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THE OH LAW FIRM

Dedicated Professionals in Immigration Law for Over 24 Years@

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

Current Page[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:
  • Miami
  • Broward County
  • Hialeah
  • Orlando
• The AILA is scheduled to have its annual national conference in June 2007 at Orlando, Florida. This reporter and his family members will attend and visit Orlando at the time. We look forward to visiting the new facility in the summer.

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

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

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

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

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

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

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

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

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

• Please see our home page.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

03/12/2007: April 2007 Visa Bulletin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

03/05/2007: Comprehensive Immigration Reform Bill

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

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

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

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

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

03/05/2007: Summary of American Dream Act

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

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 applicant’s 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.
  • Chairman Sen. Patrick Leahy
  • DHS Secretary Michael Chertoff
  • Commerce Secretary Carlos Gutierrez
• 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

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

• See homepage.

12/18/2006: Service Centers Processing Times of 12/18/2006

• See homepage

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

• Department of Homeland Security
• Department of Labor
• Department of State
• Department of Justice (EOIR)
• Department of HHS
• Social Security Administration

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

• See homepage.

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

• See homepage.

12/18/2006: Service Centers Processing Times of 12/18/2006

• See homepage

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

• Department of Homeland Security
• Department of Labor
• Department of State
• Department of Justice (EOIR)
• Department of HHS
• Social Security Administration

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

• See homepage.

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:
  • Announcement
  • Q&A for New Pilot Naturalization Exam
  • Facts about USCIS Naturalization Test Redesign.
    

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.
  • Visa Waiver Program
  • e-Passport requirement Timeline
  • Traveler Guidance
  • e-Passport

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.
  • USCIS Announcement
  • Full Text of the Rule
  • FAQ
• 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

• See Homepage.

11/20/2006: USCIS Local District Office Processing Times of November 17, 2006

• See Homepage.

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 bachelor’s 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:
  • Immigration Forms

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

• Please see our homepage.

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 1999–2000 and 2004–2005 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

• USCIS Announcement
• FAQ

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

• See homepage.

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:
  • Bo Cooper, Former INS General Counsel
  • Phyllis Norman, VP, Harris Methodist Ft. Worth Hospital, Dallas
  • Lance Kaplan, Partner, Pragomen, et al.

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

• Right on! Read the report.

08/26/2006: USCIS Updates Processing Times Reports for Service Centers and Local District Offices as of 08/25/2006

• See homepage.

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:
  • General Instructions
  • Old I-907 Valid through 08/27/2006
  • New I-907 Valid from 08/28/2006 including I-140
• 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:
  • Premium Processing Q&A
  • Premium Processing Service

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 passport’s issue and expiration dates. The chip also includes a digital image of the bearer’s 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.
  • General Information
  • Pre-Order Filing Instructions and Procedures
  • Background Check Q&A
  • Post-Order Filing Instructions and Procedures
• 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

• See homepage.

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 alien’s 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:
  • Federal Register Notice
  • DHS Announcement
  • Q&A

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

• Read on.

07/19/2006: July 19 Service Center Processing Times

• See homepage.

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:
  • CompeteAmerica Report
  • Senate Version of SKIL Bill
    

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:
  • Filing Changes Effective 07/24/2006
  • Updated Bi-Specialization Filing Insructions: Fact Sheet

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?

• Read on.

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:
  • Sirud Nilsen, GAO
  • Alfred Robinson, DOL ESA
  • John Miano, Programmers Guild
  • Ana Avendano, AFL-CIO
• 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

• See homepage.

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.