the BEC backlog processing as follows:
- Status of Processing of Cases:
- Total Cases=362,000
- Pending Cases=approximately 176,000 (45-day
letters for all of these pending cases with a few exceptions
have been issued)
- Completed Cases=approximately 182,000 cases.
These cases are completed in the following fashions:
- 50%=Closed or Withdrawn or Closed for No
Response to 45-Day Letters
- 50%=Either Approved or Denied
- At the front-end, the cases are processed
on FIFO based on the priority date, but adjudication is done
on FIFO based on the order of responses to the requests.
- Processing Times may be posted on the website
in the near future.
- Traditional Case Processing:
- Recruitment instructions and job order with
the states are underway for some cases
- Amendments (non-material changes) can be
made in writing at any time before the job order is placed with
the states by the BEC. Once the job order is begun, no amendments
are permitted, even if the amendments involve non-matterial issues.
BEC places job orders at the same time of issuing the recruitment
instructions to the employers. Accordingly, once such recruitment
instructions are received, apparently no amendments will be permitted.
Unanswered Question:
It is unclear whether the amendments will not be permitted once
job order has been placed when the amendments involve just substitution
of alien beneficiaries. Considering the fact that change of the
alien beneficiaries does not affect the terms and conditions
for the labor market test in the recruitment process in the traditional
cases and such substitution had been permitted before the reengineering
of the labor certification system, it appears that the foregoing
restriction may not apply to the amendment for substitution of
alien beneficiaries. The foregoing policies may be limited to
the amendments to change the terms and conditions and requirements
for the job.
- DOL is planning to allow
conversion of traditional cases to RIR by amending the existing
RIR conversion regulation. The specific procedures and requirements
will be published in a federal register soon. However, potential
benefit of such conversion may be more or less limited in that
the DOL is required to finish up all the BEC cases including
traditional cases within next one year.
09/22/2006: USCIS Expands I-140 Promium Processing to EB-1B
(Outstanding Researcher) & EB-2 (Except NIW) Effective Next
Monday, 09/25/2006
- USCIS is scheduled to accept I-907 Premium
Processing Request for Outstanding Researcher I-140 Petitions
and Advanced Degree or Exceptionary Ability I-140 Petitions beginning
from Monday, September 25, 2006. The categories of I-140 petitions
which are excepted from the premium processing services are:
EB-1A (Extraordinal Worker), EB-1C (Multinational Corporate Executive/Manager),
EB-2(NIW). See USCIS Announcement.
09/22/2006: House Passed Three Enforcement-Only Legislative
Bills
- House was very busy yesterday to pass the
enforcement-only bills per Rep. Sensenbrenner agenda. The bills
include:
- H.R. 4830, Border Tunnel Prevention Act of
2006
- H.R. 6095, Immigration Law Enfocement Act
of 2006
- H.R. 6094, Community Protection Act of 2006.
- Next week, the Congress will witness a drama
to sweep all of the border-security only and the enforcement
only bills into the DHS Appropriations Bill, probably through
the conference process.
09/21/2006: Immigration Legislation Battle Moves from CIR
to DHS Appropriation Legislation
- Congress has only little more than a week
left before its scheduled recess and with the death of CIR, the
Republican Congress has been busy to pass highly election politics
charged border security only and enforcement only legislative
bills before the recess. The House has already passed so-called
Voter ID bill by 228:196 and the Senate voted the Border Fence
bill by 94:0 which has already been passed by the House. This
latter bill is expected to pass the Senate next Monday.
- Republican strategists intend to add these
bills to the DHS Appropriation Bill which must be passed by the
Congress. There is also ongoing movement to add legal immigration
bills to the Appropriation Bill. The Republican strategists has
reportedly obtained the President's coimmitment to sign the bills
once these bills are passed, but such strategies are strongly
opposed by the immigration interest groups including AILA and
there is a massive lobbying to block such legislation. The Republican
strategists also face unexpected internal opposition to such
strategy by Senate Appropriations Committee Chairman Thad Cochran
(R-Mass) who reportedly stated that he would not add any legislaive
language onto the spending bills that could slow their progress
in the final days before the coming recess.
- For the report, please click here.
09/21/2006: USCIS Expands I-485 Local Pilot Program of Dallas
Jurisdictions
- USCIS published a notice expanding a pilot
program being conducted by U.S. Citizenship and Immigration Services
that changes the procedures for certain aliens filing Form I-485,
``Application to Register Permanent Residence or Adjust Status,''
based on a family relationship, the diversity visa
lottery, or qualification for most special immigrant categories.
Under the expanded pilot program, affected aliens residing within
the jurisdiction of the Dallas District Office, El
Paso District Office, or Oklahoma City Sub-Office
will be required to file Form I-485 and any necessary documentation
and fees in person at the appropriate local office, rather than
by mail, after self-scheduling an appointment using Internet-based
InfoPass. This pilot program tests an alternative to current
filing and processing procedures with the goal of achieving a
90-day processing time for affected Forms I-485.
- Effective Dates:
- Dallas District Office: This Notice is effective
October 23, 2006 and will terminate on September 21, 2007.
- El Paso District Office and Oklahoma City
Sub-Office: This Notice is effective November 20, 2006 and will
terminate on September 21, 2007.
- For the full details including requirements
and procedures, please read the notice.
09/20/2006: Termination of Liberia TPS and USCIS Q&A
09/20/2006: USCIS Scheduled to Publish Tomorrow Morning
Dallas Office Rapid Adjudication Pilot Program Filing Procedures
for Form I-485
- Please stay tuned to this website.
09/20/2006: 2008 Immigration Lottery Program Released
- Starts on 10/04/2006 and ends on 12/03/2006.
09/20/2006: Transfer of Priority Date and Availability of
I-140 Premium Processing
- The USCIS made it official that the I-140
premum processing would be unavailable for substitution petitions.
However, it has been an unanswered question when it comes to
the I-140 petition with a request for transfer of earlier priority
date from another I-140 petition filed by another employer. Our
experience indicaes that the Service Centers do not include any
I-140 petitions for premium processing that involve two different
files to adjudicate the I-140 petition. Substitution is excluded
for this reason. The transfer of priority date between two different
employers also involve two different files and the Service Centers
appear to exclude such EB-3 I-140 petitions for premium processing.
The practice can change in the future, but for now, such premium
processing appears to be unavailable.
09/19/2006: DHS Announcement of Parole Opportunity for Cuban
Medical Personnel Outside of Cuba and United States
- The U.S. government has decided to grant
parole, effective August 11, 2006, to qualified Cuban medical
personnel who have been serving in third countries other than
Cuba and the U.S. under the direction of the Cuban government.
The parole will be granted to the immediate family members of
the medical personnel. The definition of medical personnel is
very broad to cover many healthcare workers in the medical fields.
For the details including Q&A, please click here.
- The announcement does not include any opportunity
for permanent residence in the U.S. However, considering its
past policy of giving green card opportunities to the parolees
for Cuban refugees, it is likely that a similar action may be
taken afterwards.
09/19/2006: Service Center Processing Time Report of September
19, 2006
- See homepage.
- Processing Times for Selected Proceedings
| |
CSC |
VSC |
NSC |
TSC |
| H-1B |
07/20/06 |
04/30/06 cos
05/28/06 eos
|
05/16/06 |
04/24/06 |
| L-1 |
08/20/06 |
08/20/06 |
08/20/06 |
08/20/06 |
| 539 (H/L) |
06/19/06 |
06/04/06 |
06/11/06 |
05/14/06 |
| 140 (EB3) |
- |
03/20/06 |
03/20/06 |
03/20/06 |
| 485 (EB) |
03/20/06 |
06/21/05 |
12/02/05 |
03/20/06 |
| EAD (C-9) |
07/03/06 |
07/03/06 |
07/03/06 |
07/03/06 |
| AP |
06/19/06 |
06/19/06 |
06/19/06 |
06/19/06 |
09/19/2006: Labor Certification Substitution and 245(i)
Grandfathering
- Section 245(i) gives a powerful protection
for those who filed a labor certification application on or before
April 30, 2001 in that the beneficiary of labor certification
application will carry the benefit in any kind of immigrant benefit
proceedings including all types of employment-based proceedings
and family-based proceedings. Once 245(i) is grandfathered, the
alien can file I-485 application in the U.S. despite their overstays
or unauthorized employment in the past.
- When the beneficiary of labor certification
application is substituted, the benefit of 245(i) is attached
to the substituting alien or the substituted alien depending
on the timing of substitution. If the alien was substituted before
April 30, 2001, the 245(i) grandfathering is attached to the
new substituting beneficiary and the original beneficiary loses
the benefit of 245(i) grandfathering. On the other hand, if the
substitution took place after April 30, 2001, the original beneficiary
carries the benefit no matter what has transferred and the substituting
beneficiary cannot take over the 245(i) grandfathering benefit
even if he or she takes over the priority date.
- There may be some people who filed a labor
certification application before April 30, 2001 but with or without
his/her knowledge the labor certification application was substituted
by the employer on or before April 30, 2001. Some of these people
may be still in immigration proceeding through other employers
or through family-based immigration proceeding with a mistaken
understanding that they are protected by 245(i) benefit and they
will be able to adjust status to a lawful permanent resident
status in the U.S. despite their illegal status or unauthorized
employment in the past. Assumedly the number of such people may
be small in number, but the consequence can be deadly for these
people. They should seek legal counsel before they face a deadly
reality.
09/15/2006: Visa Retrogression, Multiple I-140 Petitions
on Single LC, and Need for USCIS HQ Action
- As we reported more than one time, it had
been a long-lasted practice and policy of former INS and current
USCIS to allow US employers to file either concurrently or separately
both EB-2 and EB-3 petitions using the same EB-2 labor certification
application until the field offices lately showed some changes
in practice. This practice and policy have been very helpful
for the employers and the immigrants during the period of immigrant
visa number retrogression as witnessed in 1998. The same applies
in current steep retrogression environment.
- Report indicates that the field offices have
requested the USCIS HQ to give a guidance on this issue. We urge
the USCIS HQ leaders to issue a guidance to the filed offices
as soon as possible as the need for such multiple petitions is
escalating because of the predicted further retrogression of
immigrant visa numbers in FY 2007 as affected by the failure
of the Congress to pass the CIR or other immigration reform and
the DOL's acceleration of processing of backlog labor certificxation
applications. These environments are expected to produce unpredictable
movement of EB-2 and EB-3 visa numbers in the future, not to
mention potential increased retrogression. The State Department
has yet to release a prediction for visa number movement in FY
2007, but the October 2007 Visa Bulletin does not project a too
promising future.
09/15/2006: Simpson-Mazzoli Explains Three-Leg Illegal Immigration
Reform in 1980s and Why Failed
- The sponsors of the IRCA, the comprehensive
immigration reform legislation in 1986, expain their three-legged
approach to the illegal immigration problem which is very similar
to the CIR which the Senate passed earlier. These legislators
blame the failure of the IRCA with the nation's policy makers
who failed to backup the legislation with the required funding
and follow-ups rather than the legislation. They argue that the
three legs have yet to be implemented. They urge the Congress
to pass the CIR before the Congress recesses and the nation's
policy makers dedicate themselves to implementation of the legislative
intent with proper funding and follow-up actions, once this bill
is enacted into law.
- This is a "very interesting article"
and this reporter urges the readers to read it. Something to
reckon. Read on.
09/14/2006: New Procedure for EAD Issuances to Asylees
- USCIS has published a notice for the asylees
that effective October 1, 2006, the USCIS will cease to issue
I-688B EAD cards the same day of approval of asylum by the local
district offices. They will rather be issued another form of
EAD, I-766 valid for two years, which will be delivered to the
asylees via U.S. mail within seven to ten days. The notice also
answers various questions relating to the changes. Read on.
09/14/2006: One-Year TPS Extension for Burundis
09/13/2006: Nebraska Service Center I-140 Backlogs and Promising
News for Reduction of Backlogs
- People must have noticed that the I-140 petitions
have been backlogged quite substantially in Nebraska Service
Center. The recent AILA-NSC Liaison report indicates that this
was caused by the transfer of I-140 cases from the Vermont Service
Center. Nebraska Service Center Director states that it took
some time to take care of the transfered cases and the NSC processing
times for I-140 petitions will soon see "drastic" progress
in the near future. Thank you, NSC!
09/13/2006: October 2006 Visa Bulletin
- Yesterday, we posted that the visa numbers
for oversubscribed countries were not available but the "worldwide"
category cut-off dates were available as posted. Appaently, there
were some people who were not familiar with the Visa Bulletin
report which lists all countries (often called worldwide) and
oversubscribed countries (currently, China, India, Mexico, Philippines).
Now we have a full report.
09/12/2006: October 2006 Worldwide Visa Bulletin
- The State Department is about to release
the October 2006 Visa Bulletin.
- The oversubscribed countries' information
is not available, but sources indicates the EB visa numbers for
the worldwide will be: EB-1=C, EB-2=C, EB-3=05/01/2002, Schedule
A=C, EW=01/01/2001, and FB-1=05/01/2000, FB-2A=04/12/2001,
FB-2B=01/11/1997, F-3=10/22/1998, F-4=09/15/1995. Please stay
tuned.
09/12/2006: BEC Confidence in Backlog Reduction Work as
Demonstrated in Online Tracking System
- People must have noticed that the BECs have
been speeding up the adjudication of ETA 750 cases and increased
number of white envelopes have lately been delivered to the mail
boxes of the legal counsels or employers. This, more or less,
coincides with its launch of online tracking system, demonstrating
its confidence in the backlog elimination jobs. Please send applause
to the OFLC officilals in Dallas, Philadelphia, and DC HQ.
- We want the agency to show a similar confidence
in launching online processing time report in the near future.
09/12/2006: BEC Online Case Tracking Finally Working
- This online tracking system worked yesterday
and then went down almost all day today. Good news is that it
is working now. (4:15 p.m., CST). Try the beauty of it.
09/11/2006: Dallas & Phil Backlog Labor Certification
Online
Case Status Check
- FAQ
on Online Case Status Check System
09/11/2006: FAQ on "No Contact" Labor Certification
Cases
- No contact from DFLC for the pending cases
and DFLC Instructs "What-To-Do"
09/11/2006: USCIS Memorandum Eliminating I-688B Employment
Authorization Card and EAD Handling Procedures
09/11/2006: Race Begins with Foreign Students: IPC Report
09/09/2006: USCIS Policy on Issuance of Notice to Appear
(NTA) for Deportation Proceeding Upon Denials of I-485 in Certain
Circumstances
- The 07/11/266 USCIS memorandum sets a guideline
as to when the USCIS should consider issuance of NTA upon denial
of immigration benefits applications including I-485. The following
are the laundry list of categories where the USCIS requires issuance
of NTA:
- Egregious Public Safety Cases: These cases involves mostly some of aggravated felony
cases.
- Other Criminal Cases: The alien is inadmissible or removable for certain
criminal offenses not included on the egregious public safety
case list.
- Cases Mandated by the Regulation: I-751, I-829, I-817.
- Cases Denied for Fraud
- Other Denial Cases: USCIA
may issue an NTA where the applicant or permanent resident petitioner
appears to be removable. However, if an individual submitted
an application while in a valid "non-immigrant status
and there is no criminality surrounding the reasons for the denial,
and nothing else indicates that the alien will not timely depart
the U.S.," the denial notice just clearly convey to
the applicant the effect of the decision and that fact that the
individual should depart the U.S., and otherwise potentially
face removal proceedings, rather than outrightly issuing NTA
upon denial of the applications.
- The USCIS prioritizes NTA issuance in the
following order:
- Cases where fraud is established;
- Cases where the NTA is prescribed by law
or regulation;
- Other Denial Cases per the foregoing guidelines.
09/09/2006: USCIS Policy on Legal Status of I-485 Filers
Whose I-485 Is Denied and Who Traveled on Advance Parole
- USCIS 07/11/2006 Internal Memorandum addressed
to the field offices indicates that those I-485 filers who are
in a parolee status because of the travel on Advance Parole will
not automatically fall into an unlawful stay inasmuch as the
alien has not violated the terms of his/her admission. Field
offices are instructed to give a notice in the notice of denial
of I-485 that the parolee status will be terminated in 30 days
from the date of notice of denial of I-485 application. However,
the field offices issue a Notice to Appear (NTA) at the time
of denial of I-485 applications to commence the deportation proceeding,
the alien's parolee status expires at the time of issuance of
such NTA and the 30-day grace period does not apply.
09/08/2006: Service Centers Processing Times Report of 09/08/2006
09/08/2006: USCIS Count of Backlog Reductions as of End
of July 2006
- According to the USCIS Director, as of the
end of July 2006, there were approximately 1.1 million backlog
cases of immigration benefit petitions and applications. Out
of the total backlog cases, nearly one million cases are backlogged
for reasons outside of USCIS control such as unavailable visa
numbers or customer induced delays, and the remaining 140,000
cases are backlogged because of the USCIS processing delays.
Read on.
09/08/2006: Official CIR Requiem?
- Report indicates that House Republicans yesterday
officially rejected the Senate immigration bill, CIR. Read on.
09/03/2006: Consolidation of Questions and Answers into
"Discussion of Hypothetical Facts and Legal Analysis"
- Since October 1, 2005 visa number retrogression,
we have posted questions and analysis relating to its impact
on immigrants. These Q&A were discussed at two or three different
pages in our web site. Besides, as we stated earlier, these questions
and answers had been developed based on the hypotheical facts
and questions. Accordingly, the more appropriate title of the
discussion would be "Hypothetical Facts and Legal Analysis"
rather than Questions and Answers.
- Currently, we are consolidating all the previous
discussions chronologically under the heading of "Discussion
of Hypothetical Facs and Legal Analysis." We will repost
the materials as soon as the materials and information are reorganized.
We will also continue such discussion using hypothetical facts
relating to various issues including developing legislative bills
such as SKIL Bill. We ask the visitors to keep patience and bear
with us for this important project of this web site.
08/31/2006: Last Day to Obtain EAD Cards at Local Offices
per USCIS Local Practices and Procedures
- Today will be marked as the last day when
the local district offices will accept and "produce"
the EAD cards per their local practice and procedure. Beginning
from tomorrow, even if they may continuously take in applications,
they will be forwarded to the proper Service Centers for processing
and production. Interim EAD may or may not be continuously produced
at the local offices depending on their policies until the end
of September, and beginning from October 1, 2006, even Interim
EAD cards will be produced only by the Central Card Facility
and the local district offices will not allowed to produce the
cards.
08/31/2006: Senate Judiciary Subcommittee Hearing at 9:00
This Morning at University of Texas, Dallas for the Issue of "U.S.
Visa Policy: Competition for International Scholars, Scientists
and Skilled Workers"
- Senate Judiciary Subcommittee on Immigration,
Border Security, and Citizenship will hold a hearing on the issue
which was the subject of the proposed legislation of PACE Act,
SKIL Act, and part of the CIR. Several witnesses will testify
the need for educated foreign workers to enhance the competitiveness
of the U.S. For the details, please click here.
- Text of Testimonies:
08/31/2006: Brunei TPS to be Extended and EAD Extended Automatically
- USCIS will soon publish a notice extending
TPS designation for Brunei and grant extension of EAD automatically.
Please stay tuned.
08/28/2006: Suspension of Q&A on Our Site
- We have reported Q&A to discuss some
legal issues based on the hypothetical factual questions. Some
of these questions were composed based on the questions which
had been addressed by the immigrants via e-mail, but the actual
questions were developed into hypothetical questions by changing
the facts such that people understood that none of the answers
should be taken by the community as a legal advice for any individual
immigrants. We have been telling people who visited our offices
probably more than hundreds and thousands of times that each
individual case is different despite the similarity on the surface.
Besides, the answer to an "individual" situation requires
a thorough analysis of the underlying facts and rules and laws
at different times involved. Accordingly there is a danger
to mislead the people by giving answers to an individual question
on a few questions without learning the underlying totality of
the facts or distincively different factual circumstances. Lawyers
thus give disclaimers in their websites to inform the readers
that they should not apply nor take the discussion on the individual
specific case.
- Over the years, we have learned that increased
number of lawyers have participated in the Q&A for the legal
issues through the electronic medium and there is a growing tendency
that some readers take it to his/her individual situation as
a legal advice. For these reasons, we have decided to suspend
our Q&A sites. However, we will repost in the future the
information as archives in different forms. We apologize for
inconvience this may cause to the readers.
08/28/2006: USCIS Processing Time Report Changes
- USCIS posted this reported change on 08/24/2006
but for the unknown (but known by now) reasons quickly removed
after a few hours. Today, they reposted as the announcement dated
08/25/2006. The changes may be summarized in two points: (1)
If the Service Centers process certain type of case "within
the USCIS HQ processing time guideline for that type of case,"
they will not report the processing time based on the "receipt
date" but on the USCIS HQ processing time guideline for
that type of case. (2) If certain type of cases is not processed
within the time of the guideline, they will report the processing
time for these types of cases based on the receipt date.
- This new reporting mode is reflected in the
August 25, 2006. According to the report, the following type
of cases are processed within the guideline timeframe in all
four Service Centers:
| |
csc |
vsc |
nsc |
tsc |
| I-140 |
N/A |
02/23/06 |
02/23/06 (except NIW & EB-1) |
02/23/06 |
| EAD (485) |
06/08/06 |
06/08/06 |
06/08/06 |
06/08/06 |
| AP (485) |
05/25/06 |
05/25/06 |
05/25/06 |
05/25/06 |
| L-1 |
07/26/05 |
07/26/05 |
07/26/06 |
07/26/06 |
- This explains why the processing times for
certain types of cases give the impression that the processing
times moved backward. For instance, I-140 processing times of
NSC moved backward. However, it does not mean that the processing
times actually moved backward but the new report reflected not
the receipt date but the guideline processing times for I-140
petitions. Accordingly, all the I-140 cases other than NIW and
EB-2 in NSC will be adjudicated within approximately six months.
Since it is the guideline processing times, some cases will be
adjudicagted in a very short period of time and some cases will
be processed in a longer period of time within the six months
timeframe. What it means is that people will have no idea about
the actual processing times of each Service Center for a given
type of cases other than broad guideline processing timeframe.
But the discrepancy in the actual processing times between or
among Service Centers will be soon detected by some commercial
or private trackers.
- The reporting dates for other types of cases
varied in the August 25 reports, and the reports do not give
any clue to the guideline processing times for each of these
cases. The announcement should have included the USCIS the priority
processing times for each type of petitions or applications.
It is anticipated that at some points, they will release the
information such that the consumers will be able to better understand
its processing time reports hereon. For the announcement, please
click here.
08/27/2006: Fruits of House Committees' Immigration Hearings
in Communities in August: Public Ignorance, Waste of Taxpayer
Money, Ineffective Congress
- News report
indicates that the House leaders' anti-CIR campaigns in the form
of hearings at the community level led by the Committees and
Subcommittees conducting hearing in more than double-digit local
communities in August have failed to attract the attention from
the public and the only fruits which these hearings produced
are to appease the conservatices to support the conservative
GOP candidates in the November 7, 2006 midterm election. The
Congress is scheduled to return to the Hill on September 5 after
the Labor Day holiday on September 4 and is scheduled to adjourn
on October 6, 2006, and there will be very limited working days
ahead for the Congress before the election. Yet, the Democrats,
the Republicans, and the White House, have failed to find a common
ground for fear of the potential fallouts of the immigration
reform on the midterm national election in 2006 and the Presidential
election in 2008. Bush's role in this process has been substantially
reduced due to his waning popularity rating and public support
for the continuing Iraq war. The timid Democrats just sit in
the backseat of a wagon and "observe" how things will
unfold. The immigration community is divided between the so-called
"legal immigrants," whatever it means, supporting conservative
forces' so-called border security first proposal to gain their
support for the reform in immigration quota system and "legal
immigration" process, even at the sacrifice of the immigrant's
right to the due process, civil liberty, and justice, and the
"illegal immigrants," again whatever it means, that
seek their opportunities to come out of the dark closet and participate
in the American mainstreams. This politcal environment creates
a political texture whch is different from the one that produced
another comprehensive immigration reform legislation in 1986,
salvaging the "legal immigration system" from vicious
politcal attack by xenophoebic political forces. We want to watch
closely how the political drama will unfold in the next one month.
08/26/2006: U.S. Border Governors Urge Congress to Stop
Politics and Work on Immigration Reform Legislation
08/26/2006: USCIS Updates Processing Times Reports for Service
Centers and Local District Offices as of 08/25/2006
08/25/2006: State Department Formalizes into a Regulation its Recently Released Policy on
Swift Review Procedure for Denials of Nonimmigrant Visas
- This regulation which is released today provides
that: Nonimmigrant refusals must be reviewed, in accordance with
guidance by the Secretary of State, by consular supervisors,
or a designated alternate, to ensure compliance with laws and
procedures. If the ground(s) of ineligibility upon which the
visa was refused cannot be overcome by the presentation of additional
evidence, the refusal must be reviewed without delay; that is,
on the day of the refusal or as soon as it is administratively
possible. If the ground(s) of ineligibility may be overcome by
the presentation of additional evidence, and the applicant has
indicated the intention to submit such evidence, a review of
the refusal may be deferred for not more than 120 days. If the
reviewing officer disagrees with the decision and he or she has
a consular commission and title, the reviewing officer can assume
responsibility and readjudicate the case. If the reviewing officer
does not have a consular commission and title, he or she must
consult with the adjudicating officer, or with the Visa Office,
to resolve any disagreement.
08/25/2006: Availability of EB-3 I-140 Premium Processing
Involving Substitution of Labor Certification Application
- Once labor certification application has
been certified, substitution of labor certification takes place
at four different stages: (1) First situation is the employer
has yet to file the I-140 petition but decided to substitute
the alien beneficiary for whatever reasons. (2) Second sitution
is the employer has filed the I-140 petition on behalf of the
original beneficiary but before the I-140 petition is approve,
employer had decided to substitute the alien beneficiary for
whatever reasons. (3) Third situation is the employer has filed
and obtained the I-140 petition on behalf of the original beneficiary
but before the alien files I-485 application is filed, the employer
decides to substitute the alien beneficiary. (4) Fourth situation
is the employer has filed and obtained the I-140 petition approval
and the alien has also filed I-485 application, but the employer
decides to substitute the alien beneficiary.
- The current USCIS policy appears that in
abroad brush, it has decided not to entertain premium processing
request for I-140 petitions when the petitioner requests a labor
certification beneficiary substitution. However, the foregoing
description reflects that there are at least four different circumstances
that involves the employer's request for substitution of alien
beneficiary. In fact in patterns (2), (3), and (4), the employer
has already filed I-140 petition on behalf of the original alien
beneficiary. Consequently, the employer no longer possesses the
"original" certified labor certification application.
In these situations, the Service Center would need the original
labor certification from the oritinal alien beneficiary's file
or request the DOL to issue a duplicate labor certification application.
In both cases, the agency needs to take certain additional steps
before it can adjudicate the new I-140 petition for the new alien
beneficiary, and the agency may not be able to adjudicate the
new I-140 petition on behalf of the substituting alien beneficiary
in 15 days and exclude such I-140 petitions from the premium
processing services availability, at least for now.
- However, the fact pattern (1) is in a completely
different situation and excluding this situation from the premium
processing services should be reconsidered for the following
two reasons: REASON 1: Under the current memorandum of understanding
between the USCIS and DOL, the DOL delegated the function of
substitution of certified labor certification application to
the USCIS and as seen in the following Memorandum, the USCIS
authorized to adjudicate the substitution request and I-140 petition
without taking any additional step within the USCIS or with the
DOL when the agency is provided the original labor certification
application. This reporter thus submits that exclusion of I-140
petition with this level of substitution request is unjustified.
REASON 2: The DOL and USCIS will soon eliminate the labor certification
application substitutions and one of the cut-off times is "approval
of the substitution." The proposed regulation states that
"approved substitution" at the time of release of the
final regulation will not be affected by the elimination rule.
The substitutions which will be most vulnerable are those in
fact pattern (1) above whose labor certification application
on behalf of the original alien beneficary has either just been
certified or will be certified in the near future, but change
of circumstances will force the employer to substitute the alien
beneficiaries. Exclusion of this group who are most deserved
from the premium processing services will result in imposition
of unnecessary hardship on the employers. Considering the fact
that the Backlog Elimination Centers of the DOL are expected
to produce en masse the approval of labor certification applications
in the near future, the consequences, unnecessary hardship, and
the scale of the victimized employers will be indeed compelling
and pervasive. It is more so considering the reason 1 above that
such exclusion is not justified as the employer has or will have
the original certified labor certification application and the
agency does not need any additional steps to complete adjudication
of I-140 petition on a premium processing basis. This reporter
thus urges the USCIS leaders to reconsider the just released
announcement of policy of exclusion of substitution I-140 petitions
from the premium processing services, and decide to include the
foregoing fact (1) substitution I-140 petitions in the first
phase of the I-140 premium porocessing services.
- The following memorandum is posted here to
remind the employers, public, and agencies of the correct procedure
of substitution of alien benefiaries:
- General Requirements
- n The employer shall initiate the substitution
process by filing an I-140 petition on behalf of the alien to
be substituted with the appropriate service center and paying
the required fee.
- n The substituted alien must have met
all of the minimum education, training, or experience requirements,
as stated in Part A of the original Form ETA 750 (or ETA 9089)
filed by the employer, at the time the original labor certification
application was submitted to the state employment office. The
petitioner must submit documentation that the substituted alien
meets the education, training, or experience requirement set
forth in the original labor certification application.
- n The employer must s
- ubmit Part B of Form ETA 750 (or ETA 9089),
signed by the substituted alien.
A. Labor Certifications which are in the possession of the employer
- n The petitioner must submit the original
labor certification with Form I-140 to the appropriate service
center. If the original labor certification has been lost within
5 years of the date of certification, the service center will
request a duplicate from the appropriate DOL Certifying Office.
In order to approve the petition, the service center must have
either the original labor certification or a duplicate copy which
has been certified by the DOL.
- n The service center will adjudicate the
I-140 petition in the same manner as any other I-140 petition.
- B. Labor Certifications which have been
submitted to the Service with the original petition
- n The petitioner must attach a photocopy
of the original Form ETA 750, Parts A and B (or ETA 9089), a
photocopy of the DOL certification, and a copy of a notice of
approval (if any) of a previous Form I-140 petition to the new
Form I-140 filed at the service center on behalf of the substituted
alien.
- n The petitioner must also submit a written
notice of withdrawal of the initial I-140 petition which was
based on the labor certification.
- n The service center should ensure that
the petitioner is not using the same labor certification more
than once. The adjudicator, using the Central Index System, must
determine whether the original labor certification beneficiary
has immigrated or applied for adjustment of status based on the
labor certification and I-140 petition filed by the employer.
The adjudicator must also look up the status of any previous
petition in CLAIMS.
- n If the original I-140 petition with
the labor certification is located at the service center, the
adjudicator should retrieve the original petition, send out a
notice of automatic revocation of the initial I-140 petition
approval, and place the original labor certification with the
second I-140 petition.
- n If the original I-140 petition with
the labor certification has been sent by the service center to
a district office or suboffice, the adjudicator should contact
that office and request that the petition be returned to the
service center for revocation. Upon receipt and revocation of
the original I-140 petition, the new I- 140 petition can be adjudicated.
If the original labor certification beneficiary applied for adjustment
of status based on the original I-140 petition, upon revocation
of the original I-140 petition, the application for adjustment
of status should be denied.
- n If the original I-140 petition with
the labor certification has been forwarded to the National Visa
Center (NVC), the service center should issue a notice of automatic
revocation and update CLAIMS accordingly. The service center
may either request the NVC to return the original I-140 petition
to the service center or send a VISAS 90 cable to the NVC or
United States consulate. Once this has been completed, the service
center may adjudicate the new I-140 petition filed on behalf
of the substituted alien. If the adjudicator at the service center
has reasons to believe that the photocopy of the labor certification
is not a true and correct copy of the original or has been altered,
the service center should withhold adjudication of the petition
and request the National Visa Center to return the original labor
certification with the I-140 petition to the service center.
- C. Disposition of Substitution Requests
- n If the service center determines that
the substituted alien meets the minimum requirements set forth
in the initial labor certification application as of the date
that it was filed with the state employment office and the I-140
petition is otherwise approvable, the I-140 petition shall be
approved and processed like any other I-140 petition. The priority
date shall be the date which the original labor certification
application was filed with any office within the employment service
system of the DOL. See 8 CFR 204.5(d).
- n If the service center determines that
the substituted alien fails to meet the minimum requirements
set forth in the labor certification application or otherwise
fails to meet the requirements for substitution, the I-140 petition
should be denied. The petitioner shall be given the opportunity
to file an appeal from the denial of the substitution with the
Administrative Appeals Unit.
08/25/2006: Availability of EB-3 I-140 Premium Processing
for Aliens with Less Than Single Four-Year Degree
- The USCIS is scheduled to accept I-140 premium
processing request beginning from next Monday, August 28, 2006.
The announcement indicates that the services will be initially
available only for the two categories. One is "professional,"
and the other is "skilled worker." Unlike the definition
of specialty occupation for the purpose of H-1B petition, "professional"
for the purpose of EB-3 immigrant petition requires a U.S. bachelor's
degree or foreign equivalent degree. Meanwhile, "skilled
worker" includes a job requiring minimum of two-year "training"
or "experience." It is thus obvious that unless the
labor certification required one of the two above and unless
the alien possesses such qualification, the alien will not be
able to file the I-140 premium processing request at this time.
- Currently, there is unresolved issue of the
definition of a bachelor's degree as related to the aliens who
earned a three-year bachelor's degree in their home countries
and one or two years of additional education or training or years
of experience. People have been experiencing denials in some
of these cases not only in the EB-2 I-140 petitions but also
in the EB-3 petitions. Technically, when professional category
I-140 petition and premium processing request are denied for
the reason that the alien failed to meet the bachelor's degree
requirement, supposedly the alien should fall back on the option
of "skilled worker" category. Since the law does not
distinguish between the professional category and the skilled
worker category when it comes to the immigrant visa number allocation,
there is no stake involved in choosing either bachelor's degree
category or skilled worker category.
- However, when the petitioner does not clearly
specify which categories the petitioner seeks in the I-140 petition,
there remains a question of whether the agency should automatically
consider the option of "skilled worker" category when
the alien fails to meet the bachelor's or equivalent category.
This question was raised by the USCIS in the so-called Grace
Korean Methodist Church case and the federal court ruled
in favor of the petitioner. However, the USCIS currently refuses
to apply the court decision to other cases or the cases in other
jurisdictions.
- Accordingly, it may be prudent for the three-year
degree filers to make it clear in the cover letter that the petitioner
is seeking "professional/skilled worker" category EB-3
to make it clear that the petitioner is seeking "skilled
worker" as an alternative. Even though it may be considered
a "minor" matter, technically it can avoid any potential
denial of the premium processing request as well as the underlying
EB-3 I-140 petition. One caveat is the definition of two-year
"training." The four-year college degree is considered
equivalent to two-year vocational training or two-year experience
in the occupation by the U.S. Department of Labor.. Such logic
is derived from the nature of undergraduate education system
to focus on general studies for the first two years of four-year
bachelor's education program. The first two-year education is
not related to any vocational training or education. Accordingly,
the USCIS can argue that three-year foreign degree is equivalent
to one-year vocational training or work experience for the purpose
of meeting the "skilled worker" requirement. Accordingly,
if one took two AA degrees and both programs involved only general
studies and no specialty courses, USCIS may venture to argue
that the alien fails even in the "skilled worker" category.
The same may be true if an alien has a three-year degree and
less than one year of additional training or work experience
in certain specialties. This reporter is unaware of any precedent
decision on this issue, but this issue is raised here to remind
the I-140 petitioners and premium processing request filers of
the potential issues involved in the premium processing request
eligibility.
08/24/2006: Schedule A Visa Number Availability
- AILA has reported that according to the State
Department, the EX Schedule A visa number may remain "Current"
for October 2006 should the current rate of EX number usage
will continue. Should the current rate of EX number usage
continue, there may be less than 1000 number remaining for use
during November 2006 and the State Department may impose a November
cut-off date, and the EX category may become unavailable at any
point during the month. However, the State Department also predicts
that the numbers may be used at a higher rate than current rate
as affected by the news that EX numbers are running out.
08/24/2006: USCIS Announces Changes in the Processing Times
Report
- People must have noticed that the USCIS has
not updated its website report of processing times report for
quite a while. Curious George speculated something was cooking
in the USCIS oven. Here we go. (USCIS
has retracted this announcement)
08/23/2006: Houston ICE Arrests 326 "Criminals,""Fugitives"
and "Immigration Violators"
- ICE of DHS has reported that the ICE agents
in Houston arrested 326 of Mexico, El Salvador, Guatemala, Honduras,
Colombia, India and Pakistan.background criminals, fugitives,
and immigration violators. Their operations include not only
criminals and fugitives from warrants and deportation orders
but also immigration violators. People often take the term "illegal
aliens" synonimous with border crossers, but illegal aliens
include those legal aliens who entered the country legally but
turned into an illegal alien due to the violation of the immigration
laws. For ICE news release, please click here.
08/23/2006: Old and New I-907 Premium Processing Forms and
Instructions
- The links to the forms and instructions:
- Filing jurisdiction for I-140 Premium Processing:
- All new PPS I-140 cases must be filed with
the Nebraska Service Center. There is no information available
about whether these cases will be split between NSC and TSC for
adjudication.
- All PPS for pending I-140 cases must be filed
with one of the four Service Centers where the I-140 petitions
are pending. For the details, read the instructions.
08/20/2006: Where to File I-140 Premium Processing Requests
- You must complete and sign new Form I-907,
Request for Premium Processing Service, in accordance with the
instructions on the new form which is expected to be released
tomorrow, August 21, 2006. You must file the concurrently filed
Form I-907 with Form I-140 at the Service Center designated as
the appropriate filing location on the instructions to the new
Form I-907. If you have already filed the Form I-140 which is
pending and you now want to request Premium Processing Service,
you should file the new Form I-907 with the Service Center where
the Form I-140 is currently pending. You should submit a copy
of the Form I-140 filing receipt. If you received a transfer
notice, it is very important that you include a copy of it and
that you submit your filing to the transfer location. If a petitioner
erroneously filed a concurrent or standalone Form I-907 at the
wrong service center, USCIS will not reject the filing, but instead
will forward the filing to the correct service center having
jurisdiction over the petition. However, in such event you will
experience delays as the 15 calendar day period will start on
the date the file is received at the correct service center as
indicated in the new Form I-907 filing instructions. Lastly,
the new Form I-907 and the request for Premium Processing of
I-140 should not be filed before August 28, 2006. Please remember
also that the alien beneficiary cannot sign and file Form I-907.
Only employer or employer's representative including the lawyer
can sign and file the Form I-907. Please stay tuned with this
site for the upcoming release of the new Form 907 and instructions.
08/20/2006: Conditions for I-140 Premium Processing Services
- Are there any additional conditions of availability
being placed on the Premium Processing Service at this time?
- Yes. This will accord USCIS the flexibility
to adapt to contingencies affecting its ability to provide Premium
Processing Service. Premium Processing Service is available for
the Form I-140 classifications indicated on the chart above provided
that the case does not involve:
- A second filing of a Form I-140 petition
while an initial Form I-140 remains pending;
Labor Certification substitution requests; and
Duplicate Labor Certification requests (i.e., cases filed without
an original labor certification from the Department of labor).
USCIS is prescribing these additional conditions of availability
on Premium Processing for Form I-140 because of their special
processing requirements, including locating and transferring
other files or documents internally and requesting initial evidence
from an outside agency, that make it difficult for USCIS to guarantee
that it will process the case within a 15 calendar day period.
08/19/2006: I-140 Premium Processing Filing Procedure and
Advisory for the Commercial Immigration Form Software Producers
- It is anticipated that next week, the USCIS
will release detailed filing procedure, including the specific
Service Center, address, and other procedural matters. Part of
the procedural matters may be released in the new Premium Processsing
Request form, I-907. As we warned in the previous postings, the
employers are not supposed to use the new form until August 28,
2006. From August 28, 2006, the new I-907 form will be the only
form the USCIS will accept and the current form I-907 will be
rejected.
- Usually the commercial immigration form producers
that are used by most of the immigration practitioners and employers
update the forms before the effective date of the new forms to
assist their customers. In most of these cases, there is a grace
period during when both old and new forms are accepted. However,
the USCIS announcement indicates that the customers must use
the current form I-907 until August 27 and the new form I-907
from August 28, 2006. Otherwise, the filing of the PPS is expected
to be rejected by the agency for the reason of "invalid"
forms. It is thus imperative that these commercial producers
may not want to update the I-907 software form until the 27th
to ensure that their customers use the right form. As for the
customers filing the PPS from next week, it may not be a bad
idea to use the USCIS website form I-907 during the one week
period. Until the USCIS releases additional instructions, people
are advised to read the following two sites:
08/19/2006: EB-3 I-140 Premium Processing, Trend of Upsurge
of I-140 Denials, and Need for Review of Standards in Major Issues
- Traditionally, the denial rate of H-1B has
been estimated to be between approximately 10% and 15% of total
H-1B filings. Similar statistics have yet to be disclosed by
the USCIS. However, there have been some outcrys in immigrant
community relating to the increased trend of RFEs and denials
in I-140 petitions, particularly EB-3 petitions. We do not want
to pretend that changes in the processing time of AAO appeals
of EB-3 petition denials can be a yardstick for measurement of
the trend of agency's denials of EB-140 petitions. AAO Processing
Time Reports during the past four years may shed some light on
the backgrounds for the mounting delays in AAO's processing times
as seen bvelow
- AAO EB-3 Appeals Processing Times
| Dates |
10/17/02 |
07/31/03 |
12/04/04` |
06/14/05 |
12/28/05 |
05/26/06 |
|
Proc Time
(Months)
|
7 |
10 |
14 |
15 |
18 |
17 |
- Again, we do not have specific statistics
on the issues involved in the denials. However, it is more or
less very obvious that the two issues have dominated denials
in the majority cases. One is retlated to the employer's eligibility
and the other is related to the alien beneficiary's eligibility.
The employer's eligibility denials are speculated to be the employer's
financial ability to pay the proffered labor certification wage,
and the alien beneficiary's eligibility denials are speculated
to be related to the alien's educational credentials. The trend
of increase of the AAO processing times must have been related
to the increased number of denials and the increase in the denials
may have something to do with the past two or three years of
field offices's policy changes in the standards relating to these
two issues. The trend has moved from the fairly liberal policeis
to the restrictive policies during the past few years.
- Report indicates that in order to deal with
the increasing trend of restrictive policies of the field offices,
the USCIS HQ leasders have been contemplating issuance of regulation
or policy memorandum to guide the filed offices to loosen up
the ever tightening narrow reading of the standards. For instance,
as for the employer eligibility issue, the USCIS has drafted
a proposed regulation to loosen up the standards for the employer's
eligibility to pay the proffered wage. As for the alien's foreign
educational credential issue, indeed the culprit party was the
AAO itself and the USCIS leaders have been contemplating issuance
of a memorandum to override the unprecent AAO decisions that
have led to the restrictive application of the standards by the
field offices. Unfortunately, release of both of these HQ guidances
has been delayed and delayed. People should understand that current
restrict policy will continuously produce a lot of RFEs in the
I-140 premium processing cases. Since the premium processing
rule provides that once RFE is issued, running of 15-day clock
disappears and the 15-day clock will run anew from the date the
agency receives the requested evidence from the employers in
response to the RFE. This process will substantially delay the
adjudication process. It is thus advised that people review approvability
of their I-140 petitions without issuance of RFE under the current
standards and practice points of the adjudicating agency before
they file a I-140 PPS. Otherwise they may just lose $1,000 with
the expected benefits.
- Information indicates that the USCIS HQ has
a plan to release a "reconfigued bi-specialization structure"
in the two jurisdictions: Probaby one jurisdiction taken by the
VSC-NSC pair and the second jurisdiction taken by the CSC-TSC
pair. The details have yet to be disclosed by the USCIS, but
from the fact that the main motive for such restructuring is
allegedly to prevent shipping of massive files from offices to
offices, one possibility is the bi-specialization in each jurisdiction
diving the entire country into the two jurisdictions. Or it can
be something else. Such restructuring will one way or another
affect the process, but there is no information available about
when it will take place. Accordingly, people may assume that
until such change takes place, they develop the case based on
the narrowest standards the agencies currently apply on various
issues, particularly the two issues which we raised in the foregoing
paragraph.
08/18/2006: USCIS Announcement of Launch of I-140 Premium
Processing Services from 08/28/2006
- AILA has reported the USCIS news release
that the USCIS will start taking I-140 Premium Processing Request
from August 28, 2006. This PPS will be limited to EB-3 Skilled
Worker category and Professional category only and "other
worker," commonly called unskilled worker category that
requires less than two years of experience will not be able to
file the PPS. It does not specifically mention about EX for Schedule
A categories, but generally these Schedule A occupations are
considered EB-3 Skilled Worker/Professional category for the
purpose of the immigration statute and presumably the PPS may
also be available to the Schedule A cases effective August 28,
2006. It is expected that the USCIS may clarify on this issue
sooner or later.
- The USCIS is scheduled to release a new form
I-907 on August 21, next Monday, but this form should not be
used until August 28, 2006. Any PPS filing using the new form
before August 28, 2006 will be rejected. At the same time any
I-907 which will be filed on or after August 28, 2006 which uses
the current I-907 version will be rejected.
- Launch of the I-140 Premium
Processing Services will not affect the concurrent filing and
people will be able to continue to file I-140 and I-485 concurrently
until the USCIS publishes a regulation to terminate the concurrent
filing procedure. For the questions on the I-140 Premium Processing
Service, people may visit our Q&A site
for the next several days.
- For the benefits of I-140
PPS, please revisit the following post on the Breaking News site:
"07/24/2006:
I-140 Premium Processing to Start With EB-3 in August 2006
- According to the Director of USCIS, the agency
is scheduled to implement the Premium Processing Services beginning
from EB-3 petitions in August. It is expected to be followed
by other types of petitions within this year. The USCIS is reportedly
to announce the EB-3 Premium Processing Services in the very
near future. Please stay tuned.
- Lately, the USCIS has been experiencing delays
in I-140 petition processing. The launch of I-140 petition premimum
processing services, albeit limited to EB-3 cases only initially,
may induce the EB-3 professionals to take advantage of the premium
processing services for a number of reasons. (1) H-1B
extension beyond the six-year limit in "3-year" increment.
The services will be particularly valuable for those who could
not file a H-1B extension beyond the six-year limit because they
started the labor certification application after they reached
five years in H-1B status. (2) The premium processing
of I-140 will help those who need to change employment after
180 days of I-485 filing. The so-called Yates memo allows portability
of I-140 petition even before the petition is approved iinasmuch
as the alien can prove that the I-140 petition was "approvable
at the time of filingl," the experience indicates that some
risks accompanied such move and the legal counsels and the involved
aliens were reluctant to change employment even after passage
of 180 days after filing of I-485 unless the I-140 petition was
first approved. Launch of the EB-3 I-140 premium processing services
will help such aliens to achieve the needed change of employment
under AC 21 Act in more or less risk free condition. (3)The
premium processing of I-140 will also assist those aliens who
need the retention of their priority date and transfer to another
petition. Under the current law, the priority date of the employment
based immigrant petition can be retained once the I-140 petition
is approved and can be transferred to another petition. (4)Lastly,
the I-140 premium processing will help those who will file a
substitutiion of labor certification application before the rule
is eliminated, apparently before April 2007. Under the proposed
substitution elimination rule, the substitution will survice
if the substitution is approved, When one attempts the substitution
of alien beneficiary at the stage of I-140 petition, one will
have no evidence that the USCIS "apprroved" the substitution
until the substitutition I-140 petition is approved as the USCIS
does not have a separate procedure to adjudicate the alien substitution
request. It is handled as part of I-140 petition adjudication."
08/17/2006: USCIS Data Digitalization Facility in Williamsburg,
Kentucky and Electronization of Immigration Benefits Filing and
Processing Agenda
- USCIS announced that the USCIS had opened
this facility to manage almost one million alien files digitalized
and stored for retrieval by field offices for future electronic
filing and processing of immigration benefits applications in
the near future. As we reported earlier, the USCIS has been pushing
reengineering of the immigration benefits filing and processing
into electronization and the petitioners, aliens, and their lawyers
will be required to electronically register and once the database
is digitalized, the digitalized data will be shared by the field
offices when they process the immigration benefits applications.
This will enhance the speed of the processing as well as the
national security plus fraud prevention and detection. Reportedly
there are 70 million alien files which need to be digitalize
in the future. We anticipate that the immigrant community may
see a different filing system and procedures in coming year once
the reengineered process and system are in place for operation.
- The benefits of digitalization are illustrated
by the digitalization of fingerprinting. In old days, the fingerprint
was taken manually using ink. Now it is taken and digitalized.
Once the I-485 is approved, the digitalized data is transmitted
to the plastic green card production facility and the plastic
card is almost instantaneously produced and shipped out the new
immigrants. In old days, people had to wait for six months or
one year to receive the plastic card, but now thanks to digitalization,
people receive the plastic green card in less than 10 days in
the mail. Certainly the digitalization will compromise the people's
right to privacy but it appears that it is the price the people
will have to pay to benefit from the electronic processing of
immigration benefits processing.
08/15/2006: Multiple I-140 Petitions: Uniform Policy in
Negative Fashion?
- We reported on August 3, 2006 USCIS lack
of uniform policy on multiple petitions on a single EB-2 labor
certification application. It appears that the disease has spread
to the TSC adopting a similar negative policy of denying EB-3
petition when EB-2 and EB-3 petitions are filed concurrently
using single certified EB-2 labor certification application on
the ground that "original" of the certified application
was not available for the EB-3 I-140 petition since the original
had to accompany the EB-2 I-140 petition. Obviously this is a
deviation from the traditional INS/USCIS policy in a negative
way and we hope that the USCIS leaders are not turning around
from the liberal policies under Yates-Divine era to the narrow-restrictive
policies.
08/14/2006: Effective Today. Electronic U.S. Passport Issued
- Beginning from today, the U.S. Department
of State has started issuing electronic passports to the U.S.
citizens. The new generation of passports includes biometric
technology, a computer chip that contains the same data as those
found on the biographic data page of the passport. Those data
include name, gender, date and place of birth, and the passports
issue and expiration dates. The chip also includes a digital
image of the bearers photograph. For the announcement,
click here.
08/11/2006: September 2006 Visa Bulletin
- Countries:
- India EB-2: Unavailable
- India EB-3: 04/15/01
- China EB-2: 03/01/05
- China EB-3: 03/01/02(Wow!)
- Worldwide: EB-2=C,
EB-3=03/01/02 (Wow!)
- Mexico: EB-3=04/22/01
- Philippines: EB-3=03/01/02
- EB Predictions:
- The Employment Third preference cut-off date
for most countries has been advanced very rapidly in recent months
in an effort to maximize number use under the annual numerical
limit. As a result, applicant demand for numbers, particularly
for adjustment of status cases at Citizenship and Immigration
Service (CIS) Offices, is expected to increase significantly.
Therefore, it cannot be assumed that such advances will continue
during the coming months. It should be noted that the Department
of Labor expects to complete its backlog reduction effort during
FY-2007. This effort will result in tens of thousands of cases,
including many with very early priority dates, becoming eligible
for processing at CIS Offices. This could require the retrogression
of the Employment Third preference cut-off dates at any time
during FY-2007.
08/11/2006: Potential Fall-Out of Yesterday's Terrorist-Ring
Crack-Down and Nation's Obsession with the Security
- Yesterday's news was horrifying reminding
Americans of the nation at siege of the war on terrorism. From
the perspectives of the immigration reform including legal immigration,
it cannot come at any worse time than the present environment.
The 9/11 anniversary is only a month away and a 9/11 fiction
movie has just been released to remind the public of our nation's
vurnerability and critical nature of security. Reports indicate
that after the yesterday's event, pro-war political forces are
gaining a political strength and the security issue has returned
to the nation's top priority and front-burner in all aspects
of our lives.
- Without doubt, it has turned the immigration
reform issue into a back-burner and the conservative forces in
the Congress, particularly in the House, are gaining political
strength and public supoort for their conservative agenda to
focus on the border security and immigration enforcement. Indeed,
the comprehensive immigration reform supporters including Democrats
and liberal Republicans have lost their strength and public support
when it comes to immigration legislations as they will have to
face the public of changed textures in the upcoming midterm national
election which is only three months away. What a turn of the
event! No one will be surprised if immigration violators are
treated as criminals, sooner or later, at all levels by federal,
state, and local governments.
08/11/2006: Immigration Benefits Application Procedures
in Removal (Deportation) Proceedings
- Some immigrants are seeking the immigration
benefits applications including I-485 through the immigration
court proceedings as the aliens were arrested and are in the
deportation processings before the immigration courts. Depending
on the circumstances, the aliens can seek a discretionary relief
of the immigration benefits before the immigration courts. Once
such relief is granted by the immigration judge, the aliens process
the immigration benefits applications through the USCIS. Accordingly,
such aliens are required to go through the two different agencies
to obtain the immigration benefits: One is the EOIR of the U.S.
Department of Justice which includes the Board of Immigration
Appeals (BIA) or Immigration Judge (IJ), and the other agency
is the USCIS field offices.
- In order to assist such aliens, the USCIS
has released various instructions which these applicants should
follow through.
- Some Employment-Based immigrants are required
to go through the foregoing process to seek the immigration benefits
once the Notice to Appear (NTA) has been issued and served on
the aliens by the USCIS field offices including the Service Centers
after denying such immigration benefits applications and such
NTA is filed with the immigration courts by the ICE since the
precondition for grant of the immigration benefits is the immigration
judge's order granting the discretionary relief despite the court
finds that the alien is deportable or removable.
08/10/2006: Varying Local District Practices in ADIT Stamping
and Travel Problem for I-485 Approved Permanent Residents
- The applicants of the permanent residence
turn into a legal permanent resident at the time I-485 is approved
and notices are sent out. However, the approval notice does not
constitute a legal "evidence" for the purpose of employment
and international travel. In the past, production of the "green
card" which is the legal evidence of permanent resident
took months or even a year after the I-485 was approved by the
Service Centers in the EB cases and by the local district offices
in the FB cases. Thanks to the technological development using
digital imaging system in the USCIS system, nowadays the plastic
cards are produced and shipped out almost instantaneously upon
approval of the I-485 applications. However, there are still
some cases that experience delays in receiving the plastic cards.
To deal with such gap, traditionally the USCIS local offices
gave a temporary evidence of permanent resident stamp which is
called "ADIT" stamp in the passport so that they can
travel outside of the country. However, the USCIS has been phasing
out of the local district offices' involvement in issuance of
legal evidence of employment authorization and permanent residents
in an effort to streamline the work relating to the integrity
of such evidence as related to the homeland security, prevention/detection
of immigration frauds, and control of illegal employment. The
USCIS has already announced that the EAD cards will be produced
only by the Service Centers and the Central Card Facility effective
October 1, 2006 in order to centralize this part of the immigration
work. There was no official word which was made public that the
agency would phase out of ADIT stamping, but apparently that
is what has been happening within the USCIS system. This is evidenced
by the recent events that involve some of the local USCIS district
offices refusing to give such stamps in the passports. Once the
I-485 is approved, the Advance Parole is no longer valid and
the ADIT stamp is the only means to travel outside of the U.S.
until the plastic green card is issued.
- Considering some emergencies and unnecessary
hardships that could impose on these permanent residents, we
urge the USCIS to continue its traditional practice of issuing
such ADIT stamps in the passport.
08/10/2006: House and Senate Scheduled to Return 09/05/2006
- The full House and the full Senate remain
in the Summer break and are not scheduled to return to the Hill
until September 5, 2006. There will be no legislative bills to
pass Congress during the period. However, some Committees and
Subcommittees assignments are in full swing, particularly the
border security hearings in various locations. In September,
the House and Senate floors will have very tight schedules with
a limited agenda before they will go out of session again in
October for the election campaign in the local communities.
- Because of the Congressional schedules and
the hopeless divided GOP on the immigration issues, there is
a slim chance that any immigration bill will pass the Congress
before the midterm national election in November 2006. There
was a report that the Bush White House had informally admitted
that no comprehensive immigration reform bill would be enacted
before the election.
- Immigrant community may as well sit back
and relax and learn to live, for a while, with whatever they
see in the current law books.
08/06/2006: Reminder of Centralization of EB-485 Filing
Procedure Effective 07/24/2006
- It appears that people are still confused
about the filing jurisdiction for EB-485 applications. They include
two groups. Group I is those whose I-140 petitions are still
pending at CSC or VSC or TSC. Group II is those who have just
received I-140 approval notices from CSC or VSC or TSC. Effective
July 24, 2006, regardless of where their pending or approved
I-140 petitions are located, they should file the stand-alone
I-485 applications with NSC. Accordingly, you filed your stand
alone I-140 petition at CSC or TSC or VSC and while the I-140
petition still pending, your visa number becomes available and
you want to file I-485 application for yourself and your family
members, you should file the I-485 applications not with the
Service Center where your I-140 petition is pending but with
Nebraska Service Center. Please make it sure that you attach
a copy of the pending I-140 Receipt Notice. Additionally, if
your I-140 petition has been pending at CSC or TSC or VSC and
receive the I-140 approval notices from these Service Centers
and you want to file I-485 applications as your visa numbers
are available, you file the stand alone I-485 applications for
yourself and your family members not with TSC nor CSC nor VSC,
but with NSC attaching the approved -140 approval notice. Just
remember that all the employment-based I-485 applications should
be filed with NSC regardless of where your files are located.
- Filing of stand alone EAD or Advance Parole
new applications or renewal applications while I-485 applications
are still pending is not affected by the centralization of I-485
applications. These stand alone EAD or Advance Parole applications
should still follow the jurisdictions of the pending I-485 applications.
For instance, if your I-485 application has been pending at CSC,
you still have to file EAD or Advance Parole applications with
the CSC and not with the NSC. EAD or Advance Parole applications
should always be filed with the Service Center where their I-485
applications are pending.
08/04/2006: Contribution of Foreign Professional Workers
in Manufacturing Sector in the U.S.
- Immigration Policy Center's August 2006 study
indicates that shortages of skilled labor constitute the foremost
challenge confronting U.S. manufacturers who face growing competition
from manufacturers in Asia, Eastern Europe, and elsewhere. Demand
for professionals with university degrees is rising as manufacturing
becomes increasingly high tech. But the U.S. educational system
is not producing enough highly educated native-born manufacturing
workers to meet this growing demand. According to study immigrants
represented large shares of advanced degree holders in technology-intensive
manufacturing industries. For instance, in 2004:
- machinery (65.4 percent)
- measurement/control instruments (48.2 percent)
- electronic components (44.6 percent)
- computers/peripherals (44.4 percent)
- communications equipment (39.8 percent)
- medical equipment (37.3 percent.
- For the full text of this report, please
click here.
08/04/2006: Service Centers Processing Times 08/03/2006
08/04/2006: Elimination of Backlog Labor Certification Applications:
Feasible in 14 Months?
- The DOL authorities confirmed in San Antonio
in June that the data entries were about to be completed by the
end of June and mailing out of all the 45-day letters might also
be completed by middle or within July 2006. The authorities also
confirmed that traditional regular labor certification applicants
would start receiving the recruitment instructions with their
prevailing wage determination to accelerate the recruitment process
beginning from later part of July 2006.
- For a while, the employers received en masse
the 45-day letters in the mail, but lately it has slowed down
for unknown reasons. Sources indicate that the initial schedule
has been somewhat pushed off. However, the DOL website still
promises that they will eliminate all the backlog cases in 14
months. The period of 14 months may be a long time for the immigrants
but a short time for the agency to eliminate tons of complicated
labor certification applications. This is particularly true in
that as the elimination program approaches the end of the rope,
the morale of the temporary workers that manage, operate, and
process applications is expected to drop substantially.
- The late slow-down of the pace of processing
of the backlog applications raises a misgiving that unless the
agency works out a special procedure or device, they may not
be able to reach the goal.. There are still tons of traditional
applications that await a time-consuming supervised recruitment
process and adjudication including audits. The c6nsumers want
to see some speed-up action before we approach the year-end holiday
season and work slow-downs.
08/04/2006: Final Rule of Labor Certification Substitution
Elimination: Where Is It?
- A rumor starts surfacing in the immigrant
community that the DOL is finalizing the rule-making process
for this final rule and the rule may be published in the federal
register in the near future. This rumor has not been confirmed
by the DOL. Neither the OMB rule-making agenda reflects such
request by the DOL. We will closely watch and monitor this rule-making
process. Please stay tuned.
08/04/2006: August "USCIS TODAY" Newsletter Explains and Emphasizes
Employer Verification Program
- The August edition of the USCIS monthly newsletter
highlights the employer verification pilot program and the forthcoming
mandatory participation of all the employers. As the nation growiingly
focuses on control of illegal aliens through the employment authorization
verification devices and employer sanction reinforcement program,
the employers should prepare themselves for the forthcoming "compliance"
system and procedure as an important part of their business operation.
08/04/2006: USCIS Announces Special Immigration Opportunities
for Iraqi and Afghan Translators Working With U.S. Military for
One Year in the Countries
- Under a special immigrant legislation which
was passed by the Congress this year, the Iraqiand Afghan translators
worked for the U.S. military in Afghanistan and Iraq are given
the opportunities to apply for permanent resident staus in the
U.S. upto 50 a year. The spouses and dependent children are not
subject to the annual numerical limit of 50. They can apply the
immigration either in the U.S. or abroad. In the U.S., the special
immigrant petition (I-360) is filed with the Nebraska Service
Center, and once the petition is approved, they file I-485 applications
with the Nebraska Serv ice Center. For the detailed procedures
and threshold requirements, please read the announcement.
08/03/2006: Multiple I-140 Petitions with One Underlying
EB-2 Labor Certification Application and Need for Uniform Policy
- The multiple I-140 petiions (EB-2 and EB-3)
using single certified EB-2 labor certification application had
been a long standing policy of legacy INS and current USCIS until
the NSC announced in a recent AILA-NSC liason meeting that the
NSC would not allow such multiple petitions. The immigration
practitioners including this reporter have actually witnessed
denial of one of the two petitions concurrently filed for the
reason that one labor certification had been used by another
concurrenly filed I-140 petition. This practice not only deviates
from the agency's long standing tradition based on an age-old
memorandum of the agency, but also contradicts with the practice
of the TSC. Last month, the TSC disclosed that the agency did
not have any problem of accepting and processing multiple I-140
petitions based on a single underlying certified EB-2 labor certification
application. Additionally, the TSC also stated that in the event
that multiple petitions were not filed concurrently but in different
times, the petitioner could file the second and subsequent I-140
petition without withdrawing the previously filed another I-140
petition. Indeed, the TSC policy is consistent with the agency's
traditional practice.
- There is no logic that one labor certification
should support one I-140 petition. One labor certification should
not produce two green cards nor take out two immigrant visa numbers.
Inasmuch as the agency is mandated not to approve the two I-485
applications or two immigrant visas based on the same certified
labor certification application, the intent of the legislation
is satisfied. The Service Centers have a sophiscated system that
checks the record of the specific labor certification to see
whether any I-485 or immigrant visa has been granted based on
the labor certification application before they adjudicate each
I-485 application. Accordingly, there is no room for the abuse
by the immigrants using one certified labor certification application
for multiple green cards.
- Immigrants file the multiple I-140 petitions
using single labor certification application in such times as
the current situation when the immigrant visa numbers are heavily
retrogressed and the future of the immigrant visa numbers for
each category is not predictable. Because of the benefits that
accompnay the filing of I-485 applications and their need for
minimizing hardship during the period of retrogression, they
want to file both EB-2 and EB-3 using EB-2 labor certification
application. In earlier days, Chinese EB-2 labor certification
beneficiaries one time experienced EB-2 retrogression worse than
EB-3. During the time, in order for them to file I-485 application
using EB-3 favorable number, they filed multiple I-140 petitions
which allowed them to file at least I-485 applications along
with the applications for EAD and Advance Parole. Even though
such unsual movement of visa numbers between EB-2 and EB-3 did
not last too long, some EB-2 people took advantage of the opportunity
to file I-1485 using EB-3 petition. Guess what! History repeats
itself. As of this month, Indians are experiencing the same.
For them EB-2 numbers are totally unavailable, while EB-3 numbers
are available even though the cutoff date is April 1, 2001. Those
with EB-2 priority date earlier than April 1, 2001 may want to
file multiple I-140 petitions along with the concurrent I-485
applications. Some earlier EB-2 labor certification filers start
getting the labor certification application approvals by the
BECs with the priority dates earlier than April 1, 2001. Certainly,
they may want to file multiple EB-2 and EB-3 petitions, and using
EB-3 I-140 petition filing, they will also file concurrent I-485
application along with EAD and Advance Parole applications. The
reason why they want to file both EB-2 and EB-3 is that they
can transfer pending I-485 application to EB-2 later on once
the EB-2 visa numbers start moving faster than EB-3 and EB-2
visa number becomes available for him. The NSC's practice leads
to deprivation of such opportunities to the immigrants without
clearly defined public interest or justification. We urge the
NSC leaders to reconsider their current restrictive policy and
join the TSC in this area of practice.
08/02/2006: Change in Current Bi-Specialization Processing/Adjudication
Juristriction May Be Forthcoming
- We reported last year that there was a GAO
report that the USCIS structure of field offices and processing
jurisdiction were loaded with loopholes for wide-spread frauds
in the immigration benefit petitions and applications and the
GAO recommended to centralize the immigration benefits processing
and adjudication system. The USCIS disagreed with the GAO report
and recommendations and disclosed for the first time that the
USCIS was about to launch the Bi-Specialization program which
would be sufficient to achieve the goal of fraud prevention.
At the time, the USCIS reported that there would be two main
jurisdictions: One jurisdiction would consist of VSC as main
office with NSC as a Satelite office of the VSC. The second jurisdiction
would consist of CSC as main office with TSC as a Satelite office
of the CSC. However, when the Bi-Specialization program was actually
announced early this year, we noticed the pairing of two Servince
Centers into one jurisdiction, NSC-TSC in one pair and VSC-CSC
in another pair.
- The Acting Director of the NSC disclosed
on July 27, 2007 that the USCIS were scheduled to announce the
new pairing of the Bi-Specialization structure in a federal register.
Reportedly it would take a few months before this federal register
notice could be completed. It appears that the USCIS may return
to its original plan: Paring VSC and NSC into one jurisdiction
and paring CSC and TSC into another jurisdiction. However, no
details are known at this time how these offices will be operated
in terms of the division of the works, to wit, whether by territorial
jurisdictions or processing immigration benefit type specialization.
This website welcomes the upcoming change for the reasons that
the current Bi-Specialization program has entailed a host of
problems. We do not have any specific evidence, but from the
perspectives of efficiency and effectiveness in management of
immigraion benefits operation, the current system raises a serious
question. Shipping around tons of filings have raised eye-brows
by some concerned customer community members. In fact, one other
reason why the GAO recommended to centralize into a single structure
was its concern that with the current system, the USCIS might
not be able to achieve the Bush's six-month processing time commitment
within the set timeline. We commend the leaders of the USCIS
for their effort to work out efficient and effective reengineering
of the immigration benefits processing system.
- We do not know how the recently announced
changes in processing of EAD and I-485 applications are related
to the upcoming changes. The USCIS has already centralized the
window of EB-485 filings at the NSC and the EAD filing and processing
will be completely nationalized at the Service Centers. Report
indicates that the USCIS may soon centralize the jurisdiction
of adjudication of most of I-360 filing at the CSC.
- In this period of transition of reengineering,
people should watch carefully the news of changes in the jurisdictions
within the USCIS.
08/02/2006: Board of Immigration Appeals Held California
Dimestic Battery Conviction Does Not Constitue Moral Turpitude
Crime or Aggravated Felony for Deportation(ID
3537)
- Renato Wilhemy SANUDO, 23 I&N Dec. 968 (BIA
2006), Interim Decision #3537 (August 2, 2006) held that:
- (1) An aliens conviction for domestic
battery in violation of sections 242 and 243(e)(1) of the California
Penal Code does not qualify categorically as a conviction for
a crime involving moral turpitude within the meaning
of section 237(a)(2)(A)(ii) of the Immigration and Nationality
Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2000).
- (2) In removal proceedings arising within
the jurisdiction of the United States Court of Appeals for the
Ninth Circuit, the offense of domestic battery in violation of
sections 242 and 243(e)(1) of the California Penal Code does
not presently qualify categorically as a crime of violence
under 18 U.S.C. § 16 (2000), such that it may be considered
a crime of domestic violence under section 237(a)(2)(E)(i)
of the Act. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir.
2006), followed.
07/30/2006: Republicans Launch a Massive
Campaign to Promote Its Restrictive Immigration Agenda
- Republicans have started
a massive campaign to promote their restrictive immigration agenda.
It appears that the campaign includes the following:
- Label the Senate Comprehensive
Immigration Reform as though it is the Democrats Reid-Kennedy
agenda;
- Focus the Republican immigration
reform agenda on the border security targeting at the November
election.
- So far these double sword
agenda appear to be promoted by the two means, among others:
- As we reported earlier, the
House Republicans are scheduling 19 hearings at the 12 states
mostly in August and some in early September with these two specific
topics;
- Republicans launched a new
website to publicize these two agenda and through webcast of
the hearings and other discussion on its new Border
Security website.
- The Speaker of the House has announced that
after the hearings, he would push the border security bill in
the House in September. It thus appears that conference process
for the Senate passed Comprehensive Immigration Reform bill is
not likely happen before the election. There is some possibility
that the Republicans may attempt to incorporate the recently
announced Hutchinson-Pence plan on the extremely restrictive
Guest Worker Program and 17-year required immigration opportunity
for some of the former illegal aliens to accomodate and save
the face of Bush White House and to mitigate the Democrats' assault
on the Republicans as anti-Hispanics and anti-immigration forces.
Another unknown factor is the place of legal immigration reform
plan such as those which are incorporated in almost all of the
Immigration Reform proposals including Frist Bill, Specter Bill,
and S. 2611 Comprehensive Immigration Reform bill. The legal
immigration reform has been introduced either in the House and
the Senate in similar context with different names and some modifications
by the House or Senate sponsors of the bills. For instance, PACE
Act, Senate version of SKIL Act, and House version of SKIL Act.
These bills were accomodated by the Senate sponsors of the comprehensive
immigration reform bills including Frist and Specter, but these
bills can also be absolved into the ongoing Republican immigration
reform process, even though there is no clue or sign that it
will definitely happen. There was a report that the Republicans
had been under the tremendous pressure from the business community
including Microsoft and other business giants to act on the legal
immigration reform. Depending on the outcome of the ongoing Republican
restrictive immigration campaign and the direction of the public
opinion, such comprehensive reform process can be worked out
or pushed aside until after the election. The critical momentum
should develop in September before the legislators go back to
their hometowns in October for the final November election campaign.
This site will closely monitor the development in September.
Please stay tuned.
07/28/2006: USCIS Confirmed I-140 Premium Processing Launch
Late August, 2006 Through AILA
07/28/2006: Surprise, Surprise, Surprise, H-1B Advanced Degree Cap Retroactively Reached on
07/26/2006
- USCIS has announced that the Advanced Degree
H-1B cap reached on July 26, 2006. The cases which were received
on July 26 would be seldomly selected.
07/28/2006: House Committees Community Hearing Schedules
for Border Security and Immigration Reform
- The House has schedules of the following
19 hearings conducgted by 8 committees in 12 States:(Sources:
U.S. Newswire)
- Judiciary Committee
- San Diego on Aug. 2 -- How do illegal immigrants
impact the costs of healthcare, local education and other social
services, and would these costs increase under Reid-Kennedy immigration
bill?
- El Paso, Texas, on Aug. 17 -- What is the
financial impact of illegal immigration on communities along
the U.S. border, and could these costs rise under the Reid-Kennedy
bill? What is the impact on efforts to extend a border security
fence under the Reid-Kennedy bill's requirements regarding consultation
with the Mexican government? Will efforts to limit illegal immigration
be inhibited by the Reid-Kennedy bill's provisions relating to
local law enforcement?
- Concord, N.H., on Aug. 24 -- How do illegal
immigrants impact the costs of healthcare, local education and
other social services, and would these costs increase under the
Reid-Kennedy immigration bill? What is the societal impact of
the Reid-Kennedy bill's grant of amnesty to millions of illegal
immigrants?Upstate New York on Aug. 25 -- What are the current
risks of terrorists, narcotics smugglers and human traffickers
infiltrating the United States, and what role do secure identification
documents play in limiting those risks? Does the Reid-Kennedy
bill undermine efforts to limit those risks?
- Evansville, Ind., on Aug. 29 -- How are U.
S. workers impacted and potentially displaced with the Reid-Kennedy
bill?
- Dubuque, Iowa, on Sept. 1 -- Do the Reid-Kennedy
bill's amnesty provisions repeat the mistakes of the Immigration
Reform and Control Act of 1986?
- Armed Services Committee
- Selfridge Air National Guard Base, Mich.,
on Aug. 1 -- What are the unique challenges for the Department
of Defense in supporting border enforcement along the northern
border?
- Yuma Marine Corps Air Station, Ariz., on
Aug. 2 -- What are the operational and training impacts of a
porous border on military bases along the border?
- Homeland Security Committee
- Bellingham, Wash., on Aug. 8 -- What are
the border infrastructure successes since passage of the REAL
ID Act and the 9/11 Commission Implementation Act, and what challenges
still exist?
- Austin, Texas, on Aug. 17 -- What are the
criminal consequences of illegal immigration along the southern
border?
- Intelligence Committee
- Sierra Vista, Ariz., on Aug. 17 -- What is
the state of technical surveillance and reconnaissance capabilities
for monitoring the efforts of terrorists and drug cartels to
infiltrate American soil through the Southern Border?
- Grand Rapids, Mich., on Aug. 23 -- What is
the threat to the United States from Islamic extremists who abuse
the legal immigration system?
- Education and the Workforce Committee
- Plano, Texas, on July 31 -- "Does the
Reid-Kennedy bill weaken employment verification systems, making
it easier for illegal immigrants to find work inside American
borders?"
- Gainesville, Ga., on Aug. 14 -- What is the
impact on American workers and businesses of the Reid-Kennedy
bill's provisions mandating Davis-Bacon wage rates for guest-workers?
- Energy and Commerce Committee
- Nashville, Tenn., on Aug. 10 -- What is the
impact of the Reid-Kennedy bill's amnesty provisions on the health
care delivery system and for individual American taxpayers?
- Dalton, Ga., on Aug. 15 -- What is the impact
of the Reid- Kennedy bill's amnesty provisions on the health
care delivery system and for individual American taxpayers?
- Government Reform Committee
- San Diego, on Aug. 14 -- What is the impact
on state and local governments, in terms of both societal costs
such as policing and direct government costs such as health care
and welfare benefits, of illegal immigration? Would the Reid-Kennedy
bill impose huge unfunded mandates on state and local governments?
- Resources Committee
- Santee, Calif., on Aug. 5 -- What efforts
need to be undertaken to prevent federal public lands from being
harmed as they are used a pathway for illegal immigration? Does
the Reid- Kennedy bill compromise our federal lands?
- Hamilton, Mont., on Aug. 28 -- What efforts
need to be undertaken to secure the federal lands along the Northern
Border to prevent drug trafficking and other illegal activities?
Could the Reid-Kennedy bill make these efforts more difficult?
- The hearing topics and locations strongly
implies that these hearings are scheduled to push the House restrictive
border security immigration program and to rock and to instigate
anti-comprehensive immigration reform legislative bill which
the Senate passed.
07/28/2006: USCIS Announced New EAD Application Procedure
- According to the USCIS announcement which
has just been relased, the EAD applications will be handled in
the following manner:
- Ocotber 1, 2006: Local
district offices will completely cease to accept EAD applications
and produce any EAD cards.
- September 1, 2006 - September 30, 2006:
The local district offices may continuously
accept the EAD applications per their current practice and according
to the jurisdiction but all the received EAD applications will
be forwarded to one of the relevant Service Centers or Chicago
Log Box but will not process and produce EAD cards. It means
that during this transitional period, the local district offices
will not reject EAD applications, but rather forward such applications
to the Service Centers.
- Now - August 30, 2006: Local district offices will have discretion to accept,
process, and produce EAD cards continuously. It leaves upto the
local district practice during this period.
- Interim EAD Cards: Local
district offices will continuously accept and process EAD cards,
but the cards will be produced only by the central facility and
not local district offices effective October 1, 2006. Accordingly,
people are advised by the USCIS that extension application be
filed at least 100 days prior to expiration of current cards
such that they do not need for the Interim Card application and
problem associated with the delay in issuance of Interim EAD
cards.
07/28/2006: USCIS Clarification H-2B Filing/Processing Procedures
and Cap Counting Methods for FY 2006 and FY 2007
07/28/2006: Advanced Degree H-1B Cap Reached 20,045 as of
07/26/2006 but Target Number is 21,000 Considering Denial Rate
07/28/2006: Reminder: Last Day to Ship Out Overnight Delivery
Filing of I-485 Applications Before Retrogression on Tuesday,
August 1, 2006
- Any I-485 applications which are receipted
by the field offices of the USCIS on Tuesday, August 1, 2006
will be subject to the visa cut-off dates in August 1, 2006.
A number of family-based and employment-based immigrant categories
for some countries will move backward on that date. Since most
of the USCIS Service Centers and local district offices do not
accept any mails or overnight delivery services during the weekend,
today, Friday, is practically the last day to ship out I-485
filings before retrogression via overnight delivery services
such that the agencies can physically receive it on Monday, July
31, 2006. Remember that post-mark on July 31, 2006 is not enough
and delivery to the P.O. Boxes of the field offices may not guarantee
"filing" in some situation. Accordingly, it will be
prudent that people use commercial overnight delivery services
and street addresses of the government offices. There may be
some people who will have to use the "Saturday pickup"
by the commercial delivery services with the guaranty of delivery
on Monday, July 31, 2006, but there can arise some unanticipated
delay of actual delivery of the packet, for instance, mechanical
problem of the freight carrier or weather, unless absolutely
impossible to ship out within Today, one may not rely on the
Saturday pici-up services. There are some Indians or their spouses
who arrive at the port of entry in the U.S. late afternoon, today.
These people are those who may be forced to utilize the Saturday
pick-up services of the commercial delivery services. In the
event that the commercial carrier fails to pick up the package
at their offices or home during the day, they may want to take
it to their stations in the inernational airport or their other
central station to assure a truly last minute filing. Some retrogression
is very steep, such as EB-2 for India. Spouses and children can
also face a forced separation or a crisis for the qualified principal
aliens unless their I-485 applications are shipped out today.
Remember also that adirect delivery of the filing in person at
the Service Centers and local field offices are in most cases
not avaialble. Accordingly, for some offices, even if they drive
over to the field offices, they may not be able to file their
application on Monday, July 31. Please do not count on the potential
opportunity to deliver their applications in person. Good luck.
07/27/2006: BEC Tracking Site Was "Test Only"
and Tracking Access Not Yet Available
- We posted the test site of BEC tracking with
a note that BECs were preparing for the operation. The site was
test only and any information which readers had accessed did
not necessarity reflect actual tracking record. For the reasons,
we are retracting the link.
07/27/2006: USCIS Reports Transfer of Some Files from VSC
to TSC (I-129) and CSC (I-130)
- As we reported earlier, these actions were
taken by the VSC to share the workloads. Today's USCIS announcement
indicates that the field offices may transfer cases among the
offices when they fit and it would not affect the adjudication
process and time. Read on.
07/27/2006: Somalian TPS Extension for 12 Months
- For the details, please visit the following
sites:
07/27/2006: Advanced Degree H-1B Cap Count Including Yet-to-Dataentried:
19,577
07/27/2006: Members of the House, Please Tear Down Walls
and Not Build Walls Against Flow of New Bloods on a Short-Sighted
Isolationism!
- The members of the House represents small
districts and communities and often neglect their Constitutional
mandate that they represeent "the people" in the nation..
They are often trapped in the neighborhoood interests over the
visions and issues that affect the lives of all the people and
not just their narrowly defined constituents. The so-called Sensenbrenner
immigration bill and the compromise immigation proposal which
was released by the two very conservative legislators in the
Senate and the House reflect such short-sighted view of the legislators
who were dictated by the community politics and ideoloties. Another
illustration is their total failure to deal with the urgen problem
of growing cultural and technological isolation of this nation
because of their failure to tear down the walls to the inflow
of the foreign brains and new bloods for the enrichment of the
culture, technology, and economy of this nation, which have nothing
to do with immigration enforcement nor border security nor other
politically charged issues. They have wrapped themselves by the
false sense of arrogance and isolationism. The people demand
them to tear down these walls and not to build any more walls
and to carry on their Constitutional mission to take care of
the entire nation and not a neighborhood or ideological group.
All the good bills including SKIL Act and Comprehensive Immigration
Reform Act have been stonewalled by these legislators. Wake up,
Ladies and Gentlemen!
07/27/2006: Backlog LC Online Individual Case Status Check
System to Go Into Operation Soon
- As we reported in the San Antonio AILA National
Conference, the DOL was planning to launch the online individual
Backlog Case Status Check services in July or soon thereafter.
They have already developed the system and are currently technically
testing the online status check system. Once this service goes
into full operation, it will not only help in checking individual's
case status from time to time but eventually its print-out may
be used to prove the case status for the purpose of 7th-year
H-1B extensions.
07/26/2006: Hutchison-Pence Plan: Where is the Beef?
- The details have yet to be made available
about this Republican proposal, but this proposal does not address
the need for legal immigration reform at all. Besides, the proposal
totally fails to address the backbone of the illegal immigration
reform which includes the role of temporary guest workers and
the undocumented aliens in lower end sectors of the nation;s
economy and economic growth. This proposal fails to recognize
the seriously broken immigration system and need for immigration
reform.
- This proposal is a disaster from the perspectives
of both legal immigrant community and illegal immigrant community,
and this website rejects legitimacy of this proposal.
07/26/2006: Immigration Monthly Statistical Report of June
30, 2006
- DHS has released the latest immigration monthly
statistical report which was prepared on June 30, 2006 and reporting
the statistics as at the end of May 2006. In the immigration
benefits statistics, it reveals growing rate of denial of petition
and applications. Read on.
07/25/2006: Hutchison Pence Republican Compromise Immigration
Proposal
- As we reported this morning, this immigration
proposal was released this afternoon at the press conference,
which they want to make it a break-through compromise within
the Republican party. For the details, pledase read the following:
- Press Release
- Final Timeline of Hutchison Pence Plan (See
the link in the Press Release page)
- Final Border Secrity Certification Summary
(ditto)
- Final Executive Summary (ditto)
- Final Detailed Summary (ditto)
- Please stay tuned with this website for the
analysis.
07/25/2006: Advanced Degree H-1B Cap at the End of Sunday,
07/23/2006: 18,742
- The USCIS has just released the advanced
degree H-1B cap count which indicates that as of July 23, 2006,
Sunday, the count including cases yet to be dataentiried amounted
to 18,742. It thus appears that there may be still some numbers
available as of today and possibly tomorrow. At their own risk,
the employers may attempt to file their cases via overnight delivery
services.
07/25/2006: Republicans to Introduce Immigration Bill Aiming
at Bridging Republican Division
- Today, Washington Post has reported that
Senator Kay Hutchinson of Texas and Representativ e Mioke Pence
of Indiana will unveil a plan "today" that would allow
most of the 11 million illegal immigrants in the U.S. a chance
to work here legally, but only after the government certifiesthat
U.S. borders hae been sufficiently secured. The proposal would
pressure illegal immigrants to self-deport to their home countries
within 2 years of the law's enactment and apply for a new kind
of visa that would allow them to return to the U.S. quickly and
work legally if a job awaits them. They would have to work here
for 17 years, however, to be eligible for U.S. citizenship. Please
stay tuned.
07/25/2006: We Recommend USCIS to Include Labor Certification-Based
EB-2 in Launch of I-140 Premium Processing in August
- USCIS initially announced that the I-140
premium proceesing would initially include EB-petitions excluding
National Interest Waiver EB-2 I-140 petition. However, Dr. Emilio
Gonzalez's answer to question yesterday in the White House gave
an impression that the initial launch of the premium processing
would be limited to EB-3 petitions. We suspect that it was an
unintended omission or change of the plan.
- We realize that the labor certification-waiver
I-140 petitions such as EB-11, EB-12, EB-13, EB-2 (NIW) require
extensive expertise in the immigration laws and extensive and
intensive review of voluminous evidence by the adjudicator to
adjudicate. Additionally, these petitions have been considered
fraud prone in that the aliens can file frivolous petitions to
obtain EAD to work and to travel on Advance Parole, while the
labor certification-based I-140 petitions are less fraud prone
and requires less expertise and less intensive or extensive review
of issues and evidence to adjudicate. When it comes to the difference,
the labor certification-based EB-2 should be no different from
the EB-2 I-140 petitions which are all labor certification-based,
except the Schedule A EB-3EX petitions. For that matter, we are
not sure whether the EX cases will be included in the August
Premium Processing launch, assuming that the USCIS limits the
initial launch to EB-3 cases. Aside from such issue, though,
there is no reason to discriminate the labor certification-based
EB-2 from the labor certification-based EB-3 in the launch of
the processing processing services in August. There is no public
interest issue nor other policy consideration to justify separation
of the labor certification-based EB-2 from the labor certification-based
EB-3. We thus urge the USCIS to include the labor certification-based
EB-2 I-140 petitions in the initial launch of the premium processing
services in August 2006.
07/24/2006: I-140 Premium Processing to Start With EB-3
in August 2006
- According to the Director of USCIS, the agency
is scheduled to implement the Premium Processing Services beginning
from EB-3 petitions in August. It is expected to be followed
by other types of petitions within this year. The USCIS is reportedly
to announce the EB-3 Premium Processing Services in the very
near future. Please stay tuned.
- Lately, the USCIS has been experiencing delays
in I-140 petition processing. The launch of I-140 petition premimum
processing services, albeit limited to EB-3 cases only initially,
may induce the EB-3 professionals to take advantage of the premium
processing services for a number of reasons. (1) H-1B extension
beyond the six-year limit in "3-year" increment. The
services will be particularly valuable for those who could not
file a H-1B extension beyond the six-year limit because they
started the labor certification application after they reached
five years in H-1B status. (2) The premium processing of I-140
will help those who need to change employment after 180 days
of I-485 filing. The so-called Yates memo allows portability
of I-140 petition even before the petition is approved iinasmuch
as the alien can prove that the I-140 petition was "approvable
at the time of filingl," the experience indicates that some
risks accompanied such move and the legal counsels and the involved
aliens were reluctant to change employment even after passage
of 180 days after filing of I-485 unless the I-140 petition was
first approved. Launch of the EB-3 I-140 premium processing services
will help such aliens to achieve the needed change of employment
under AC 21 Act in more or less risk free condition. (3)The premium
processing of I-140 will also assist those aliens who need the
retention of their priority date and transfer to another petition.
Under the current law, the priority date of the employment based
immigrant petition can be retained once the I-140 petition is
approved and can be transferred to another petition. (4)Lastly,
the I-140 premium processing will help those who will file a
substitutiion of labor certification application before the rule
is eliminated, apparently before April 2007. Under the proposed
substitution elimination rule, the substitution will survice
if the substitution is approved, When one attempts the substitution
of alien beneficiary at the stage of I-140 petition, one will
have no evidence that the USCIS "apprroved" the substitution
until the substitutition I-140 petition is approved as the USCIS
does not have a separate procedure to adjudicate the alien substitution
request. It is handled as part of I-140 petition adjudication.
- For the Dr. Gonzalez's Q&A, please click
here.
07/23/2006: Will There Be Advanced Degree H-1B Cap Reach
Announcement?
- The employment-based immigrant community
is nervously watching the upcoming USCIS announcement of U.S.
Advanced Degree H-1B cap count and announcement of FY 2007 cap
reach. Last cap count was released as at the end of July 18,
2006, Wednesday and barely 2,700 numbers were available. It is
thus likely that the cap has already reached or will reach at
least by tomorrow, Monday. Should it happen, the cases which
will be received within Monday may have to go through a lottery
and some cases may make it and other cases may fail to make it.
Please stay tuned.
- Once the cap reaches, October 1, 2007 may
be a unberably long period of time during which the high tech
industries and science/research communities must get by without
recruitment of foreign brains. As a result, the Congress will
face mounting pressure from these communities aside from the
comprehensive immigration reform legislation. We hope to see
such special legislative movement as soon as possible.
07/21/2006: Visa Retrogression Q&A
Updated
07/21/2006: CIR - Discouraging News Reports
- For the last few days, the media have been
reporting discouraging news that no comprehensive immigration
reform legislation will be enacted before the November election.
The USA Today report is particularly puzzling.
07/20/2006: Advanced Degree H-1B Cap Count at End of 07/18/2006:
17,291
- The number is running out really fast!
07/19/2006: House Judiciary Committee & Subcommittee
Hearing and Witness Testimonies on S. 2611 on 07/18/2006
07/19/2006: July 19 Service Center Processing Times
07/19/2006: FY 2007 Immigration Lottery Results
07/19/2006: EB-2 and EB-3 Retrogression for India on 08/01/2006
and Importance of Understanding of "Filing" of I-485
on or before 07/31/2006
- Beginning from August 1, 2006, the EB-2 number
will be unavailable and the EB-3 number will be moved backward
for the Indians. The July 2006 Visa Bulletin will allow some
Indians to file either concurrent I-140/I-485 or stand-alone
I-485 application, based on the last minute approval of the BEC
labor certification applications. When the USCIS faces such unusual
visa number problem, it usually releases a guidance as to how
they will handle the last minute filings, including the definition
"timely" filing of I-485. People may recall the last
year's experience at the end of September facing EB-2 visa number
retrogression on October 1, 2005. It is unclear whether the USCIS
will release a similar guidance this month. Pending the potential
release of the USCIS guidance, the following materials will assist
such Indians in preparing the last minute filing:
- Our website reports in September 2005 (Helpful
in learning the last year's USCIS policy)
- Our Visa Retrogression Q&A. (Helpful in learning
the issues and strategies to cope with the retrogression)
- The following informationwill give some guidance
until the USCIS guidance is released:
- Service Centers are closed on holidays and
generally overnight deliveries are not available and generally
deliveries to their P.O. boxes are considered not "filed."
The cases must physically reach the Service Center facilities
within working week days. July 31, 2006 is Monday.
- In concurrent I-140/I-485 filing , the principal
alien and dependent family members' I-485 filing can be receipted
and "filed" only when the underlying I-140 petition
is considered "timely and frawlessly" filed; Accordingly,
even if there will be no flaws in I-485 filing, if the I-140
filing is "rejected" for flaws, these I-485 applications
will be considered "not" filed. Flaws in the I-140
will not include the substantive issue of eligibility. In worst
case, meritless I-140 petition can be "filed" and later
"denied." This will not affect the "pending"
.status of I-485 application. Such I-485 applications may be
subsequently denied, but it has nothing to do with the issue
of "timely filed." Filing is related only to the "procedural"
issues. The following posting of our website in September 29,
2005 may give some guidance on the procedural requirement for
"filing" under the immigration regulation:
- "09/29/2005: Last Minute EB-2 Filing
Requirement by USCIS" The USCIS is concerned that some
ineligible people may just file before 10/01/2005 just to obtain
EAD and Advance Parole. Accordingly, AILA has reported that the
USCIS would require that the "initial evidence" requirements
for I-140 petitions and I-485 applications are met. Filings that
do not satisfy the "initial evidence" requirements
are likely to be rejected, not subject to an RFE, according to
the AILA. In normal environment, the USCIS would accept the filings
even if some initial evidence are missing and they issue RFE,
but it is the AILA's opinion that the USCIS may likely be less
lenient under the current unusual circumstances. It is still
unclear how strictly the USCIS will require all the flawless
initial evidence and whether any filings with a minor flaws in
documentation of initial evidence will be rejected under any
circumstances. We hope not.
The I-485 form lists the following evidence as the initial evidence
for the employment-based I-485 filings:
Birth Certificate
Copy of passport page with nonimmigrant visa
Photos
Biometirics (currently after filing)
I-693 Medical report
G-325A Biographic Information Sheet
Evidence of status (I-94 + current status evidence)
Sponsoring employer letter
I-140 petition Receipt or Approval Notice
I-485 Receipt Notice or Approval Notice, if spouse filing separately.
If filing jointly not required.
Marriage certificate, marriage termination evidence if filed
as a spouse, and birth certificate if filed as a child
Other eligibility documentation
It is urged that the USCIS exercise discretion under the same
spirit of exercise of discretion to accept the computer print-out
labor certification approval and be lenient in accepting the
filings with minor flaws in initial evidence documentation. The
frivolous filing to attempt to obtain EAD/AD can be sufficiently
prevented at the stage of processing of I-765 and I-131."
07/19/2006: Advanced Degree FY 2007 H-1B Cap Reach Imminent
- On July 11, 2006, the USCIS reported it had
received 16,008. Since then, reportedly increased number of these
special cap number H-1B petitions have been pouring in. According
to the USCIS HQ, as of yesterday, the cap has yet to be reached,
but AILA reports that these special cap H-1B petitions were rejected
by the Vermont Service Center on the ground that the cap had
already reached. Yesterday, USCIS had reported to the AILA that
the VSC rejection was an error but the numbers were running out
very fast. It is not clear whether the cap has reached since
the USCIS' yesterday report, but people should be prepared for
another surprise retroactive cap reach announcement. Please stay
tuned.
07/18/2006: CIS Ombudsman 06/29/2006 Report to Congress on
State of the USCIS Immigration Benefits Management
- This report covers quite extensively the
issues relating to the immigration benefits processing and management
by the USCIS.
07/18/2006: Social Security Administration States Spouses
of L-1 and E-1/E-2 Can Work w/o EAD, But...............
- The SSA Document specifically states that the
spouses of L and E visa aliens can work without EAD card for
the purpose of the Social Security. However, the immigration
regulation still requires EAD for these spouses, and until the
USCIS and ICE clarify their positions on this interpretation,
L and E spouses may not want to engage in employment without
the EAD cards.
07/18/2006: BEC 45-Day Letter Related Q&A
- On July 10, 2006, BEC released Q & A
to answer all the questions relating to the issues involving
the 45-day letters. The Q & A covers an extensive questions
and answers.
07/18/2006: Important BEC Announcement: 45-Day Letter Failure - Closure
- Relief - Procedure
- On July 11, 2006, BEC released an announcement
that when the employer either received or would receive a letter
from the BEC that the pending labor certification application
had been closed because of the employer's letter to respond to
the so-called 45-day letters unless the employer would take one
of the following actions, BEC would not reconsider their decision
of closure and termination of the proceedings: The request for
reconsideration must be filed within 30 days from the date of
announcement (07/11/2006) or within 30 days from the date of
receipt of case closure letter, whichever is "later."
Accordingly, those employers who have received or will receive
a case closure letter from the BEC for alleged failure of the
employer to respond to the 45-day letter when they either did
not receive such 45-day letter or they actually received and
responded within 45 days should not miss the deadline for filing
of request for reconsideration within the timeframe which this
announcement stipulated. Very important.
07/18/2006: USCIS Religious Worker Cases Fraud Investigation
Shows 32.73% Fraud in 200 Investigated Cases
- According to the Religious Worker Benefit Fraud Assessment Summary
by USCIS Office of Fraud Detection and National Security which
was released today, out of 200 cases which they investigated,
32.73% cases have turned out to be fraudulent cases. For the
details, please read the full report.
07/18/2006: State Predicts EB Visa Number Further Retrogression
and Schedule A Number Cut-Off Date in October 2006
- Retrogression of FB and EB Cut-Off Dates
- For August, it has been necessary to retrogress
many of the cut-off dates in the Family-sponsored and Employment-based
visa categories. This has been done in an effort to hold the
issuance levels within the applicable annual numerical limits
for the affected categories. Those retrogressions are listed
below:
- Worldwide: Family 1st (to 01JAN97)
China: Family 4th (to 01JUL94)
India: Employment 2nd has become Unavailable; Employment
3rd (to 01APR01)
Mexico: Family 3rd (to 01JAN81) and Family 4th (to 01JAN93)
Philippines: Family 2B (to 01DEC92) and Family 3rd (to 01DEC85)
- Immigration Visa Prediction for September
2006
- Immigrant visa number use is approaching
the annual limits for the year in many categories, and the supply
of numbers remaining for allocation is limited. Therefore, for
September there is increased possibility of additional retrogressions
of cut-off dates such as those experienced in August. Readers
should not assume visa availability until the cut-off dates are
announced. Categories which could experience retrogressions are:
- Worldwide: Employment 4th
China: Employment 2nd and 3rd
India: Employment 1st
Mexico: Employment 3rd
- Schedule A Cut-Off Date Predicted in October
2006 and Visa Availability During FY 2007
- A total of 50,000 numbers were provided for
use in the Schedule A (EX) visa category which was established
last May. Visa demand in this category is approaching that limit,
and may require the establishment of a cut-off date as early
as October. Once all 50,000 numbers have been made available
under the current limitation, processing under this category
will end.
07/18/2006: Immigration-Law.Com Technical Problem
- Our website has been down for over ten days
because of the computer problem. The problem has just been fixed
and we will try to catch up the news soon. Thank you for your
patience.
07/08/2006: SKIL Bill Q&A
- When the Senate passed S. 2611, Comprehensive
Immigration Reform bill, we initiated the Q&A for the issues
related to this bill. Then we learnt that the CIR would take
a long time and its future became uncertain, we stopped the Q&A
for the CIR.
- The SKIL bill is however introduced in both
Houses and we feel that this bill, unlike the CIR, has a better
chance to make it considering all the circumstances, regardless
of the outcome of the CIR legislation. This reporter has thus
decided to pick up the issues and analysis of SKIL bill in the
Advanced &
SKIL Q&A. The questions and answers which are related
to the SKIL bill will be marked by SKIL. Please feel free to
send this reporter your questions on the SKIL bill..
07/07/2006: On the Occasion of Celebrating Ten Million Hits
of Our Website Today
- We started this website probably in January
or February 1998 with 20 hits a day. The number rised to hundreds
in the first year. We have now grown to a site with the hits
in excess of ten thousands a day. Such growth is attributed to
those who have sent us critiques as well as encouragements. They
have also sent us millions of e-mails and phone calls with challenging
questions. Through all of these questions, we could learn the
sources of heartbeats of the immigrants, giving us a direction
and mission for the website: "Drop the Water for the Desperately
Thirsty Mouth." We are proud to say that to some extent,
we have achieved our mission. To carry out the mission, we had
to spend enormous amount of time and energy to look for the issues
on the one side and to dig out the government agencies' ever-changing
rules, policies, practices, and predictions on the other. However,
the issues and the decision-making sources in raw forms were
meaningless unless they were analyzed and applied to specific
individual circumstances and situations of the immigrants. This
last part of the mission was indeed very challenging as sometimes
the answers to certain questions which were specific to individual
circumstances required enormous amount of research and analysis.
- We will continue the mission, feeding the
drop of water to the thirsty mouth. In carrying out the mission,
we will continue to maintain a balance between different views
and values. We welcome your critique and comment.
07/07/2006: H-1B Filing "Flood" Forced VSC to
Transfer 5,000 H-1B Cap Cases to TSC and 22,000 I-130 Cases to
CSC
- AILA has confirmed from the USCIS HQ that
because of the heavy caseloads of H-1B cap cases, the VSC has
transferred 5,000 H-1B cap cases to the TSC and 22,000 I-130
family immigration petitions to the CSC. The U.S. master or higher
degree special cap of 20,000 is expected to reach in a matter
of days. Currently, it has less than 5000 numbers to reach the
cap. This emergency action of the VSC temporarily side-steps
the general rule of bi-specialization processing procedures.
07/07/2006: H-1B Cap Count As of 07/06/2006
: 14,949
- The H-1B cap count which
is just released by the USCIS indicates that as of July 6, 2006,
they received and either approved or case entried of 14,249 and
there were about 700 cases to be entried.
07/07/2006: Full
Text of H.R. 5744, SKIL Act
- Compare with Senate version, S. 2691, SKIL Act. The two bills are identical.
- Also refer to the following postings on our
website:
"05/05/2006: Cornyn "SKIL Bill"
and Proposed Visa Revalidation Reinstatement
- The U.S. Department of State had renewed
(revalidated) certain employment-based nonimmigrant visas in
the passport through its office in Washington, D.C. for years
and years until the program was terminated not too long ago for
the alleged security reasons. We strongly opposed the termination
of this program for the two reasons. One reason was that the
people who were applying for the renewal of the nonimmigrant
visa stamp in the passport had already gone through thorough
security clearance. More importantly, the State Department alleged
that the primary reasons for terminating the program was that
they were not equipped to conduct "biometric" collection,
but the USCIS was willing to lend assistance by providing the
biometric collection for visa renewal on behalf of the State
Deparment through its nationwide network of Administration Support
Centers (Fingerprint Centers). Since termination of the visa
revalidation program, people had to make thousands of miles of
trip to apply for the renewal of the visas at the visa posts
in their home countries, or worse yet, they decided not to make
overseas trips at all for fear of the visa renewal delays and
unpredictable visa denials.
- Sen. John Cornyn proposes in the SKIL bill
to reinstate the visa revalidation program. We wholeheartedly
support the Senator's proposed bill. It is indeed sad that this
is the program that should not require a legislation and could
be reinstated through the rule-making process of the State Department,
but the Congress may have to force the agency to reinstate the
program. The U.S. Department of State may have to come forward
with the evidence of how the termination of the program helped
the country from the potential terrorism within the United States.
Otherwise, it could have been an act of paronoia of the program
administrator.
05/04/2006: Section-by-Section Summary and Senate Floor
Speech of Sen. Cornyn SKIL Bill, S. 2691
05/04/2006: Losers and Winners in Three
Pending Employment-Based Immigration Reform Bills
- Currently, there are three legislative bills
in the Senate that proposed favorable reform in the employment-based
immigration system. One is Cornyn Bill, second is Senate Judiciary
Committee bill, and third is Sen. Bill Frist bill. Believe it
or not, each of these bills will produce winners and losers in
the employment-based immigrant community as follows:
|
Cornyn |
Judiciary Comm |
Bill Frist |
| EB Annual Cap |
290,000 |
450,000 |
290,000 |
| EB Cap Exempt (Advanced Degree) |
STEM + US Degree in Non-STEM |
STEM only |
STEM only |
| H-1B Cap Exempt for Advanced
Degree |
U.S. Degree only. including both STEM and Non-STEM |
STEM only but both U.S. and foreign degree |
STEM only but both U.S. and foreign degree |
| 20,000 Advanced Degree Special
Numbers |
Both U.S. degree and foreign
degree |
U.S.
degree only |
U.S. degree
only |
- [STEM=Science, Technology, Engineering,
and Mathematics]"
- Section-by-Section Summary of SKIL
Bill
07/06/2006: Advanced Degree H-1B Cap Count as of 06/30/2006:
14,187
07/06/2006: Continuous Pouring-In of BEC 45-Day Letters
- As we reported earlier, the BECs have been
mailing out en masse 45-day letters after completion of the data-entry
for all the backlog cases. Unlike the previous experiences, the
employers who receive the 45-day letters are given an opportunity
to request the change of addresses and phone numbers when they
return the responses to the BECs. This is extremely helpful to
those employers that have relocated since they filed the applications
years back. It really appears that the BECs are now in the right
track and the immigrant community should appreciate the agency
for the job well done. The immigrant community is expected to
see another help shortly that will include:
- Online Status Check
- Online Processing Times Report
- Supervised Recruitment Instructions for the
traditional regular labor certification cases. We commend
the leaders of the Becs to short-cut the prevailing wage determination
process that will bypass the State offices (SWA) in managing
the backlog application processing. BECs, rather than SWAs,
will determine the prevailing wage and send out such determination
to the applicants as part of the supervised recruitment instructions.
Wonderful idea, indeed!
- Hats off to the BECs!
07/06/2006: Hearings of Various House and Senate Committees/Subcommittees
on Immigration Reform
- Various House Committees and Subcommittees
are scheduled to hold hearings in various locations in July and
August 2006. The Senate Judiciary Committee is also scheduled
to launch its own hearings on the immigration reform. The Senate
Juridicary's hearings will kick off in Washington, D.C. on July
12, Wednesday. Obviously, the Senate Judiciary Committee will
focus on the Comprehensive Immigration Reform Bill, S. 2611,
which the full Senate floor passed. The Senate Committee's hearings
are expected to display a duel between the Democrat members that
want to keep S. 2611 intact and the Republican members that attempt
to amend S.2611 towards accomodation of the House position on
border security and immigration enforcement. Various House Committee
hearings will be scheduled on July and August at such locations
as Laredo, Texas, Yuma, Arizona, and Washington, D.C. It is interesting
to note that these hearings will almost totally focus on the
House's agenda to focus on border security and immigration enforcement
as the locations of hearings suggest. The hearings will focus
on such subjects as border vulnerabilities and international
terrorism, cost to federal, state, and local governments of an
unsecured border, English as official language, DREAM Act, impact
of potential law changes on employers, enforcement of immigration
laws and its impact on workforce, etc, etc.
- No one knows whether these hearings will
be able to produce any legislative bills which the House and
the Senate will agree before the national election in November
2006. Considering the fact that the Democrats and the Republicans
in both Houses are so polarized in an attempt to take advantage
of the immigration reform for their political gains in the upcoming
election, eventually the nation may see the end of passionate
political drama without any fruits, at least before the election.
The temperature of the heat of the debates may arise all right,
but since the debates and the heat will be all orchestrated and
poised to their political gains, publicity, and hidden agenda,
it is dubious at best whether the immigration reform will be
achieved before the election. Indeed, both parties are taking
the immigration reform legislation as a critical test that can
determine their fates in terms of changes in ruling power in
the Presidency and the Congress from Republicans to Democrats.
One may say that it is an extremely dangerous gamble to play.
The result of the November election will eventually tell the
impact of immigration reform conflict on each party. Upcoming
dramas in the border cities and the nation's capital may end
up with nothing but these political parties' schemes to drum
up their agenda and to test the heartbeats of the nation.
07/06/2006: USCIS Online Newsletter "USCIS Today" July 2006 Issue
07/05/2006: Bush Has Reportedly Shifted Stance on Illegal
Immigration and Guest Worker Program
- New York Times reports that Republicans both
inside and outside the White House say Mr. Bush, who has long
insisted on comprehensive reform, is now open to a so-called
enforcement-first approach that would put new border security
programs in place before creating a guest worker program or path
to citizenship for people living in the United States illegally.
Read on.
07/04/2006: Follow-Up of Termination of Local USCIS EAD
Production
- This reporter reported from San Antonio that
the USCIS would completely terminate the production of EAD, including
Interim EAD, at the local districts by October 1, 2006. However,
the reports are keeping coming in that the local district offices
have already initiated termination of the EAD productions for
certain types of aliens or altogether. It is thus imperative
that those who need a new EAD or EAD renewal or Interim EAD should
take two actions: (1) First check with his/her own local district
office to learn the details of implementation of this EAD procedure
changes; and (2) file the EAD applications sufficiently in advance
such that he/she does not face a gap between the current EAD
and the renewed EAD. Important, important, important!
07/03/2006: Do-Ability of 6-Month USCIS Processing Times
- The USCIS has been really working hard to
achieve the President Bush's $500 million Immigration Benefits
6-Month Processing Time in five years. The agengy has now three
months to reach the target deadline. The latest monthly statistical
report indicates that the backlog has been reduced from millions
to lower six digit figures. The agency deserves commend for the
achievement.
- However, when it comes to the EB-485 applications,
there are a huge number of applicants who have been experiencing
delays not because of the visa number retrogression but because
of the processing delays. Without doubt, some of these delays
have been caused by the namechecks and security clearance delays.
It is hoped that the agency clears out these cases from their
shelves as soon as possible. The agency is also urged to clarify
the definition of "6-month processing time" of the
President's commitment. At this point, there is ambiguity as
to how the six month is measured. The agency has been working
on the electronic filing and processing system and procedural
and organization reengineering to achieve in part the President's
commitment to the 6-month processing time. However, it appears
that 100% achievement of the goal by the set target date may
not be do-able, depending on the definition of the term.
07/03/2006: El Salvador TPS Carrying EAD Expiring 07/05/2006
or 09/09/2006 Automatically Extended to 03/09/2007
- According to the federal notice which was
published this morning, the El Salovadorans who were in TPS status
and carried EAD which was to expire on July 5, 2006 or September
9, 2006 would receive the benefit of "automatic" extension
until March 9, 2007 effective June 29, 2006. Those Salvadorans
whose TPS EADs were expected to expire on July 5, 20006, and
for that matter, their employers were in total confusion until
this notice is released as the Fourth of July is a holiday and
the EAD card is expected to expire the next day. For the details
of this announcement, please click here.
07/01/2006: USCIS Releases Fact Sheet on Citizenship & Naturalization
on 06/30/2006
07/01/2006: Section-by-Section Summary of SKIL Bill
07/01/2006: SKIL Act House Companion Bill, H.R. 5744, Introduced
in the House
- In May 2006, the Senator from Texas, John
Cornyn introduced in the Senate so-called SKIL bill (Securing
Knowledge Innovation and Leadership Act) to retain and encourage
the foreign brightest workers in the United Sates. Now the CompteteAmerica
reports that a companion bill with the idential name, H.R. 5744,
was just introduced in the House. These Senate and House bills
constitute the reform of the employment-based immigration system
which remains part of the S. 2611, Comprehensive Immigration
Reform (CIR) bill.
- The fact that the House will work on this
bill implies a couple of things: The sense of the Congress that
the country cannot afford delaying any longer the employment-based
immigration reform in order to prevent further damage from exodus,
drain, and avoidance of the foreign brightest from choosing the
U.S; and the strong sense of the Congress to separate the employment-based
immigration reform from the comprehensive immigration reform
which is currently hopelessly in limbo. Without doubt, the CIR
sponsors and illegal immigration reform community will watch
this move apprehensively.
- According to the CompeteAmerica, the House
bill will bring the following benefits to the brightests:
- Exemptions for U.S. educated foreign workers
with master's or higher degrees from the H-1B and EB green card
quotas so their talent can be retained in the United States.
- Creation of a flexible, market-based H-1B
cap so that U.S. employers are not locked out of hiring critical
talent for over a year at a time.
- Extension of foreign students' post curricular
optional practical training from 12 months to 24 months to allow
them to transition more easily from student to green card.
- Exemptions for EB green card immigrant spouses
and children from the annual cap, thus making more visas available
for the innovative professionals we need.
- For the SKIL legislation, please read the
following materials until the House bill is made available:
06/30/2006: Distribution of I-140 or I-485 Filings Between
NSC and TSC
- The newly released Bi-Specialization Procedural
Change announcement indicates that the work loads are split between
the two Service Centers either on the alternate date basis or
each daily basis depending on the volume of petitions/applications
the Nebraska Service Center receives on a specific date.
06/30/2006: "Stand-Alone" I-485 Application Filing
Centralized at Nebraska Service Center Effective 07/24/2006
- USCIS released the 2nd phase Bi-Specialization
Filing and Processing Procedure on June 30, 2006. According to
this 2nd phase filing procedure, all the employment-based I-485
applications based on "pending" or
"approved" I-140 petitions must be filed
with the Nebraska Service Center effective July 24, 2006.
Such I-485 fiing was called "Stand-alone" I-485
application. Under the 1st phase Bi-Specialization program
which started on April 1, 2006, all the employment-based I-485
was required to be filed with the Service Center where the underlying
I-140 petition is pending or approved. Accordingly, those whose
stand-alone I-140 petitions were filed before April 1, 2006 and
pending or approved after April 1, 2006 were required
to file the stand-alone I-485 applications for him/herself and
his/her family members with the whichever Service Center where
the underlying I-140 was pending or approved before or on or
after April 1, 2006. This 1st phase procedure is changed by the
2nd phase procedure which is announced today by requiring "all
the I-485 applications" to be filed with the Nebraska Service
Center effective July 24, 2006, including the stand-alone I-485
applications as well as concurrently filing I-485 applications.
Effective July 24, 2006, the EAD (I-765) applications and/or
Advance Parole (I-131) applications that are filed concurrently
with the I-485 applications should also be filed with the Nebraska
Service Center. However, the stand-alone new or renewal EAD or
Advance Parole applications should be continuously filed with
the Service Center where their I-485 applications are pending.
For instance, even after July 24, 2006, those whose I-485 applications
are pending at the Service Centers other than Nebraska Service
Center should file the new or renewal EAD and/or Advance applications
with those Service Centers and not with the Nebraska Service
Center. Those who will file either stand-alone I-485 or concurrent
I-140/I-485 with the Nebraska Service Center under the new 2nd
phase filing procedure should file their stand-alone new
or renewal EAD and/or Advance Parole applications with either
Nebraska Service Center or Texas Service Center depending on
which one of these two Service Centers picked up their I-485
applications. Those who will file the new EAD and/or Advance
Parole Applications concurrently with the I-485 application
should file such ancillary applications with the Nebraska Service
Center effective July 24, 2006.
- For the details, please read the following
USCIS released of June 30, 2006:
06/30/2006: Advisory for Nonimmigrant Labor Condition Application
and Immigrant Labor Certification Application Filers
- The DOL is amending its definition of "Metropolitan
Statistical Area" and other minor changes for the determination
of prevailing wage. The DOL has announced that this change will
take place on or before 07/06/2006. Since this will affect the
prevailing wage determination process, people should double check
applicability of the certain prevailing wage figures in their
LCA or LC filing from today to make it sure that they do not
violate the rules and laws.
06/30/2006: State Department Enacts Guidance on ConOff for Review of NIV Issuances
and Refusals Effective Today
- Nonimmigrant visa refusals and issuances
are generally committed by law to the adjudicating consular officer.
The Department nevertheless provides for them to be reviewed
by consular experts in a supervisory capacity. Such reviews are
a significant management and instructional tool useful in maintaining
the highest professional standards of adjudication and ensuring
uniform and correct application of the law and regulations. The
purpose of this rule revision is to expand the scope of reviews
of nonimmigrant visa applications to ensure that Department supervisors
are reviewing both issuances and refusals to the greatest extent
practicable, while balancing workload considerations at
consular posts. The State Department published this guidance
in the federal register today.
06/30/2006: ETA and ESA Simultaneously Published Final Rule on
H-1B1 Procedure w/Minor Technical Correction and w/o Substantive
Change
- Today, the DOL published a final rule for
Singapore-Chile Free Trade Agreement H-1B1 visa petition attestation
procedure which has already been in force since the release of
its previous Interim-Final Rules on 11/23/2004 and 12/05/2005
without any substantive changes and only with minor technical
corrections. This final rule take effect on 07/31/2006, after
one month from today. Please read the full text.
06/30/2006: CIR - What's Cooking in
the Republican Court?
06/29/2006: Indication of Leadership Change in Nebraska
Service Center and Change in Bi-Specialization Processing Procedure
- There is an indication that the Nebraska
Service Center has a new Acting Director named F. Gerard Heinauer.
The official documents have been signed by the new Acting Director
last few days. Besides, the NSC-NAFSA Q&A which is dated
June 27, 2006 was also signed by the new Acting Director. It
is not certain whether this change in Acting Director will bring
out any changes in policies of adjudication of petitions and
applications. However, the change of Acting Director has yet
to be confirmed by the official sources.
- From April 1, 2006 until the last few days,
the I-140/I-485 incoming cases had been split between the NSC
and TSC by alternating each day. This practice has created so-called
NSC-Day and TSC-Day and some practitioners carefully selected
the filing date such that their cases went to one of these Service
Centers. This practice was confirmed by the Director of Service
Centers Operations at the USCIS HQ at the San Antonio AILA National
Conference. However, in the NSC-NAFSA Q&A minutes, the new
Acting Director of the NSC disclosed for the first time that
one-half of the incoming cases were shipped to the TSC everyday.
This information certainly conflicts with the statement of the
Director of Service Centers Operations at the HQ. People will
soon find out which source of information is correct.
- In launching the Bi-Specialization program,
the USCIS has adopted two different models between the immigrant
proceeding specialization by the pair of NSC-TSC and the nonimmigrant
proceedng specialization by the pair of VSC-CSC. In the model
of VSC-CSC pair, the cases are divided mostly by the types of
'nonimmigrant' petitions or applications, while in the model
of NSC-TSC, there is no such sub-specialization between the two
Service Centers and identical types of cases are equally divided
and adjudicated by the two Serice Centers. In hindsight, the
VSC-CSC model could have achieved better the "uniformity"
and "fairness" in the immigrant proceedings as well.
It is uncertain whether the USCIS will eventually transform the
Bi-Specialization program into a "uniformity" model.
The USCIS reports that one of the goals of the Bi-Specialization
was to achieve "uniformity" in each type of petitions
or applications across the board and across the nation.
06/28/2006: Immigration Monthly Statistics as Reported
May 30, 2006
- DHS released this latest statistics on June
27, 2006. Currently the links are broken but they will fix it
shortly.
06/28/2006: IPC Report of "Immigrant Women In the U.S." Demographic
Profile: Summer 2006
06/27/2006: Mail Boxes Bombarded With 45-Day Letters from
BECs!
06/27/2006: U.S. Master Degree H-1B Cap Count as of 06/23/2006:
12,718
- According to the USCIS cap count which has
just been released, as of June 23, 2006, Friday, the numbers
that were entered into the system were 11,918 and they had approximately
800 numbers which had yet to be entered into the system. Accordingly,
as of June 23, 2006, total numbers the USCIS received were 12,718.
Since the cap count as of June 20 was 10,761, in three business
days, they received 1,957 petitions. Should this pace continue,
the cap numbers may be dried up in the near future.
06/27/2006: CIR May Move to the Frontline
Again After the 4th of July
- There is looming up a movement
to place the Comprehensive Immigration Reform legislation at
the forefront again after the Fourth of July. Reportedly a bi-partisan
Congressional leader group is scheduled to meet with the business
leaders and immigrant advocates today and the Hispanic group
is scheduled to stage demonstration at the front yard of Rep.
Sensenbrenner, the Chairman of House Judicial Committee, who
proposed and was instrumental in passing the House bill that
totally limited the immigration reforms to reinforcement of immigration
law enforcement and tightening of border security, including
criminalization of illegal aliens. He has been leading a movement
in the House to oppose the Senate passed S. 2611.
- There is also an indication
that the Republican leaders in the Congress are attempting to
work out a compromise to the conflicting House bill and Senate
bill and trying to bring a compromise bill to the Conference
Committee process. Sen. Specter is known to chair the Coference
Commitee once the Conference Committee is called to an action
and he is moving towards the compromise to attach a condition
of successful achievement of border security and immigration
law enforcement to the guest worker proposal and legalization
of illegal aliens. In fact, such compromise was introduced in
the Senate which failed to make it in the final S. 2611. Sen.
Specter is changing stance on illegal immigration issues in working
out a compromise to the Senate and House bills. It is not clear
how much such compromise will be agreed to in the House and by
the Democrats in the both Houses, but it is obvious that should
a compromise immigration reform bill be passed in the Congress
before the election in November, it would look substantially
different from the Senate S. 2611 when it comes to the illegal
immigration issues. Sen. Specter's compromise may be strongly
opposed by the illegal immigrant community but more or less supported
by the legal immigrant community that is anxious to see the reform
in legal immigration front, particularly employment-based immigration.
When it comes to the reform of legal immigration system, there
is no strong opposition in the both Houses. There appears to
be a slim chance that the Senate bill and the House bill will
be able to make it without any type of compromise as the two
bills represent more or less two extreme views of the far right
and the far left. For the legal immigrant community, question
remains whether the bill will pass at all before the election,
while for the illegal immigrant community, the question remains
what kind of bill should pass the Congress before November rather
than passage of any kind of CIR. Please stay tuned to this web
site for the new development of compromise immigration reform
legislation activities. In the meantime, for the Sen. Specter's
view, please click here.
06/26/2006: DOL Employment Standards Administration (ESA)
Recommended House Subcommitte Its Enhanced Enforcement Authority
- According to the ESA, it has recommended
the House Judiciary Subcommittee of Immigration to adopt the
GAO's recommendation and to give the ESA more authority to enforce
anti-fraud activities involving labor condition and labor attestations
of the employers. Read on.
06/25/2006: Leadership Changes in Atlanta National Processing
Center and Philadelphia BEC
- Unconfirmed sources indicate that the Certifying
Officer of Atlatan National Processing Center for PERM applications
departed from the post and there was a vaccuum in the leadership
in the office for a short while. It could have affected the processing
times for the PERM cases which were processed by the Atlanta
office. However, the former Certifying Officer of Atlanda Region,
Dr. Floyd Goodman, is reportedly filling in the post and the
Atlanta office is back to normal operation. Chicago National
Processing Center is headed by Charlene Gilde, who was involved
in the reengineering of the current labor certification system
before the reengineering was launched. The National Processing
Centers in Chicago and Atlata are permament offices and the directors,
certifying officers, government analysts, other than contractors,
are permanent employees.
- Unconfirmed sources also indicate that the
head of Philadelphia BEC has also just departed from the post.
Unlike the PERM National Processing Centers, the Backlog Elimination
Centers in Philadelphia and Dallas are a "temporary"
offices which will be dismantled once the backlog elimination
jobs are completed. Since BEC is firmly committed to removing
all the backloga by the end of September 2007, not only the contractors
but also the government officials including analysts and certifying
officers are destined to lose the job. There are some concerns
as to whether this term limit of employment would affect 'morale'
of the people working on the backlog cases facing potential unemployment
at the end of FY 2007. Without doubt, some of the officers in
the Philadelphia and Dallas BEC may be absolved into the National
Processing Centers or Regional or National posts, but these jobs
may be considered unstable. We are curious about how the DOL
would handle the issue of morale of the employees of these BEC
offices as they approach September 30, 2007. In the meantime,
on behalf of all the immigrants, we wish to send "thanks"
to the people in the Philadelphia and Dallas offices for the
job well done under the difficult personal circumstances. We
wish them best.
06/24/2006: Advisory on Amendment of Backlog LC Application
for Substitution of Alien Beneficiaries
- As we posted yesterday, the pace of processing
of backlog labor certification applications will substantially
change beginning August 2006. Under the labor certification rule,
people cannot request the DOL to amend the LC application to
substitute the alien beneficiary once the labor certification
is certified. The substitution of alien beneficiary can be done
only through the USCIS as part of the I-140 petition process
once the labor certification has been certified. Since the DOL
and USCIS are currently in the process of rule-making on elimination
of the amendment before certification and elimination of the
substitution of alien beneficiary after the labor certification
is granted effective release of the final rule on this subject,
the amendment during the BEC labor certification process presents
a golden opportunity to substitute the alien beneficiary before
the application is certified on behalf of the original beneficiary.
Considering the fact that the BEC intends to pick up the speed
of processing of backlog cases, those employers who need substitution
of alien beneficiaries should request the BEC for amendment to
substitute the alien beneficiary for the pending application
as soon as possible. The amendment procedure appears to be simplified
than those that applied prior to March 28, 2005 in that the DOL
does not have to return the original of the pending labor certification
application to the employer for the employer to revise, date,
initial, and return to the agency. Current procedure appears
to allow the employer just request the substitution of the beneficiary
in writing giving details of the pending application including
case number and the details of the new alien beneficiary in ETA
750 Part B. DOL encourages the employers to file such amendment
as soon as possible.
06/24/2006: USCIS Changes Policy on
Opt-Out Coverage to Include Minor Child Under 21 at Initial Filing
of F-2A I-130 Petition
- USCIS has just released an
important memorandum on CSPA aging-out children's Opt-Out coverage
group expanding to include a minor child under 21 at the time
of initial filing of I-130 petition by a permanent resident parent
who has since been naturalized into a U.S. citizen. This memorandum
is important for the family-based immigration law practitioners
and immigrant families. Read on.
06/23/2006: Growing Trend of Commencement of Removal Proceedings
Upon Denial of I-485 Applications and Suggested Options to Cope
with the Changing Environment
- The USCIS Director and the Deputy Director
consistently confirmed here in San Antonio that there would be
a growing trend of issuance of NTA upon denial of I-485 applications
if the alien was not in a valid nonimmigrant status. This will
be true particularly when the alien has a criminal record or
other issues. The NTA is the first step of the agency to commence
removal (deportation) proceeding. Legally, the Service Centers
and other field offices of the USCIS were authorized to issue
NTAs when the alien was not in a valid nonimmigrant status, but
as the country is moving towards the direction of reinforcement
of the system to control illegal aliens and immigration status
violators, the USCIS is also apparently pressured to participate
in the action. For the reasons, a growing number of EB-485 applicants
will face NTAs from here on. Under the rules, once the NTA is
issued, the jurisdiction is swifted to the Immigration and Customs
Enforcement (ICE) and the immigration courts from the USCIS.
- There are three things the applicants should
keep in mind to cope with the forcecoming changes in the immigration
environment:
- (a) As the House Judiciary Subcommittee hearing
on June 22, 2006 strongly suggested, the DOL and USCIS would
move towards increased enforcement of employment-based nonimmigrant
and immigrant status violators including employers and employees
through cross check of actual payment and labor condition applications
and labor attestations, and DOL will be pressured to search and
go after the these violators (employers and employees). Until
now, the LCA or labor attestations enforcement has been driven
by the disgruntled current or former employees and the cases
that have been brought to the enforcement actions have been limited
in numbers. However, this may change as the agency may be pushed
to initiate the process rathen than driven by the complaints.
Employers and employees should be more mindful of "compliance
with the labor condition applications and labor attestations."
- (b) As the proceedings are electronized and
the databases are increasingly shared among agencies and the
databases are accessible by all the agencies involved, the immigration
benefit proceedings, including nonimmigrant and immigrant proceedings,
will be increasingly linked to these databases and the violators
will be easily detected by these agencies as the GAO report of
June 22, 2006 indicated. Such change will involve and lead the
USCIS which is not immigration law enforment arm of the DHS to
be dragged into the enforcement processing in the form of issuance
of NTA. They will be plugged into the enforcement process at
the front-end. The employers and employees should be more mindful
of the evidence and supporting documents which they submit to
the USCIS.
- (c) The 485 applicants may be better off
maintaining nonimmigrant status such as H-1B all the way in order
to avoid the potential commencement of deportation proceeding
by the Service Centers and field offices upon denial of I-485
applications. In this regard, the aliens should carefully review
desirability of working on EAD and Advance Parole considering
the changing environment.
- The employers and the alien employees are
advised to seek legal counsel on the issues which are raised
in this posting, including review of compliance of labor condition
applications and attestations, and options against the consequences
of denial of I-485 applications.
06/23/2006: RFE for I-129F Petitions
- As we reported earlier, the USCIS is on hold
of all the pending I-129F cases which number approximately 11,000
petitions until RFE is issued. There was a delay in processing
RFE but the officials today confirmed that the USCIS had started
mailing out the RFEs to the petitioners. Accordingly, I-129F
filers will receive the RFEs in the mail in the next few days.
06/23/2006: Termination of Issuance of EAD Cards at the
Local District Offices by October 1, 2006
- USCIS is planning to terminate the local
district offices' processing and issuance of EAD cards, including
Interim EAD cards for the two reasons: The EAD production machines
at the local district offices are very very old and do not meet
the system requirement for production of sensitive ID documents.
The other reason is that the USCIS may reduce the processing
times of EAD cards and other documents such that no issuance
of the Interim cards may be necessary. Besides, the USCIS still
intends to issue EAD cards valid for a period longer than one
year for "certain" types of cases that suffer from
delays or retrogressions. Currently the termination of local
district offices' card production is scheduled at October 1,
2006.
06/23/2006: Agenda of Termination of Concurrent I-140/EB-485
Filing
- As the processing times have been reduced
substantially during the past two years, they have been and are
seriously considering termination of the concurrent filing. However,
unlike the rumor, it will not be terminated simultaneously with
the launch of the I-140 Premium Processing Services which will
be launched in the near future. It predicts that it may not happen
for a while for the reasons that the agency will have to go through
the rule-making process to terminate the concurrent filing services.
Accordingly, it may not happen within this year. It is a good
news in a way, at this least for the time being.
06/23/2006: I-140 and EAD Premium Processing Schedules
- Even though the USCIS published the expanded
Premium Processing Services for various other types of applications/petitions,
including I-140 and I-765 (EAD), the agency intends to launch
the services step by step. The next first types of cases which
the USCIS will start processing Premium Process in the near future,
probably in the next few weeks are known to be I-140 petitions
and I-765 (EAD). USCIS today reported at the conference that
the Premium Processing for these two types of proceeding, particularly
I-140 will be launched first and the announcement will be posted
in the USCIS web site in the next few weeks.
06/23/2006: New USCIS Deputy Director Appointment Announced:
Jonathan Scharfen
- The USCIS has announced appointment of new
Deputy Director which is currently held by Robert Divine. Mr.
Divine will take the position of the Chief Legal Counsel for
the USCIS. We will miss Mr. Divine very much and wish to send
hats-off to Mr. Divine for the job well done as the Acting Deputy
Director. He will record in the immigration agengy record as
one of the "most popular" leaders in the immigration
lawyers community as well as the immigrant community in the agency's
history. Please click here for the appointment news.
06/23/2006: Chicago & Atlanta PERM Processing Status
| |
Total Receipts |
% Handled |
2005 Cases Still Pending #
(1) |
| Chicago |
52,000 |
91% (9% yet to decide) |
500 |
| Atlanta |
56,000 |
87% (13% yet to decide) |
100 |
Note 1: The
figure reflects calendar year (03/2005 - 12/2005) and not fiscal
years statistics. The cases are pending because of the legal
issues which the two National Centers have to coordinate and
then approved by the OFLC HQ for the consistency of the standards
and rules. BEC anticipates that these cases may be cleared in
60 to 90 days. If the people do not receive the decision within
this time frame, they are suggested to contact the BECs through
e-mails.
06/23/2006: BECs to Make
Availalable "Processing Times Reports" and "Status
Check" Online Effective End of July
- People will remember that this web site urged
the DOL to start processing times reports and status check sites
on the DOL website just like the USCIS. Now we have a good news.
The DOL will indeed post online status check and processing time
report sites in its website as early as the end of next month,
July 2006. For the status check, people will need case numbers.
Accordingly, those who have yet to receive 45-day letters will
take a little bit longer to use the status check site.
06/23/2006: Good News for
BEC TR Labor Certification Processsing
- BEC has today disclosed that they have completed
dataentries for the entire 365,000 applications and all the 45-day
letters will be sent out within this week.
- Beginning from the mid-July 2006, the BECs
will start sending out the recruitment instructions to the employers
whose traditional regular labor certification applications have
been pending at the Backlog Elimination Centers. In order to
speed up the process, the BEC will enclosed with the instructions
their prevailing wage determination which the employers will
have to use for the purpose of the recruitment. The prevailing
wage determination will reflect the prevailing wage at the time
recruitment and not the wage at the time of initial filing no
matter how long they were filed. Besides, the employers must
offer 100% of the prevailing wage in compliance with the new
federal law on the prevailing wage for the labor certification.
- Employers, watch for these
mails from the Backlog Elimination Centers from next week!
06/22/2006: House Subcommittee Oversight Hearing "Is
the Labor Department Doing Enough to Protect U.S. Workers?"
- At 2:00 p.m. today, the House
Judiciary Subcommittee on Immigration, Border Security, and claims
had an oversight hearing on the title subject and heard testimonies
of the following four witnesses:
- Not too exciting news. House
is more interested in labor certification "enforcement"
issues than resolving the current crisis in H-1B cap!! Politics,
politics, politics!!!!!!
- The fallout of this hearning
which is very painful to the attorneys attending the AILA National
Conference in San Antonio is that Dr. William Carlson was not
available to attend the conference allegedly because of this
hearing. He was supposed to provide the attendants with valuable
update on the labor certification management and processing and
future direction and timeline to complete the reengineering process.
This reporter is truly dismayed and and frustrated over the unexpected
development of the event.
06/22/2006: H-1B (U.S. Advanced Degree) Cap Count of June
20, 2006
- The cap count of the U.S. earned advanced
degree FY 2007 cap count as of June 20, 2006 was 10,261. These
numbers included only receipted petitions. As of 6/20/06, USCIS
has identified 500 I-129 H-1B petitions seeking the Advanced
Degree exemption and another 1,800 I-129 petitions yet to be
sorted. Accordingly, total identified H-1B count as of June 20,
2006 was 10,761.
06/22/2006: PERM Statistics
- AILA sources indicate that the PERM approval
rate is approximately 62.5%. Under the old labor certification
system, the approval rate was over 80%.
06/22/2006: June 22, 2006 GAO Report Recommends Increased
Oversight and Information Sharing for Integrity of H-1B Program
- Gao reports that there is considerable interest
regarding how Labor, along with Homeland Security and Justice,
is enforcing the requirements of the program. This report describes:
(1) how Labor carries out its H-1B program responsibilities;
and (2) how Labor works with other agencies involved in the H-1B
program. We interviewed officials and analyzed data from all
three agencies.
- While Labor's H-1B authority is limited in
scope, the agency could improve its oversight of employers' compliance
with program requirements. Labor's review of employers' applications
to hire H-1B workers is timely, but lacks quality assurance controls
and may overlook some inaccuracies. From January 2002 through
September 2005, Labor electronically reviewed more than 960,000
applications and certified almost all of them. About one-third
of the applications were for workers in computer systems analysis
and programming occupations. By statute, Labor's review of the
applications is limited to searching for missing information
or obvious inaccuracies and it does this through automated data
checks. However, our analysis of Labor's data found certified
applications with inaccurate information that could have been
identified by more stringent checks. Although the overall percentage
was small, we found 3,229 applications that were certified even
though the wage rate on the application was lower than the prevailing
wage for that occupation. Additionally, approximately 1,000 certified
applications contained erroneous employer identification numbers,
which raises questions about the validity of the application.
In its enforcement efforts, Labor's Wage and Hour Division (WHD)
investigates complaints made against H-1B employers. From fiscal
year 2000 through fiscal year 2005, Labor reported an increase
in the number of H-1B complaints and violations, and a corresponding
increase in the number of employer penalties. In fiscal year
2000 Labor required employers to pay back wages totaling $1.2
million to 226 H-1B workers; by fiscal year 2005, back wage penalties
had increased to $5.2 million for 604 workers. Program changes,
such as a higher visa cap in some years, could have been a contributing
factor. In April 2006, WHD began the process of randomly investigating
willful violators of the program's requirements. Labor, Homeland
Security, and Justice all have responsibilities under the H-1B
program, but Labor and Homeland Security could better address
the challenges they face in sharing information. Homeland Security
reviews Labor's certified application but cannot easily verify
whether employers submitted petitions for more workers than originally
requested on the application because USCIS's database cannot
match each petition to Labor's application case number. Also,
during the process of reviewing petitions, staff may find evidence
that employers are not meeting their H-1B obligations. For example,
Homeland Security may find that a worker's income on the W-2
is less than the wage quoted on the original application. Homeland
Security may deny the petition if an employer is unable to explain
the discrepancy, but it does not have a formal process for reporting
the discrepancy to Labor. Additionally, current law precludes
the Wage and Hour Division from using this information to initiate
an investigation of the employer. Labor also shares enforcement
responsibilities with Justice, which pursues charges filed by
U.S. workers who allege they were displaced by an H-1B worker.
From 2000 through 2005, Justice found discriminatory conduct
in 6 out of the 97 investigations closed and assessed $7,200
in penalties.
- For the full report, please click here.
06/22/2006: Matthew Oh Says Hello From San Antonio
- The weather of San Antonio is very hot and
humid. To this reporter from the Eskimo state (?!), Minnesota,
it is not too easy to walk around.
- Most of the immigration attorneys and government
officials arrived yesterday evening and the conference is scheduled
to start this morning, that begins with Dr. Emilio Gonzalez,
USCIS Director's short presentation. Bombshell, if there is any
at all, has yet to happen. Please stay tuned.
06/21/2006: USCIS & EOIR Release I-864 Affidavit of Support Final Rule Effective 07/21/2006
- This final rule clarifies several issues
raised under the interim rule regarding who needs an affidavit
of support, how sponsors qualify, what information and documentation
they must present, and when the income of other persons may be
used to support an intending immigrant's application for permanent
residence. These changes are intended to make the affidavit of
support process clearer and less intimidating and time-consuming
for sponsors, while continuing to ensure that sponsors will have
sufficient means available to support new immigrants when necessary.
The final rule also makes clear that, when an alien applies for
adjustment of status in removal proceedings, the immigration
judge's jurisdiction to adjudicate the adjustment application
includes authority to adjudicate the sufficiency of the affidavit
of support.
- This final rule is effective July 21, 2006.
- Please read: USCIS Fact Sheet and Q&A
06/21/2006: Conference Committee Not Likely for CIR Before
Election
- Report
indicates that the House leadership has decided to schedule a
series of hearings this summer rather than agreeing to the Senate's
conference committee request. The future of CIR is very uncertain.
06/20/2006: June 20 Service Centers Processing Times
06/20/2006: U.S. Master Degree FY 2007 H-1B Cap Count as
of June 16, 2006
- Total receipted numbers were 8,778, but this
number included only receipted petitions. As of 6/16/06, USCIS
had identified 1,220 I-129 H-1B petitions seeking the Advanced
Degree exemption and another 2,190 I-129 petitions yet to be
sorted. Accordingly, excluding the numbers yet to be identified,
the total including those for which receipt notices had already
been issued and those yet to be issued appeared to be 9,978+
as of June 16, 2006, using about a half of 20,000 numbers.
06/20/2006: Eerie Silence on Immigration in Beltway and
Our Report Policy
- Washington, D. C. is usually a center and
sources of news for government policies, including legislation,
that determines our lives. This is particularly true with the
immigration. Nowadays, however, the Beltway is eeriely silent
on immigration both at the level of legislation and at the level
of government agencies. Obviously, this is a hot summer and vacation
season. Besides, every issue is poised to the midterm national
election. But this is somewhat unusual.
- Under the circumstances, this web site considers
any discussion of comprehensive immigration reform legislation
pointless and we will cease our review and discussion on this
issue on our site at least for awhile. We have thus removed the
Q&A for S. 2611. We have decided that we would rather review
some complicated immigration issues that most of immigrants face
day in and day out regardless of the activities in the Beltway.
- As for the ongoing policies and practices
of the government agencies, we expect that the representatives
from these agencies in the AILA National Conference in San Antonio
will be able to supply to the thirsty mouth of immigrants drops
of waters. This reporter will report the news from San Antonio
conference site from tomorrow. There are some hot issues which
the immigrant community hopes to learn as to the agencies' future
direction and timelines. Sometimes, these officials wait and
break certain news at the AILA National Conferences each year.
We will wait and see what those news could be. Please stay tuned
to this website for the "Washington Update" report
by this reporter from San Antonio.
06/17/2006: Only 90 or 100 May 26 Receipted Cases Made it
for FY 2007 H-1B Cap Lottery
- AILA has reported that out
of "unknown" total numbers of FY 2007 cap filings received
on May 26, 2006, only 90 or 100 cases won in the lottery. Those
that did not make it in the lottery will be saved some if some
numbers in the final FY 2007 count add some numbers to the pool
and others will be rejected and returned to the petitioners with
the refund. The USCIS did no disclose how many cap numbers they
actually received on Mary 26, 2006, and curious George wants
to know the impact of the retroactive announcement of the cap
count on June 1, 2006.
06/16/2006: U.S. Master Degree H-1B Cap Update: 7,324(+)
as of 06/09/2006
- USCIS has just released the 20,000 special
cap numbers usage for U.S. Master or higher degree professionals.
The numbers have not been used by the employers as fast as we
predicted. Weekly, approximately 850 have been used. Should this
pace continue, the cap numbers may last for a while. It is a
good news for the U.S. earned degree holders.
- Note says that 7,324 count includes only
receipted petitions. As of 6/13/06, USCIS has an estimated total
of 4,000 unreceipted Form I-129s awaiting data entry. Only a
small minority of these petitions are seeking the H-1B Advanced
Degree exemption.
06/16/2006: Massive Fiancee Petition
Recall/RFE and Background Information
- GAO report indiates that
in fiscal year 2005, U.S. citizens and lawful permanent residents
filed about 730,000 petitions with the U.S. Citizenship and Immigration
Services (USCIS) to sponsor noncitizen family members, including
spouses, fiances, and children, to immigrate to the United States.
Those doing the sponsoring are called petitioners; those benefiting
from the sponsoring are called beneficiaries. If USCIS approves
the petition, overseas beneficiaries must also file a visa application
with the Department of State to enter the United States. In January
2002, USCIS started to conduct background security checks on
all petitioners in addition to the beneficiaries. These background
checks revealed that some of the petitioners had convictions
for criminal sex offenses; further, some of those criminal sex
offenders were filing family-based petitions for children (those
under the age of 21). This report addresses the number of convicted
sex offenders who filed family-based petitions in fiscal year
2005 based upon a computer match of USCIS data with individuals
in the Federal Bureau of Investigation's National Sex Offender
Registry and discusses USCIS's and the Department of State's
framework for disclosing a sponsor's criminal sexual background
to the beneficiary. DHS, the Department of State, and the Department
of Justice reviewed a draft of this report. Only technical comments
were provided and have been incorporated into this report. At
least 398 convicted sex offenders filed a total of 420 petitions
in fiscal year 2005 for spouses, fiances, children, and other
relatives. Immigration law does not prohibit convicted sex offenders
from petitioning to bring their spouses, fiances, or children
into the United States and generally USCIS cannot deny a petition
based solely on the fact that the petitioner is a convicted sex
offender. The sex offenders were convicted of at least 411 sex-related
crimes, including sexual assault and rape, according to data
in the Federal Bureau of Investigation's National Sex Offender
Registry. At least 45 convictions involved crimes against children.
While most beneficiaries were spouses and fiances, criminal sex
offenders petitioned for at least 60 children. According to USCIS
and Department of State officials, an exception to the Privacy
Act of 1974 gives them authority to disclose a petitioner's criminal
sex offender history if there are "compelling circumstances
affecting the health and safety" of the beneficiary. For
certain noncitizen beneficiaries, disclosure of the petitioner's
criminal background information is now mandatory based on new
authority granted to USCIS and the Department of State. The International
Marriage Broker Regulation Act of 2005 (IMBRA) requires disclosure
of a U.S. citizen's criminal background information, including
sex crimes, to certain prospective immigrants, essentially noncitizen
fiances, but some spouses and minor children as well. Mandatory
disclosure is not required for beneficiaries not covered by IMBRA,
though these beneficiaries may receive information about a petitioner's
criminal background on a discretionary basis under the Privacy
Act exception. GAO estimates that IMBRA's mandatory disclosure
requirement will cover about 20 percent of family-based beneficiaries
based on fiscal year 2005 data. On May 3, 2006, USCIS issued
interim guidance to its adjudicators on when it may be appropriate
to disclose information related to a petitioner's criminal history
under the "compelling circumstances" exception to the
Privacy Act. USCIS plans to issue separate guidance related to
disclosure requirements under IMBRA. Department of State officials
said that they are preparing to issue Privacy Act disclosure
guidance and are finalizing separate IMBRA disclosure guidance.
For the full GAO report, please click here.
- The USCIS has just released
new I-129F form of May 23, 2006 to implement the foregoing policy
and legal requirement. From hereon, the Fiancee Petition, I-129F,
must be filed using this new version, and those whose petitions
have yet to be adjudicated will receive RFE in the mail. Additionally,
those whose petition has already been approved and forwarded
to the National Visa Center or visa posts are at this time recalled.
06/15/2006: El Salvadore: TPS Designation Extension &
Automatic EAD Extension
For Pre-June
15, 2006 News, Please
Click Here.