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THE OH LAW FIRM

Dedicated Professionals in Immigration Law for Over 25 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..

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03/29/2008: Missed Legislative Opportunity to Cure OPT H-1B Cap Predicament

• We reported late last year that 20 some Senate leaders urged the Homeland Security Deparmtment to take an action to extend the period of OPT from the current one year to 29 months and for the purpose of change of status to a H-1B visa status, the OPT students be considered in status during the H-1B cap filing period. Thus far the DHS has failed to act on the recommendation. Now we are facing a crisis for some of these OPT students to submit FY 2009 H-1B change of status filing for their inability to prove their nonimmigrant status valid through October 1, 2008.
• Without much public publicity, the Senator from our State of Minnesota, Mr. Norm Coleman, introduced a legislative bill in the Senate as early as February 14, 2008 that provides the so-called cap-gap relief to these OPTs by considering such OPTs in status before the beginning of the next fiscal year. Had this bill been passed and signed, the country could have avoided the current crisis.
• This bill is still pending before the Judiciary Committee of the U.S. Senate. Even though this bill is too late to give a relief to the OPTs for FY 2009 H-1B filing, we hope that the Congress would support and pass the bill as soon as possible. This bill also includes reinstatement of the employment-based nonimmigrant visas such as H and L revalidated within the U.S. The revalidattion of these visas within the U.S. has been terminated for the last few years giving tremendous hardships on these foreign workers who are critically needed, particularly under the circumstances of increased security clearance and related visa processing delays at the visa posts. We urge the leaders of the Senate Judiciary Committee and for that matter, members of the Senate and House as a whole to act on this bill when they return to the Hill on Monday, March 31, 2008. This Action Act of 2008, S. 2653, also needs the White House support and push. For the full text of the bill, please click here.
• We want to take this opportunity to print his statement on the Senate floor to call the community's attention to the important issues involved:
  • Mr. President, today, along with my distinguished colleague from New Mexico, Senator Bingaman, I am introducing legislation to restore and enhance our Nation's competitiveness for international students, scholars, scientists, and exchange visitors, and better facilitate legitimate business travel to the U.S. In the immediate aftermath of the events of 9/11, it was necessary to take the steps we did to improve and enhance our Nation's security. But in the more than 6 years since 9/11, these well-intentioned changes have had unintended consequences, stifling legitimate academic and scientific exchange and international business travel, and tarnishing our Nation's image around the world. Three years ago, Senator Bingaman and I introduced a similar bill designed to reverse the decline in the number of foreign students studying at American colleges and universities. At that time, international applications to U.S. graduate schools and to English as a Second Language, ESL, programs were plummeting, and visa delays were numbering in the thousands. Visa delays were also negatively impacting the scientific and business communities, resulting in billions of dollars of losses for the U.S. economy, as scientific research, conferences, and business meetings had to be canceled and shifted to overseas locations. Over the past 3 years, there have been improvements with visa issuance, and it is the State Department's Bureau of Consular Affairs, particularly Assistant Secretary Maura Harty, who deserves much of the credit. I am pleased with their advancements to enhance consular staff; adopt newer, more efficient technology; offer international students, scholars, and exchange visitors preferential consideration when scheduling in-person interview appointments; and extend security clearance validity. The Department also has established a business visa center to field inquiries from U.S. businesses and their worldwide counterparts, although the center cannot expedite in-person interview appointments or the processing of visa applications. This is not to say that visa delays have disappeared entirely. Delays do continue to occur, albeit not at the huge volume they once were. Because of this, there is a lot of lingering uncertainty about the process which generates a great deal of concern for international students, scholars, exchange visitors, and business travelers, and reinforces a perception that America is not a welcoming place for international visitors. Indeed, serious concerns remain regarding the U.S. position in the competition for international talent, particularly among higher education, the scientific community, and the private sector. Our competitiveness problem is not just a visa problem--we cannot solve it simply by fixing the visa problems that were created after 9/11. The U.S. now faces strong competition for international students, scholars, scientists, and exchange visitors. The United Kingdom, Australia, New Zealand, and the European Union all have coordinated, government-led strategic plans in place for attracting international students and scholars to their colleges and universities. Even our neighbor to the north, Canada, plans to announce a strategic plan this year. Meanwhile, traditional sending countries such as China and India are expanding their own higher education offerings, both to retain more of their own students and to attract international students. In the face of this competition, the U.S. still struggles along with piecemeal efforts, with each positive action seemingly cancelled out by a negative action and persistent negative perceptions. The results are worrisome. While international student enrollment in the U.S. declined in both the 2003-2004 and 2004-2005 academic years, and remained stagnant in 2005-2006, over the same period, enrollment in the United Kingdom jumped more than 80,000, in Australia and France more than 50,000, and in Germany and Japan more than 20,000. In 2006, then-U.K. Prime Minister Tony Blair announced a goal of attracting an additional 100,000 international students to Great Britain in the next 5 years. Although we have started to see the enrollment numbers tick upwards slightly just this past year--in Minnesota, 9,048 international students were studying at colleges and universities last academic year, contributing $186.4 million to the state's economy--it is still below the peak level of 9,143 achieved in 2003-2004, so there is still ground to make up for what was lost over the past 3 years to ensure we regain our place as the most desired destination for study and for research. Even if we return to pre-9/11 numbers, we may find we have lost market share to competing nations. Why should this matter to the U.S.? Recent public opinion polls taken around the world show that the U.S. has fallen out of favor. But these same polls also show that foreigners who have personally visited the U.S. have a significantly more favorable opinion than those who have never visited. International students and scholars benefit greatly from their experiences in the U.S., not only from their studies and research, but also from living in daily American life. They carry these experiences home, often becoming ambassadors of goodwill and understanding. Many go on to achieve leadership positions in their home countries in government, business, or education. These exchanges also benefit American students, researchers and business colleagues, who similarly have the opportunity to learn about another culture in this globalized world. Two expert commissions recently issued recommendations citing international educational exchange as a critical form of public diplomacy outreach. Last November, the Center for Strategic and International Studies' Commission on Smart Power cited international educational exchange as a key element for improving America's declining standing and influence in the world. Just last month, the Secure Borders and Open Doors Advisory Committee, a federal advisory committee tasked by the Departments of Homeland Security and State to provide recommendations on the Departments' missions to protect not only America's security but also our economic livelihood, ideals, image, and strategic relationships with the world, cited the need for a proactive national strategy to mobilize all the tools and assets at our disposal to attract international students and scholars to the U.S. International students and scholars are not only important for public diplomacy, they also are essential for our Nation's global competitiveness. They make significant contributions to our economic growth and innovation. According to recent National Science Board data, nearly half of all graduate enrollments at U.S. colleges and universities in the science and engineering fields are international students. And these students often go on to positively impact future research and technology output in this country. I strongly support efforts to build up America's own supply of science and technology talent, but we also must continue to actively attract international talent to our shores if we are to retain our innovative edge. It is a reality of our time that, at the high-skill level, the temporary immigration system has become a conveyor belt of talent into the permanent immigration system. Most foreign students do want to go home after graduation, but some want to stay and use the knowledge they have acquired at our universities. For example, Ms. Indra Nooyi, the current CEO of PepsiCo, the world's fourth largest food and beverage company, is herself a former international student who received her master's degree from Yale University's School of Management. So it is for all these important reasons that Senator Bingaman and I once again introduce legislation on this important issue: The American Competitiveness Through International Openness Now, ACTION, Act of 2008. This year's bill once again calls for the establishment of a strategic plan for increasing the competitiveness of the U.S. in recruiting international students, scholars and exchange visitors. The U.S. can no longer sit back and rest on its laurels when engaging in this global competition, especially when all of our competitors clearly have stepped up their game. Our biggest problem is our inability to marshal the efforts of all the relevant agencies into one coherent effort. Too often, these agencies work in an uncoordinated manner, or worse, at cross purposes. The PR blunder cases, where one arm of our government sets up exchange programs to attract people and another arm of the government detains them at the border, is only the tip of the iceberg. Our legislation would create a White House-chaired International Education Coordinating Council to guide the work of the myriad agencies that affect our competitiveness for international students and exchange visitors. One of the most important provisions in the legislation would remove the nonimmigrant intent requirement for international students, the so-called 214(b) rule. This outdated requirement that all applicants for student visas must intend to return home after their studies makes no sense, especially when talent-starved high-tech industries actively court international students upon graduation. As I stated earlier, our ability to attract international talent is essential to sustaining our competitive edge in the world. Retaining such a requirement is simply out of step in this day and age, especially when most of our competitors are going out of their way to enact policies to make it easier for international students to stay after graduation. The bill calls for further improvement in the timeliness and efficiency of the visa issuance process for those in the sciences. It directs the Secretary of State to issue guidance to reduce the length of time to issue visas to scientists to a maximum of 30 days, and to provide a special review process for those cases that are delayed more than 45 days. It also directs the Secretary of State to review and update the Technology Alert List on a regular basis, and to consult with academia and the private sector as part of this review, to ensure the list reflects the current state of technology. It also calls for expediting visa reviews for so-called ``Trusted Travelers'': easily identifiable, low-risk frequent travelers who have a history of past visa approvals, haven't violated their immigration status, and have provided their biometric data, plus any additional information required, to the consulate. This would both ease travel for these individuals and permit consular resources to be focused on more important cases. There is also a provision to also allow expedited visa reviews for international students, scholars and exchange visitors who leave the United States temporarily to visit their families or attend conferences and require a new visa to return to the same program. Today, these people can be stranded abroad for months without being able to return to their programs. The legislation calls for the reinstatement of domestic or stateside visa renewals for those here on employment-based non-immigrant visas. This practice was discontinued in 2004, because U.S. consulates abroad were better equipped to collect the required biometric data from the renewal applicant. Given today's available technology, we should seek to reinstate this practice. This would help to alleviate the volume of renewal applicants at our overseas consulates, as well as help renewal applicants who often opt to forgo travel overseas due to the uncertainty of timely and efficient processing of their renewal applications. Finally, there has been much public debate about driver's licenses and Real ID. In our well-intentioned efforts to ensure that only persons in the U.S. legally are able to acquire driver's licenses, we have unintentionally hamstrung the ability of legal nonimmigrants to have licenses. Real ID's unrealistic documentation and renewal requirements for international students and scholars send yet another negative signal about America's openness to them, and frankly ignore technical advances which could provide both better assurances about a person's legal status and licenses of a longer validity. Our bill will correct this problem in a way that will strengthen, not weaken, the integrity of driver's licenses. For all of these reasons, our legislation is endorsed by NAFSA: Association of International Educators, the world's largest professional association advocating for international education and exchange programs, by the National Foreign Trade Council, the Nation's premier business organization dedicated to advancing global commerce, and by USA Engage, a leading broad-based coalition of trade associations promoting global economic engagement. The American way of life owes its success and vitality to its historic ability to harness the best in knowledge and ideas, not only those that are homegrown, but also those that come from outside our borders. The longer we wait to take action, the more we risk missing out on future U.S. academic, business, and research success.
• On behalf of the foreign students and OPT, we want to thank Senator Coleman from Minnesota for introducing the important bill in the Congress.

03/28/2008: Administrative Relief for OPT H-1B Cap Applicants Looming Up

• Report indicates that the businesses and their lobby organizations have been adding the last minute pressures on the White House to order such relief at the level of the President. Unconfirmed sources indicate that such relief may be forthcoming very shortly. Please stay tuned to this website.

03/28/2008: Reminder of OFLC's Scheduled System Maintenance and Potential Disruption of Online Filings Tomorrow, March 29, 2008

• The foreign labor certification system is scheduled to undergo the online filing system maintenance tomorrow and it is anticipated that there will be some disruption of online filing of PERM applications. The information indicated that the system that would be affected was the PERM application system. We just hope that it would not affect the online labor condition application system. Out of precaution, people may want to file online applications today. There may be a huge surge of the labor condition applications online filing on Monday, March 31, 2008.
• Today marks the third anniversary of the online PERM filing system. We like to take this opportunity to extend our contratulations to the leaders of the Office of Foreign Labor Certification for the job well done and the success. Special tribute should be directed to Dr. William Carlson, the head of the National Program Services who endured some technical difficulties at the initial stage of the program but has brought this online filing system into a model for success and other government systems. We hope to see an identical success with the USCIS online filing and processing plan that has been pushing ahead under the Transformation Program which is to be completed within the next year. The OFLC's PERM Program may be taken as a successful model when the agency brings the account system concept into the core of the online filing system and reengineering. Heads-off to you, Dr. Carlson, for your leadership!

03/28/2008: USCIS Releases March 15, 2008 USCIS Service Centers and Local Offices Processing Time Report

• People should note that this report just shows the cases which they just completed and cannot be taken as a yard stick to project how much time their pending cases will be taken in the future. Depending on specific situations and developments such as July 2007 Visa Bulletin fiasco flood of filings and incredibles surge of naturalization application filings, the processing times for I-140 and I-485 during this report period should not be taken as the basis to form an opinion for the prediction of their cases in the future.
• With this in mind, we would like to look at a few points in this report. The H-1B petitions generally took over two and a half months across the board. As the FY 2009 H-1B cap flooding is at their door steps, though, it can affect the H-1B processing times more or less negatively from April. They report that they are in the process of hiring mroe resources, but because of the namechecks and other procedures in federal recruitment procedures, that cannot be realized over night. People should be prepared for the upcoming changes in the processing times. However, since H-1B premium processing services will not be suspended during the period, people may still get the decisions quick in emergencies via Premium Processing Services.
• For the I-140 petitions, Nebraska Service Center apparently has not reached the July 2007 VB fiasco filings in July and August, while the Texas Service Center has. The same goes true with the EB-485 cases, even though the situation is better than I-140 petitions. I-485 processing times have been much shorter than I-140 petitions in general. For those whose visa numbers will be available in the future, it is anticipated that the processing times of I-485 applications may remain in good shape as affected by the recent USCIS policy change on FBI Name Check delays. We have noticed a number of EB-485 applications that have been frozen for the name check problems for over three years have been approved thanks to the policy change. Lots of happy faces!

03/28/2008: Legislative Proposals for Reinforced Employment Verification for All Workers (U.S. Citizens & Foreign Workers) & Employer Sanction Enforcement Gathering Steam.

• The Immigration Policy Center reports on March 27, 2008 that Congress returns on Monday from its two week recess, and proposals regarding employment verification for all workers – foreign- and U.S.- born alike – are gathering steam. Several bills including the Shuler-Tancredo "SAVE Act" (HR 4088) and the Johnson "New Employee Verification Act of 2008" (HR 5515) include provisions to create a nationwide mandatory electronic employment verification system (EEVS). In the meantime, the Department of Homeland Security (DHS) published new proposed regulations to turn SSA "no-match" letters – a system SSA uses to correct errors in its database – into an immigration enforcement tool. These proposals are election year antics. Both the employers and the foreign workers should be on alert for this legislative movement and developing compliance policy changes. Read on.

03/27/2008: USCIS Releases Today Questions and Answers #1: H-1B Petition Mailing During Cap Season

• FY 2009 cap H-1B filers must read this Q&A. Important.

03/27/2008: USCIS Issues Memorandum on 03/26/2008 to Withold Adjudication and Review of Prior Denials of Certain Categories of Cases Involving Association With or Provision of Material Support to Certain Terrorist Organizations or Other Groups

03/26/2008: USCIS' February 13, 2008 Response (Recommendations) to the Ombudsman's 2007 Annual Report to Congress

• For detailed responses of USCIS as to what actions the USCIS has taken, please click here.

03/26/2008: DOL Finds One NY Employer Owes $3,000,000 Backwage to 156 H-1B Employees For H-1B Rule Violations

• An investigation by the department's Wage and Hour Division found that 156 H-1B guest workers from the Philippines, brought into the U.S. by APMI to be employed primarily as physical therapists in hospitals and other medical facilities in the New York metropolitan area, are owed almost $3 million in back wages. The investigation revealed that APMI willfully failed to pay required wages, filed lawsuits seeking penalties against some H-1B employees for early cessation of employment, failed to make required documents available for examination, failed to maintain required documentation and used incorrect prevailing wage rates on labor condition applications. Read on.

03/25/2008: Travel Advisory for Reentry Permit Applicant Permanent Residents

• Effective March 5, 2008, the USCIS required collection of biometrics for the permanent residents who filed the I-131 Reentry Permit for their extended stay outside of the U.S. for over six months or one year. The changed policy also required payment of biometric collection fee of $80 for the Reentry Permit Application effective March 5, 2008. However, due to a short notice, there appear to be a number of the permanent residents who filed the Reentry Permit Applications which have been received on or after March 5, 2008 without payment of $80 biometric fees. Despite the defective filings, these filers have been receiving Receipt Notices from the Service Center. One pitfall of such Receipt Notices is that unlike the previous policy that allowed the applicants to depart from the U.S. upon filing (upon receipt), the new policy does not allow the applicants to leave the country unless they pay the biometric fees and complete the biometric collection process at the USCIS Application Support Center. Accordingly, those who filed the Reentry Permits within this time period without payment of $80 biometric fees and left the country may face a serious consequence down the road if they do not return within six months or one year. According to the USCIS, they will not allow the biometric collections at the visa posts abroad for these applicants. The USCIS has been accepting such defective Reentry Permit Applications and issuing the Receipt Notices because internally the agency decided to take the certain period of time as a grace period and when they received such defective filings, rather than rejecting the filings, the agency had decided to issue the Receipt Notices, followed by additional notices of request for payment of $80 of biometric fees and upon the biometric fees were received the agency intended to schedule the biometric collection appointment for these applicants. According to the USCIS, scheduling such biometric appointment takes approximately three (3) weeks.
• This practice presents a serious problem to those who filed the applications on or after March 5, 2008 without payment of biometric fees and either left the country or booked the flight tickets to depart from the U.S within a short period of time. Considering the fact that such purchase of the tickets may not be refundable, they are experiencing a confusion and hardship. For the reasons, the USCIS is advising the Reentry Permit applicants to file the applications sufficiently in advance of their planned trip. The heydays are gone when they were able to depart from the U.S. one day after filing of the application since all the rule required was applicant's physical presence in the U.S. at the time of filing. This message is posted to warn two points: (1) Do not fail to enclose $80 biometric fee check when filing the Reentry Permit. (2) Don't leave home (U.S.) without completing the biometric collection. Plan overseas trip ahead of time. The USCIS permits expedite in emergencies but the applicants are required to submit self-addressed and prepaid overnight mailers when they file such request.

03/24/2008: CRS Updates U.S. Immigration Policy on Permanent Admissions

03/24/2008: Official Federal Register Release of H-1B Cap Filing Rule

03/22/2008: H-1B Filing for License Required Occupations: USCIS Memorandum of March 21, 2008 Updates AFM

• Under the H-1B regulation, those who apply for certain occupations that mandate a license to practice for H-1B are normally not eligible for the petition, such as public school teachers, unless the petition accompanies such license. On the other hand, the State Licensing Boards cannot issue a license even if the aliens are qualified unless the aliens are authorized for employment and possess a social security number. Since a social security number cannot be issued unless the alien is authorized to work, these aliens are trapped in "catch-22" situation unless some type of relief is given by one of these three government agencies. In order to untangle this logjam, the legacy INS issued a policy to approve H-1B petition for one year to allow such aliens to apply for a state license. Yesterday, Mr. Donald Neufeld, Deputy Director of Domestic Operations of USCIS issued a memrandum to update the Adjudicators' Field Manual (AFM) to instruct the field (Service Centers) adjudicators to approve such H-1B petitions for one year on the two conditions, among others: The alien submits an evidence of pending license application before the State Licensing Board and files as initial evidence all the documents to establish that the aliens are eligible for the license but for the employment authorization and social security number requirement. Release of this memorandum and updating of AFM are very timely for these professionals to file FY 2009 H-1B cap petitions on April 1, 2008. Hats-Off to USCIS!

03/22/2008: USCIS Update of AFM on Genetic Relationship-DNA Testing on March 19, 2008

03/21/2008: USCIS Revised Instructions of 03/21/2008: I-130 Filing to Designated Chicago Lockbox

• USCIS publishing this announcement again today to remind the stand-alone I-130 filers that I-130 filings at the wrong address will be rejected. Important to remember.

03/21/2008: H-1B Cap Filing Rule Officially Scheduled to be Published on Monday, 03/24/2008

• As predicted, this rule will be officially published in the federal register on Monday, 03/24/2008 and will take effect on the same day. The immigrant community should be thankful to the USCIS for having released advance copy, announcement, Q&A and other information day before yesterday to accomodate the needs of the employers and the alien beneficiaries. Otherwise, they would not have known how to handle the situation under the stressful environment. This site wishes also extend our thanks to the leaders of USCIS HQ for having taken a quick action to help the employers and the professional aliens.

03/21/2008: Our Email Server Problem

• We are currently experiencing the email server problem and our ohlaw@immigration-law.com email is not working at this time. Please send email to matthewoh.attorney@gmail.com until the problem is resolved. We apologize for the inconvenience that may cause you.

03/21/2008: USCIS Advisory on Off-Office Hours Scheduling of Naturalization Interviews

• If people receive a citizenship interview notice in the mail scheduling it on Saturdays, Sundays, or off-office hours, they should not ignore the interview schedule. It is not a mistake, according to the USCIS. In order to meet the recently announced processing times of naturalization applications, the USCIS is scheduling the interviews even on Saturdays, Sundays, and off-office hours during the weekdays. Please keep the interview appointments!

03/20/2008: Amended State Department List of Immigrant and Nonimmigrant Visa Classification Symbols

• This State Department's amended list of immigrant and nonimmigrant classification shows the entire list of visa symbols the visa posts use as of March 20, 2008. People may be amazed by the number of symbols for immigrants and nonimmigrants. Read on.

03/20/2008: New Special Immigrant Classification Bill Introduced in the House for Certain U.S. Earned Ph.D Aliens

• On March 13, 2008, Rep. Kennedy in the House introduced a bill (H.R. 5634) that provides a special immigrant category for those aliens who earned a Ph.D. degree in the U.S. from certain qualified U.S. Higher Education Institutions, which is not subject to the annual numerical limit nor a labor certification application for immigrant petition. Please stay tuned to this website for the development of this bill.

03/19/2008: USCIS Monthly Newletter - March 2008

• This can be Dr. Emilio Gonzalez' last monthly newsletter (?) as the Director of USCIS. We wish him well.

03/19/2008: Another H-1B Increase Bill Introduced in the House by Rep. Giffords

• Rep. Giffords introduced H.R. 5630 on March 13, 2008 to adjust the H-1B annual numerical limitation as follows:
  • Regular Cap: 130,000 (FY 2008 and FY 2009) and 180,000 (2010 through 2015) if demand exceeds 130,000.
  • U.S. Master Degree in STEM (Science, Technology, Engineering, and Mathematics) totally exempt from the annual numerical limitation
  • Foreign Master Degree in STEM eligible for special 20,000 numbers..
• This bill has been referred to the House Judiciary Committee. Wow!

03/19/2008: USCIS Questions & Answers for FY 2009 H-1B Cap Filing

03/19/2008: USCIS Fact Sheet: Changes to the FY 2009 H-1B Cap Filing

03/19/2008: Full Text Advance Copy of the H-1B Cap Filing Rule

03/19/2008: USCIS Announcement of H-1B Cap Filing

• "To ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions. This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need. The interim final rule becomes effective upon publication in the Federal Register."
• "Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap."
• "This rule also stipulates that if USCIS determines the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during this time period. If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit."
• "The rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits. Those filing fees will not be returned."

03/19/2008: Today's Important Court Decision: Checking Citizen/National in I-9 Constitutes a Permanent Bar from Admission to the U.S.

• Today, the U.S. Court of Appeals for the 8th Circuit handed down a decision that the alien who had check marked the item on the form I-9 which asks "U.S. Citizen or National" constitutes a misrepresenting as a U.S. citizen that makes such alien permanently inadmissible to the U.S. and not eligible for a waiver from removability or deportation under Section 1182(a)(6)(C)(ii)(I) of Immigration & Nationality Act. Until this decision, there was a greyline in certain situations, but with this decision in place, people should pay closer attention in filling out I-9 forms which any new employees including the U.S. citizen employees must complete and sign under the penalty of misrepresentation. See, David Rodriguez v. Michael B. Mukasey, Attorney General, No. 06-3523, (8th Cir. Ct of Appeals, 03/19/2008). We will set up the link to the full text of the decision as soon as it becomes available.

03/19/2008: FY 2009 H-1B Cap Rule Resease Schedule

• There are tens of thousands of people who are anxiously waiting for the release of this rule since this rule will set forth the details of restrictions in the filing procedures and requirement for FY 2009 H-1B cap petitions. The OMB of the White House cleared the rule for release. However, agencies have internal procedure to comply before the rules are published in the federal register. Sometimes, the agencies release advance copy to stakeholder entities or on the agencies website or sometimes they release in the form of announcement on their websites. Unless the USCIS take such steps, the earliest the USCIS will publish this rule in the federal register for public will be coming Friday, March 21 or Monday, March 24, 2008, at the earliest. Please stay tuned to this website for the development of this news. For some reasons, there is a tendency of the federal agencies to publish the notices and rules on Fridays in a number of cases. It is just mysterious.

03/18/2008: DHS Continue to Move for Expansion of Visa Waiver Program

• As we reported earlier, the following countries have been seeking the Visa Waiver Program: Greece (1.6%); Cyprus (1.8%); Malta (2.7%); Estonia (4.0%); South Korea (4.4%); Czech Republic (6.7%); Hungary (10.3%); Latvia (11.8%); Slovakia (12.0%); Lithuania (12.9%); Bulgaria (14.3%); Poland (25.2%); Romania (37.7%). DHS signed the VWP agreement with Czech Republic on February 26, 2008; the same agreements with Estonia and Latvia on March 12, 2008; and the same agreements with slovakia, Hungary, and Lithuania. These agreements require the candidate countries to develop eletronic admission program, and upon completion of such electronic program, these countries are expected to the current list of 27 VWP countries before the end of this year. It is also expected that the DHS may sign similar agreements with other candidates in the foregoing list. Accordingly, by the end of the year, there will be a huge number of visitors from increased numbers of VWP countries to travel on the U.S. without a visa. As part of the expansion of VWP, the USCBP has already drafted and submitted a proposed regulation for VWP electronic admission procedures. For today's announcement of agreements with Slovakia, Hungary, and Lithuania, please click here.
  

03/18/2008: State Department Cable Amending Foreign Affairs Manual Re: Proof of U.S. Citizenship in Immigrant Visa Application Proceeding

• Proof of U.S. Citizenship
• a. Petitions filed by U.S. citizens must be accompanied by primary evidence of the petitioner's U.S. citizenship. The petitioner may meet this requirement for primary evidence of citizenship by providing:
  • (1) A birth certificate that was issued by a civil authority and that establishes the petitioner's birth in the United States;
  • (2) A certificate of U.S. naturalization or citizenship issued in the petitioner's name; or
  • (3) An unexpired passport issued for full validity to the petitioner as a citizen of the United States (not as a noncitizen national); or
  • (4) A Form FS-240, Report of Birth Abroad of a Citizen of the United States of America, relating to the petitioner.
• b. A petitioner who is unable to obtain primary evidence of citizenship may submit other forms of evidence; however, such a petition should be regarded as "not clearly approvable" and forwarded to the USCIS office with jurisdiction.

03/17/2008: OMB Cleared and Approved FY 2009 H-1B Cap Filing Rule

• Good news. The OMB completed review of the USCIS rule on the H-1B cap filing last Friday, March 14, 2008. It is thus likely that the USCIS may publish this anxiously-awaited rule soon. Please stay tuned to this website for the release of this rule.

03/17/2008: Time for Employers to Join Bill Gates in His Campaign for H-1B Cap Increase

• It is indeed ridiculous that the legislators turn their face away from the suffering of U.S. businesses as affected by the current annual cap of H-1B numbers. One wonders what other evidence they need to prove the critical need of H-1B workers other than the fact that the annual cap reached in one day and whole annual cap ran out in one day last year and it will repeat coming April 1, 2008. It is also ridiculous to see the government agency is forced to conduct a "lottery" in the administrative proceedings. Maybe some of the legislators are in a sadism mental state to enjoy their U.S. businesses suffer in pains. The issue is not suffering of foreign workers but suffering of our own businesses and its devastating negative impact on international competition and economy.
• Representative Lamar Smith of Texas has been recognized as one of the legislators who took a very conservative position when it came to the immigration issues. However, it is amazing that he introduced a legislative bill that would raise the annual H-1B cap numbers from 65,000 to 195,000. We are grateful for his initiative and leadership on this issue. The businesses should extend their support for this bill and contact en masse their own legislative representatives in the House and the Senate to let them know how much their businesses have been suffering and are sharing the pains which Bill Gates lately testified before a House committee.

03/16/2008: Cross Border Canadian Workers Tax Protocol

• On March 14, 2008, the President sent a message to consent to the ratification of a tax protocol for the cross border Canadian workers. The proposed Protocol would eliminate withholding taxes on cross-border interest payments. In addition, the proposed Protocol would coordinate the tax treatment of contributions to, and other benefits of, pension funds for cross-border workers. The proposed Protocol also includes provisions related to the taxation of permanent establishments, so-called dual-resident corporations, income derived through certain entities that are considered fiscally transparent, and former U.S. citizens and long-term residents. The proposed Protocol further strengthens the existing Treaty's provisions that prevent the Treaty's inappropriate use by third-country residents. The proposed Protocol also provides for mandatory resolution of certain cases before the competent authorities. Read on.

03/16/2008: House Judiciary Immigration Subcommittee Immigration Bills Full Text

• H.R. 5060: Introduced on 02/04/2008: To amend the Immigration and Nationality Act to allow athletes admitted as nonimmigrants described in section 101(a)(15)(P) of such Act to renew their period of authorized admission in 5-year increments. (P Nonimmigrant Visa Extensions for Athletes). Sponsored by Rep. Linda Sanchez (CA): "Section 214(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(a)(2)(B)) is amended by striking `for an additional period of up to 5 years.' and inserting `in 5-year increments."
• H.R. 5569: Introduced on 03/10/2008: To extend for 5 years the EB-5 regional center pilot program (Investment Immigration). Sponsored by Rep. Zoe Lofgren (CA). Sponsored by Rep. Zoe Lofgren (CA)
• H.R. 5570: Introduced on 03/10/2008: To amend the Immigration and Nationality Act to eliminate the sunset in the special immigrant non-minister religious worker visa program.(Special Immigraton for Religious Workers). Sponsored by Zoe Lofgren (CA)
• H.R. 5571: Introduced on 03/10/2008; To extend for 5 years the program relating to waiver of the foreign country residence requirement with respect to international medical graduates.(NIW for IMGs). Sponsored by Zoe Lofgren (CA).

03/15/2008: H.R. 5652 "SUSTAIN ACT' Introduced in the House on 03/14/2008 to Increase H-1B Cap in FY 2008 and FY 2009 to 195,000

• Yesterday, Congressman from Texas, Lamar Smith, introduced this bill on the floor in the House to increase the H-1B cap numbers for FY 2008 and FY 2009 from 65,000/year to 195,000. This bill was then referred to the Judiciary Committee of the House for action. Please stay tuned to this website for the development of this legislative bill.
• Caveat: This bill will take time for the action on the House floor as well as the Senate action. Consequently, it will not affect the April 1, 2008 FY 2009 H-1B cap filing. Employers will continue to prepare and file the petitions timely on April 1, 2008. However, should the bill pass both the House and the Senate before the start of FY 2009 (10/01/2008), FY 2008 and FY 2009 additional cap numbers are likely to be made available in the future. This bill is expected to face a steep opposition in the House and particularly in the Senate. Senator Durbin (D, IL) and Senator Grssley (R. IA) have been the strongest opponents for such bills in the past.

03/14/2008: Statement by USCIS Director Emilio T. Gonzalez on Processing of Naturalization Applications

• Natualization now takes from 14 months to 16 months rather than upto 18 months. Read on.
  

03/14/2008: April Visa Bulletin Reposted

03/14/2008: USCIS Publishes "Processing Worksheet for FY09 H-1B Filings"

• This is a basic checklist for the FY 2009 H-1B cap filers. It covers only limited questions, but is handy to check in the filers' final touch of the H-1B petition packet before they ship it out. Please check it out.

03/14/2008: Iraqi and Afghani Translators SI Category Visa Availability in April 2008

• The State Department reports that the NVC has already scheduled over 450 SI Special Immigrant Translator cases for interview in FY 2008. Accordingly, it predicts that the FY 2008 annual cap of 500 will be reached within April or so. Any legislation on this special immigrant category can change the situation, and the state department is expected to update the situation, should such legislation pass the Congress.

03/14/2008: CBP Advisory for Easter Season Mexican Land Border Travelers to the U.S. at San Ysidro, California

03/13/2008: April 2008 Visa Bulletin

03/13/2008: USCIS Director Emilio Gonzalez to Resign

• DHS Secretary confirms that Dr. Gonzalez will leave the USCIS as of April 18, 2008. It is unclear who will be nominated by the President to take this position. Whoever the replacement will be, it is going to be a short-lived leader of USCIS considering the fact that the new administration is scheduled to take office coming January 2009. As Bush Administration ends its era, more and more politically appointed leaders of the federal agencies are expected to jump the ship.

03/13/2008: DHS Signs VISA Waiver Program Agreements with Estonia and Latvia

• These agreements require the two countries compliance with certain conditions which will lead to the visa waiver program countries. Similar agreement was signed on 02/26/2008 with Czech government. Read on.

03/12/2008: Bill Gates Testimony 03/12/2008 Before the Committee on Science and Technology United States House of Representatives

• Bravo, Mr. Gates. The Congress and the White House should listen to voice demanding (1) to extend the students' OPT period to 29 months; (2) to create a streamlined path to permanent resident status for highly skilled workers; (3) to raise highly skilled workers visa numbers; (4) to significantly raise employment-based immigrant quota; (5) to remove the per-country limits in the current immigration statute.
  

03/12/2008: USCIS Q&A of Somalian TPS and EAD Extension

03/12/2008: Federal Register Notice of Somalian TPS Designation Extension

• The designation of Somalia for TPS has been extended for 18 months through September 17, 2009, from its current expiration date of March 17, 2008. This Notice also sets forth procedures necessary for nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) with TPS to re-register and to apply for an extension of their EADs for the additional 18-month period. Re-registration is limited to persons who have previously registered for TPS under the designation of Somalia and whose applications have been granted or remain pending. Certain nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions. This Notice automatically extends the validity of EADs issued under the TPS designation of Somalia for 6 months, through September 17, 2008 and
  explains how TPS beneficiaries and their employers may determine which EADs are automatically extended. DHS will issue new EADs with the September 17, 2009 expiration date to eligible TPS beneficiaries who timely re-register and apply for an EAD. The extension of the TPS designation of Somalia is effective March 18, 2008 and will remain in effect through September 17, 2009. The 60-day re-registration period begins March 12, 2008 and will remain in effect until May 12, 2008. To facilitate processing of applications, applicants are strongly encouraged to file as soon as possible after the start of the 60-day re-registration period beginning on March 12, 2008.

03/12/2008: Today's House Judiciary Immigration Subcommittee Mark Up

• H.R. 5060: Introduced on 02/04/2008: To amend the Immigration and Nationality Act to allow athletes admitted as nonimmigrants described in section 101(a)(15)(P) of such Act to renew their period of authorized admission in 5-year increments. (P Nonimmigrant Visa Extensions for Athletes). Sponsored by Rep. Linda Sanchez (CA): "Section 214(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(a)(2)(B)) is amended by striking `for an additional period of up to 5 years.' and inserting `in 5-year increments."
• H.R. 5569: Introduced on 03/10/2008: To extend for 5 years the EB-5 regional center pilot program (Investment Immigration). Sponsored by Rep. Zoe Lofgren (CA). Sponsored by Rep. Zoe Lofgren (CA)
• H.R. 5570: Introduced on 03/10/2008: To amend the Immigration and Nationality Act to eliminate the sunset in the special immigrant non-minister religious worker visa program.(Special Immigraton for Religious Workers). Sponsored by Zoe Lofgren (CA)
• H.R. 5571: Introduced on 03/10/2008; To extend for 5 years the program relating to waiver of the foreign country residence requirement with respect to international medical graduates.(NIW for IMGs). Sponsored by Zoe Lofgren (CA).
• The current law for non-minister religious worker immigration is schedueld to sunset at the end of this fiscal year unless the H.R. 5570 passes the Congress. For the specifics of the bills and progress of legislation process, please stay tuned to this website.
  
  

03/12/2008: State of Nonimmigrant Visa Processing as Reflected in Testimony of Deputy Assistant Secretary of State for Visa Service onf 02/07/2008

• Ths testimony gives a glimps on the state of nonimmigrant visa processing of State Department including 2007 statistics of processng of student visas and other visas. Read on.
  

03/11/2008: Status of Job Openings and Need for Skilled Workers by U.S. Employers

• According to the March 2008 search of National Foundation for American Study brief, the strategic U.S. businesses are experiencing a serious shortage of needed skilled workers. The study shows the following illustrations:
  • The S&P 500 companies with the most job openings as of January 2008 are Microsoft (4005), Northrup Grumman(3925), Lockheed Martin (3901), General Electric (3078), Countrywide Financial (2415), JPMorganChase (2164),
    Tenet Healthcare (2050), United Health Group (1927), Raytheon (1694), IBM (1670), Computer Sciences Corp.(1666), Cintas (1664), L-3 Communications (1618), Bank of America (1600), U.S. Bancorp (1562) and Cisco Systems (1504). These are openings for jobs in the United States requiring a B.A., professional degree or higher.
• For other details, please click here.

03/11/2008: Tomorrow's House Judiciary Immigration Subcommittee Mark Up

• H.R.____, to To extend for 5 years the program relating to waiver of the foreign country residence requirement with respect to international medical graduates.
  H.R. ___, To extend for 5 years the EB-5 regional center pilot program.
  H.R. ___, The Religious Worker Visa Extension Act of 2008.
  H.R. 4080, To amend the Immigration and Nationality Act to establish a separate nonimmigrant classification for fashion models.
  H.R. 5060, To amend the Immigration and Nationality Act to allow athletes admitted as nonimmigrants described in section 101(a)(15)(P) of such Act to renew their period of authorized admission in 5-year increments.
  
• Please stay tuned to this website for the details of tomorrow's hearing.

03/11/2008: We Urge Media and Community to Participate in Campaign Against Point System Immigration Reform

• The nightmarish memory is still fresh and vivid about last year's compromise immigration reform bill that accomodated the immigration restrictionists' agenda to adopt "point system" as a way to retrict and control the immigration in this country. We strongly opposed and vigorously campaigned last year against the point system and we were happy to see that the CIR failed because of the point system. This point system was worked out by the immigration restrictionists including its think tank Heritage Foundation. Under the disguise, the point system was intended not only to restrict the total number of immigrants but also, more importantly, attempted to give the restrictionists the power to pick and choose the type of immigrants that would be allowed to immigrate to this country. They attempted to shake the fundamental foundation of this nation which the forefathers of the nation had laid out in the Constitution placing the highest value on the family unification and color-blind immigration system. As the nation is slowly moving into a stage to select the new leaders of the country, there is a sign that these restrictionists are sharpening their knife to bring legislative bills that incorporate the point system again. We urge every one to participate in the campaign to educate the media, public, and other participants in the political process on the truth underlying this proposal.

03/10/2008: USCIS Announces 18-Month Extension of TPS for Somalia & Automatic EAD Extension through September 2008

03/10/2008: USCIS Update: Revised Biometric Changes For Re-entry Permits and Refugee Travel Documents

• USCIS has today released the update of the announcement which was initially released on 03/05/2008. Read on.
  

03/09/2008: FY 2009 H-1B Cap Filing and Ongoing Rule-Making on Filing Procedure

• It appears that the USCIS was initially planning to initiate a rule-making process to launch an account system and mandatory electronic filing procedure for the H-1B cap cases. It is reflected in the agency's rule making priority statement that USCIS is restructuring its entire business processes to implement new procedures for the filing, processing, and adjudication of all benefit applications and petitions. USCIS is moving toward complete electronic filing and adjudication of benefits to streamline processing, modernize adjudications, and facilitate efficient and effective data collection and reporting. USCIS will be issuing a rulemaking action "New Electronic Account, Adjudication, and Reporting System; New Procedures for Filing and Processing of Fiscal Year 2007 H-1B Petitions Subject to Annual Cap" as part of this business restructuring process. The electronic filing forms were reported on our Breaking News site earlier.
• However, the USCIS might have changed its initial plan considering the fact that the actual title of the rule making has benn changed (?) from "New Electronic Account, Adjudication, and Reporting System; New Procedures for Filing and Processing of Fiscal Year 2007 H-1B Petitions Subject to Annual Cap" to "Petitions Filed on Behalf of H-1B Temporary Workers Subject to the Annual Numerical Limitation " in the final version that is currently under review by the OMB since February 22, 2008. Additionally, the format of the rule has been changed from a proposed rule to an interim rule which will take effect upon release. The rule was submitted to the OMB on Febraury 22, 2008 and probably it may not be completed until around March 23, 2008. Should this happen, the new rule will not give the April 1, 2008 cap filers a lot of time to understand and follow the procedures. At this point, no details have been disclosed other than a few points which we reported earlier on this site. Accordingly, the April 1, 2008 filers should keep a close eye on the upcoming release of the rule in federal register probably in about two weeks.
• Agencies sometimes publish an announcement outlining the text of the rule before they are actually published in the federal register. It is submitted that this rule should fit into one of such categories considering the fact that the stakeholders of the rule may not have a sufficient time to review and comply with the rule as it may be published close to the date when the legal proceedings will take place on April 1, 2008. For the reasons, we urge the USCIS to release such announcement as soon as possible so that the employers will be better prepared to file the FY 2009 H-1B cap cases without confusion. Employers may have to endure a stress from the filing in rush at the end of the month even without any new rules.

03/07/2008: USCIS-Community Organizations Stakeholder Meeting (Q&A) of February 26, 2008

• This meeting is mostly focused on the local district related issues or non-employment-based proceeding issues. Read on.

03/07/2008: Open Letter to Dr. William Carlson, Chief of Office of Foreign Labor Certification

• Dear Dr. Carlson, with reference to your agency's federal register notice that the non-electronic filing of PERM applications must be filed with the Atlanta National Processing Center effective June 1, 2008 as part of your centralization process, the employers have a serious question as to which Certifying Officer and which National Processing Center address the employers should start printing in their internal notice posting here on to file on or after June 1, 2008. The same goes with the employers that are scheduling to file electronically on or after June 1, 2008. We have noticed that for the last few months, the PERM applications have been certified by yourself rather than the Chicago or Atlanta National Processing Centers. It thus appears that the electronic PERM applications have already been centralized in this regard, albeit for the transitional period. Since most of the required recruitment must be conducted by the employers starting next two or three weeks to file on or after June 1, 2008, the employers need your guidance as soon as possible. We urge you to post the guidance by updating PERM FAQ on the OFLC website rather than other intermediaries that tend to delay release of some information for a period of time for their justifiable internal reasons from their end. In light of the urgency for the June filers, your prompt update of FAQ Rounds on this issue in the next two or three weeks may indeed be needed for the employers. This is particularly important in that your agency has been denying PERM applications when the employers printed a wrong NPC name and address in the internal notice posting. We trust that you will set a transitional period during when the employers would be allowed to print the current jurisdiction address in the internal notice posting. Thank you.

03/06/2008: OFLC H-2B FAQs Round II of March 6, 2008

03/05/2008: Text of Testimony of DHS Secretary Chertoff Before House Immigration Subcommittee on 03/05/2008

• There was a DHS oversight hearing today before the House Immigration Subcommittee that called the DHS Secretary to testify the current status and efforts of the Department. Please read on.

03/05/2008: Reentry Permit and Refugee Travel Document Application Procedure Change: Biometrics Scheduling with ASC Required Effective Today

• USCIS has just announced today that effective 03/05/2008, those who apply for Renentry Permit or Refugee Travel Document must take fingerprint at the local ASC. Please read the announcement.

03/05/2008: OFLC Announces Centralization of Non-Electronic Filing PERM at Atlanta NPC and Temporary Labor Programs at Chicago Effective 06/01/2008

• The Office of Foreign Labor Certification released a federal register notice to announce the centralization of non-electronic filing permanent labor certification program at Atlanta National Processing Center and all the nonelectronic filing temporary labor certification programs at Chicago National Processing Center effective June 1, 2008. When the application is filed non-electronically, there will be a 15-day grace period but effective June 15, 2008, any applications which were received by the wrong NPC will be rejected and returned. For the addresses and other details, please read the announcement.
• OFLC disclosed its plan earlier to centralize even electronic filing labor certification applications in the summer of 2008. It is likely that the OFLC may announce launch of such electronic filing centralization separately in the future. Please stay tuned to this website for the development of this news.

03/04/2008: DHS Secretary Chertoff Explains and Justifies Recent USCIS Name Check Policy Change in a Meeting with Bloggers 03/03/2008

• It is indeed unreal how things are changing quickly since the USCIS changed the name check policy. People are receiving en masse I-485 applications including those twhose 485s have been held up for years and years! It is like a dream. We thank the DHS and USCIS leaders for their courage and tough decision to help the immigrants. We salute to these leaders. The following is the explanation of the Homeland Security Department Secretary on the background of the decision:
• Question: Mr. Secretary, you had, at the very beginning, laid out some great progress that's been made in terms of preventing bad people from getting in. And part of the Homeland Security mission, which is a challenging one, is that while you are responsible for protecting against bad things, you're also responsible for facilitating good things. And be that the flow of people, in this case, USCIS is responsible for that for the department. They've begun a $3.5 billion transformation. And I'm hoping you could speak to that in two ways. What's your concept of success in that, in terms of the national security part of it, the operational excellence part of it, and customer service part of it?
• Secretary Chertoff: Three -- two main things. One is, we have to move from a paper-based system to a totally electronically-based system. We still have too much paper, and it's hard to track, it's hard to manage, and it takes a lot of time. The second piece is, I want to rebuild -- re-engineer the system in a couple of ways. One is, and the most urgent, is to deal with the background check problem. It just takes way too long for the Bureau to complete background checks for a small but a significant number of people. The majority of people -- you know, if the name doesn't pop up on anything in the -- it's pretty quick. But for a small number -- but still significant, and certainly to the individual, significant -- if their name crops up and it's an older case, and it's in a file somewhere, someone has got to hunt it down. And to be perfectly honest, that is not a top-priority job for an agent, is to go through an old paper record sitting in a warehouse. Looking forward as we go electronically, and as the Bureau goes electronically, that problem will diminish. But looking backwards we have to re-engineer the system to be a little tougher. And one of the things we did, for example, with the green cards was we said, for background checks that took longer than six months, we would give you a green card, and then if it turned out the background check later revealed a problem, we would take the green card away. Now why did we do that -- because I got criticized, “Oh, you're sacrificing national security.” Here's why. First of all, if you haven't been -- if it's going to take longer than six months, it's clear that you're not on a Terrorist Watch List, you haven't been convicted of a crime, you haven't been indicted for a crime. In other words, most of the major things you would worry about -- it's a very easy thing to determine whether you've had a problem or not. What you're not going to get in that six months is the guy whose name came up in a file somewhere. And the vast majority of those are benign mentions. Secondly, you're here. If you're going to do something bad, you're still here legally. The green card -- it's not like we're bringing you in from overseas. So if you think about it logically, the risk of giving you the green card with the understanding that it can be pulled away if something turns up, it's a minimal risk. It's a minimal, marginal risk. Whereas the customer service value of giving someone the green card is high. That's an example of trying to be more cost-benefit in the system.
  

03/03/2008: USCIS Pending Application Cases Per Type at January 31, 2008

• I-140: 150,292
• I-485: 813,238
• I-765 EAD: 165,596
• I-130 Family Petition: 1,331,114
• I-90 Green Card Renewal: 169,350
  [Footnote: Initial Receipts data only reflects the number of applications that USCIS was able to fee receipt and/or data enter into a case processing system. Applications currently held in USCIS mailroom facilities but not processed to the point of recognition as Initial Receipts are deemed frontlog cases. These frontlog cases are also not reflected in Pending figures.]

03/03/2008: Naturalization Pending Cases at January 31, 2008

• The number of pending N-400 cases reached 1,051,186 in January 2008.

03/02/2008: Politics and Power: Immigration, Latino Voters, and the Texas Primary on 03/04/2008

• In the past few years, the immigration reform legislation move has been shaped in the form of "comprehensive" immigration reform to accomodate the illegal immigration issues involving mostly from estimate 13 million to 20 million illegal immigrants who provide critical work forces in certain part of this country's economy. For this reason, the immigration reform legislation is, for good or for bad reasons, tied to the voices of over 40 million strong Latino voters' voice, power, and influence in the political processes at all levels. As we reported repeatedly, because of the dynamics of 2008 national election process, there is no prospect whatsoever for any comprehensive immigrative bill to pass the Congress and the Presient to sign it into law this year. However, the Latino voters' voice, power, and influence in the current primary and election process will be critical for the fate of the upcoming comprehensive immigration reform legislation in 2009. The nation is now closely watching on the potential impact of these ethnic forces in the Texas primary which is scheduled on Tuesday, March 4, 2008 to see which presidential candidates of both parties will win majority of electoral delegates, but the immigrant community is watching closely this primary because of its impact on the fate of future of the comprehensive immigration reform legislation. We ask the readers to read IPC News Release on this topic to learn how their future can be affected by the Tuesday's Texas primary.

03/02/2008: USCIS Implements New Poverty Guidelines for 2008 "Effective" March 1, 2008

• Family based immigration beneficiary must submit the petitioner's affidavit of support (I-864) to obtain their I-485. The same is true with the immigrant visa applications. The family immigration sponsor or co-sponsor or joint sponsor must submit this form along with the proof of their income that meets the poverty guidelines which are updated annually. Unless this minimum income is established or waived, the immigrant cannot obtain I-485 applications. The poverty guideline was issued by the federal HHS earlier this year but has not taken effect in the immigration proceeding until the USCIS customize the poverty guidelines (125%) into I-864P format and enforce it. The USCIS has just announced that the new income guidelines are enforced as of March 1, 2008 and the previous guidelines and required income level are not acceptable.

03/01/2008: GAO Reported Congress on 02/28/2008 Issues Involving Expansion of Visa Waiver Program Countries

• Until recently, U.S. law required that a country may be considered for admission into the Visa Waiver Program if the refusal rate for its nationals’ business and tourism visas was less than 3 percent in the prior fiscal year. The executive branch has supported more flexible criteria for admission, and, in August 2007, Congress passed legislation that provides DHS with the authority to admit countries with refusal rates between 3 percent and 10 percent, if the countries meet certain conditions. For example, countries must meet all mandated Visa Waiver Program security requirements and cooperate with the United States on counterterrorism initiatives. Before DHS can exercise this new authority, the legislation requires that the department complete certain actions aimed at enhancing security of the Visa Waiver Program. Before DHS can expand the program to countries with refusal rates between 3 percent and 10 percent, it must also certify that an electronic travel authorization system is fully operational. This system would require nationals from visa waiver countries to provide the United States with biographical information before boarding a U.S.-bound flight to determine the eligibility of, and whether there exists a law enforcement or security risk in permitting, the foreign national to travel to the United States under the program. As of Feb. 21, 2008, DHS had not announced its plans for this authorization system. In addition, Congress also required the implementation of a biometric exit system at U.S. airports. If this is not in place by mid-2009, the flexibility DHS could have obtained to admit countries with refusal rates between 3 percent and 10 percent will be suspended until it is in place. A biometric air exit system utilizes biometric identifiers such as digital fingerprint scans rather than paper documents and biographic information to verify the departure of foreign nationals from the United States. As of Feb. 21, 2008, DHS had not announced plans for a biometric exit system.
• In 2007, almost 13 million citizens from 27 countries entered the United States under the Visa Waiver Program. The program was created to promote the effective use of government resources and to facilitate international travel without jeopardizing U.S. national security. The United States last expanded the Visa Waiver Program’s membership in 1999 with the addition of Portugal, Singapore, and Uruguay; since then, other countries have expressed a desire to become members. In recent years, Members of Congress have introduced bills calling for the expansion of the program. In February 2005, President Bush announced that DHS and State would develop a strategy, or “Road Map Initiative,” to clarify the statutory requirements for designation as a participating country. According to DHS, some of the countries seeking admission to the program are U.S. partners in the war in Iraq and have high expectations that they will join the program due to their close economic, political, and military ties to the United States.
• In July 2006, GAO reported that DHS and State were consulting with “Road Map” countries seeking admission into the Visa Waiver Program—Bulgaria, Cyprus, Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, and South Korea. In September 2007, State nominated Greece for admission into the program, and DHS is currently reviewing this nomination to assess the impact of Greece’s participation on U.S. security, law enforcement, and illegal immigration interests. In fiscal year 2006, Greece was one of three countries (along with Cyprus and Malta) with a refusal rate below 3 percent. Three other “Road Map” countries have refusal rates between 3 and 10 percent, while seven others have rates above 10 percent. Visa Refusal Rates for Short-Term Tourist and Business Visitors of Countries Seeking to Join the Visa Waiver Program, Fiscal Year 2007: Greece (1.6%); Cyprus (1.8%); Malta (2.7%); Estonia (4.0%); South Korea (4.4%); Czech Republic (6.7%); Hungary (10.3%); Latvia (11.8%); Slovakia (12.0%); Lithuania (12.9%); Bulgaria (14.3%); Poland (25.2%); Romania (37.7%).
• In this testimony of February 28, 2008, however, the GAO expressed its reservation for the DHS current plan to expand the countries of Visa Waiver Program on the ground that an air exit system that facilitates the development of overstay rate data is important to managing potential risks in expanding the Visa Waiver Program, but DHS’s planned methodology for meeting the “97 percent provision” so it can move forward with program expansion will not demonstrate improvements in the air exit system or help the department identify overstays or develop overstay rates. For the details, please read the full text of the testimony.

02/29/2008: HHS Proposed Designation of Medically Underserved Populations and Health Professional Shortage Areas

• This proposed rule would revise and consolidate the criteria and processes for designating medically underserved populations (MUPs) and health professional shortage areas (HPSAs), designations that are used in a wide variety of Federal government programs including the international medical graduates' national interest waiver and state sponsorship for permanent resident applications. These revisions are intended to improve the way underserved areas and populations are designated, by incorporating up-to-date measures of health status and access barriers, eliminating inconsistencies and duplication of effort between the two existing processes. These revisions are intended to reduce the effort and data burden on States and communities by simplifying and automating the designation process as much as possible while maximizing the use of technology. No changes are proposed at this time with respect to the criteria for designating dental and mental health HPSAs. Podiatric, vision care, pharmacy, and veterinary care HPSAs, which are no longer in use, would be abolished under the proposed rule.

02/29/2009: 2008 Adverse Effect Wage Rates for H-2A Temporary Labor Certification Proceedings

• Alabama ........................................ $8.53
  Arizona .......................................... 8.70
  Arkansas ....................................... 8.41
  California ....................................... 9.72
  Colorado ....................................... 9.42
  Connecticut ................................... 9.70
  Delaware ....................................... 9.70
  Florida ........................................... 8.82
  Georgia ......................................... 8.53
  Hawaii ........................................... 10.86
  Idaho ............................................. 8.74
  Illinois ............................................ 9.90
  Indiana .......................................... 9.90
  Iowa .............................................. 10.44
  Kansas .......................................... 9.90
  Kentucky ....................................... 9.13
  Louisiana ...................................... 8.41
  Maine ............................................ 9.70
  Maryland ....................................... 9.70
  Massachusetts .............................. 9.70
  Michigan ....................................... 10.01
  Minnesota ..................................... 10.01
  Mississippi .................................... 8.41
  Missouri ........................................ 10.44
  Montana ........................................ 8.74
  Nebraska ...................................... 9.90
  Nevada ......................................... 9.42
  New Hampshire ............................ 9.70
  New Jersey ................................... 9.70
  New Mexico .................................. 8.70
  New York ...................................... 9.70
  North Carolina .............................. 8.85
  North Dakota ................................ 9.90
  Ohio .............................................. 9.90
  Oklahoma ..................................... 9.02
  Oregon .......................................... 9.94
  Pennsylvania ................................ 9.70
  Rhode Island ................................ 9.70
  South Carolina .............................. 8.53
  South Dakota ................................ 9.90
  Tennessee .................................... 9.13
  Texas ............................................ 9.02
  Utah .............................................. 9.42
  Vermont ........................................ 9.70
  Virginia .......................................... 8.85
  Washington ................................... 9.94
  West Virginia ................................ 9.13
  Wisconsin ..................................... 10.01
  Wyoming ....................................... 8.74

02/28/2008: CompeteAmerica Letter to House Speaker, Madame Pelosi, for Employment-Based Legislation

• In the current political environment, the immigration legislation remains a backburner despite the suffering of the U.S. businesses for the shortage of talented foreign workers. As the Presidential party primary moves close to the nomination of the each party's Presidential candiate, this type of lobbying will constitute an overture to the upcoming increased voices from the immigrants and employers to pressure the Congress to act. Read on.
• It is particularly disheartening that the Secretary of Homeland Security Department fails to act to fix the problem of U.S. school graduates facing a serious problem in the FY 2009 H-1B petitions despite a strong urge of the bi-partisan Senate leaders to fix the problem. Earlier, there was a report that the Secretary was considering the administrative fix of the employment based immigration issues within the given laws, but the businesses have yet to see any action on the part of the Secretary to fix such problem beyond the enforcement issues.

02/28/2008: USCIS Questions and Answers: Background Check Policy Update 02/28/2008

02/28/2008: FBI Name Check Backlogs Eligible for 485 Adjudication in Service Centers

• According to the withdrawn USCIS FAQ on FBI Name Check Backlog I-485 case new adjudication policy after 180 days of name check request, they estimated the total eligible 485 cases at 46,000 or something. Now, according to the AILA Q&A with the USCIS HQ Service Center Operation office on February 20, 2008, the Service Centers located approximatlely 10,000 cases that were waiting name checks only and they estimated that there would be additional 15,000 cases that would fit the new policy. There is no specific timeline announced, but there are some indications that these cases may be adjudicated from one month to approximately three or four months. It appears that the USCIS is mindful of the potential EB visa number retrogression and may want to adjudicate these cases as soon as possible.

02/27/2008: USCIS Updates FY 2009 H-1B Cap Filing Hints

• Those who intend to file the FY 2009 H-1B petitions should read carefully the following updates of filing hints:
  • Condensed Q&A
  • Quick Tips
  • Main Errors that can cause USCIS to reject or deny the petition
  • FAQ on completing and submittingthe cap case
• For the additional helpful information, please visit out Questions and Discussions site. The USCIS will also publish the Interim Rule on the cap filing as soon as the OMB approves it. Please stay tuned to this website.

02/26/2008: OFLC Has Just Released FY 2007 PERM Statistics

• Summary:

• More than 85,100 PERM cases
certified during FY 2007
• Foreign workers representing
176 countries certified for permanent
work in the U.S.
• Nearly 6 out of 10 PERM cases
certified for small employers
(less than 250 workers)
• Top states: California (20,222),
New York (8,843), New Jersey
(6,594), Texas (6,534), and
Florida (5,128)
• Top countries: India (24,573),
China (6,846), Mexico (6,442),
South Korea (5,159), Canada
(4,837)
• Top employers:
Microsoft Corporation
Cognizant Technologies
Oracle USA, Incorporated
Intel Corporation
Ernst & Young, LLP
Motorola Incorporated

• Lots of very interesting detailed statistics and information. Please read the full text.

02/26/2008: USCIS Ongoing Rule-Making Priorities and Selective Priority Agenda

• USCIS is releasing the semi-annual rule-making agenda two times a year - Fall and Spring of each fiscal year. The following are the priorities for current semi-annual rule-making agenda. Readers will notice that these rules have been and will be published within this period as stated in this statement:
  • National Security
  • USCIS has an essential role in supporting DHS's Strategic Goal to ensure the security and integrity of the immigration system by making certain that immigrants and nonimmigrants comply with the laws and security mandates to prevent those who seek to exploit our immigration benefits or engage in illegal activities from obtaining lawful status in this country. To further our national security objectives, USCIS is pursuing regulatory initiatives that will disallow the granting of immigration benefits while an applicant has an ongoing investigation. These regulatory initiatives include the following:
    • "Designation of Acceptable Documents for Employment Verification ("I-9 Reduction Rule"). This rulemaking action will reduce the number of documents acceptable for Employment Verification, or Form I-9, purposes. The current employment verification process uses a very dated list of acceptable documents and a revised Form I-9 has been approved. However, the entire list of documents needs to be shortened and the Form I-9 reissued in conjunction with a shorter list of more highly secure documents.
    • "Special Immigrant and Nonimmigrant Religious Workers." This final rule amends USCIS regulations regarding the special immigrant and nonimmigrant religious worker visa classifications. This rule clarifies several substantive and procedural issues that have arisen since the religious worker category was created, and provides new definitions that describe more clearly the regulatory requirements, as well as add specific evidentiary requirements for petitioning employers and prospective religious workers. This rule also addresses concerns about the integrity of the religious worker program by establishing a petition requirement for religious organizations seeking to classify an alien as an immigrant or nonimmigrant religious worker. Finally, this rule includes an on-site inspection requirement for religious organizations to ensure the legitimacy of petitioner organizations and employment offers made by such organizations.
  • Customer Service
  • USCIS strives to provide efficient, courteous, accurate and responsive services to those who seek and qualify for admission into our country as well as providing seamless, transparent and dedicated customer support services within the agency. To improve our customer service goals, USCIS is pursuing regulatory initiatives that will make immigration procedures consistent with new laws, improve interpretive services, standardize adjudication and filing procedures, and modernize application processing to facilitate effective data collection and reporting.
  • These regulatory initiatives include:
    • "Petition to Classify Alien as Immediate Relative of a U.S. Citizen or as a Preference Immigrant; Self-Petitioning for Certain Battered or Abused Alien Spouses and Children." This rulemaking action would implement provisions of the Battered Immigrant Women Protection Act of 2000 and the Violence Against Women and Department of Justice Reauthorization Act of 2005. Those provisions amend the Immigration and Naturalization Act provisions that allow battered spouses, children and parents of U.S. citizens and lawful permanent residents to petition for immigrant classification without the assistance or consent of the abuser.
    • USCIS also is restructuring its entire business processes to implement new procedures for the filing, processing, and adjudication of all benefit applications and petitions. USCIS is moving toward complete electronic filing and adjudication of benefits to streamline processing, modernize adjudications, and facilitate efficient and effective data collection and reporting. USCIS will be issuing a rulemaking action "New Electronic Account, Adjudication, and Reporting System; New Procedures for Filing and Processing of Fiscal Year 2007 H-1B Petitions Subject to Annual Cap" as part of this business restructuring process.
• Interesting Long-Term Agenda:
  • I-140 Premium Processing Timeframe Change: Plans to change the premium processing time from 15 calendar days to 15 business days and adds additional circumstances that will stop the premium processing clock. This rule also clarifies that for e-filed petitions and applications, the 15 business day processing period begins when U.S. Citizenship and Immigration Services receives the initial required supporting documentation to adjudicate the case at the Service Center with jurisdiction over that case. This interim rule also addresses public comments received in connection with the first interim rule.
  • Electronic Signature: Planned acceptance of electronic signatures on applications and petitions for immigration and naturalization benefits. The change is necessary to allow the Department to begin accepting electronically filed applications and petitions as required by law. By accepting electronically filed applications and petitions, the Department expects to streamline its information collection process, improve customer service, and move towards fulfilling the mandates of the Government Paperwork Elimination Act.
  • Suspension of I-140/I-485 Concurrent Filing: Plans to propose suspension of the current I-485 concurrent filing rule. Approximate agenda to publish this "proposed" rule will be November 2008. Since it is planning to make this rule through "proposed rule," the suspension may not materialize until mid or late 2009.
• This selective rule-making agenda is somewhat belatedly posted to give the readers some understanding of ongoing USCIS policy and procedure changes and some perspectives on the likely future changes. Finalization of EAD time limitation removal will be on the way as well.
  

02/25/2008: Somalia TPS Designation Extension & Automatic Employment Authorization Extension Under OMB Review

• The designation renewal will be published in the federal register as a notice. Please stay tuned.

02/25/2008: OMB Under Review Again USCIS Rule on Petitions Filed on Behalf of H-1B Temporary Workers Subject to the Annual Numerical Limitation

• USCIS resubmitted this rule for OMB review last Friday. The rule is expected to be published in the form of Interim Final Rule rather than Proposed Rule. As the clock is ticking towards April 1 when the FY 2009 H-1B cap will be received and probably the cap may reach the same day, the H-1B employers are anxious to learn what restrictions the USCIS will impose on the cap filing, such as multiple filing, etc. Additionally, this regulation will announce availability of premium processing and efiling of the H-1B cap filings. Premium processing and efiling are likely suspended but people should wait and see. The rule may also announce the filing jurisdictions for different types of H-1B cap and cap-exempt cases, particularly during the cap filing period. Please stay tuned to this website for the release of this Interim Rule.

02/24/2008: Employers Beware, Justice Department Announced Tougher Enforcement of Employment Authorization Verification Violation, Hiring Employment Unauthorized Aliens, and Discrimination Violations with Steep Increased Civil Penalty

• Yesterday, the Attorney General announced that a regulation will be published early next week which will take effect on March 27, 2008. Under the new rule, civil fines will increase by as much as $5,000. Under the new rule and applicable law, civil penalties for violations of the Immigration and Nationality Act are adjusted for inflation. Because these penalties were last adjusted in 1999, the average adjustment is approximately 25 percent. Under the specific rounding mechanism of the law, the minimum penalty for knowing employment of an unauthorized alien increases by $100, from $275 to $375. Some of the higher civil penalties are increased by $1,000; for example, the maximum penalty for a first violation increases from $2,200 to $3,200. The biggest increase under the rounding mechanism raises the maximum civil penalty for multiple violations from the current $11,000 to $16,000. These penalties are assessed on a per-alien basis; thus, if an employer knowingly employed, or continued to employ, five unauthorized aliens, that could result in five fines.
• Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing unauthorized aliens or for other violations, including failure to comply with the requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud. For each of these violations, the employer has the right to a hearing before an administrative law judge in the Executive Office for Immigration Review.

02/23/2008: USCIS Case Status Inquiry Guidance

• This publication gives a guidance for case status inquiry per different types of applications and petitions. For instance, unlike other inquiries, it states that if you filed a Form I-765, EAD application, and it has been longer than 90 days since youfiled and you haven't gotten an update from us within the last 60 days, and have not seen any public notice that adresses yourcase type, it advises to call custoer services immediately and not to wait the extra 30 days. For this link, please visit our home page in the future.

02/23/2008: USCIS February 15, 2008 Processing Times

• Please note that this report does not reflect "future waiting time" for future-dated cases. For instance, for I-140 petitions, TSC is adjudicating the cases which they received approximtely 8 months back. It does not mean that any cases which were filed post to the dates showin in this report will be adjudicated in 8 months. The same is true with NSC. NSC is processing most of the I-140 petitions which they received from 12 months to 14 months back. However, considering the huge number of backlogs (more than 145,000), movement of processing dates can be much slower than the calendar dates unless the USCIS takes certain special steps of action, such as reinstatement of premium processing services. Accordingly, those who filed I-140 and whose H-1B six-year approaches six-year limit but who are not eligible for one-year increment extension may consider an action to take trips outside of the U.S. for certain period of time to recapture the times outside of the U.S. and delay the time of reach of their H-1B six-year limit by recapturing the overseas times. This special action may be needed for those who filed I-140 petition only lately and are approaching the H-1B six-year limit.

02/22/2008: H-1B Cap Filing Rule-Making Delayed

• This proposed rule appears to have failed to obtain the approval from the OMB on 02/21/2008. It is likely that the USCIS may resubmit the rule-making with revisions. This may cause some delays for the FY 2009 H-1B cap filers to learn the details of restrictions the USCIS intends to impose for FY 2009 H-1B filing procedure and requirement. Please stay tuned.

02/21/2008: Special Notice

• People should not send fax inquiries to the Service Centers for their pending EB-485 applications. Under the current procedure, they are required to go through the Customer Service lines.

02/20/2008: USCIS Proposed Rule on Petitions Filed on Behalf of H-1B Temporary Workers Subject to the Annual Numerical Limitation

• The USCIS submitted this proposed rule to the OMB on February 15, 2008 for review and approval. This rule is expect to lay out the details on its restriction for multiple filings and other matters. Please stay tuned to this website for development of this rule.

02/20/2008: USCIS February Monthly Newsletter Released 02/20/2008

02/19/2008: Stand-Alone I-130 Filing Procedure Change Effective Today

• The USCIS has just announced that effective immediately all the stand alone I-130 must, repeat, must be filed at the following Chicago Lock Boxes depending on either Vermont or California Service Centers. Even through the petitions are filed at the Chicago Lock Box, the cases will be adjudicated by either VSC or CSC depending on the residence.
• Petitioners who reside 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 or Wyoming must file their stand-alone Form I-130s with the Lockbox using the following address:
  USCIS
  P.O. Box 804625
  Chicago, IL 60680-1029
  Petitioners who reside in Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, West Virginia or District of Columbia must file their stand-alone Form I-130 with the Lockbox using the following address:
  USCIS
  P.O. Box 804616
  Chicago, IL 60680-1029
  
• This jurisdiction change is mandatory.

02/19/2009: USCIS Receipting All "Current"

• USCIS has announced today that all the frontlog receipting processing times are current and there is no longer any backlog. This includes Chicago Lock Box as well.

02/15/2008: DHS Announced Resignation of Ombudsman Prakash Khatri

02/15/2008: USCIS Announcement of Consolidation of Biometrics Appointment and Collection for Concurrently Filed I-485 and EAD Application

• USCIS has announced that effective today USCIS will collect biometrics for both forms in one visit to the ASC, ensuring that each application is processed in a timely manner. Also, customers will only need to submit one biometrics fee ($80) with the I-485.The biometrics collection for the Form I-485 and a concurrent Form I-765 is being consolidated in order to improve customer service and make the most of agency resources. Previously, customers received a biometrics appointment from the ASC for the I-485, but were required to submit any necessary biometrics for an I-765 directly to the service center with jurisdiction over their case. For the full text, please click here.

02/15/2008: Proposed Foreign Labor Certification Applications Filing Fees

• The U.S. Department of Labor is planning the following filing fee charges for the permanent and temporary labor certification applications, which will be reflected in its legislation to authorize collection of filing fees:
  • PERM Permanent Labor Certification Application: $650
  • H-2A Temporary Agricultural Worker Labor Certification Application: $100 minimum with additional charge of $10 per worker covered in each proceeding upto maximum charge of $1,000 per application
  • H-2B Temporary Non-Agricultural Worker Labor Certification Application: $125 minimum with additional charge of $50 per worker covered in each application.
• For other details for forthcoming changes, please stay tuned to this website.

02/15/2008: ECFMG Introduces ECFMG Medical School Web Portal for International Medical Schools

• ECFMG has initiated the ECFMG Medical School Web Portal (EMSWP) which allows international medical schools to have access to a free, web-based program that enables them to verify the status of their students and graduates who have applied to ECFMG for the United States Medical Licensing Examination(tm) (USMLE(tm)). ECFMG requires that international medical schools verify the status of their students who apply to ECFMG for USMLE exams. Prior to the launch of EMSWP, ECFMG verified student status through a paper Certification Statement, completed by the student and his/her medical school for each USMLE application. Now, for a student whose medical school participates in EMSWP, a paper Certification Statement is no longer required for each exam application; instead, the student and his/her medical school will complete a paper Certification of Identification Form. Once it is accepted by ECFMG, the Certification of Identification Form remains valid for all exam applications submitted during the following five-year period. During this period, the student will be able to complete the exam application process entirely on-line using ECFMG's Interactive Web Application (IWA), and the medical school will verify the student's status on-line using EMSWP in response to each exam application. For students from non-participating schools, ECFMG
  will continue to require a completed Certification Statement for each exam application. Students will be able to determine if their medical school participates in EMSWP and obtain the appropriate form (Certification of Identification Form or Certification Statement) after completing the on-line part of the exam application using IWA. For additional details, please visit www.ecfmg.org.
  

02/14/2008: DHS Inspector General Congressional Testimony of 02/13/2008: One of the Congressional Close Oversight Needed Areas for DHS - USCIS Backlog

• The Inspector General of DHS testified before the Congress yesterday. One of the recommendations which he asked the Congress to keep a close eye on over the next twelve months as the country prepares for a national election and transitions to a new administration was USCIS Backlog of Immigrant Application. He testifies that a key factor in this effort will be the progress CIS makes in modernizing its information technology systems. CIS has developed a number of plans to modernize its systems, but none of them have been implemented fully. Until USCIS improves IT management and operations, the USCIS will not be in a position to either effectively manage existing workloads or handle the potentially dramatic increase in immigration benefits processing workloads that could result from proposed immigration reform legislation. Hmm.................................................
  

02/14/2008: USCIS Clarification of Denial vs. Rejection of EAD Renewal Application Filed Earlier Than 120 Days Prior to Expiration of EAD

• We posted this message on 02/04/2008 and raised this issue. The AILA has just reported that the USCIS clarified its message that the premature filing would be "rejected" rather than "denied." What this means is that the filers will at least save the filing fees.

02/14/2008: Holiday Reminder: Monday, 02/18/2008, Washington's Birthday

• Monday is a legal holiday for the federal government which is observed. Just reminder!

02/14/2008: Advisory for People in Palau in Pacific Oceans: Their Status Under U.S. Immigration & Nationality Act

02/14/2008: Advisory for People in Micronesia and Marshall Islands: Their Status Under U.S. Immigration & Nationality Act

• USCIS released this helpful and information information for the people in these terrotories on 02/13/2008 regarding their status under the U.S. immigration and nationality laws.

02/14/2008: House Subcommittee Hearing on Status of Visas & Policies on Foreign Students and Scholars on February 7, 2008

• The House had this important hearing that can have an impact on the employment-based immigration issues relating to the STEM foreign graduates in research and higher learning institutions. It is suggested that the EB immigrants in STEM to review the testimonies of witnesses in this hearing.
  • Purpose and Summary of the Subject
  • Testimonies of Witnesses:
    • :: Opening Statements by Rep. Brian Baird
    • :: Witness Statements ::
      Mr. Tony Edson
      Ms. Catheryn Cotten
      Dr. Harvey Fineberg
      Dr. Allan E. Goodman
• Under the current political environment and a long pause in the employment-based immigration legislation issues in the Hill, this is indeed an important news in that at least the Congress is giving attention to the predicament the research and higher learning institutions are facing owing to the failure of the do-nothing Congress and the Administration to act on the matter.

02/14/2008: Chicago Lockbox I-130 Receipting Update as of 02/13/2008: February 3, 2008

02/13/2008: SWA Access to E-Verify Employment Verification and Required Memorandum of Understanding

• The Department of Labor has been working with the Department of Homeland Security (DHS) and the Social Security Administration to provide State Workforce Agencies (SWAs) with access to the E-Verify employment eligibility verification system. SWAs are required to verify the employment eligibility of all referrals to H-2A job orders (see Training and Employment Guidance Letter 11-07, ch. 1, TEGL 11-07). The Memorandum of Understanding (MOU) is now available to enable SWAs to access E-Verify. The MOU must be submitted to DHS by the SWA in order to access the E-Verify system. For the DOL notice, please click here.

02/13/2008: USCIS Minutes of Meeting with Community Stakeholders on Immigration Issues on January 29, 2008

02/13/2008: Proposed H-2B Temporary Labor Certification Application Procedural Reengineering Under OMB Review

• We reported earlier that DOL is in the process of reengineering all the temporary labor certifcation proceeding to centralize its management in Chicago National Processing Center by this summer. This proposed H-2B procedural change rule is a part of this engineering program. The proposed rule is designed to initiate a redesign of the H-2B application process by which employers seek temporary nonagricultural labor. Under a redesigned H-2B program, employers seeking to use H-2B workers, except for applications filed for employment in Guam or in logging, will file directly with the National Processing Centers of the Employment and Training Administration, instead of with the State Workforce Agency, as under the current regulation. Each employer will be required to conduct recruitment before filing its application. The application will include a number of attestations concerning labor market and related issues. DOL will audit selected applications and supervise additional recruitment where it is determined to be necessary. Employers will be expected to have documentation available to support their attestations and to provide such documentation to DOL immediately upon request. DOL retains a debarment authority in selected cases after notice to the employer and opportunity for a hearing. Please stay tuned.

02/13/2008: Proposed Attested and Enforcement Driven H-2A Labor Certification System and Procedure of DOL

• DOL is proposing to amend its regulations regarding the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. This notice of proposed rulemaking (NPRM or proposed rule) would re-engineer the process by which employers may obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A (agricultural temporary worker) status. Re-engineering measures focus on the utilization of an attestation-based application process after an employer conducts pre-filing recruitment and the elimination of duplicative activities currently performed by the State Workforce Agencies (SWAs). In concert with these changes, the Department proposes to amend the wage and hour regulations to provide for enhanced enforcement, including more rigorous penalties, under the H-2A program to complement the modernized certification process so that workers are appropriately protected should an employer fail to meet the requirements of the H-2A program. Comment period ends on 03/31/2008.
• See ETA Proposed Regulation for Attestment Driven Labor Certification Application Procedure
• See Accompanying ESA Proposed Regulation for Enforcement

02/13/2008: Fact Sheet: H-2A Temporary Agricultural Worker Program

• Fiscal Year 2007
  • USCIS received 6,212 H-2A I-129 petitions and approved 6,134 petitions for 78,089 beneficiaries.
    DOS issued 50,791 H-2A visas.
• Fiscal Year 2006
  • USCIS received 5,667 H-2A I-129 petitions and approved 5,448 petitions for 56,183 beneficiaries.
    DOS issued 37,149 H-2A visas.
    

02/13/2008: USCIS Proposed H-2A Regulation for Change of H-2A Petiton Procedure:

• This rule proposes to relax the current limitations on the ability of U.S. employers to petition unnamed agricultural workers to come to the United States and include multiple beneficiaries who are outside the United States on one petition. The rule proposes to revise the current limitations on agricultural workers' length of stay including: lengthening the amount of time an agricultural worker may remain in the United States after his or her employment has ended and shortening the time period that an agricultural worker whose H-2A nonimmigrant status has expired must wait before he or she is eligible to obtain H-2A nonimmigrant status again. This rule also proposes to provide for temporary employment authorization to agricultural workers seeking an extension of their H-2A nonimmigrant status through a different U.S. employer, provided that the employer is a registered user of the E-Verify employment eligibility verification program. In addition, the rule proposes to modify the current notification and payment requirements for employers when an alien fails to show up at the start of the employment period, an H-2A employee's employment is terminated, or an H-2A employee absconds from the worksite. To better ensure the integrity of the H-2A program, this rule also proposes to require
  certain employer attestations, preclude the imposition of fees by employers or recruiters on prospective beneficiaries, preclude reconsideration of certain temporary labor certification denials, and bar H-2A status for nationals of countries consistently refusing or unreasonably denying repatriation of its nationals. These changes are necessary to encourage and facilitate the lawful employment of foreign temporary and seasonal agricultural workers.Finally, this rule proposes to establish a pilot program under which aliens admitted on certain temporary worker visas at a port of entry participating in the program must also depart through a port of entry participating in the program and present designated biographical information, possibly including biometric identifiers, upon departure. U.S. Customs and Border Protection will publish a Notice in the Federal Register designating which temporary workers must participate in the program, which ports of entry are participating in the program, which biographical and/or biometric information would be required, and the format for submission.
• USCIS Announcement
  
  

02/13/2008: USCIS Announces E-Verify Surpassed 52,000 Employers

• Announcement
• E-Verify FAQ

02/12/2008: Chicago Lockbox I-130 Receipting Notice Processing Times as of 02/11/2008: January 27, 2008

02/12/2008: March 2008 Visa Bulletin

• India EB-2=Unavailable, EB-3 08/01/2001, EW=01/01/2002
• China EB-2=12/01/2003, EB-3=12/01/2002, EW=01/01/2002
• ROW EB-2=Current, EB-3=01/01/2005 (WOW!!), EW=01/01/2002
• EB Prediction: The cut-off date movement for March in several Employment categories has been greater than those experienced in recent months. Advancement of the cut-off dates at this time should prevent a situation later in the fiscal year where there are large amounts of numbers available but not enough time to use them. If the expected increase in CIS number use materializes, future cut-off date movements could slow or stop.

02/11/2008: Color Photo Required for Diversity Visa Application Effective 02/11/2008

• This morning, the State Department issued a notice that a black and white color photo would be no longer acceptable for the diversity immigrant visa application effective today. The rule requires color photos. In the past, photographs submitted at the time of electronically filing petitions for consideration under INA 203(c) for issuance of diversity immigrant visas could be in either color or black and white. As part of the general harmonization of photo requirements for all visa functions, this requirement is being amended to make color photos the only acceptable photographs for a petition for consideration for diversity visa issuance. Compared to black and white, color photographs enhance the facial recognition process and reduce the opportunity for fraud.

02/10/2008: DOL/ETA FY 2008 Budget Proposal Reflecting PERM 45-60 Days Processing Times in FY 2008

• Recently, OFDC disclosed that the "clean-cut" PERM application was taking minimum of 45 days to 60 days. Indeed, currently the clean-cut PERM applications take this much time. It is interesting to note that the FY 2008 budget proposal which was released on February 7, 2007 (one year back) already predicted such processing time change in FY 2008 that started from October 1, 2007. Hmm......................................However, it is understandable considering the fact that OFDC had decided to focus on achievement of "integrity" of PERM labor certifications which would require additional scrutiny and audits of the applications.

02/09/2008: USCIS Naturalization Applications Statistics on 12/31/2007

• The number of pending N-400 cases reached 1,061,189 in December 2007. For other details, please click here. Compare with the statistics at the end of November 2007.

02/09/2008: USCIS Petitions/Applications Statistics on 12/31/2007

• Major volumes of pending applications at the end of December 2007:
  • I-140: 147,923
  • I-130: 1,291,100
  • I-485: 833,141
  • I-765: 220,679
  • I-90: 171,916
    Footnote: “Initial Receipts data only reflects the number of applications that USCIS was able to fee receipt and/or data enter into a case processing system. Applications currently held in USCIS mailroom facilities but not processed to the point of recognition as Initial Receipts are deemed frontlog cases. These frontlog cases are also not reflected in Pending figures.” Compare with the statistics at the end of November 2007.
• Wow, look at the I-140 backlogs!!! For other details, please click here.

02/08/2008: Chicago Lockbox I-130 Receipting Update of 02/06/2008=01/11/2008

02/08/2008: I-130 and Chicago Lockbox

• Recently, I-130 files with a Service Center received a receipt notice from the Chicago Lockbox raising a confusion in the family-based immigrant community. According to the USCIS, this internal procedure was implemented by USCIS to improve efficiency and does not adversely affect the case. The return address on the mailing envelope will be from the Chicago Lockbox, but the receipt notice will identify the Service Center that will process the petiner's case. The USCIS asks such petitions to pay close attention to the receipt number to ensure all future communication is directed to the actual processing location. If the receipt number begins with “VSC,” the case will be processed by the Vermont Service Center; likewise, if the receipt number begins with “CSC,” the case will be processed by the California Service Center. If the Service Center forwarded the case to the Chicago Lockbox for receipting, but it was rejected, the reject notice will be issued by the Chicago Lockbox. If the petitoners believe their petition was rejected in error, they should resubmit their original petitions with supporting documentation, the original check or money order, the cover letter that was included with the returned petition, and an explanation of the reason why the petitioner believes the rejection was in error. The resubmission should be sent to the Chicago Lockbox, using the address indicated on the rejection notice
• According to the CSC, as of the end of January 2008, CSC has sem approximately 41,000(1-130 ) envelope to Chicago Lockbox, and the CSC has rceived about 11,500 cases back from the Chi ago Lockbox. The Chicago Lockbox has been sencling between 1,000 and 1,500 cases back to CSC daily. How confusing.

02/07/2008: USCIS Revised National Security Adjudication and Reporting Requirements Memorandum of 02/04/2008

• On February 4, 2008, Michael Aytes, Director of Domestic Operations of the USCIS issued an interoffice memorandum to give a revised guidance for USCIS field offices' adjudication of I-485, I-601, I-687, and I-698 as related to the pending FBI name checks. According to the revised guidance, where the application is approvable and the FBI name check request has been pending for more than 180 days, the adjudicator "shall" approve the I-485, I-601, I-687, I-698 applications and proceed with card issuance. However, the approved applications shall be held at the adjudicating office, and the USCIS will determine if rescission or removal proceedings are appropriate and warrantged if derogatory or adverse information is received from the FBI after the application is approved. For the full text, please please click here.
• We do not know the exact impact of this policy change on the I-485 processing backlog and on the future Visa Bulletin changes. Without doubt, this decision may bring about a positive result in the processing times but negative impact on the picture of future regrogression of visa numbers as more numbers of earlier priority dates will be taken out in an increased number.
• Caveat: This revised guidance does not apply to the N-400 Naturalization proceeding which will continue to require the FBI name-check clearance first before it can be adjudicated.

02/05/2008: DOL State Workforce Agency (SWA) Webinar FAQs on TEGL 11-07

• SWAs have been given guidance regarding TEGL 11-07, change 1. The Office of Foreign Labor Certification is posting Round One of FAQs from questions specifically posed by SWAs. They are provided to SWA staff to assist in the interpretation and implementation of the TEGL. These answers were originally provided to participants on January 25, 2008.
  

02/05/2008: U.S. Government Briefing on Developments in Iraqi Refugee and Special Immigrant Visa Admissions Program 02/04/2008

• Joint briefing on 02/04/2008 by Senior Coordinator on Iraqi Refugee Issues Ambassador James Foley, Deputy Assistant Secretary of State for Consular Affairs Tony Edson, and the Department of Homeland Security’s Senior Advisor to the Secretary on Iraqi Refugee Issues Lori Scialabba. Read on.

02/05/2008: Labor Certification Fraud Indictment and Guilty Plea of Employer in Virginia

• After the investigations involving DOL, DOS, DHS, and FBI, the owners of a company were indicted, leading to their plea of guilty. Read on.

02/05/2008: General Tips on Assembling Applications for Mailing to Assist With Government and USCIS Offices

• The customers of the USCIS services demand that the agency processes the applications and petitions in a reduced time. However, they often forget that some of the delays can be caused by themselves. The agencies are receiving hundreds of thousands of mails every day which need processed from the front-end of mail room to the back-end of adjudication and mailing out. Probably, it may be a time for them to sit back and find out how they can help these agencies to process the papers efficiently. Most of these issues may sound very trivial but can add up to demand for enormous amount of time and resources to tackle with it when hundred of thousands of applications or petitions are involved. For instance, we reminded over and over to our clients not to staple the documents. Stapling may look neat but presents a nightmare to the service providers as they will have to take out staples to copy using automatic feed copy machines with frequent jamming of copy machine and to sort out unnecessary pages. What about the sizes of papers? Sometimes, customers should put themselves in the shoes of the people who work in the government offices. Achievement of efficiency in government services may require mutual cooperation and assistance. One should not demand changes on the other side of the isle without doing his/her part of changes on his/her side of the isle. We are posting this USCIS General Tips to give a chance to take a few minutes or seconds to think about how much they have been contributing to the delays in the government services and what they can and should do to do their part of contribution for the mutual benefits of the agencies and the consumers. Just picture the front-end offices and workers during the period of July 2007 Visa Bulletin fiasco. Come April 1, 2008, another mountaneous crash one is coming!

02/05/2008: Minnesota St. Paul-Minneapolis Application Support Center Closing: 02/13/08(Wed)-02/15/08(Fri)

• USCIS has announced that Minnesota - St. Paul Application Support Center will be closed February 13 - 15, 2008, for building maintenance.
  

02/04/2008: USCIS to Deny EAD Renewal Applications Filed Longer Than 120 Days Before Expiration

• AILA has reported that it received a notice from the USCIS that any EAD renewal application which were received on or after 01/29/2008 that was filed more than 120 days from the date of expiration would be "denied" for filing too early. We need clarification, though, as to whether the consequences will be "denial" rather than "rejection." Considering the fact that the filing fee is expensive, if it is denial, the filers will lose the filing fees paid. Please stay tuned for the clarification.

02/04/2008: CIS Ombudsman Recommendation Chart 01/23/2008

02/04/2008: CIS Ombudsman Updates Teleconference Questions and Answers 01/18/2008

02/04/2008: President's FY 2009 DOL/Foreign Labor Certification Budget Request

• Total foreign labor certification program is proposed: about $79,000,000.00.
• FY 2009 Budget proposes authorization of three cost-based fees to ensure adequate resources are available to meet current and future increases in workloads in the H-2A Temporary Agricultural Program, the H-2B Temporary Labor Certification Program, and the PERM Permanent Labor Certification Program. These fee proposals will ensure the timely processing of foreign labor applications and contribute to a more efficient national immigration system.

02/04/2008: President's FY 2009 USCIS Budget Request

• The budget request includes:
  • USCIS is working to add nearly 1,300 temporary and permanent application adjudicators this year both to address surge workload and permanently improve processing time performance.
  • The budget also continues a dedicated funding source in premium processing revenue for continuing modernization of USCIS business operations. USCIS anticipates collecting at least $139 million in premium processing revenue in FY 2009.
• Read on.

02/04/2008: ECFMG Important Notice for International Medical Graduates USMLE Examination Applicants

• ECFMG has released the following notice: In preparation for enhancements to its on-line services, ECFMG will be making changes to some of its computer systems, including the Interactive Web Application (IWA), on February 11, 2008. To make these changes, it will be necessary to delete incomplete IWA exam applications and requests to extend Step 1/Step 2 CK eligibility periods (EPEx). Specifically, if you have begun but not yet finished the on-line part of an IWA exam application or EPEx request when these changes are made on February 11, this incomplete on-line part of the application/request will be deleted.
• To ensure that your exam application or EPEx request will not be deleted, you must finish the on-line part of the application/request, including payment, no later than 5:00 p.m., Eastern Time in the United States, on February 11, 2008. If your exam application or EPEx request is deleted, you will be required to begin a new application/request in order to apply for examination or request an eligibility period extension. It is anticipated that you will be able to begin a new exam application or EPEx request no later than 11:00 p.m., Eastern Time in the United States, on February 11, 2008.
  

02/03/2008: Progression of USCIS Transformation Program ("Account System") Technical Development for Electronization of Filing and Processing of Petitions/Applications

• As we reported from time to time, the USCIS has been working on reengineering of the immigration benefits applications and processing filing, processing, and management system under the name of "Transformation Program" which focuses on electronization of the current filing and processing processes and systems in the forms of "account system." The earlier plans of account system including mandating each of the employers, their (legal) legal counsels, and the alien beneficiaries and everytime any type of appliciatiopn or petition is filed electronically, the components and questions in the specific application and petition forms was supposed to link it to the specific employer, legal representative, and alien account database. Accordingly, whenever there is changes in the employer, legal represenatatives, and alien beneficiaries, the account system was to mandate each of the parties to update the their accounts. The information in each of these account database will then be tranposed in the new applications or petitions. Once this reengineering is completed and implemented, immigration benefits processing and adjudications will witness a new era in the immigration management of the agency in terms of processing times, backlog elimilation, fraud prevetion and detention, and achievement of the goals of security. There was report that this Transformation Program may not be in full operation until the end of FY 2009. The following is the technical progress of the USCIS Transformation Program as reflected in the DHS Inspector General Report of January 4, 2008. For our initial report on the USCIS Account System, proposed electronic account forms for employer, alien beneficiary, and legal representation, please visit our archive site and check December 29, 2005 report. These forms have been deleted in the current USCIS web site, but are still accessible, should the visitors work hard to attempt to obtain access to the links repeatedly. People should understand that part of the previous and recent changes in centralization or regionalization or specialization changes in filing procedures and organizations for the different types of applications and petitions are tied to the ongoing development of the new upcoming electronization of the application and petition filing, processing, and management efforts.
• 2007 USCIS Accomplishments • Integrated seven legacy enterprise applications through a Service Oriented Architecture Enterprise Service Bus improving information access and sharing with another Federal Department. • Implemented and instituted the USCIS information technology lifecycle management process. • Implemented and instituted an Office of Information Technology organizational structure based on the industry best practice model of information technology infrastructure library and information technology service management. • Received Departmental approval for USCIS’s Transformation Program Concept of Operations and Strategic Plan and the Transformation Program for Milestone Decision Point (MDP) two – Concept and Technology Development Phase. • DHS’ Enterprise Architecture Community of Excellence approved USCIS Transformation Program for Milestone Decision Point two – Concept and Technology Development Phase. • USCIS Transformation Program Office (TPO) completed foundational documents to support the Program Management Office including: Program Management Plan, • Governance Plan, Risk Management Plan, Quality Management, Change Management Plan, and Communication Plan. • Initiated Federal Stakeholders Advisory Board that includes members from: CBP, USCIS, I&A, Department of Justice, Department of State, ICE, Treasury, and US-VISIT. • Completed the Transformation Increment 1 Target Business Process definition which defines the business model and high-level requirements for the program. • USCIS TPO completed initial round of field briefings and focus group meetings with field leadership. • For the pilot projects, the TPO engaged users through focus groups and surveys to gather and validate requirements, validate new business processes, and collect feedback for future requirements. • Deployed three pilot projects – Secure Information Management Service, Enterprise Document Management System, and Enumeration.
• USCIS Remaining Plans • Complete procurement of Solutions Architect services. • Begin development of integrated operating environment. • Complete hiring process to staff Enterprise Architecture Branch with the USCIS Office of Information and Technology. • Execute USCIS EA development plan to achieve level three maturity.• Facilitate USCIS-wide performance architecture task force to gather and analyze performance measures and metrics.

02/02/2008: Status of Petitions and Applications Front-End Receipting Delays in USCIS Service Centers

• The USCIS reports that the front-log delays in processing of receipting has been eliminated except I-130 family-based immigrant petition which is receipted by Chicao Logbox. As of February 1, 2008, the delays in the I-130 receipting in Chicago Logbox was 12/27/2007.

02/01/2008: Proposed USCIS NIW Supplement Form to I-140 and I-485

• USCIS has submitted its proposal to create a supplemental form to I-140 and I-485 for the National Interest Waiver filers to determine eligibility for NIW requests and to finalize their I-485 applications. The notice indicates that annual NIW filers are estimated at 8,000 and the USCIS is expected to spend about two hours for each application. Hmm.................... One wonders the specific purpose of the form.

02/01/2008: USCIS Helpful Hints for April 1, 2008 H-1B Cap Filing

• USCIS anticipates that April 1, 2008 will see a repeat of the mass filings from last year and offers the following hints for H-1B cap filings:
  • HINTS:
    • For Fiscal Year 2009, the first filing date is Tuesday, April 1, 2008. Cap subject petitions received before that date will be rejected. Petitions are filed at Vermont and California Service Centers, depending on jurisdiction. See filing instructions. Both the forms and the instructions can be downloaded from this website. Click on this page's related link, "Download form I-129: Petition for a Nonimmigrant Worker" or visit the “Immigration Forms” section of our homepage.
    • Here are some general tips on what to do to make sure that your petition is completed and filed properly.
    • 1. Clearly label all H-1B cap cases in red ink on top margin of Form I-129 petition. Use the following codes:
      • Reg. Cap (65,000 regular cap cases minus the C/S cap cases received)
        C/S Cap (Chile/Singapore H-1B1s)
        U.S. Masters (20,000 cap exemption for beneficiaries with U.S. Masters or higher degrees)
        Exempt (for petitions filed by certain institutions of higher education; nonprofit organizations; and nonprofit research organizations or governmental research organizations, as defined in USCIS regulations)
        
    • 2. Fill out Form I-129 and supplements correctly, consistently and completely.
      • Form I-129 petition
        H classification supplement (page 7)
        H-1B Data Collection and Filing Fee Exemption Supplement (pages 10 and 11)
        Original signatures are required. Tip: blue ink makes it easy for us to confirm an original.
    • 3. Employer must submit the correct fees as seen on form instructions (separate checks for each are best).
      • Base filing fees: $320
      • American Competitiveness and Workforce Improvement Act of 1998 (ACWIA fee):
        
        • $750 For employers with 1 to 25 full time equivalent employees unless exempt
          
        • $1,500 For employers with 26 or more full time equivalent employees unless exempt
          
        • (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B)
      • Fraud fee: $500 To be submitted with the initial H-1B petition filed on behalf of each beneficiary by a petitioner. (Not for Chile/Singapore H-1B1 cases)
      • Premium Processing fee: $1,000 For employers seeking Premium Processing Service
      • See Fee Exemption and/or Determination (Page 10 and 11) for detailed instructions on fees.
    • 4. Please send only one petition per envelope. (These may then be mailed together in one mailing package.)
      • Regular Cap
        U.S. Master’s Cap
        Regular Cap Premium Processing
        U.S. Master’s Cap Premium Processing
        H-1B1 Chile/Singapore
    • Please note that incorrectly completed or filed petitions may result in rejection or denial of the petition.
  • Main Errors:
    • There are several common errors made by petitioners that can cause a petition to be rejected or denied. This is a list of the most frequently seen and easily cured mistakes.
      • Incorrect Fees
        Frequently, petitioners miscalculate the amount of money needed for each filing. If you submit the fees in one check and the amount is wrong, we must reject the petition. We suggest you submit the fees in separate checks. We believe this lessens the likelihood of unintentional math errors when calculating the total fees due in connection with the filing of an H-1B petition.
      • Inconsistent and Incorrect Answers on Form I-129 and Supplements
        Please double check the petition to make sure you have answered all the questions and that the answers are consistent and correct throughout the entire package, including the petition and all accompanying documentation. USCIS cannot make assumptions about what a petitioner really intended if that is not clear on the face of the documents submitted.
        For example, if you check "yes" to the question of whether the beneficiary has a U.S. Master's degree in Part A, #5 of the supplement, then Part C, #7 should also be checked "yes."
        Another common mistake is where the petitioner indicates on one part of the Form I-129 that the beneficiary is not subject to the cap, but on top of the petition they may write "Regular Cap." This can also delay processing of a case or even cause it to be rejected.
        If your worker is or has been a J-1 worker please note:
        Part C, #4 of the I-129 H-1B Data Collection Supplement does not refer to all Js with a waiver of the 2-year foreign residency rule (212e). Do not check "yes" unless your worker is a doctor who has been granted a Conrade 30 waiver to work in a medically underserved area.
      • For Fiscal Year 2009, the first filing date is Tuesday, April 1, 2008. USCIS wants to be sure to accept all qualifying petitions for inclusion in the random selection , if necessary. If you file a petition correctly, you increase your chances of obtaining an H-1B cap number. We are working on making the process as smooth as possible both this coming April and in the future. Please read all Updates posted for additional information.
      • Petitions are filed at Vermont and California Service Centers, depending on jurisdiction. See filing instructions and USCIS Update on "Centralized Filing Location" for certain H-1B cap exempt petitioners (listed in the Related Links section of this page). both the forms and the instructions can be downloaded from our website under "Immigration Forms".Note: For Cap Exempt Cases filing, please refer to the yesterday's posting of USCIS announcement of centralization at CSC.
    • FAQ for Completing and Submitting a FY 2009 H-1B Cap Case
      

01/31/2008: USCIS Announcement of Centralization of H-1B Cap-Exempt Cases at California Service Center Effective 01/30/2008

• The cases include:
  • • Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
  • • Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
  • • Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C).
• If a cap exempt H-1B petition is received at a different Service Center, that Service Center will expeditiously forward the petition to the CSC for processing. In the near future, USCIS will post special filing instructions to Form I-129 requiring all1 qualifying H-1B cap exempt petitions to be filed at the CSC. For the full details, please click here.
• H-1B “cap exempt” petitions, as referenced here, do not cover H-1B petitions filed on behalf of beneficiaries requesting an exemption from the cap on account of holding a U.S. Master’s degree or higher, requesting an extension of stay, or change of employer, or petitions requesting an amendment. These types of petitions, while also “exempt” should continue to be filed in accordance with the filing charts on uscis.gov and the Form I-129 instructions.

01/31/2008: REMINDER: Land/Sea Border Crossing Documentation Requirement Effective Today

01/31/2008: REMINDER: New U.S. Passport Fee Schedules Take Effect Tomorrow, 02/01/2008

01/31/2008: Reps. Lofgren and Conyers Call on Attorney General to Review Female Genital Mutilation Ruling of Board of Immigration Appeals

• The Board of Immigration Appeals shifted its decision of the eligibility of these women for the reliev of asylum on this ground. The Democrat House leaders have stood up taking their stance against such policy change. Read on.
  

01/29/2008: Naturalization Through Military Services - USCIS Updates Information on 01/28/2008

• This is a must-read material for those who are in military services or considering the military services.

01/29/2008: Naturalization Applications Receipts and Pending as of End of November 2007

• The number of pending N-400 cases reached 1,090,498 in November 2007, an increase of 121 percent compared to the same month in fiscal year 2006. See the USCIS report for the full details.

01/29/2008: Immigration Benefits Applications Receipts and Pending as of End of November 2007

• Major receipt volumes in November 2007 include: 70,131 I-765 employment authorizations; 51,773 I-90 Green Card renewals/replacements; 43,271 I-485 applications to adjust status; 19,458 I-129 forms filed petitions.
• Major volumes of pending applications at the end of November 2007 include: 1,324,911 I-130 immediate/all other petitions; 845,691 I-485 applications to adjust status; 291,457 I-765 employment authorizations; 180,591 I-90 Green Card renewals/replacements; 165,623 I-131 reentry permit/advance parole.
  [Footnote]: “Initial Receipts data only reflects the number of applications that USCIS was able to fee receipt and/or data enter into a case processing system. Applications currently held in USCIS mailroom facilities but not processed to the point of recognition as Initial Receipts are deemed frontlog cases. These frontlog cases are also not reflected in Pending figures.” See the USCIS report.

01/29/2008: Effective 02/01/2008, State Department Adjusts Certain Consular Service Fees

• The State Department will charge border security charge and reduce passport book charge. For the details, please check the final interim rule.

01/29/2008: DHS Publishes Final Rule on Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes

• This rulr establishes minimum standards for State-issued driver's licenses and identification cards that Federal agencies would accept for official purposes on or after May 11, 2008. However, taking into consideration the operational burdens on State Departments of Motor Vehicles, this rule extends the enrollment time period to allow States determined by DHS to be in compliance with the Act to replace all licenses intended for official purpose with REAL ID-compliant cards by December 1, 2014 for people born after December 1, 1964, and by December 1, 2017 for those born on or before December 1, 1964.
  

01/28/2008: DHS Scheduled to Publish National Driver License Rules tomorrow.

• The DHS has already released advance copy of this final rule. For the DHS earlier release, please click here.

01/28/2008: USCIS January 28 2008 Monthly Newsletter

01/26/2008: January 15, 2008 USCIS Processing Times

01/25/2008: HHS Poverty Guideline

• 125% of this poverty guidelines will be reflected in the USCIS I-864P. The HHS guidelines is not effective for the immigration benefits proceedings until the USCIS revises and publishes new I-864P form. Family-based I-485 filers and immigrant visa applicants should check the USCIS form site to assure that they meet the poverty guidelines at the time of application.

01/19/2008: We Urge USCIS to Reinstate I-140 Premium Processing Services As Receipting Backlog Has Been Eliminated

01/19/2008: USCIS Office Closings on Monday, January 21, 2008 to Observe Dr. Martin Luther King's Holiday

• USCIS has announced that all USCIS Field Offices, District Offices, Service Centers and Application Support Centers will be closed on January 21, 2008, for celebration of the birthday of Martin Luther King Jr. Accordingly, no filings will be available on Monday.
  

01/19/2008: ID & Citizenship Documents Requirement for U.S. and Canadian Citizens for Land and Sea Travel Across the Borders Effective 01/31/2008

• USCBP requested the OMB on December 17, 2007 for clearance a regulation requiring certain documents for U.S. citizens and Canadians to cross the border by sea or land. This regulation is expected to be published soon and will take effect on January 31, 2008. It is thus critically important for U.S. citizens and Canadians to carry the following documents to cross the Northern borders by land or sea:
  • Single Document Option: One of the following documents should be presented to prove both identity and citizenship.
    • U.S. or Canadian Passport
      U.S. Passport Card (Available spring 2008)*
      Trusted Traveler Cards (NEXUS, SENTRI, or FAST)*
      State or Provincial Issued Enhanced Driver’s License (when available – this secure driver’s license will denote identity and citizenship.)*
      Enhanced Tribal Cards (when available)*
      U.S. Military Identification with Military Travel Orders
      U.S. Merchant Mariner Document
      Native American Tribal Photo Identification Card
      Form I-872 American Indian Card
      Indian and Northern Affairs Canada (INAC) Card
    • [* Frequent Land Border Crossers — to expedite processing into the United States, U.S. Customs and Border Protection recommends using one of the above asterisked documents.]
  • Two Document Option: All U.S. and Canadian citizens who do not have one of the documents from the list above must present BOTH an identification and citizenship document from each of the columns below.
    • A. Identification Documents*
      • Driver’s license or identification card issued by a federal, state, provincial, county, territory, or municipal authority
        U.S. or Canadian military identification card
      • [* All identification documents must have a photo, name and date of birth.]
    • B. Citizenship Documents
      • U.S. or Canadian birth certificate issued by a federal, state, provincial, county, territory or municipal authority
        U.S. Consular report of birth abroad
        U.S. Certificate of Naturalization
        U.S. Certificate of Citizenship
        U.S. Citizen Identification Card
        Canadian Citizenship Card
        Canadian certificate of citizenship without photo
  • U.S. and Canadian Citizens – Procedures for Children: Children ages 18 and under will be expected to present a birth certificate issued by a federal, state, provincial, county or municipal authority.
• For details, please see USCBP Advisory.
  

01/18/2008: Consequences of Expiration of Unused Certified Labor Certification Application After 180 Days of Certification

• Since July 16, 2007, this law has been in effect making the certified labor certification application invalid after 180 days of certification. Inasmuch as I-140 filed within the valid period, the expiration of the certified labor certification application will have no effect on the pening or approved I-140 petitions.
• With reference to the consequences of the expiration of certified labor certification application, the first question one may ask to himself or herself is its impact on the priority date. The answer appears to be that along with the death of such certified application, the priority date also dies because of the USCIS priority date retention rule which requires "approval of I-140 petition based on the certified labor certification application." Since I-140 cannot be filed (not to mention approval) after expiration of the certified labor certification application, it de facto results in the death of the priority date.
• Another question which is unanswered is its impact on the eligibility of 7th year H-1B extension beyond six year limit assuming that the alien beneficiary accumulates 365 days of labor certification filing through another labor certification filing by another employer before the certified labor certification expires. The USCIS has yet to answer this question. Arguably, though, under the liberal interpretation of AC 21 Act of so-called Yates Memorandum, the death of prior labor certification should not affect the accumulation of 365 days inasmuch as the new labor certification was filed by another employer or same employer before the expiration of the certified labor certification application. It is not clear, though, whether the USCIS will agree to such interpretation. People will have to wait and see.
• Finally, even though there is slim or nil chance that the Congress passes a legislation to extend 245(i) rule in the future, the certified but expired labor certification application will still serve the purpose of grandfathering of 245(i) benefits, should the Congress pass such legislation in the future. Additionally, the earned adjustment of status relief of illegal aliens under the Comprehensive Immigration Reform bills may use such certified labor certification application for various purposes depending on the specific languages in various proposals. For these reasons, people may not want to throw away the expired but certified labor certification applications in the trash can against the potential use of the document in the uncertain future. God knows what would happen after this national election.

01/18/2008: Challenges for Immigrants: Ongoing and Forthcoming

• In the election year, pro-immigration political platform constitutes a political liability as witnessed in the current national presidential debates, which turns the country into a strong anti-immigration environment. Consequently, the immigrants will continuously suffer from the seriously broken immigration system. Under the circumstances, people seek the administrative solutions and relief by the immigration-related agencies. However, the hostile political environment tends to work against such decisions for the government agencies as any pro-immigration administration policy may be considered a political liability for the ruling party. It is indeed a difficult time for immigrants. The USCIS has announced that it was working on issuing a multi-year single document for employment authorization and advance parole, but it is considered not necessarily for the immigrants, but as we discussed earlier, it was a calculated decision for the government finance. The current leadership of the immigration-related government agencies are lame-ducks and immigrants may not be able to expect too much any pro-immigrant moves at the administration-level because of the political pressure from the ruling party.
• What is coming ahead? Economic recession and potential massive layoffs and lack of job opportunities for foreign workers. The changing landscape for the employment cannot come in any worse time when the immigrant visa numbers are heavily oversubscribed and clogged, forcing the foreign workers to take a long journey in the hostile employment environment. As the situation moves into steeper economic recession, the foreign workers tend to face not only a risk of layoff but also abuse by some employers who attemp to take advantage of the harsh environment against the foreign worker job markets. These foreign workers should prepare themselves for a difficult time ahead.
• For those who are in 485 track, management of AC 21 portability will turn out to be a saviror and constitute an important task. Less fortunate are those who suffer from the visa number rectrogress and are unable to even file I-485 applications. For these immigrant workers, loss of jobs will practically wipe out the immigration opportunity. The longer the visa retrogression period lasts, the harshier their journeys will be. What about those new foreign workers who have yet to look for a job and start the immigration journey from the scratch?
• Under the circumstances, all one can hope for is a short-lived economic recession and a turn-around of the country's political landscape in favor of immigration. Year 2008 may be recorded one of the harshiest years for foreign workers. Immigrant workers, be prepared!

01/17/2008: Serious Backlog of N-400 Naturalization Processing and Testimony of Dr. Emilio Gonzelez, USCIS Director, Before House Immigration Subcommittee on 01/17/2008

• There was reportedly a huge surge in naturalization applications during the past summer and news report also indicates that the number of naturalization has shown a continuous rise. This raises a serious concern as it involves some political implications. Without doubt, the surge of naturalization applications could have been induced by the restrictive immigration environment and related fear factors as well as the immigrants' motives to participate in the 2008 national election. The delay was also caused in part by the FBI namecheck backlogs.
• Obviously, Congress is interested in the backlog of naturalization processing because of its political implication on the national election in November 2008. For the full text of the testimony, please click here.
• For testimonies of the private sector witnesses on the subject, please read the following:
  • Arturo Vargas, Executive Director, NALEO Educational Fund
  • Fred Tsao, Policy Director, Illinois Coalition for Immigrant and Refugee Rights
  • Rosemary Jenks. Director of Government Relations Numbers USA
    

01/17/2008: State of PERM Labor Certification Processing Times in General and Launch of New Revised PERM Form

• Current Processing Times: OFLC reports that even clean and straight forward cases take from 45 days to 60 days for normal processing. When cases are audited, it takes a longer time.
• Audit Status: As of the end of December 2007, approximately 44% of pending cases were under audit, which obviously caused a delay in the processing times of PERM cases.
• New Form ETA 9089 Launch Schedule: This program was scheduled to be launched as of April 1, 2008, but is decided to be pushed off and the new form is scheduled to be released in the summer of 2008. Even though the release fo the new form is delayed, OFLC has been implementing its new policy of narrow and restrictive interpretation of the concept of Job Zones and massive audit when the employer's job requirements exceeded the Job Zone standards in education or years of experience as part of the their new definition of "normal" requirement for the occupations which will be incorporated in the new form ETA 9089. Accordingly, even now, the employers are forced to adhere to the education and experience requirements in the specific Job Zone requirement in the specific occupation when they file a PERM application. Otherwise, their cases are automatically converted to the audit track. This raises a serious problem for a number of occupations, particularly computer occupations that cannot go beyond a bachelor's degree plus two years of experience or a master's degree and no experience not to face an audit. Accordingly, a bachelor's degree position faces a serious challenge to build an EB-2 case as a bachelor's degree plus five years of progressive experience which is required for EB-2 exceeds the Job Zones for every single computer occupations.
• There is no information available about the delay of launch of the new ETA 9089 program, but one of the considerations may include its plan to charge the filing fees which need a legislation.
• Automatic Expiration of Certified PERM Applications Notices: OFLC has started reporting expiration of certified ETA 9089 applications for each employer in the OFLC PERM online status sites which were certified 180 days after July 16, 2007. It is expected that the agency will continue to report expiration of any future cases if the certification exceeds 180 days.

01/17/2008: USCIS Reports Receipting Backlog Eliminated Except Chicago Lockbox for I-130 Family Petitions

• Since the receipting backlog has been removed, the USCIS advises customers to contact 1-800-375-5283 for inquiry if people experience the following problems:
  • Change of Address – If you have submitted your application and are changing your address, but have not yet received your receipt.
  • Unusual Delay – If you have not received a receipt.

01/17/2008: USCIS Updates Receipting Delay FAQ 01/16/2008

01/09/2008: February 2008 Visa Bulletin

• INDIA EMPLOYMENT SECOND PREFERENCE HAS BECOME “UNAVAILABLE”: Despite two retrogressions of the India Employment Second preference cut-off date, demand for numbers by CIS Offices for adjustment of status cases has remained extremely high in recent months. As a result the annual limit for the India Employment Second preference category has been reached, and the category has become “unavailable” effective immediately.
  

01/07/2008: Get to Know Chief and Organization of Office of Foreign Labor Certification

01/07/2008: USCIS Chicago Lockbox Receipting Update As of January 8, 2008

01/07/2008: Multiple-Year Single EAD-AP Card Reportedly Limited to Visa Regrogression 485 Filers

• Some more details have been released on Mr. Aytes' statement on this plan. Reportedly, such multiple year card may be issued only to those who suffer the visa number retrogression. In other words, those 485 filers who will experience delays in 485 applications who do not suffer from the visa number retrogression but from the USCIS delays including namechecks are not likely to benefit from the upcoming multi-year card issuance.

01/04/2008: USCIS Extends "Suspension" of Religious Worker Petition PPS

• USCIS announced today that suspension of premium processing services for religious worker (R-1) visa petitions will be extended until July 8, 2008.

01/04/2008: USCIS Field Office in Ciudad Juarez, Mexico Adopts Teletech Call Appointment System for I-601 Waiver of Inadmissibility

• As of December 17, 2007, immigrant visa applicants seeking to file an application for waiver of inadmissibility (Form I-601) with the USCIS field office in Ciudad Juarez can use this service on payment of samll fees. For the details, please click here.

01/04/2008: USCIS Reposts USCIS Receipting Update Changing from 12/28/2007 to 12/31/2008

01/04/2008: USCIS Announced FY 2008 H-2B Cap Had Reached on 01/02/2008

• USCIS has announced that January 2, 2008 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2008. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2008. The cap was reached with existing totals for that day. USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2008 that arrive after January 2, 2008. It is amazing that the second half quota of FY 2008 reached in about one month in December 2007!

01/02/2008: Requirement for EB Petition Beneficiary Alternate Chargeability to Spouse's Country of Birth

• When one immigrant visa applicant can confer a more favorable preference status upon another at the same time the other immigrant visa applicant can confer a more favorable foreign state chargeability, both applicants can be
  considered principal aliens. In such cases, however, both applicants must be admitted to the United States simultaneously. For example, if the principal applicant was born in India and the accompanying spouse was born in France, the principal applicant born in India can be charged to his spouse’s country of chargeability (France), even if the priority date is not current for India.

01/02/2008: EB-2 Visa Number Retrogression or Predicted Unavailability for Indians and Alternate Chargeability to Country of Parent's Country of Birth

• As for the alternate chargeability to the country where the parents were born, the rule states that an alien born in a foreign state in which neither parent was born or had residence at the alien's time of birth is allowed to choose the coutry of parents' birth rather than the country of his birth, provided that at the time of the his/her birth, the parent or parents were stationed in the country of his/her birth under orders or instructions of an employer, principal or superior authority whose business or profession was foreign to the country of his/her birth. In other words, if the parents give a birth in certain country while visiting on a personal pleasure, even if the parents were not resident of the country of his/her birth at the time of his/her birth in the country, rule appears to be that the alternate charge to the country of the parents' country of birth may not be available. Otherwise, he/she will be subject to the general rule of chargeability that if his/her place of birth has undergone changes in political jurisdiction since the time of his or her birth, he is subject to the foreign state limitation of the state, which has jurisdiction over that place of birth at the time of his/her visa application. [Hong Kong is excepted from this rule by a special provision].

01/01/2008: USCIS 12/28/07 Receipting Update

12/31/2007: Good-Bye 2007, Turbulent Year!

12/31/2007: New Passport Card Issuance & Fees for Western Hemisphere Travelers Effective 02/01/2008

• The State Department has released a final rule to implement issuance of a new passport card to the travlers in the U.S., Canada, Mexico, Caribbeans, or Bermuda instead of the traditional passport, and the Department of charge the folloring Passport Card Services charges effectuve February 1, 2008:
  (a) Application fee for applicants age 16 or over (including $20
  renewals) [Adult Passport Card]................................
  (b) Application fee for applicants under age 16 [Minor Passport 10
  Card]..........................................................
  (c) Passport card execution fee, (first time applicants only)... 25
  -------
  Total first time adult...................................... 45
  Total first time child...................................... 35
  Total renewal (adult)....................................... 20
  Total renewal child......................................... 10
• Exemption from payment of passport fees.
  • (a) A person who is exempt from the payment of passport fees under
    this section may obtain a passport book only for no charge. A passport
    card will not be issued for no charge to the individuals exempt from
    the payment of passport fees under this section.
    (b) The following persons are exempt from payment of passport fees
    except for the passport execution fee, unless their applications are
    executed before a federal official, in which case they are also exempt
    from payment of the passport execution fee:
    
    • (1) An officer or employee of the United States traveling on
      official business and the members of his or her immediate family. The
      applicant must submit evidence of the official purpose of the travel
      and, if applicable, authorization for the members of his or her
      immediate family to accompany or reside with him or her abroad.
      (2) An American seaman who requires a passport in connection with
      his or her duties aboard a United States flag vessel.
      (3) A widow, widower, child, parent, brother or sister of a
      deceased member of the United States Armed Forces proceeding abroad to
      visit the grave of such service member or to attend a funeral or
      memorial service for such member.
      (4) Other persons whom the Department determines should be exempt
      from payment of passport fees for compelling circumstances, pursuant to
      guidance issued by the Department; or
      (5) Other categories of persons exempted by law.
• For the full text of the final rule, please click here.
  
  

12/31/2007: State Department to Charge Fingerprint/Namecheck Fee for All "Nonimmigrant" & "Immigrant Visa Applicant" Effective 01/01/2008

• The State Department has begun performing fingerprint and name checks on all visa applicants except those falling within a narrow range of exceptions. Fingerprints are now required of all visa applicants except those under 14 years of age or over 79 years of age, and certain diplomats and officials. The Department will charge the fingerprint and namecheck fees to all the immigrant visa and nonimmigrant visa applications under the revised the consular visa fee amendment rule that goes effect tomorrow on January 1, 2008, unless the such fingerprint and name checks are waiver. For the announcement, please click here.
  

12/28/2007: AT LAST! USCIS December 14, 2007 Processing Times

12/28/2007: CRS Updates 12/12/2007 U.S. Policy of Temporary Admissions (Nonimmigrants)

• Average six millions of foreigners are admitted to the country each year in various nonimmigrant visas and status. It is strikingly interesting that majority of these nonimmigrants are admitted on Visa Waiver Program followed by foreigners from the Asia. In a way, the statistics reflect this nation's active transactions in human traffics and in trade with the Europe, Asia, and Northern America. Read on.

12/27/2007: Foreign Labor Certification Data Center Frequently Asked Questions and Answers

• Review of this material is increasingly important as the DOL focuses on the O*Net Job Zones and started undertaking massive audits unless the PERM applications strictly adhered to the O*Net Job Zone requirement. This FAQ reflects the recent change of Job Zones for various occupations. U.S. Department of Labor, Bureau of Labor Statistics, amends the Job Zone levels for occupations from time to time, and it is imperative that the employers preparing for the PERM applications should closely check with the Job Zones at different times before they start recruitment for filing of the PERM applications. The Office of Foreign Labor Certification is scheduled to implement a revised ETA 9089 in coming April 1, 2008 which will strictly adhere to the Job Zone system. This is more or less a drastic departure from the agency's previous flexible policy on determination of "normal" requirements for educational or experience requirements for occupations in various industries not strictly adhering to the Job Zone system. For instance, the O*Net system pull down all the computer occupations to Job Zone 4 beginning from March 2005. Job Zone 4 ranges SVP >7<8. SVP 7 meaning two-four years of vocational preparation time (maximum bachelor's degree plus two years of experience or master's degree without any experience requirement). SVP 8 means four-ten years of vocational preparation time (maximum bachelor's degree plus eight years of experience or master's degree plus six years of experience requirement). Until July 2007, the Office of Foreign Labor Certification had applied the Job Zone for computer occupations flexibly in two respects. First, despite the O*Net system definition of computer occupation into Job Zone 4, the agency more or less had recognized old DOT system under which certain computer occupations such as Software Engineer and DBA were defined as SVP 8 and approved PERM applications even if the employers required more than a bachelor's degree plus two years of experience. Secondly, the agency also appeared to accept the concept of the range between SVP 7 and less than SVP 8 should not be restricted to SVP 7. Beginning from August 2007, however, OFLC has changed these previous flexible policies, conducting automatic audits when the computer jobs require more than a bachelor's degree plus two years of experience under the apparent new policy that Job Zone 4 cannot require more than SVP 7 preparation time. Because of the drastic change, currently there are a massive audit being undertaken by the Chicago and Atlanta National Processing Centers whenever they learn that the employer's requirement in the PERM application exceeded the Job Zone.
• This message is posted to alert the community that whether the new policy is right or wrong, it is the reality at this time and it will be more formalized in the revised ETA 9089 in coming April 2008. Accordingly, the employers should learn to adhere to the Job Zone concepts under the O*Net occupational classification system before they start recruitment for PERM filing. Besides, since the DOL BLS amends the Job Zone of each occupation from time to time, they should always check with the DOL website to learn the Job Zone of the specific occupation at the time of specific recruitment. The FAQ which is posted here is helpful in this regard.

12/27/2007: USCIS December 2007 Monthly Newsletter

12/26/2007: President Signed into Law, H.R.2764, Omnibus Spending Bill, Today

• It signals the end of any opportunity for immigration bills to be enacted by the Congress for a long time to come.

12/26/2007: Visa Retrogression Q&A (Archive) is Back

• In the next few days, the employment-based immigration visa numbers will seriously retrogress, particularly for the Indians. This situation will be similar to the EB visa number retrogression on October 1, 2005. We have thus decided to repost the visa retrogression Q&A archive to help these EB Indians and Chinese to find answers to some of their questions while they go through the painful long journey. At some point of time, we will update the site adding additional questions and answers relating to the issues involving the EB visa number retrogression.

12/24/2007: Important Reminder to Employers - New I-9 Form Rules Enforced After Christmas!

• The grace period for violation of the new I-9 form and instructions will end on Christmas, tomorrow. When you return, the new rule will be in a full force with enforcement for violation of the new I-9 rules. The new I-9 rules eliminated certain evidence as the evidence for employment authorization and added certain evidence as the evidence for employment authorization. Additionally, the older version I-9 form will no longer be acceptable. The DHS intends to enforce strictly the new rules and the employers should check the new requirements when they hire a new employee and prepare I-9 form. Please revisit our report on November 26, 2007. Here is the Amended I-9 Rules.
• Read also USCIS new I-9 Fact Sheet.

12/24/2007: USCIS Outages Resolved and Restored

• As promised, the USCIS restored its website outages today. However, there is still no update on the processing times for the month of December 2007. Well, the USCIS remains closed. Let's hope that they will update the site when they return after the Christmas! To all the Christian readers, we wish you a Merry Christmas.

12/23/2007: Naturalization Applications Receipts and Pending Cases in October 2007

• Naturalization receipts in October 2007 increased 46 percent when compared to October 2006. The number of pending N-400 cases reached 926,864 in October 2007, an increase of 92 percent compared to the same month in fiscal year 2007. For the full report, click here.

12/23/2007: Total Receipts, Approvals, and Pending Cases of Immigration Benefits Applications in October 2007

• Applications and petitions for immigration benefits in October 2007 increased 61 percent compared to the number received in October 2006. Major receipt volumes in October 2007 include: 248,179 I-765 employment authorizations; 137,915 I-485 applications to adjust status; 86,548 I-131 reentry permit/advance parole; 94,555 I-821 temp protected status petitions. For the full report, click here.

12/22/2007: Guestimate of Proposed ETA 9089 PERM Labor Certification Application Fee

• The DOL has released its legislative plan to charge the filing fees for the PERM labor certification application. This is reflected in the DOL's FY 2008 budget. The FY 2008 budget proposed to turn the PERM labor certification application funding sources from the current tax revenue general fund to independent self-sufficient user fee fund. In FY 2008 President's Budget, the DOL earmarked $65,000,000 for the foreign labor certification fund which will be raised by the user fees charged to the employers who file the PERM labor certification application. This proposal is translated into the labor certification application fee of approximately $500 per application considering the DOL's estimate of total number of PERM applications between 100,000 to 120,000 a year. The fee does not appear to be a lot of money. However, considering the fact that PERM regulation mandates the employers to pay all the cost of the labor certification, it is anticipated that the upcoming filing fee charge for a labor certification application is anticipated to add further pressures and hardships to certain employers including nonprofit organizations, small or medium size businesses, and other employers, who have already been experiencing difficulties in sponsoring the permanent foreign labor certifications for the foreign workers since July 16, 2007. Please stay tuned.

12/21/2007: Adieu to Backlog Elimination Centers

• Today is the last day the BEC remain opened. After the office hours, these centers closed down permanently. People will also notice that the online processing status check site of the BEC cases has also been shut down since the office hours today and the online status check is no longer available for the people who are still involved in the unresolved backlog elimination cases.

12/21/2007: Advisory for Deadline Filers During Season's Holiday Period

• As people can imagine, the overnight delivery services are currently flooded with shipments overloading their capacities. People should not be surprised to learn that their overnight delivery shipments of filings are often delayed. USCIS usually do not accept overnight deliveries during the legal holidays and US Postal Services keep the packages arriving at the Service Center locations inhouse until they are picked up by the UPCIS mail crews. The USCIS will remain closed until December 25, 2007 and the 26th of December, Wednesday will be the first day the offices will reopen. They will then remain open until Friday, the 28th of December. Their offices will then remain closed on Saturday, the 29th, Sunday, the 30th, and reopen on Monday, the 31st, New Year's Eve. It will then close again on January 1, 2008, Tuesday.
• Tegether with the tight closing schedules of the Service Centers during the next two weeks, people will also face another contingencies related to the weather or the overloaded overnight delivery service businesses. People should thus be aware that unless they ship out their deadline filings during the period meticulously and cautiously, they may miss the deadline. For some filings, the Service Centers accept post-mark stamp but in most cases, the filing must reach the physical facilities of the Service Centers to constitute timely "filing." We are all suffering from the year-end holiday stress at this time, and the potential problem of delays in delivery of the deadline filing will add a painful stress to these filers.

12/21/2007: USCIS Website System Outage for Processing Times, Online Case Status Check, ETC. and Inaccessible Until December 24, 2007, Monday

• USCIS reports that its Case Status Online, Change of Address Online and information about case processing times, field offices and civil surgeon locators will remain unavailable due to technical difficultie until Monday, December 24, 2007.

12/21/2007: USCIS Receipting Update of December 21, 2007

12/21/2007: USCIS As a Business Entity in EAD and Advance Parole Policy

• The legacy INS and the USCIS had worked on a plan for a number of years to issue a multi-year EAD. It even conceived a plan to abandon a separate Advance Parole document and turn the EAD to function as the employment authorization document as well as overseas travel document for I-485 applicants. Indeed, the USCIS even enacted and released a regulation to issue an EAD card that can extend over a period in excess of one year. However, this regulation has never been implemented because of the alleged internal disagreement within the DHS leadership. Guess what! The sources of disagreement were reportedly "money, money, money!" By issuing such new multi-year EAD, the DHS was destined to lose a huge loss in the revenue of EAD card selling business.
• Now what? Under the new filing fee schedule which took effect after July 29, 2007, issuance of EAD and Advance Parole for the post August 27, 2007 is "free, free, free" for the I-485 filers. Allegedly, the cost is incorporated in the I-485 filing fee of $1,020. The new regulation uses the term of "fee waiver" for EAD and Advance Parole for these I-485 filers. Now, you guessed it! Lo and Behold, the business calculation on EAD and Advance Parole has reversed. The DHS will lose a huge money by issuing single-year EAD and a separate Advance Prole document on a yearly basis over and over since they are free and they will have to keep producing it at no charge every year, which creates a huge workloads consuming its huge human resources and other production costs. This is particularly unacceptable to the agency under the predicted State Department Visa Bulletin for FY 2008 and in the future. Now, from the business standpoint, the DHS may make a huge money by issuing a multi-year EAD which will also function as a travel document. Ahah! No wonder why they are finally coming forward revealing their hidden agenda behind the new fee rule-making and EAD/Advance Parole reform business. Reportedly, Mr. Aytes of USCIS disclosed in a New York AILA conference that the USCIS was currently working on a single multi-year EAD card that will also replace the Advance Parole document. What a smart calculation it was in the new fee rule-making action.
• It turns out that such single card acting serving as EAD as well as travel document for multiple years will serve the mutual interests of both the immigrants and other immigration stakeholders AND the USCIS. One interesting question is whether the DHS/USCIS will go all the way acting purely on business calculation or may extend some generosity and compassion for some I-485 filers as well. The answer to this question will also involve the timing of the change and the card policy. The fee waiver for EAD and Advance Parole applies only to the post July-2007 VB fiasco I-485 filers. Accordingly, the agency will make money from the post VB fiasco 485 filers and lose money from the pre VB fiasco 485 filers if the agency issues a new multi-year EAD card accross the board coving both groups. Even though the post VB fiasco I-485 applicants may outnumber the pre VB fiasco filers, the agency must be using calculators day and night to determine the answer for the agency's maximum benefits in terms of cost saving from the new policy. One option could be that they come forward with a new regulation that such multi-year EAD card will apply only to the post VB fiasco I-485 filers. The other option could be for the agency to set timing of the new policy such that a substantial number of pre-VB fiasco I-485 applicants leave the pipeline of green card process. The bad news for the second option for the agency is the State Department's Visa Bulletin predictions for FY 2008. It thus apepars that they will determine the break-even point or overriding cost saving point considering the pouring-in new I-485 applications in the future and the number of pre VB fiasco filers in its total pool of I-485 applications. The agency is likely to determine the timing of new card policy after a careful calculation of these factors. It will be considered a shameless act, should the agency adopt the first option, which will definitely face a legal challenge in courts from the standpoint of unlawful creation of classes in violation of the nation's Constitution and unequal treatment of the classes as well as a lack of fair play and fairness in administration of justice and government process.
• Please watch carefully the upcoming move of the agency and how the business calculated new policy will unfold "how" and "when."

12/21/2007: Beware, U.S. Citizens Trveling in Canada and Bermuda Effective January 31, 2008

• USCBP pubslihed a notice that U.S., Canadian and Bermudian citizens entering the United States at land or sea ports-of-entry must establish their identity and citizenship to the satisfaction of a U.S. Customs and Border Protection
  (CBP) Officer. Under current CBP procedures, such individuals may provide any proof of identity and citizenship. While most individuals provide documentary evidence of citizenship, such as a passport or birth certificate, individuals may, depending on the circumstances, be admitted on an oral declaration. Accordingly, CBP is amending its field guidance procedures to instruct CBP officers that citizenship ordinarily may not be established using only an oral declaration. This Notice informs the public that, effective January 31, 2008, all travelers will be expected to present documents proving citizenship, such as a birth certificate, and government-issued documents proving identity, such as a driver's license, when entering the United States through land and sea ports of entry.Read on.
  

12/21/2007: FY 2008 Second Half H-2B Cap Numbers Running Out Very Quickly

• According to the USCIS release, the USCIS was estimating to reach the H-1B cap for the Second Half year by filing of H-2B petitions including 50,000 individuaLworkers. However, as of December 17, 2007, they have already reached 34,432 including approved and pending cases. Approximately a half of the total include the make-up of the First Half year short-fall, but considering the fact that the Second Half FY 2008 petitions had been unavailable for filing practically until December 1, 2007, the cap numbers appear to be running out fairly quickly. For the USCIS report, please click here.

12/20/2007: December 18, 2007 AAO Processing Times

• I-140 EB1 (A) Alien with Extraordinary Ability 11 Months
• I-140 EB1 (B) Outstanding Professor or Researcher Current
• I-140 EB1 (C) Multinational Manager or Executive Current
• I-140 EB2 (D) - National Interest Waiver 14 Months
• I-140 EB3 (E), (G) - Skilled, Professional, or Other Worker 11 Months
• I-687, 698, 700 Legalization Applicant; Special Agricultural Worker 12 Months
• I-526 EB5 Alien Entrepreneur Current
• I-129 L Nonimmigrant Intracompany Transferee Current
• I-129 H1B Nonimmigrant Specialty Occupation Worker 8 Months
• I-129 H2, H3 Temporary Nonimmigrant Worker Current
• I-129 O Nonimmigrant Extraordinary Ability Worker 10 Months
• I-129 F Petition for Fiancée Current
• I-129 P1, P2, P3 Athletes, Artists and Entertainers 14 Months
• I-129 Q Cultural Exchange Visitor Current
• I-360 RW Petition for Religious Worker Current
• I-360 VAWA Violence Against Women Act Petition 11 Months
• I-360 J Special Immigrant Juvenile Current
• N-470 Application to Preserve Residence Current
• N-565 Replacement Naturalization/Citizenship Document Current
• N-600 Certificate of Citizenship Current
• N-643 Certificate of Citizenship for Adopted Child Current
• I-600 Petition for Orphan Current
• I-485 Cuban Adjustment Certification Current
• I-612 Application for Waiver 7 Months
• I-821 TPS Temporary Protected Status Current
• I-212 Application to Reapply for Admission 11 Months
• I-601 Application for Waiver of Inadmissibility 18 Months
• I-131 Application for Travel Document Current
• I-485 LIFE Act Adjustment Application 24 Months
• I-905 Application to Issue Cert for Health Care Workers Current
• I-914 Application for T Nonimmigrant Status Current
  

12/20/2007: USCIS Immigration Petitions/Applications Backlogs at the End of October 2007

• I-130 Family-Based Petitions: 1,343,538
• I-485 Applications 842,231
• EAD Applications 253,079
• Advance Parole Applications/Reentry Permits 193,863
• Green Card Renewal/Replacements 178,553

12/20/2007: Naturalization (Citizenship) Applications Backlogs at the End of October 2007

The number of pending N-400 cases reached 926,864 in October 2007reflecting an increase of 92 % compared to October 2006.

12/20/2007: New Consular Service Fees for Nonimmigrant Visa and Immigrant Visa Applications Effective January 1, 2008

• Nonimmigrant visa application and border crossing card processing fees (per person):
  (a) Nonimmigrant visa [21-MRV Processing].............. $131
  (b) Border crossing card--10 year (age 15 and over) $131
• Immigrant visa application processing fee (per person) $355
• For other details, please read the federal register release.

12/20/2007: State Department Revised Rule of Exchange Visitor Program Sponsorship Sanctions, Terminations, Revocations Effective January 22, 2008

• The State Department has released a final rule that will take effect on January 22, 2008. This final rule revises and provides the new procedures and grounds for exchange visitor program sponshorship terminations, revocations, and other sanctions. Read on.

12/19/2007: USCBP Releases on December 14, 2007 "Typical Daily" Statistics at Port of Entry in FY 2007

• Nothing special, but it gives a glimpse of the events that happen at the port of entry, including international airports such number of inspections, denials, etc. Read on.

12/18/2007: No Immigration Bills Attached to Omnibus Bill

• Report indicates that the Omnibus spending bill which the House passed did not include any immigration bills which the immigration supporting legislators had introduced and failed previously. Accordingly, there appears to be no positive immigration legislation in sight for the foreseeable future. AILA has reported that apparently same is happening on the Senate floor. Depressing news!

12/17/2007: House Passed Omnibus Spending Bill in Late Night

• The House passed the mammoth FY 2008 spending bill late in the night. Report indicates that there were a large number of riders attached to this bill without public scrutiny and in a lightening ball fashion. Please stay tuned to this website for the details.

12/17/2007: DOL Dallas/Philadelphia BEC Permanently Shut Down This Friday, December 21, 2007

• DOL has announced that the two BEC offices will permanently be closed on December 21, 2007 and all the employees of these two centers will be reassigned to other offices not related to the foreign labor certification applications. Any appeal or unresolved questions will be taken over the Chicago National Processing Center. Accordingly, after this Friday, those whose cases have been unresolved either at the level of BECs or appeal or review should direct their questions to the Chicago NPC. For the details, please read BEC FAQ of December 17, 2007.

12/17/2007: FY 2008 FY 2008 DOL/OFLC Focus As Reflected in DOL FY 2007 Performance Report

• The Foreign Labor Certification Program below lists the major challenges the Department is addressing by identifying specific actions to be taken and measuring its progress in accomplishing these actions in FY 2008: Maintaining the Integrity of the Foreign Labor Certification Program:
  • Challenge first identified in FY 2001. Problems with the integrity of the labor certification process and fraud may result in economic hardship for American workers, the abuse of foreign workers, and may have national security implications when applications are not adequately screened. DOL published the PERM fraud regulation reducing the incentives and opportunities for fraud and abuse. Affects Strategic Goal 2 — A Competitive Workforce, Performance Goal 2H-Address worker shortages through the Foreign Labor Certification.
  • Actively in Progress
    
    
• Reduce high incidence of fraud:
  • Increase the detection of fraudulent labor applications during the certification process. (OIG 2007)
  • Reduce the incidence of applications certified with wage rates on the application that are lower than the prevailing wage and erroneous employer identification numbers. (2006 PAR)
    Programmed the H-1B Application System to verify that the wage rate listed on the employer's application is at least the prevailing wage for the occupation and enhanced the system to check for inaccuracies in the Employer Identification Numbers, based on data checks currently in place for employers filing W-2 Wage Reports.
    FY 2008 Task: Monitor the impact of the actions taken in FY 2007 and make adjustments as necessary to enhance detection of fraud.
    
    
• Reduce certification backlogs:
  • It remains a challenge to avoid backlogs while maintaining the integrity of the FLC process. (OIG 2007)
  • In 2006, DOL received 125,000 applications at the National Processing Centers in Atlanta and Chicago. In addition to reducing backlog, DOL is challenged to prevent new backlogs. (2006 PAR)
    (A) Permanent Certification Program: Eliminated backlog. To address limited resources, DOL proposed a fee on employers for the processing of Permanent Labor Certifications.
    
    (B) Temporary, agricultural worker (H-2A visas): In response to a 19 percent increase in demand and processing delays at the States, trained State Workforce Agencies in requirements for the H-2A program. Requested retaining the H-2A processing fee revenue to offset the costs. FY 2008 Task: Review regulations implementing the H-2A program and institute changes providing farmers with an orderly and timely flow of foreign legal workers, while protecting the rights of American laborers — FY 2008.
    
    (C) Temporary, non-agricultural workers (H-2B visas): Responding to a more than 20 percent increase in demand, some PERM resources were temporarily reallocated to eliminate an applications backlog in the H-2B Program. Requested authority to establish a fee structure to cover the Department's direct costs of administering the H-2B program. FY 2008 Task: Monitor H-2B application caseloads and act to address backlogs as they arise — FY 2008.
  • Issue regulations streamlining the process by moving from a government-certified system to an employer-attestation system akin to the PERM system that has reduced backlogs — FY 2008.
  •  
• No wonder why PERM program changed the focus from the backlog reduction target to the integrity task beginning from FY 2008 (October 1, 2007) issuing massive audits for the PERM applications. This FY 2008 performance goal of achieving program integrity will be reflected in the revised form ETA 9089 which the OFLC is targeting at implementing on April 1, 2008. OFLC is expected to use "audits" as the key instrument to achieve this goal of detecting the frauds and achieving program integrity.
  
  

12/17/2007: Nonimmigrant Visa Application Fee Increase Effective 01/01/2008

• State Department has announced that effective January 1, 2008, the application fee for a U.S. non-immigrant visa will increase from $100 to $131. This increase applies both to non-immigrant visas issued on machine-readable foils in passports and to border crossing cards issued to certain applicants in Mexico. Applicants who paid the prior $100 application fee before January 1 will be processed only if they are scheduled and appear for a visa interview before January 31. Applicants who paid the prior $100 application fee and appear for visa interviews after January 31, 2008 must pay the difference -- $31 -- before they will be interviewed.

12/16/2007: House Speaker Madame Pelosi to Take Up Omnibus Spending Bill Early This Week

• We have reported that the Congress passed another Continuing Resolution to keep open the federal government until the end of the week. Should the Congress fail to pass the Omnibus Spending bill during the period, it is likely that the Congress may pass another Continuing Resolution through early next year and go into the recess.
• The report, however, indicates that the White House has softened its opposition and veto threat to the Congress attempt to pass all the federal department spending bills in a packet before it goes into the recess because of some accomodation of the White House position in the Omnibus bill. According to the report, the House members have been working on the final touch of the Omnibus bill during the weekend to schedule a vote on Tuesday. It is unclear what chances the immigrant community will have to attach the immigration bills such as DREAM bill, AgJOBS bill, Employment-Based Immigration bill, etc. Please stay tuned.

12/16/2007: India EB-2 Retrogression for Two Years and 2002 and 2001 Priority Date Applications

• Traditionally, the legacy INS and USCIS have been exercising its discretion more or less expediting those cases whose visa numbers would be retrogressed substantially to relieve them from the hardship. We have no information available about the number of Indian EB-2 cases with the priority dates between January 2002 and January 2000. These cases are available for adjudication in December 2007. These cases could have been those received approval of the traditional labor certification cases which were approved before October 1, 2007 by the DOL Backlog Elimination Centers. Unfortunately, the huge retrogression will occur during the nation's most celebrated year-end holiday period when the working days and adjudication resources will be very limited. We trust that the USCIS leaders are and will be doing everything possible to adjudicate these Indian cases before the end of the year.

12/16/2007: USCIS Should Continue Reporting Monthly Statistics for Immigration Benefits and Naturalization Applications

• USCIS and DHS removed public's online access to their monthly processing times report. Public is interested in learning the status of USCIS immigration benefits and naturalization applications backlog and workloads. As the USCIS reports on its web site, its backlog appears to be huge as affected by the July 2007 VB fiasco. The last monthly report the public was accessible was September 2007. Since then, the USCIS removed the online access to this report.

12/15/2007: USCIS Updates Receipting Status as of December 14, 2007

12/14/2007: House Passed Another Continuing Resolution to Keep Federal Offices Funded Until 12/21/2007

• Unless the House passed this Resolution, the federal government was destined to shut down after today. However, the fact that the House has decided only until next Friday implies that it will push hard the Omnibus bill next week facing either a show-down with the White House or a substantial compromise in the Omnibus bill in the House. There are no known immigration amendments lined up to be attached to the Omnibus bill. Please stay tuned.

12/14/2007: H-2B Frequently Asked Questions of Round II Released by DOL 12/12/2007

12/12/2007: USCIS e-Filing System Outage on Sunday, 12/16/2007, 8:00 am to 8:00 pm

12/12/2007: USCIS Special Announcement of December 11, 2007 on Validity of Green Card Without Expiration Date

• "Despite rumors to the contrary, ‘green cards’ (I-551) with no expiration dates are still valid, and lawful permanent residents carrying those cards will continue to receive all appropriate benefits. These cards will remain valid until the implementation of the final rule addressing this issue."

12/12/2007: January 2008 Visa Bulletin and Predicament of Unmarried Indian EB-2

• India has a tradition of family match-making marriage that more or less determines the timing of a marriage for a single person. When the EB visa numbers were open a few months ago, the unmarried single EB-2 worried about premature approval of their I-485 applications before they would have married and often talked about the way to delay approval of I-485 applications until they would marry. The January 2008 Visa Bulletin and the State Department prediction for the EB availability in coming months have removed such worry from these Indian professionals. However, in an unanticpated twist and irony of the development, they will instead face a different problem, to wit, their future spouses may not be able to apply for a following-to-join derivative EB immigrant visa benefits for a long time. Considering the amount of time the future spouse will have to wait to file for the immigrant benefits, it may be important for these EB-2 Indian professional to take at least two actions. These unmarried Indians have maintained a H-1B status to bring their future spouses in a H-4 visa status so that they are not separated after they marry. This strategy will become more real and critically important, meaning that they should keep staying on a H-1B status and not using EAD and AP. If they returned using AP, they may at some point of time, reinstate their H-1B status before their H-1B validity runs out. The other action which they should take is to file concurrent EB-2 and EB-3 I-140 petitions using the same EB-2 labor certification. Since the EB-3 is more favorable or at least will have a cut-off date rather than "unavailable," in certain situation they may maneuver the immigration rules that permit transfer of pending I-485 applications between EB-2 and EB-3 during the period when the visa numbers remain current for him/her. Such maneuver may at least allow the spouse to file I-485/EAD/AP. When EB-2 becomes more favorable, they may have to transfer the I-485 applications back to EB-2 petition. This maneuver is not a good option for everyone as it will require a log of juggling. However, some earlier priority date EB-2 Indians may dare to venture such juggling because of their unique circumstances that require filing of I-485 application for the spouse. It is something to think about and people should seek legal counsel.

12/11/2007: January 2008 Visa Bulletin

• India EB-2 will retrogress to January 2000. Bad news does not end there. The State Department predicts that it is likely that the annual limit for India EB-2 will be reached within the next few months, at which time the category would become “unavailable” for the remainder of fiscal year 2008.

12/11/2007: USCIS November Newsletter

12/11/2007: Federal Departments and Agencies to Close on December 24, 2007

• President issued a proclamation to close the federal departments and offices on Monday, December 24, 2007. The Christmas Eve is not an official national holiday, but this proclamation allows the federal employees an extended holiday week-end through December 25, 2007.

12/10/2007: Immigration-Related Agencies' Next Six Months Rule-Making Agenda

• DHS (USCIS, USCBP, USICE)
• DOL (ETA/OFDC, ESA)
• DOS
• DOJ (EOIR)

12/08/2007: FY 2008 H-2B Second Half Cap Filing Just Opened

• The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.
• The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves. USCIS regulations allow for filings 6 months in advance. However, H-2B petitioners first must obtain a temporary labor certification from the Department of Labor (DOL). DOL regulations stipulate that the application for temporary labor certification may not be filed more than 120 days in advance of the need for the employee to ensure the accuracy of the labor market test. Thus, USCIS normally begins receiving H-2B petitions with employment start dates in October in June or July.
• According to the USCIS cap usage report, out of 33,000 second-half cap numbers, as of December 4, 2007, they approved 2,729 and 4,435 cases are pending. Accordingly, total of 7,164 cases are either approved or in the pipeline. The second half cap filing was made available beginning from December 1, 2007. Since the second half H-2B cap is available only beginning from April 1, 2008, it is expected that the rush and competition to grap the FY 2008 Second Half H-2B cap numbers have just begun.

12/08/2007: USCIS Announces Fee Waiver for California Fire Victims

• USCIS announces that they will consider waiver of application fee waivers for those who were victims of recent South California fire and may need issuance of a new green card, natulization or citizen certificate, employment authorization card, etc. which have been destroyed by fire. For the details, please read the announcement.

12/07/2007: USCIS Receipting Frontlog 12/07/2007

12/06/2007: USCIS Website Scheduled Outage Announcement

• Our Case Status Online system, Change of Address Online system, processing times, and field office/Application Support Center/Civil Surgeon locator will be unavailable due to server upgrades from 9:30 PM on Friday December 7 until about 8:00 PM on Monday December 12.
• In addition, our search engine and naturalization self-test will be unavailable due to scheduled server maintenance on Sunday Dec. 9, 2007, from midnight to 6 AM Eastern Time.

12/06/2007: USCIS and Community Relations December 4, 2007 Meeting Minute and Q&A

• This minutes generally focus on the local practice related issues, but they also reach some national/regional practice issues as well.

12/05/2007: USCIS Directory of Community Relations Organization in Each State

• The USCIS has been working with the communities at the district and field offices level as part of its public relations program. It is a grass-root level liaisian between the USCIS and community groups. For the last three months, the USCIS has been releasing the minutes of these Community Relations monthly meetings answering some valuation information on the USCIS policies and practice points. The immigrants should contract these local groups to address any issues or questions. For the email directory, please click here.

12/05/2007: Democrats Are Drafting Massive Budget Pakages

• House and Senate Democrats are reportedly drafting what could be a $520 billion-plus spending package they hope will drive an end to the budget stalemate and this session of Congress, including funding for 15 Cabinet agencies through the end of fiscal 2008. President Bush is threatening to veto the measure over domestic spending increases he does not want. Should the Congress fail to pass the packages before December 16, 2007, they will have to pass another Continuing Resolution to keep the federal government open through January 2008. Obviously, there will be some legislators who will attempt to attach pro and con immigration riders to these packages, but the chances are dubious at this time. For the report, please click here.
  

12/04/2007: Our Internet/Email System Restored

• Thank God, our system has been restored. Our office will resume full operation beginning from tomorrow, 12/05/2007. We want to extend our thanks to the clients for their patience for the last ten days.

12/04/2007: The Oh Law Firm Internet and Email Technical Difficulty Continues

• Our problem with the telephone and internet/email transfer from the old location to the new location continues but is expected to be corrected within next day or two. Please keep your patience during this very difficult time for our law firm and our electronic communication system. Our difficulty involves "a laughing matter" which can hardly be described by any word. We will report the matter on this website once the current crisis is over,

12/04/2007: DHS Reaffirm Its Policy Not to Approve Applications Without FBI Namecheck Results

• As we reported it day before yesterday, the current secuirty management environment is different from those in pre-9/11 era and does not allow any government actions that can seriously undermine the nation's homeland security regardless of any other issues that press a political or administrative action. This includes the immigration backlog. After the news reports that the DHS might adjudicate applications within certain period regardless of the secuirty clearance results, the DHS has come forward to clarify its position saying 'It Ain't Goiing to Happen!' There was one time unconfirmed report that the USCIS might have approved I-485 applications relating to the July VB flip-flap and need for its alleged efforts to wipe out the FY 2007 EB visa numbers before July 2007, raising a serious concern relating to its potential serious compromise of its primary mission of homeland security. Whether or not the USCIS indeed approved some I-485 applications during the period has never been verified or confirmed. Security lapse will constitute the most serious political liability for the government agencies in this day and age.

12/03/2007: DV-2008 Immigration Visa Lottery Results

• This information was previously released by the U.S. Department of State in previous Visa Bulletin as we reported earlier. They are now releasing it in a separate report. Those who are interested in the separate report should click here.

12/02/2007: The Oh Law Firm e-Mail and Internet Technical Difficulty

• As people may already know it, our office moved to a new location effective yesterday, December 1, 2007, Saturday. Pending rewiring of the phone lines and internet cables at the new location, we have been unable to make an access to the internet and e-mail system during the day time. As usual, we are experiencing pains that accompany a physical move of the business office despite our plan and effort which were prepared ahead of time. We will do whatever we can to fix the problem in the coming week.

12/02/2007: News of DHS Plan to Approve Immigration Applications Without FBI Name Check Results After Certain Months Stirs Confusion

• A couple of sources reported lately that DHS was planning to place a cap on the FBI fingerprint check period and should the agency fail to receive the FBI report within certain undisclosed period of time, the agency will proceed with adjudication of pending immigration applications. Reportedly, the information was released at a DHS meeting with the immigration stakeholders but there are no details of information available about the so-called plan of change of course in managing homeland security matter.
• This reminds of the agency's past history in 1998 acting on the backlogs in CIA clearance for over one year causing a huge I-485 backlogs for years and announcing that the INS would adjudicate pending I-485 applications without waiting for the CIA completion of the security clearance on a condition that should the CIA report indicate a negative information, the INS would "revoke" the approved I-485 applications. The people who suffered the most from the lack of coordination betweren the INS and the CIA at the time were Chinese. The INS stop-gap action stirred some political concern and short-lived. The CIA clearance backlogs gradually improved afterwards helping the INS to remove the 485 backlogs over a period of time.
• Such unusual stop-gap action was taken "before" 9/11. Since 9/11, the security and name checks have presented the DHS with a challenging task of balancing betweein securing homeland and reducing clearance time. The FBI name checks have presented a serious problem of backlogs particularly in two areas: One is name check backlogs in the new hires of federal government employees and the other is the immigration backlogs. According to the CIS Ombudsman reports, in 2006 the DHS had about 82,824 backlogs pending more than one year. and in 2007 the number increased to 106,738 cases. Such backlogs induced federal litigations in the form of mandamus actions by the applicants with some successful results. The burden of such litigations on the DHS financial and litigation resources has mounted over the years. In order to deal with the problem, the USCIS one time "informally" handled such problem by approving applications (I-485 and natulalization cases) when the applicants brought mandamus actions in the federal courts. Such action had brought a boom of business for some immigration lawyers rushing to filing of a sort of "massive" mandamus actions. Obviously, this action raised a serious polical outcry for the agency compromising the nation's security by adjudicating applications without the name check results, leading to suspension of the DHS informal policy and a subsequent announcement that the agency would not give any favorable consideration in adjudication of applications where a federal lawsuit was pending.
• The environment of the agency's security management indeed changed before and after 9/11 and the precedent of INS approving I-485 applications without name check results without prejudice to potential revocation of such approved I-485 applications afterwards may not be that easily reintroduced as the agency will have to overcome two hurdles: A political pressure in the upcoming national election and a potential compromise of security. There was a legislative proposal in the Congress in one of the FY 2008 appropriation bills (CJS Appropriation Bill) which mandated the DHS to adjudicate immigration and naturalization applications, should the FBI fail to clear the name checks within six months from the effective date of the legislation. This legislation has yet to be finalized. Please stay tuned.

12/02/2007: Reminder - DV-2009 Ends at Noon (EST) Today

• For the immigration lottery participants, they will have only a few hours to register for the lottery electronically for the DV-2009. No entries will be accepted after noon EST on December 2, 2007.

12/01/2007: I-130 Relative Petition "Filing" Procedure Change Effective 12/03/2007 Monday

• USCIS has announced that effective Monday, December 3, 2007, "stand-alone" I-130 relative petition is encouraged to be mailed to the Chicago Lockbox. However, the Chicago Lockbox will serve only as a receiving window and actual receipt notice and adjudication will be handled by either Vermont Servvice Center or California Service Center depending on the residence. Remember that this filing procedure applies only to the stand alone I-130 petitions and so-called one-step concurrent filing of I-130 and I-485 will continuously be filed and adjudicated under the procedure that has been in place for the family-based immigration proceedings. For the full text of the announcement, please click here.

11/30/2007: USCIS 11/30 Receipting Update

11/30/2007: USCIS Announcement of Certain Online Systems Outage This Evenining

• USCIS has announced that its Case Status Online system, field office and civil surgeon locators and the Change of Address Online system will be unavailable due to system maintenance on Friday November 30, 2007 from 9 PM ET to approximately midnight.
  

11/28/2007: Notice to the Oh Law Firm Clients

• We are currently in the process of moving to a new location. Pending the move, we may experience some disruption with our telephone and fax systems. Additionally, the files will not be accessible for the next one week. The e-mail and website may not be affected, but for a short time, there can be a system outage. We apologize for the inconvenience this may cause to our clients. We ask the clients to bear with us and keep patience.

11/28/2007: DV-2009 Ends Noon, Sunday, 12/02/2007 (EST)

• The last day of the immigration lottery is fast approaching. No entries will be accepted after noon EST on December 2, 2007.
  

11/26/2007: Federal Register Notice of Amended I-9 Rules of USCIS

• As we reported earlier, the USCIS published this notice today which takes effect today with a grace period until December 26, 2007. The employers should note the following changes, among others, in the changed I-9 rules:
  • (1) The amended Form I-9 now instructs employees that providing their Social Security number in Section 1 of the form is voluntary, pursuant to section 7 of the Privacy Act (5 U.S.C. 552a note). However, employees must provide their Social Security number in section 1 of the form if their employer participates in E-Verify (the employment eligibility verification program formerly known as Basic Pilot or EEV), as provided by section 403(a)(1)(A) of IIRIRA. Moreover, for employees who present their Social Security account number card to their employer as evidence that they are authorized to work in the United States, the employer must record the Social Security Account number in section 2 of the Form I-9.
  • (2) As of November 7, 2007, the Form I-9 (Rev. 06/05/07)N is the only version of the form that is valid for use. DHS recognizes that employers should be afforded a period of time to transition to the amended Form I-9. Therefore, DHS will not seek penalties against an employer for using a previous version of the Form I-9 on or before December 26, 2007. After December 26, 2007, employers who fail to use Form I-9 (Rev. 06/05/07)N may be subject to all applicable penalties under section 274A of the INA, 8 U.S.C. 1324a, as enforced by U.S. Immigration and Customs Enforcement (ICE).
  • (3) Note that employers do not need to complete the amended Form I-9 for current employees for whom there is already a properly completed Form I-9 on file. Indeed, unnecessary verification may violate the INA's anti-discrimination provision, section 274B of the INA, 8 U.S.C. 1324b, which is enforced by the U.S. Department of Justice's Office of Special Counsel for Immigration Related Unfair Employment Practices. However, employers must use Form I-9 (Rev. 06/05/07)N for any reverification of employment authorization conducted on or after December 26, 2007. Reverification is required when the Form I-9 indicates that the employee's work authorization will expire. To reverify, employers must examine acceptable Form I-9 documents evidencing that the employee remains authorized to work. See 8 CFR 274a.2(b)(1)(vii).
• There are other important changes and the employers should read carefully the full text of the federal register notice as published today.

11/25/2007: Employers Beware: USCIS Announcement of New I-9 Form Mandatory and Enforcement Effective 12/26/2007

• The USCIS will announce in a Federal Register notice Nov. 26, 2007 that employers must transition to the revised Employment Eligibility Verification Form (I-9) not later than Dec. 26, 2007. Read on.
• This notice was filed with the OMB on 11/16/2007. Accordingly, the USCIS is handling this notice as a special handling matter.

11/24/2007: DHS Releases Findings of Web-Based Basic Pilot Program (Alternative Electronic I-9 Survey and Testing)

• This program has not been widely known to most of the employers and employees other than those that participated in the program. The DHS has released extensive materials on the Basic Pilot Program, but our audients will have a limited interest in the materials. Employers may review these materials.

11/23/2003: Service Center Frontlog Update of November 23/ 2007

• The report shows that there is no longer any delays in receipting of petitions and applications, including I-140 and I-485, other than naturalization applications.

11/22/2007: Estimate Annual Filing/Usage of Selective Nonimmigrant and Immigrant Petitions, Applications, and Other Services of USCIS by Customers

• The following statistics as reflected in the OMB rule-making process give a glimpse of the number of annual filings/usage of various proceedings by customers and workloads of the USCIS involving each of the various immigration benefits proceedings. We post the statistics to give some picture of workload of each type of immigration benefits proceedings and services for the USCIS.
  • Nonimmigrant Proceedings:
    • I-129: 368,948
    • I-539: 261,867
    • I-129F: 200,000
    • I-907 PPS: 100,000
  • Immigrant Proceedings:
    • I-130: 183,034
    • I-140: 96,000
    • NIW: 8,000
    • I-360: 13,684
    • I-751: 118,008
    • I-485: 583,921
    • G-325A: 1,414,994
    • I-765: 1,873,296
    • I-131: 164,103
    • I-864: 736,300
    • I-290B AAO Appeal/MTR: 30,000
    • N-400 Naturalization: 700,000
  • Miscellaneous Proceedings or Services:
    • I-9 usage: 78,000,000
    • I-90: 410,799
    • I-824: 43,772
    • AR-11: 720,000
    • Case Status Online: 12,000,000

11/21/2007: USCIS Advisory for Upcoming Processing Delays and Explanation of Backgrounds for the Delays

• According to the USCIS, it has received a significant increase in the number of applications filed. In July and August, nearly 2.5 million applications and petitions of all types were received. This compares to 1.2 million applications and petitions received in the same time period last year. This fiscal year, USCIS reportedly received 1.4 million applications for naturalization; nearly double the volume it received the year before. The agency is working to improve processes and focus increased resources, including hiring approximately 1,500 new employees, to address this workload.
• As a result, average processing times for certain application types may become longer. In particular, naturalization applications filed after June 1, 2007 may take approximately 16 - 18 months to process. For the full text of the advisory, please click here.

11/21/2007: USCIS Implements Cuban Family Reunification Parole Program

• USCIS has published a notice that effective today, November 21, 2007, USCIS is offering beneficiaries of approved family-based immigrant visa petitions an opportunity to receive a discretionary grant of parole to come to the
  United States rather than remain in Cuba to apply for lawful permanent resident status. The purpose of the program is to expedite family reunification through safe, legal, and orderly channels of migration to the United States and to discourage irregular and inherently dangerous maritime migration.
• For the detailed procedure, please read the notice.
• Fact Sheet
• Q&A
  

11/20/2007: Notice to The Oh Law Firm Clients Re: Advance Parole

• July VB fiasco 485 related Advance Paroles have just been received for most of the clients. Please contact us for the documents. It appears that the USCIS is focusing on processing and issuing advance paroles for July VB fiasco applicants to allow them to travel during the holiday seasons. We have just received massive advance paroles for these filers. People will remember that the USCIS issued EADs for these filers very promptly to their surprise. Considering the huge number of cases which they received causing backlogs, we would like to extend our thumbs-up to the USCIS for issuing advance paroles en masse in time for the applicants' holiday travel. Happy Thanksgivings to the women and men in the USCIS!

11/20/2007: Visa Bulletin China/India EB-2 Visa Number Prediction and Large Production of EB-2 Labor Certification

• The December 2007 Visa Bulletin reports that in just a little over one month in October 2007 and first week of November 2007, China/India had already exhausted 38% of total annual EB-2 numbers for FY 2008. The statistics was astonishing. Reportedly, this induced the State Department to retrogress the EB-2 cut-off dates for China and India in December 2007 Visa Bulletin. Worse yet, the State Department predicted that the demand may continue, and the EB-2 cut-off dates for China and India may further retrogress in the Second Quarter of FY 2008 (January through March 2008).
• Most of EB-2 visa numbers stem from the number of labor certification applications produced by the U.S. Department of Labor. Obviously, owing to the heavily retrogressed EB-3 visa numbers, most of Chinese and Indians have been filing EB-2 instead of EB-3 labor certification applications. The FY 2006 Foreign Labor Certification Performance Report (October 1, 2005 - September 30, 2006) revealed a somewhat stunning statistics. The page 11 of the report includes a diagram of education of certified labor certifications during the period. The report for China and India showed a figure close to 50% of total approved labor certification application included Master degree cases during the period! Considering the fact that the report included both Backlog cases and PERM cases, it must have affected the EB-2 visa cut-off dates for these two countries in December 2007. The DOL has yet to release the FY 2007 Foreign Labor Certification Performance Report. However, no one will speculate that the demands for EB-2 labor certification applications and EB-2 immigrant petititons have slowed down for China and India since then. Considering the fact that the Congress may not pass any legislation to give a relief to the current employment-based immigration system until 2009 after the national election is over, we indeed do not see any light at the end of tunnel. People will just have to learn survival tactics for the long journey, overcoming any potential obstacles that can develop along the way.

11/20/2007: DOL Publishes Clarification of Procedures for Processing H-2A Labor Certification Applications

11/19/2007: Bad News for Cap-Exempt H-1B Professional Obtaining Cap-Subject Concurrent H-1B Approval for Second Job [AILA Reports CSC Reversed This Alleged New Policy. Please Ignore This Posting]

• AILA has reported that the Califronia Service Center has decided to stop issuing cap-subject concurrent H-1B to those who work on cap-exempt H-1B status. Admittedly, the Califronia Service Center has been issuing cap-subject H-1B petition which was filed for concurrent employment with the cap-exempt employment. This will affect hard higher learning institution researchers concurrently working for the private sector employers.

11/19/2007: November 14, 2007 Service Centers Processing Times

11/19/2007: USCIS November 2007 Newsletter

11/19/2007: State Department Updates Passport Regulation

• This rule reorganizes, restructures, and updates passport regulations in order to make them easier for users to access information, to better reflect current practice and changes in statutory authority, and to remove outdated provisions. In general, the revisions do not mark a departure from current policy. Rather, the Department's intent is to bring greater clarity to current passport policy and practice and to present it in a less cumbersome way. This rule is effective February 8, 2008. See the final rule of passport.

11/18/2007: Relocation of Our Office and Anticipated Temporary Disruption of Communication for the Rest of November 2007

• We are in the process of moving to a new location. Pending relocation, there will be a disruption of telephone or email communication with us until the end of November. We apologize for the inconvenience this may cause to our clients. Moving files of 25 years of practice presents a challenge. Your patience will be appreciated.
• We will keep reporting Breaking News with no interruptions.

11/18/2007: No Immigration Legislation Expected Until After 12/04/2007

• The Congress passed and President signed the Contuing Resolution Act to fund the federal departments and agencies until December 14, 2007. Otherwise, the federal government could have been forced to shut down. The House has gone into recess and will not return until 12/04/2007. The Senate will return on 12/20/2007 for a Pro Forma session. Accordingly, the Congress is practically in recess for passage of any legislation at least until 12/04/2007. When they return on and after 12/04/2007, they will continue the appropriation bills. Should they fail to pass the remaining appropriation bills, the Congress is expected to pass another Continuing Resolution to temporarily fund the federal government after December 14, 2007. The chance will be slim that an Omnibus spending bill be introduced and passed during the short period of time. Some legislators may attempt to either attach immigration bills or introduce a stand-alone immigration bill during the period, but report indicates that there is no chance for Comprehensive Immigration Reform leigslation for the rest of the calendar year. The Farm Bill was rejected, and Senator Diane Feinstein promised to reintroduce AgJOBS bill but the chance is slim that it will happen before the end of the year. There may be a chance that H-1B reform bill may come up again during the period, but we will have to wait and see.
• All in all, the legislative activities for the immigration have gone into a dormant stage and will remain such for a long while, and any lobbying efforts for immigration legislation will be fruitless. It is indeed frustrating.

11/17/2007: November 16 USCIS Frontlog Status

11/16/2007: Senate Passed S. Res. 299 Recognizing Festival of Diwali

• On November 14, 2007, the Senate passed the following resolution:
  • Whereas Diwali, a festival of great significance to Indian Americans and South Asian Americans, is celebrated annually by Hindus, Sikhs, and Jains throughout the United States;
  • Whereas there are nearly 2,000,000 Hindus in the United States, approximately 1,250,000 of which are of Indian and South Asian origin;
  • Whereas the word ``Diwali'' is a shortened version of the Sanskrit term ``Deepavali'', which means ``a row of lamps'';
  • Whereas Diwali is a festival of lights, during which celebrants light small oil lamps, place them around the home, and pray for health, knowledge, and peace;
  • Whereas celebrants of Diwali believe that the rows of lamps symbolize the light within the individual that rids the soul of the darkness of ignorance;
  • Whereas Diwali falls on the last day of the last month in the lunar calendar and is celebrated as a day of thanksgiving and the beginning of the new year for many Hindus;
  • Whereas for Hindus, Diwali is a celebration of the victory of good over evil;
  • Whereas for Sikhs, Diwali is feted as the day that the sixth founding Sikh Guru, or revered teacher, Guru Hargobind, was released from captivity by the Mughal Emperor Jehangir; and
  • Whereas for Jains, Diwali marks the anniversary of the attainment of moksha, or liberation, by Mahavira, the last of the Tirthankaras (the great teachers of Jain dharma), at the end of his life in 527 B.C.: Now, therefore, be it
  • Resolved, That the Senate--
  • (1) recognizes the religious and historical significance of the festival of Diwali; and
  • (2) in observance of Diwali, the festival of lights, expresses its deepest respect for Indian Americans and the Indian diaspora throughout the world on this significant occasion.
• Congratulations to East Indians.

11/15/2007: July VB Fiasco Filers of Two "A" File Numbers Received from the Service Centers

• In the October 24, 2007 USCIS HQ Stakeholders Meeting, the USCIS gives the following answer:
  • Question: Should I be worried if I receive a different A-number after filing an application for adjustment of status on Form I-485?
    Response: No, a temporary receipt process was implemented for Employment Based I-485 applications filed between July 2, 2007, and August 17, 2007. The temporary receipt process allowed USCIS to receipt the high volume of I-485 applications filed during the summer in a faster and more efficient manner. New A numbers were assigned during the receipt process. At a future date the newly assigned A numbers will be reconciled with previous A-numbers that may exist for each applicant and the newly assigned A-number will be deleted. The temporary A number will also appear on the EAD card. This temporary receipt process also facilitated the receipting of I-765 applications for employment authorization and I-131 applications for advance parole.
• For the full text of the Stakeholder Meeting of 10/24/2007, please click here.

11/15/2007: Gloomy Holiday Seasons for Employment-Based Immigration in All Fronts

• Most of the employment-based immigration journey starts from the labor certification process. During the fiscal years 2005 through 2007, the Labor Department was under the pressure to achieving dual goals at the same time. One was to reduce the exsiting backlogs which accounted for 360,000 applications. The second goal was to prevent backlogs for the future cases to help achieve the overall goal of removing the backlogs by the end of FY 2007, September 30, 2007. The PERM electronic filing, processing and certification process was devised to achieve the goal. To serve the purpose of the reengineering of the foreign labor certification system, the PERM program was able to achieve the certification of applications from one day to less than two months. However, along with taking off of the burden of 360,000 backlogs from their shoulders by September 2007, the Labor Department has turned off the hook of the previous pressure of reducing the processing times. It appears that this has turned the focus of the foreign labor certification program from the processing times reduction to the achievement of the integrity of the foreign labor certification applications. Such change is witnessed by the recent massive "audit" processes which the Labor Department lanuched beginning from August 2007. Attorneys and employers have been reporting massive audit letters which they have received upon filing of PERM applications since August 2007. Accordingly, the glorious days of from one day to two months processing of PERM applications are turning "things of the past." It is anticipated that this policy will continue in FY 2008 as they expect to launch a new revised ETA 9089 form which is targeted to achieve the integrity of the labor certification process. Employers should thus be prepared for the new environment of foreign labor certification and potential delays and massive denials of the applications down the road.
• As for the I-140 and I-485 processing and adjudication, the USCIS has already posted a notice to the public that because of the July 2007 visa fiasco, the USCIS is and will continuously experience delays in the processing of cases at both front end and back end. God knows how long it will take for the I-140 and I-485 applicants to receive the decisions in the mail. I-140 petitions are almost hopelessly taking a long time with no opportunity for the premium processing. This has been creating a terrible pain in the knuckle in terms of a road block to certain H-1B extensions and change of employment which are ncessary to survive in their growingly long journey to the employment-based immigration. It apepars that the USCIS does not have any plan to reinstate the premium processing services for I-140 petitions in the near future. As for the I-485 applicants, the Visa Bulletin in July, September, October, and November opened a small window of hope to receive approval of their applications, albeit still limited. Now, all of sudden, the December Visa Bulltin drops a heavy iron gate before most of these I-485 applicants from India and China. The doors will be very much shut for these Indian and Chinese people. The doors will be shut for those Indians and Chinese who have been trying to leave the pipeline of the long I-485 journey. More importantly, the doors will be shut for those who obtain the labor certification approvals even "to enter" the journey of I-485 green card application. Since it is expected to take a long and long time for these late starters of the immigration journey during when they will not be afforded with EAD and Advance Parole, not to mention unavailability of change of employment during the protracted process before reaching the state of filing of I-485 applications, the future immigration journey will turn more painful.
• The only answers to the mountain-high road blocks must come from the Congress, but facing the national election politics, there is a slim chance that the Congress will address to the current employment-based immigration problems until the election is over in November 2008. As we reiterated over and over in the past, the current quota of 140,000 per year is indeed a small number for these foreign workers considering the fact that the number includes the spouses and children of these foreign workers. As affected by the choked foreign workers nonimmigrant H-1B quota and immigrant quota, more and more U.S. employers are seeking help from the work forces in foreign countries and "outsourcing" of their businesses is turning part of the business not only for large businesses but also medium and small businesses. As an employment-based immigration practitioner, this reporter hears everyday companies opening new outsourcing ventures across the ocean. The country is so numb to the issue of outsourcing any more that this huge and massive marches of outsourcing of U.S. businesses are currently taking place with no media attentions and political microscope of the legisture and the public. Outsourcing of small businesses is indeed an eye-opener for this reporter, raising concerns and misgivings over the future of this nation heavily depending of their businesses on high tech work forces in foreign countries. Under the circumstances, the Congressional leaders' rhetorics of national policy to induce their kids to seek science, engineering, and math careers is indeed a "comic" and "ironically" absurd self-defeating total failure and vacuum in the nation's political leadership. This reporter heard a few ago from a parent of graduating 2008 class of a high school, only 5% of the high school graduates were heading for the science and engineering majors!!! The nation's current employment-based immigration policy is so flawed with no vision that the nation will pay a hefty price for these leaders' failure in the next decades. The situation is alarming and a wake-up call.

11/14/2007: December 2007 Visa Bulletin

• CHINA-MAINLAND BORN AND INDIA EMPLOYMENT SECOND PREFERENCE CUT-OFF DATES RETROGRESS FOR DECEMBER
  
  It has been necessary to retrogress both the China-mainland born and India Employment Second preference cut-off dates. This is a direct result of extraordinarily heavy applicant demand for numbers, primarily by Citizenship and Immigration Services offices for adjustment of status cases. Additional retrogressions cannot be ruled out during the second quarter of the fiscal year.
• IMMIGRANT VISA AVAILABILITY DURING THE COMING MONTHS
  • The following projections are based on the demand patterns which are currently being experienced. Fluctuations in demand could alter such projections at any time. Therefore, they should only be used as a guideline of what might occur. Under no circumstances should they be used as a basis for making any formal plans prior to the announcement of the monthly cut-off dates.
    • Family Preferences - Worldwide: Movement consistent with that of recent months can be expected for the foreseeable future.
    • Employment Preferences - Worldwide and Philippines:
    • First: Will remain “Current”
    • Second: Will remain “Current”
    • Third: Slow forward movement should be possible while demand patterns are established.
    • Third “Other Workers” (All Countries): Little if any forward movement is expected at this time. Should the current demand pattern continue, it may be necessary to retrogress the cut-off date at some point later in the fiscal year.
    • CHINA-mainland born and INDIA:
    • Employment Preferences:
    • First: Continued heavy demand may require the establishment of a cut-off date at some point during the fiscal year.
    • Second: Demand during October and the first week of November has already used over 38 percent of the annual limit. It is hoped that the December retrogressions will return monthly number use within the target range. If not, further retrogressions cannot be ruled out.
• Ouch!

11/14/2007: Important USCIS Message for Natulization Applicants In Southern California Affected by Fire

• The notice indicates that some of these applicants have been rescheduled to the sworn in ceremonies today. Please review the USCIS notice.

11/12/2007: Immigrant Veterans and Naturalization

• On the occation of the nation's Veterans Day, we would like to tribute to innumerable unrecognized and recognized non-citizen veterans who have participated and contributed to the nation's wars, some losing lives, some crippled, some turned homeless. We like to remind the immigrant veterans that certain immigrant veterans who are still alive or killed and their posthumous surviving family members are eligible for the naturalization under the U.S. Nationality Act. The USCIS posted the information on the special benefits and procedures for these eligible veterans and family members last month. We also posted the information on this site. We would like to repost the information to remind available benefits to these veterans and family members on the occation of this nation's special holiday to honor them for the services and sacrifices they have made for the cause of this nation. Please read the USCIS information sheet.

11/10/2007: H-1B Exhausted Annual Cap, OPT Foreign Student Predicament, and Do-Able DHS Administrative Solutions

• As we reported yesterday, 19 Senators asked the Secretary of DHS to relieve the OPT foreign students from their predicament involving gap between the expiration of OPT and grace period before October 1 and current USCIS policy requiring maintaining status through October 1 to file the H-1B petition on April 1 each year. This is a common problem for the graduating foreign students since the schools schedule graduation in May or June each year. Accordingly, under the given circumstances, the gap between expiration of OPT and the required nonimmigrant status as of October 1 is inevitable for these foreign brains who are educated in this country and whose loss will result in loss of social cost to the nation relating to the nation's training of these foreign brains.
• Considering the predicament, the legacy INS annually exercised its discretion and allowed such OPT students with such gap to file a H-1B petition inasmuch as the petition was timely filed while the students were in a valid OPT or grace period status. This practice has however been tangled with the issue of jurisdictions within the DHS after the legacy INS was dismantled and absolved into the mammoth government agency named DHS. In this reorganization process, the legacy INS functions have been fragmented into three different divisions within the DHS including USCIS, USICE, and USCBP. When it came to the issue of excercise of disretion on the OPT student's eligibility to continuously remain in the U.S. pending H-1B petition until October 1 despite their expiration of OPT and grace period, there was a gray area with reference to the jurisdiction for such decision between the adjudication body of USCIS and immigration enforcement body of USICE. The USICE is involved wth the issue as the agency must agree to non-enforcement of such OPT students during the period of gap. After a struggle on the jurisdictional issues between the two agencies, in the first year of DHS, the two agencies were able to come up with agreement to exercise such discretion according to the traditional practice of legacy INS. Since then, however, the DHS has been tangled into "no tolerance policy" and the DHS ceased such policy leading to the current policy that has created a nightmare to the OPT foreign students.
• The Senators' letter indicates that the DHS has been considering some options to relieve these students at the administrative level and without a legislative action by the Congress. In view of the anticipated continuing failure of Congress to pass any legislation to increase the H-1B cap in the very near future, we welcome the initiatives by the Senators and the DHS Secretary to untangle the current mess and predicament for these talented foreign brains. We urge the DHS to adopt the proposal which is elaborated in the Senators' letter. Should the DHS, however, disagree to the proposal in toto, we urge the Secretary of DHS to exercise the traditional practice of legacy INS at the least so that coming April 1, 2008, these OPT F-1 students whose OPT and grace period will expire before October 1, 2007 will be allowed to file a H-1B petition through their U.S. employers. We understand that this is legally do-able without legislation and under the current statutory authority of the DHS. The sooner, the better.

11/10/2007: DOL Answers to H-2B Labor Certification Frequently Asked Questions

• This FAQ gives some guidance for preparation of H-2B labor certification applications. Read on.

11/10/2007: What Happens With Beneficiary Spouse if I-130 Petitioning Spouse Dies Before or After Approval of Petition?

• Mr. Mike Aytes, Associate Director of Domistic Operation, USCIS, issued a memorandum on November 8, 2007 on the subject to give a guidance to the field office adjudicators. Those who face a similar situation should read this memorandum to learn the consquences of the death of petitining spouse on the surviving alien beneficiary of the family petition.

11/09/2007: USCIS Receipting Frontlog - November 9, 2007

11/09/2007: DOL Guidance for H-2A Foreign Labor Certification for Agricultural Workers

• As the Congress fails to pass legislation for farm workers, the current H-2A program is increasingly witnessing pressures and there are a lot of the rule-making activities to deal with the situation. DOL has just submitted its proposal to the OMB to modernize the H-2A Labor Certification Application process and to enforce the rules against the frauds. At the level of DOL, the DOL issued a guidance for National Processing Centers that process H-2A labor certification applications clarifying the procedural issues. Read on.
• For the details including mailing address, please click here.

11/09/2007: 19-Senators Letter to DHS Secretary to Extend OPT From Current 12-Month to 29-Month

• Competeamerica reports the letter dated 11/08/2007 asking the Secretary of Homeland Security to extend foreign students OPT period from the current 12 months to 29 months. Extension of OPT period will tremendously help the F-1 OPT students in dealing with the gap between the OPT expiration date and the eligibility for H-1B petition coming 04/01/2008 for their H-1B employment beginning from October 1, 2008. What an exciting news it is! Read the letter.

11/09/2007: USCIS Revises Fact Sheet and Announcement for New I-9 Form

• USCIS revised the November 7, 2007 announcement and fact sheet. Employers should thus ignore their previous release of announcement and fact sheet. The revised announcement and fact sheet remain the same date and the employer should notice (Revised) below the date of November 7, 2007. The revised announcement and fact sheet indicate that the previous form expired on November 7, 2007 and remain unacceptable after the expiration date. However, the upcoming federal notice will set up a grace period of 30 days from the date of release of the federal register notice not penalizing the employers for haveing used the old version. Employers should read the "revised" announcement and fact sheet meticulously.

11/09/2007: USCIS Centralizes H-2A Filing at California Service Center

• USCIS announces that employers petitioning for temporary or seasonal agricultural workers coming to the United States under the H-2A nonimmigrant classification must file their petitions at U.S. Citizenship and Immigration Service's California Service Centert to achieve overall reduction of petition processing times and better monitor the adjudication of H-2A petitions. This filing procedure chage takes effect on December 10, 2007.
  

11/08/2007: Text of Testimonies of Witnesses at Today's House Judiciary Immigration Subcommittee Hearing

• Please go back to our posting yesterday and click links.

11/08/2007: USCIS Changes Expiration Date of Current I-9 Form From 11/07/2007 to 12/07/2007

• USCIS has just changed the expiration date of the current I-9 form from November 7, 2007 to December 7, 2007, removing inconsistency between its announcement/Fact Sheet and the information on the USCIS Form site. We thank the USCIS for its swift act to remove the confusion.

11/08/2007: (I-9) Handbook for Employers, M-274, Dated 11/01/2007

11/08/2007: Form I-9 Revision Announcement and Fact Sheet

• Form announcement released today with the date of 11/07/2007. The announcement states that the new form is not mandatory until the form change is published in the federal register which has yet to be published. Besides, the USCIS Form site warns that the current form is not valid after 11/07/2007. It thus appears there is some confusion on the effective date of the new form. The USCIS should clarify the confusion as soon as possible. In the meantimes, however, employers are advised to use the new form beginning today to avoid any potential problem, even thouth there is a potential violation of another law for discrimination when the employers refuse to accept certain documents which have been removed only under the revised form and instructions.
• For the questions and answers on the revised form I-9, please read Fact Sheet.

11/07/2007: USCIS Revises I-9 Form

• The USCIS has revised and released the I-9 form removing some documents from the lists and adding some documents to the lists. Use of this new form will be mandatory upon release of the form in the federal register. However, the USCIS recommends the employers to start using the new form even before the federal register notice is released.
  • New I-9 Form
  • Instruction Sheet

11/07/2007: List and Summary of Precedent Decisions of Board of Immigration Appeals Handed Down in FY 2007

11/07/2007: List of Witnesses to Testify at House Judiciary Subcommittee Immigration Hearing Tomorrow

• Panel I: Government
  
  The Honorable Carolyn Cheeks Kilpatrick, U.S. House of Representatives, Michigan, 13th District
  The Honorable Barbara Lee , U.S. House of Representatives, California, 9th District (Bill Sponsor)
  The Honorable Silvestre Reyes ,U.S. House of Representatives, Texas, 16th District
  The Honorable Nancy E. Boyda ,U.S. House of Representatives, Kansas, 2nd District
  
• Panel II: Private Sector
  
  William Spriggs, Ph.D., Chairman, Department of Economics, Howard University
  Gregory Siskind , Partner, Siskind Susser Bland
  Charles H. Kuck , President-Elect, AILA, Adjunct Professor of Law, University of Georgia
  Christopher Nugent , Senior Counsel, Community Services Team, Holland and Knight, LLP
  Kim Gandy , President, National Organization for Women (NOW)
  T. J. Bonner , President, National Border Patrol Council of th American Federation of Government Employees, AFL-CIO
  Julie Kirchner ,Director of Government Relations,Federation for American Immigration Reform (FAIR)
  

11/07/2007: Immigration Petitions/Applications Pending Statistics at the End of September 2007

11/07/2007: Naturalization Applications Pending Statistics at the End of September 2007

• Ouch!

11/07/2007: November 27, 2007 E-Verify Meeting Scheduled for Stakeholders in D.C. by USCIS

• Participation of E-Verify program is currently voluntary and not mandatory. There are some employers who have participated in this program to electronically verify the alien's employment authorization including Social Security Numbers as a safe haven against the potential charge of hiring undocumented aliens. This job is performed by private contractors of the USCIS field offices. These private contractors' business is at stake, should the E-Verify program turns into a mandatory program and these private contractors have been pressuring the Congress not to make it mandatory for the reasons that E-Verify program has flaws that slap the purpose of the legislation. Manual processing of verification of the alien's employment authorization requires verification of employment authorization by these contractors and should this turn into the employer's E-Verify system, their businesses are likely affected tremendously.
• The USCIS intends to make this program a mandatory system as soon as possible. On November 27, 2007, the USCIS is scheduling one-full date meeting for the stakeholders to discuss and evaluate this program. The schedule is as follows:
  • Date and Time: Tuesday, November 27, 2007, from 8:30 a.m. to 5 p.m.
  • Place: Washington Court Hotel, 525 New Jersey Avenue, NW., Washington, DC 20001.
  • Agenda:
    • Introductions and Purpose.
      Update on E-Verify.
      Overview of the Key Findings of the FY2007 evaluation and the current evaluation goals.
      Break-out group discussions to address topics such as using biometrics for verification, resolving tentative confirmations, timing of employee verifications, and focusing on specific types of employers (i.e., designated agents, employers using designated agents,
      employment agencies and temporary help agencies, inactive employers).
      Reports from break-out groups.
      Questions and comments.
• For the full text of announcement, please click here.
  

11/06/2007: DHS Secretary Report of Border Security and Immigration Enforcement as of November 6, 2007

11/06/2007: DOL Updates Backlog Frequently Asked Questions, Round 7, as of November 1, 2007

• DOL answers may questions that are related to cases which have yet to be adjudicated or adjudicated but appealed, or fates of any types of unadjudicated applications post September 30, 2007. Read on.

11/06/2007: One of the Worst Years for Immigration Legislation - AgJOBS Dead Too

• Senate has decided not to consider AgJOBS. The past two years will mark probably one of the worst years for the recent immigration history. Immigration legislative bills have been continuously assaulted by both the left and the right, and by both the Republicans and the Democrats. Comprehensive Immigration Reform or Piecemeal Immigration bill have turned out to be nothing but a sound-bite of the politics.
• Report indicates that the anti-immigration forces flooded the political arena, while the pro-immigration forces have lost any steam in running an engine. Why has this happened? What has caused the anti-immigration force messages more forceful than the pro-immigration force messages? Is it because the country has turned more anti-immigration over the years? Or is it because the anti-immigration forces have grown more in numbers? Probably not. It could be the changes within the proimmigration forces. Over the years, this country's immigration has witnessed a sharp turn along with the growth of global economy and the dominance of cyber technologies, creating two broad immigrant groups. One is self-proclaimed legal immigrants and the other is self-proclaimed illegal immigrants. In this reporter's 25 years of immigration practice, there was no time when the immigrant community had been so sharply divided along the line of legal vs. illegal immigrants. There was no time when these two groups had been so antagonistic each other as what this country presently witnesses. No one will deny that this division of the immigration community has contributed to weakening of the pro-immigration messages coming across the spectrum of the mainstream political community, legislators, and the public. The current crisis in the force of immigrants may not necessarily be attributed to the growth of power on the other side of the court named anti-immigration groups. It could have been brought more about by the immigrants themselves. Unless the immigrants unite themselves, the nation will continuously witness anti-immigration political process against all the immigrants across the board no matter whether they are so-called "legal" immigrants or so-called "illegal" immigrants. This is a time for every immigrant to think about the wounds within the house before attempting to find a blame outside of their own house.

11/06/2007: Senator Grassley Fight Against Employment-Based Immigration Not Over Yet

• Senator Grassley sponsored H-1B Supplemental Fee legislation which the Senate passed but collapsed at the conference a few days ago. Yesterday, in the "unrelated" "Farm" Bill session, the Senator requested a ten-minute time and made the following statement on the Senate floor. Abstract of the statement -"It Ain't Over T'll It is Over."
  • Mr. President, earlier this year, the Senate tried to solve the very complex and emotional issue of immigration reform. The immigration bill we considered included border security, interior enforcement, and amnesty. It also included many needed reforms to our legal immigration process. I said throughout the debate that Congress needs a long-term solution to the immigration issue. We cannot pass a bandaid approach that includes a path to citizenship for law breakers; rather, Congress needs to improve our legal immigration channels. I firmly believe companies want to hire legal workers, and people want to enter the United States legally. If we fix our visa policies, we can restore integrity to our immigration system, and all parties can benefit. But if we cannot pass a comprehensive bill--and I think as time goes on it is going to look more difficult as we go into an election year--if we cannot pass such a comprehensive bill, I think that we should consider passing legislation we can agree on. I am taking the floor at this time to talk about the H-1B visa provisions that were included in the immigration bill and ask my colleagues to take a second look at these needed reforms. Many companies use H-1B programs. It has served a valuable purpose. But we need to reevaluate how this program operates and work to make it more effective. The H-1B program was officially created in 1990, although we have brought foreign workers legally into our country for over 30 years. It was brought into existence to serve American employers that needed high-tech workers. It was created to file a void in the U.S. labor force. The visa holders were intended to file jobs for a temporary amount of time, while the country invested in American workers to pick up the skills our economy needed. We attached fees to the visas that now bring in millions of dollars. These fees and the dollars that come with it are invested in training grants to educate our own workforce. We use the funds to put kids through school for science, technology, engineering, and math skills. We provide students with scholarships with the hope that they will replace imported foreign workers. Unfortunately, the H-1B program is so popular, it is now replacing the U.S. labor force rather than supplementing it. The high-tech and business community is begging Congress to raise or eliminate the annual cap that currently stands at 85,000 visas each year. These numbers do not include and account for those who are exempt from the cap. For instance, we don't count employees at institutions of higher education or nonprofit research organizations. We don't count those who change jobs or renew their H-1B visa. My point is, we have many more than 85,000 H-1B visas distributed each year. I am here to tell my colleagues that increasing the visa supply is not the only solution to the so-called shortage of high-tech workers. Since March of this year, the Senator from Illinois, Mr. Durbin, and I have taken a good look at the H-1B visa program. We have raised issues with the Citizenship and Immigration Service as well as the Department of Labor. We have asked questions of companies that use the H-1B visa, and I have raised issues with attorneys who advise their clients on how to get around the permanent employment regulations. I would like to share what I have learned. I want to give some fraud and abuse examples. Unfortunately, there are some bad apples in the H-1B visa program. In 2005, a man was charged with fraud and misuse of visas, money laundering, and mail fraud for his participation in a multistate scam to smuggle Indian and Pakistani nationals into the United States with fraudulently obtained H-1B visas. The man created fictitious companies, often renting only a cubicle simply to have a mailing address. He fabricated tax returns and submitted over 1,000 false visa petitions. Another man pled guilty last August to charges of fraud and conspiracy. This man and an attorney charged foreign nationals thousands of dollars to fraudulently obtain H-1B visas. He provided false documents to substantiate their H-1B petitions. The Programmer's Guild, a group representing U.S. worker interests, filed over 300 discrimination complaints in the first half of 2006 against companies that posted ``H-1B visa holder only'' ads on job boards. Anyone can go on the Internet and find jobs that target H-1B visa holders. There are more than just national anecdotes, however. Everyday Americans are affected. Since looking into the H-1B visa program, some of my constituents have come to me and spoken out against abuses they see. One of my constituents has shared copies of e-mails showing how he is often bombarded with requests by companies that want to lease their H-1B workers to that Iowan. There are companies with H-1B workers who are so-called ``on the bench,'' meaning they are ready to be deployed to a project. Hundreds of foreign workers are standing by waiting for work. Some call these H-1B ``factory firms.'' This Iowan even said one company went so far as to require him to sign a memorandum of understanding that helps the H-1B factory firm justify to the Federal Government that they have adequate business opportunity that requires additional visa holders. It is a complete falsification of the market justification for additional H-1B workers. These firms are making a commodity out of H-1B workers. They have visa holders but are looking for work. It is supposed to be the other way around. There should be a shortage or a need, first and foremost. Then and only then do we allow foreign workers to fill these jobs temporarily. Another constituent sent me a letter saying that he saw firsthand how foreign workers were brought in while Iowans with similar qualifications were let go. He tells me he is a computer professional with over 20 years experience. He was laid off and has yet to find a job. He states: I believe [my employer] has a history of hiring H-1B computer personnel at the expense of qualified American citizens. Another Iowan from Cedar Falls wrote in support of our review of the H-1B program. He is a computer programmer with a master's degree and over 20 years of work experience in that field. He says: Despite all of my qualifications, in the last four years I have applied to over 3,700 positions and have received no job offers. He believes he is in constant competition with H-1B visa holders. I received a letter from a man in Arizona who works for a company that employs dozens of H-1B workers. When he asked his supervisor why so many foreign nationals were being hired, the head of human resources said: If the company has an American and a person from India, both with the same skill set, the company will hire the person from India because they can pay them less. These are firsthand stories from U.S. workers. I ask those begging for an increase in foreign workers to explain these cases to me. Why are Americans struggling to get jobs as software developers, data processors, and program analysts? Senator Durbin and I inquired with several foreign-based companies that use the H-1B program. Rather than sending a letter to all companies that use the program, which would be over 200 companies, we decided to start our investigation with foreign-based entities. Our intention was to learn how foreign companies are using our visas. We learned that the top nine foreign-based companies used 20,000 visas in 2006. Think of what a high percentage that is of the 85,000, just nine foreign-based companies, 20,000 visas in the year 2006. I say that twice for emphasis. It just so happens that Indian companies are using one-third of the available visas we allocate each year, but there is more to learn. We are not done asking questions. We, meaning Senator Durbin and I, continue to talk to U.S.-based companies and companies in our own States that use the program. The Citizenship and Immigration Service also has concerns. Our review has prompted discussion among the executive branch, businesses, labor unions, and workers, and workers are the ones we are concerned about. So we are not the only ones asking questions. The U.S. Citizenship and Immigration Service is also worried about fraud in the program. This agency's investigative arm, that subdivision called the Fraud Detection and National Security unit, is doing a fraud assessment of the H-1B and L visa programs. I asked the unit to brief my staff on their work, and they reported they are not finished with analyzing the data. Senator Collins of Maine and I put the agency on notice that we are anxiously awaiting this report so we may continue our quest to reform the program appropriately. In the meantime, the bill Senator Durbin and I introduced includes measures to rein in the abuse. It goes a long ways to close some loopholes to protect American workers. It is our hope that these measures will bring the program back to its original mission; that is, to help U.S.-based companies find highly skilled workers to fill the shortage for a temporary period of time. That is what the H-1B visa program is all about. Under current law, companies can bring in foreign workers on an H-1B visa without first attempting to hire an American. Our bill would require every employer to attest that it is not displacing a U.S. worker by hiring an H-1B visa holder and that the employer has taken good-faith steps to recruit U.S. workers for the jobs in which an H-1B visa holder is being sought. Why would anyone oppose this measure? Our bill also gives more oversight and investigative authority to the Department of Labor. Right now the Department may only review labor certification for ``clear indication of fraud and misrepresentation.'' The Secretary of Labor is unable to review applications for anything but what the law calls incompleteness and cannot initiate an investigation unless requested. This means the Labor Department in effect is required to turn a blind eye to information that is suspicious. To remedy this problem, our bill provides the Department of Labor the ability to initiate an investigation on its own and gives the Department of Labor more time to review applications. The Department could also do random audits of any company that uses the program. Aside from these measures, our bill would prohibit employers to only advertise available jobs to H-1B visa holders. It would encourage information sharing between the Department of Labor and the Department of Homeland Security. It would double the penalties for employer noncompliance with the H-1B program requirements. I am happy to report that most of these commonsense solutions were included in the immigration bill. I challenge any of my colleagues to oppose these needed reforms before we talk about increasing the number of H-1B visas or at the very least in conjunction with that process. Today I take the floor to tell my colleagues that I am willing to work on this issue before the end of the year. I know businesses want more visas. I know groups that represent workers and visa holders want reforms. I know the American people want a sensible system in place that gives their children a chance at these highly skilled jobs. Some of my colleagues think the solution is increasing the annual cap on H-1B visas and doing nothing else. Before we agree to import more foreign workers, let's restore integrity in this H-1B program. The system needs a makeover. I am willing to consider an increase in the H-1B visa supply, but only if reforms are included. We must fix the loopholes before we just allow more foreign workers to come in and take jobs that Americans want to do. I would think my colleagues would want this program to work as it was intended by its original authors. My colleagues should want to protect the jobs of our various constituencies and help our businesses find the workers they truly need.
• Unreal.

11/06/2007: U.S Immigration Top Cop, Assistant Secretary Julie Myers, at Halloween Costume Party Under Fire

• Oh, Boy!

11/06/2007: USCBP Proposes a Rule to Permit a Temporary Visit of Certain HIV Infected Aliens

• The proposed rule would provide, on a limited and categorical basis, a more streamlined process to authorize these nonimmigrant aliens to enter the United States as visitors (for business or pleasure) for up to thirty days, subject to certain conditions to ensure the control and departure of such aliens. Nonimmigrant aliens who do not meet the specific circumstances of these clarifying instructions or who do not wish to consent to the conditions that would be imposed by this proposed rule may still elect a case-by-case determination of their eligibility for a waiver of the nonimmigrant visa requirements for aliens afflicted with HIV. For the full text of the proposed rule, please click here.
  

11/03/2007: AgJOBS to Return to Senate Floor as Attachment to Farm Bill Extension Act of 2007, H.R. 2419

• The piecemeal immigration bills have been repeatedly struck down this session of the Congress. Earlier, Sen. Cornyn's attempt to attach the SKIL bill was rejected, followed by the doomed DREAM Act. Another big piecemeal that is currently a target of the anti-immigration forces is AgJOBS bill which Sen. Diane Feinstein repeatedly attempted to attach to another bills with no available.
• Well, on Monday, November 5, 2006, the Senate will pick up and start debating the Farm Bill Extension Act of 2007, H.R. 2419. Reportedly, the Senator will retry introducing the AgJOBS bill as an attachment to this bill in the Senate. The battle has already started between the pro-legalization support groups and the anti-legalization forces to either pass or kill the AgJOBS bill. Other than this bill, the Senate is scheduled to concentrate on taking care of the appropriation bills until they go into a break at the end of next week.
• Stay tuned to this website for the H.R. 750 hearing in the House and H.R. 2419 debate in the Senate next week.

11/03/2007: Amerasian Paternity Recognition Act Introduced by Rep. Zoe Lofgren

• Unlike other foreign-born offspring of American fathers, Amerasians (children born to American fathers during the Vietnam and Korean Wars) are required to apply for naturalization and fulfill all the requirements of naturalization like immigrants who do not have U.S. citizen parents. This lengthy process is not ordinarily required of the sons and daughters of American citizens who gain U.S. citizenship based on the American citizenship of their parent. Many Amerasians never become U.S. citizens because of these requirements. Rep. Lofgren wants to correct lack of fair play against these children of U.S. citizen. The bill proposes to recognize the citizenship of these Amerasian children rather than forcing them to go through the naturalization proceeding. Please stay tuned to this website for the progress of this bill.

11/03/2007: Rescheduled House Judiciary Immigration Subcommittee Hearing on H.R. 750, the “Save America Comprehensive Immigration Act of 2007” on November 8, 2007

• The Chairwoman Zoe Lofgren initially scheduled this hearing on 10/11/2007, which was postponed afterwards. The Subcommittee is now rescheduling the hearing on November 8, 2007. For the last one month, the House Subcommittee did not pick up any immigration reform legislative bills. Our colleague immigration lawyer Siskind is expected to testify as one of the expert witnesses. Please stay tuned.

11/02/2007: USCIS 11/01/2007 Frontlog Update

11/02/2007: H.R. 3043 Conference Update - Both Immigration Bills Killed!

• One good news and one bad news. According to the AILA, the Conference committee took out both immigration riders from the H.R. 3043. It means that there will be no increase of the H-1B to $5,830. At the same time, there will be no recapture of EB-3 visa numbers for the Schedule A workers through this legislation.

11/02/2007: USCIS Advisory for 485 Applicants Traveling H/L Status Post the Late Change of Rule

11/02/2007: State Department Overcharged $100 Million for U.S. Passport Fees?

• GAO released a report on October 12, 2007 that the State Department needed a proper basis for the passport filing fees. Congress is fumed over the news that passport applicants were overcharged. Unconfirmed sources indicate that estimate of overcharge amount as high as $100 million. Oh Lord! Is there a government melt-down? Read the following:
  • GAO Report
  • Congress Reaction

11/02/2007: H.R. 3043 Conference Made a Small Partial Success for the Level II Hurdle Without Complete Success

• As we reported earlier, the strategy of Democrats is to combine three spending bills in a packet so that the President cannot veto the Labor-HHS spending bill which the immigrant community has a stake in. First bill is Defense spending bill. Second bill is Military Construction and Veterans spending bill. The third bill is Labor-HHS spending bill. Report indicates that yesterday the Democrat conferees dropped the Defense spending bill from the packet strategy as a gesture to the Republican conferees to accomodate their stance opposing the packet concept. The Defense bill constitutes a large portion in the federal spending. However, there still remains a confrontation between the Democrats and the Republicans as the Republicans continue to insist that the Labor-HHS spending bill be handled as a stand-alone bill. The Republican strategy is to pass and send the stand-alone Labor-HHS spending bill to the President who promised to veto the bill. The problem for the Democrats appears to be the President's continuing threat to veto the spending bills inasmuch as the current Labor-HHS spending is presented to him either in a packet or a stand-alone bill.
• The immigration riders have yet to survive at the Level I, which is for the conferees to drop the H-1B Supplemental Fee bill and to agree to the EB-3 visa number recapture bill. The outcome of the Conference compromise can turn the immigrant stakeholders into a serious predicament and split, to wit, what the immigrant community should do if the Conference adopts both bills. From the H-1B community perspectives, they are better off to lobby for the President's veto of the entire H.R. 3043 so that the H-1B Supplemental Fee legislation goes to the tomb. On the other hand, the allied healthcare worker supporters and lobbists may still want the H.R. 3043 signed by the President. So far, there is no indication that the immigrant community and stakeholders have found any common ground of strategy to deal with such potential crisis. Since the H-1B Supplemental Fee bill is such a huge disaster for the U.S. employers in the high-end industry and academic/research community, potential conflict between this sector and medical sector in the immigrant community is indeed a nightmare. The Conference Committee is expected to complete the work before the end of next week. Please stay tuned.

11/01/2007: House Agreed to H.R. 3043 Labor-HHS FY 2008 Conference Request of the Senate and Appointed House Conferees Yesterday

• The House appointed the following members of the House of Representatives to the Senate-House Conference Committee for this legislation: Representatives Obey, Lowey, DeLauro, Jackson (IL), Kennedy, Roybal-Allard, Lee, Udall (NM), Honda, McCollum (MN), Ryan (OH), Murtha, Edwards, Walsh (NY), Regula, Peterson (PA), Weldon (FL), Simpson, Rehberg, Young (FL), Wicker, and Lewis (CA).
• The list of the full conference committee: On the House side, Representatives Obey, Lowey, DeLauro, Jackson (IL), Kennedy, Roybal-Allard, Lee, Udall (NM), Honda, McCollum (MN), Ryan (OH), Murtha, Edwards, Walsh (NY), Regula, Peterson (PA), Weldon (FL), Simpson, Rehberg, Young (FL), Wicker, and Lewis (CA). On the Senate side: Senators. Harkin, Inouye, Kohl, Mrs. Murray, Ms. Landrieu, Messrs. Durbin, Reed, Lautenberg, Byrd, Specter, Cochran, Gregg, Craig, Mrs. Hutchison, Messrs. Stevens, Shelby, and Domenici.
• Defense appropriation conference committee has already been actively working for the compromise. Open question is whether these bills will be strategically presented separately or in a packet to the White House for the President's signature. We will find it out sooner or later. Please stay tuned.
• Now, since the immigrant community has the full list of the members of the Senate-House conference committee, they should actively contact the members of the conference committee to support EB-3 visa number recapture bill and to oppose the H-1B supplemental fee legislation, at least to see that the former immigration bill is agreed to and the latter immigration bill is rejected at the level of conference process within the Congress. TIME IS RUNNING OUT!!!

11/01/2007: Effective 12/03/2007, New Filing Fees Are Charged for Exchange Visitors

• The following fees will take effect on December 3, 2007 by the visa posts for the FY 2008-2009:
  • (1) For filing an application for program designation and/or redesignation (Form DS-3036)--$1,748.
    (2) For filing an application for extension beyond the maximum duration, change of category, reinstatement, reinstatement-update SEVIS status, ECFMG-sponsorship authorization, and permission to issue--$246.
• Well, prices are going up everywhere! Read on.
  

11/01/2007: USCIS Rule Removing 485 Original Receipt Requirement for H or L Alien on International Travel Not to Abandon Pending I-485 Application

• This rule is published and took effect today. Accordingly, effective today, the I-485 applicants in H or L nonimmigrant status do not have to carry with them the original I-485 Receipt Notices for international travel to return to the U.S. without jeopardizing their pending I-485 applications. Read on.

11/01/2007: USCIS IT Projects on OMB High Risk List

• According to the information released by OMB on October 22, 2007, its September 2007 report includes 603 IT high risk projects in the federal government and the following USCIS projects are listed in the report:
  • Transformation (2008)
    CLAIMS 3.0 (2008)
    Naturalization - CLAIMS 4.0 (2008)
    Customer Service Portal
    Card Production - Integrated Card Production System (ICPS) (2007)
    Central Index System
• What does it mean? It means that these USCIS IT projects require special attention from the OMB’s top managers. However, it does not necessarily mean that they are at risk of failure. The list focuses on planning for major investments and getting performance data to ensure agencies meet their intended goals. Hmm........ Interesting.

10/31/2007: Notice to California Fire Affected People: All Offices Are Now Open

• USCIS has announced that all offices are currently open and anyone who missed an INFOPASS appointment should/may reschedule the appointment on their own, or they may go to the office where the appointment was originally scheduled, with the appointment notice.

10/31/2007: USCIS Revises Regulation and Removes 485 Original Receipt Notice Requirement for H and L Nonimmigrants

• USCIS is scheduled to publish a revised regulation tomorrow removing the 485 Original Receipt Notice requirement for the H and L nonimmigrants traveling and returning to the U.S. pending the 485 proceedings. Please stay tuned.

10/30/2007: Fate of H.R. 3043, Labor-HHS FY 2008 Appropriation Bill

• As we reported earlier, the Senate passed this bill with the two immigration rider bills: One is 61,000 employment-based visa numbers recapture for EB-3 to relieve the Schedule A Allied Healthcare Worker shortage problem. The other is H-1B Supplemental Fee bill to increase the H-1B filing fees to $5,820 for the employers hiring over 25 employees. The fate of this legislation depends on challenges at the two different levels. One is the test in the conference committee. However, even if these riders survive in the conference committee, there is more serious challenge ahead involving the President's veto of the entire bill.
• Report indicates that the Senate-House conference committee will meet on Thursday, November 1, 2007, and start sending the conference-agreed bills to the President. It is thus likely that H.R. 3043 may be resolved in the conference committee on or after November 1, 2007 with or without one or both of the immigration riders. However, even before reaching this point, there is an on-going struggle between the White House and the Democrat Congress. The White House has been threatening to veto this bill. To deal with such potential veto, the Democrats are considering putting two or three conference bills together including Iraq war appropriation which the President anxiously needs. It appears that the President is not backing down from its desire to veto the bill, no matter whether it is presented as a separate bill or as part of a packet that can include Iraq war funding legislation. This showdown is likely to continue until November 16, 2007 when the Congress will go into a holiday break. Next two weeks can mark a critical juncture for the two immigration bills attached to H.R. 3043. Please stay tuned.

10/29/2007: Shocks! Burundi TPS Not Extension But Termination!

• The USCIS has released a notice today that following a review of country conditions and consultations with the Secretary of State and other appropriate Government agencies, the Secretary of Homeland Security has determined that the temporary protected status (TPS) designation for Burundi should be terminated. This termination will not take effect until May 2, 2009, to provide for an orderly transition. This Notice informs the public of the termination of the TPS designation for Burundi and sets forth procedures for nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) with TPS to re-register for TPS benefits. Re-registration is limited to persons who have previously registered for TPS under the designation of Burundi and whose application has been granted or remains pending. Burundians (or aliens having no nationality who last habitually resided in Burundi) who have not previously been granted TPS, or who do not already have a pending application for TPS under the designation for Burundi, may not file under Late Initial Filing (LIFs) provisions, which are only allowed during an extension of a designation of TPS. Given the timeframes involved with processing TPS re-registration applications, the Department of Homeland Security (DHS) recognizes the possibility that re-registrants may not receive a new Employment Authorization Document (EAD) until after their current EAD expires on November 2, 2007. Accordingly, this Notice automatically extends the validity of EADs issued under the TPS designation of Burundi for six
  months, through May 2, 2008, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended. New EADs with the May 1, 2009, expiration date will be issued to eligible TPS beneficiaries who timely re-register and apply for an EAD. The termination of the TPS designation for Burundi is effective 12:01 a.m., local time, May 2, 2009. To maintain TPS benefits for the 18 months leading up to the effective date of the termination, Burundi TPS beneficiaries must comply with the re-registration requirements described in this Notice. The 60-day re-registration period begins October 29, 2007, and will remain in effect until December 28, 2007.
• Q&A for Termination
  

10/29/2007: 180 Degree Turn-Around of Senator Cornyn's Immigration Legislation Strategy: A Frustrating News for EB-Based Immigrant Community

• Senator Cornyn from Texas has been perceived as one of the strongest allies for the employment-based immigration legislation in the Hill, albeit his strong opposition to the illegal immigrant relief legislation. The SKIL bill was a hall mark for his support for the employment-based immigration legislation just as the DREAM bill was the hall mark for Senator Durbin from Illinois. Because of his opposition against the illegal alien relief legislation and his needs for support from the conservative constituents base for the upcoming reelection bid, Senator Cornyn lately took the position of opposing comprehensive immigration reform approach and advocating a piecemeal legislation approach. This was evidenced by his failed attempt to attach the SKIL bill to the FY 2008 fedeeral department appropriation bills. However, the news report indicates that he now comes forward with a declaration that he opposes to the pieceemeal legislation approach for the immigration legislation on the ground that piecemeal legislation wouild disrupt the immigration reforms needed in the various other sectors. Even though this statement was made relating to his opposition to the ill-fated DREAM bill, the declaration was stunning and the Democrats will definitely take this statement being contradicted to his past record of introducing SKIL bill as a piecemeal bill. This statement will definitely deprive the Senator of another try for SKIL bill in the upcoming Senate sessions as a piecemeal immigration legislation. It indeed is a frustrating news. Read on.

10/28/2007: Concern of Reported DOL Increasing Audits of PERM Applications and Potential Negative Impact on Processing Times

• Along with the scheduled phase-out of the Backlog Elimination Program on September 30, 2007, apparently the Office of Foreign Labor Certification had been developing a change in the foreign labor certification policies towards the direction of improvement of online ETA 9089 filing process by clarifying some ambiguities and confusions in the present ETA 9089 form and achievement of integrity of the online filing applications. The scheduled revision of ETA 9089 form was first released during the AILA Annual National Conference in Orlando, Florida in June 2007. In releasing the plan, the leaders of the OFLC just explained only rosy and positive aspects of the plan by explaining that the change would remove ambiguities in the current form which had produced massive denials at early stage due to the computer matrix decision process. We welcome such move. However, it appears that there was more to the OFLC decision to revise and use a new form beginning from April 1, 2008. The first potential intended goal might be to firm up and clarify its regulatory restrictive standards more narrowly involving the employers' educational and experience requirements for the jobs adhering strictly to the concept of the Job Zones in the O*Net and the standard of the level of education which the employer could require under the published Appendix A of the regualtion. Problem is that the definition of Job Zones was downgraded in a number of occuations. For instance, all IT occupations had been downgraded to Job Zone 4 that can require only a bachelor's degree plus maxium two years of work experience. This also affected the definition of another requirement that the qualification requirement must be "normal" for the job in the specific industry. Another policy which was reflected in the PERM regulation was adoption of so-called Kellogg standards mandating requirement of "Any Suitable Combination of Education, Training or Experiences" whenever the alien could be qualified for the job only through the alternative requirement in job titles, education, or experience. Under the PERM regulation, the employers who deviate from these standards could be required to justify such deviation by the evidence of so-called "business necessity" and turned into an audit track for the purpose. In worst cases, the employers could be asked to start fresh the recruitment process under the supervision of the Certifying Officer using the revised requirement.
• The problem is that as anyone can recognize, the definition of Job Zones is in a number of occupations far from the reality and the requirements by the employers in the real world. Besides, strict adherence to the Kellogg standards has led the employers to facing a denial of I-140 petitions recently, particulaly in Nebraska Service Center, when such language is used in the PERM applications, for the reason that "any suitable combination of education, training or experience" means that the employer should not reject U.S. workers based on lack of a bachelor or master's degree and the I-140 petition cannot be qualified for EB-2 or even EB-3 where "professional" education is required in the labor certification application. Over the period, the leaders of OFLC recognized the foregoing problems in the regulation and O*Net system as well as conflict of DOL standards with the USCIS policy and manged the PERM adjudication decisions flexibly. For these reasons, most of the aliens could obtain the PERM approvals despite the employers' deviation from the foregoing definitions, standards, or rules thanks to the flexible operation and implementation of such definitions, standards, or rules by the Certififying Officers and the leaders of the OFLC.
• Unbeknownst to the consumers, however, behind the sugar-coated justification of the PERM form revision was an apparent decision of the DOL to change their policy to implement the definition, standards, or rules more closely to the languages by clarifying those terms in the revised form. Obviously such policy change will accompany increased audits of the applications for the integrity of the PERM applications and detection of frauds through such audits. As we reported earlier, there was some hint of the forthcoming change in the policy which was buried in the DOL Performance Report. It reported a projected slow-down of processing times and certification rate in FY 2008. Then came a semi-official unofficial announcement by the leaders of OFLC in an AILA conference in September 2007 that the OFLC had already initiated such increased audit process. Additionally, beginning from August 2007, employers and their lawyers started reporting that they had been receiving "audits" even for clean-cut cases leading to their speculation that the OFLC had been sending out audits on a "random" selection basis. Currently, it apepars that the employers are receiving audit notices either based on the OFLC's narrow reading and application of definitions, standards, or rules or on a random selection. Considering the fact that this is just a beginning of the changed policy and practice of OFLC rather than an end, the stakeholders of the labor certification system cannot but express a serious concern with the potential delays in the processing times and the subsequent backlogs in the labor certification system again. We admired the leaders of the DOL for having successfully eliminated a huge number of backlog applications pumping in huge financial and human resources over a period extending years. In this regard, on-going and upcoming policy change may go against the "public interest" from the perspectives of the tax payers and their constituents as such policy will definitely lead to another cycle of "backlog" trap in the long run. Management is an art of skill and wisdom rather than a molded rule, as operation of rules and standards depends on the interpretation and circumstances surrounding the rules. We urge the leaders of the OFLC not to go back to the old mismanaged system and policy of the DOL and continue the late policy of flexible management and implementation of the PERM applications rules and standards.

10/27/2007: The House Schedule Until January 2008 and Grim Chances of Any Stand-Alone Immigration Legislation Other Than Appropriation Bills Riders

• Report indicates the House may remain open through the holiest season of Thanksgiving and Christmas, but owing to the limited time and pressing needs for acting on FY 2008 federal department appropriation bills and conference reports, the legislative activities are likely limited to the conference reports for approprriation legislations. It is unclear at this point what other immigration bills will be introduced in the Senate as riders to the remaining federal department appropriation bills, but chances may not be too promising. With reference to the Labor-HHS Appropriation Bill which contains EB-3 number recapture for Schedule A workers and H-1B Supplemental Fee, the House has yet to name conferees, but it is likely that the conference process may be completed before the year is over. For the House Schedules, please read the following:
  • News Report
  • Reported Likely Schedules

10/26/2007: USCIS Receipting Delay Update of 10/26/2007

• Wow, impressive progress.

10/26/2007: Help Resources for South California Fire Affected Immigrants and Others

• USCIS has set up links to federal, state, and local resources as well as information site in Spanish.
• As for the local district office situations, it has reported that as of Oct. 25, 2:16 PM - The Chula Vista, CA Field Office was closed at 10AM PT and would remain closed on October 26. The San Diego Field Office is closed. San Diego Application Support Centers are open at this time.

10/26/2007: List of Senate Conferees - H.R. 3043 Labor-HHS FY 2008 Appropriation Bill

• On October 23, 2007, Senate asked for a conference: Senate Conferees are: Messrs. Harkin, Inouye, Kohl, Mrs. Murray, Ms. Landrieu, Messrs. Durbin, Reed, Lautenberg, Byrd, Specter, Cochran, Gregg, Craig, Mrs. Hutchison, Messrs. Stevens, Shelby, and Domenici.
• This bill includes EB-3 visa number recapture bill for Schedule A Alliied Healthcare Workers and H-1B Supplemental Fee bill. The former must be strongly supported and the latter must be strongly opposed by the immigrant community. Please stay tuned.
  

10/25/2007: Identification Card-Format Passport for Traveling Border Countries

• Department of State is finalizing its rule-making processing to implement issuance of identification card-format passport (passcard) for use in crossing, by land, the borders between the United States and it's neighbors. It will also affect the charges and fees concerning the procurement of passports, both changes in the costs of the traditional book format and rates for the new card format. Please stay tuned to this website for the development of card-format passport program.

10/25/2007: USCIS Fact Sheet of Naturalization Through Military Service

10/25/2007: Correction of Report on the H-1B Fee Increase under Labor-HHS 2008 Appropriation Bill

• Reports have shown some confusion on the Grassley Amendment that proposed supplemental fee of $3,5000. This fee will be charged, if the conference committee agrees to this part of the bill which the Senate passed, to H-1B petitions. Accordingly, under the bill, the employer will be required to pay the following amount if they employ more than 25 workers:
  • $1,500 American Worker Training Fee ($750 if employs 25 or less employees)
  • $3,500 Supplemental Fee ($1,750 if employ 25 or less employees)
  • $500 Fraud and Abuse Prevention Fee
  • $320 H-1B Petition Fee
  • TOTAL=$5,820
• Additionally, unlile the current American Worker Training fee, there will be no exemption of these fees other than "Public Hospital."
• The full text of this part of the bill is as follows:
  • (h) Supplemental and Deficit Reduction Fees.--Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)) is amended by adding at the end the following:``(15)(A) Except as provided under subparagraph (D), if the Attorney General, the Secretary of Homeland Security, or the Secretary of State is required to impose a fee pursuant to paragraph (9) or (11), the Attorney General, the Secretary of Homeland Security, or the Secretary of State, as appropriate, shall impose a supplemental fee and a deficit reduction fee on the employer in addition to any other fee required by such paragraph or any other provision of law, in the amounts determined under subparagraph (B).
• SHOCKS1 SHOCKS1 SHOCKS1

10/24/2007: DREAM Bill Voted and Failed: 52-44-4

• Senate florr voted and failed to agree on Motion to Cloture which needed 60 votes. The motion was rejected by 52 years, 44 nays, 4 no votes. To see which senators voted yes or nays, please click here.

10/24/2007: USCIS Update on Fire Affected Area Customer Services and Schedules

• Updated Oct. 24 - San Diego area offices (San Diego and Chula Vista field offices and San Marcos Application Support Center) are closed today. Two Naturalization ceremonies in the San Diego area, scheduled for Wednesday, Oct. 24, have been postponed. These are the ceremony at Golden Hall in San Diego and the ceremony at the Chula Vista Service Center in Chula Vista. Los Angeles area offices are operating normally at this time.

10/24/2007: Reinstatement of H-1B Status for Returning H-1B 485 Applicants from Overseas Trip in Advance Parole

• There are and will be some H-1B professionals who have to travel on Advance Parole rather than on a H-1B status because of their special circumstances. This includes unmarried professionals who need to maintain a H-1B status so that they can bring their future spouses to the U.S. on H-4 status and apply for the green card process. Under the current USCIS policy and laws, these professionals have two options to reinstate their H-1B status. One is to leave and return to the U.S. using a valid H-1B visa in the passport. This option is available only when they have a valid visa in the passport to return. Second option is to file I-129 H-1B extension petition. The second option does not require the professional to leave the country to reinstate the H-1B status. They can just reinstate their H-1B status within the country. When they take the second option, they should make it sure that they file the H-1B extension petition while their current approved H-1B remains "valid." Accordingly, when they apply for the H-1B extension, they should submit a copy of parolee I-94 together with the valid approved H-1B approval notice.

10/24/2007: Members of New Democrat Coalition in the House Support for Highly Skilled Foreign Worker Immigration Legislation

• On October 22, 2007, a group of the Congressmen named New Democarat Coalition wrote a letter to Madame Pelosi to act on the highly skilled foreign worker immigration legislation. The proposals in the letter includes:
  • Modernizing student visa programs;
  • Aligning the supply of H-1B visas for professional workers with the needs of U.S. employers so that the visa supply can respond to market demands;
  • Bringing the supply of employment-based green cards into line with the needs of U.S. employers;
  • Recapturing” authorized but unused green card numbers;
  • Strengthening agencies’ ability to enforce visa program rules and punish violators;
  • Exempting returning H-2B workers from annual H-2B cap of 66,000;
  • Recapturing 61,000 unused EB-3 visa numbers including 25,000 for nurses and physical therapists; and
  • Simplifying H-2A approval process.
• This move is important in that unlike the comprehensive immigration reform, the roadblock to the "employment-based immigration reform" has been presented by the Democrats in the House and the Senate. For instance, yesterday the Senate passed a legislation to add $3,500 to $1,500 ACWIA in the name of Supplemental fee.

10/23/2007: Senate Passed Legislation to Recapture 61,000 Unused Numbers for Allied Healthcare Workers

• In the legal immigration, the allied healthcare community has strongest lobbying groups in the nation. These groups were able to muscle passage of a legislative bill in the Senate yesterday recapturing 61,000 unused EB-3 foreign worker visa numbers for them. This bill was passed as part of the Labor-HHS 2008 appropriation bill. Reportedly, this bill faces two roadblocks ahead to make it into a final legislation. One is the White House that has been threatening to veto the Labor-HHS bill in toto because of the amount of spending. Second is the House that has to agree to the Senate version in the conference committee. However, the second roadblock does not seem to pose any serious threat as demonstrated by the move of some of Democrats in the House. Please stay tuned.

10/23/2007: Weird Animal of Requirement for H-1B Traveling with 485 Original Receipt Notice in Order Not to Abandon 485 Application

• This regulatory requirement has never received much attention with controversy until the July VB 2007 had created a huge and massive delay in 485 receipting notices. What purpose is it supposed to serve?
• The U.S. immigration law requires that a nonimmigrant is not admissible to the U.S. if the alien applies for admission to the U.S. at the airport with an "immigrant intent." The law also provides that a nonimmigrant is also allowed to enter and stay in the U.S. for "temporary" purposes only with a clear intent to depart from the U.S. in the future after the permitted period of stay. Accordingly, when an alien applies for admission to the U.S. at the port of entry in a nonimmigrant status, the law assumes that the alien is applying for admission to the country with a nonimmigrant intent and not with an immigrant intent, as otherwise, the alien would not have been admitted to the country by the immigration inspectors. From the legislative intent of the statutes, it is obvious that when a 485 applicant leaves the country and applies for readmission to the U.S. as a "nonimmigrant," the law should assume that the 485 applicant wants to enter the country as a nonimmigrant, abandoning his/her immigrant intent. Advance Parole serves the purpose of showing the immigrant intent of the returning 485 applicant by not entering as a nonimmigrant but as a parolee to continue the immigrant application process within the country. In other words, Advance Parole serves the purpose of law as two evidence. One is to establish "immigrant intent" at the time of reentry. The other is a mechanism to allow such alien to enter the country without any nonimmigrant or immigrant visa status. That much, it is clear why the Advance Parole should be required for returning I-485 applicants.
• What about H or L nonimmigrant? The law specifically permits dual intent - temporary resident intent as well as permanent resident intent. Accordingly, H or L alien cannot be refused an admission to the U.S. by the immigration inspections at the airport simply for the reasons that the alien attempts to enter the country with an immigrant intent. However, this is only an issue of admissibilty of H or L nonimmigrant to the country and not an issue of retention of immigrant intent. Since the law should still determine whether the returning H or L alien is applying for readmission to the U.S. with a "specific immigrant intent," and not with a nonimmigrant intent for the purpose of 485 proceedings for adjustment of status to a lawful permanent resident, the system apparently needed an evidence to determine the specific immigrant intent of the returning H or L aliens. In other nonimmigrant visa aliens, such "immigrant" or "nonimmigrant" intent can be presumed or assumed without any problem because the law prohibits such aliens from entering the country with the immigrant intent. However, in the case of H or L aliens, there is no mechanism to derive an assumption that in a specific entry, the alien was entering with the specific immigrant inent for the purpose of the issue of retention of 485 proceeding and continuing immigrant intent. It thus appears that the regulation that requires a possession of original I-485 receipt notice is intended to provide a device to determine the specific immigrant intent of the returning H or L aliens for the purpose of the retention of the continuing immigrant intent and application for adjustment of status to a lawful permanent residence. Without such evidence, no such immigrant intent, which the 485 proceeding requires, can be established in one way or another unlike the situations in other nonimmigrants. In other words, in the H or L nonimmigrant cases, simple reentering of the alien cannot derive an assumption or presumption of intention of the alien as to nonimmigrant intent vs immigrant intent without some evidence to derive such assumption or presumption at least in the eyes of the law. Allowing dual intent does not automatically translate it into an assumption or presumption of a specific immigrant intent of the alien when the alien travels and returns to the country. This is particularly true considering the fact that even if the alien enjoys a dual intent, the alien is still entering as a "nonimmigrant" and unless a certain evidence indicates otherwise, the law can only assume that the alien is entering as a nonimmigrant and with a nonimmigrant intent rather than an immigrant intent. Presumedly, the drafter of the regulation intended to use 485 receipt notice to determine the continuing immigrant intent of the 485 travelers upon returning to the country. Again, here the issue is not admissibility but abandonment of immigrant intent.
• Well, a law is a law. Even though the record reflects that the immigration examiners have rarely implemented and enforced this law in adjudicating 485 applications, such record cannot guarantee continuing ignorance of this law by the adjudicators. As it stands now, should an I-485 application be denied on this evidence of abandonment of immigrant intent by an adjudicator, the burden of proof of continuing immigrant intent at the time of reentry should rest with the applicant requiring specific evidence of immigrant intent at the time of reentry. People may as well travel with the original I-485 receipt notices until the USCIS amends the regulation.

10/23/2007: Senate Scheduled to Vote DREAM Act Tomorrow, 10/24/2007

• Sources indicate that the Senae is scheduled to vote the Senator Durbin's DREAM Act bill on the floor tomorrow. The passage of the bill will require a cloture motion and need minimum of 60 votes out of 100 Senators. Anti-immigration forces have been engaging in a massive campaign to kill this bill, and unless the bill supporters muscle mobilization of sufficient forces, the future of the bill can be jeopardized. The key appears to be a "massive" contact with the Senators by phone calls, e-mails, fax, or other electronic medium. Accordingly, such contacts within today may determine the fate of this bill in the Senate tomorrow.

10/23/2007: Bobby Jindal, Who Is He?

• The Governor Elect of Luisiana is a rising star in the American politics. But who is he? Read on.

10/22/2007: USCIS to Reschedule LA/San Diego Local Offices Appointments for Customers Affected by Massive Fire

• USCIS has announced that those who had an appointment with the local USCIS offices in Los Angeles and San Diego areas and affected by the current massive fires will be rescheduled. USCIS announcement:
  • USCIS Field Offices in the Los Angeles, CA area (Los Angeles field office, San Bernardino field office and Santa Ana field office) and San Diego, CA (San Diego field office and Chula Vista field office) will automatically reschedule applicants who miss naturalization (N-400) or adjustment of status (I-485) interviews today due to the massive Southern California fires.Anyone who misses an INFOPASS appointment should/may reschedule the appointment on their own, or the customer may go to the office where the appointment was originally scheduled, with the appointment notice for today.It is unknown how long this procedure will be in place, but this alert will be updated daily until the situation changes.
    

10/22/2007: Profile of Honorable Dr. Emilio T. Gonzalez, Director of USCIS

• The employment-based immigration community currently has the highest honor of being led by the heads of the two agencies, USCIS and Office of Foreign Labor Certification of DOL (Dr. William Carlson), both of whom happened to have earned a Ph.D. degree. One is a political appointee and the other is a career civil servant. Political appointees come and go as time moves on, but Dr. Gonzalez deserves a credit to lead the agency successfully for the past several years overcoming the political hurricanes and storms. Most of immigrants are aware of his personal and professional background, but I take this opportunity to introduce Dr. Gonzalez for the new comers in the immigrant community.

10/22/2007: USCIS Transformation Program and Account System

• On December 29, 2005, USCIS published three notices proposing three new immigration forms to create three accounts online: Form I for Alien Beneficiary, Form 2 for Legal Represenatative, and Form 3 for Petitioning Employer. In publishing this notice, it explained the purpose of creating account systems as follows:
  • The U.S. Citizenship and Immigration Services (USCIS) is planning a broad restructuring of its business processes to move from an exclusively transaction based focus to customer accounts. Account management will permit USCIS to streamline benefits processing and eliminate the capture and processing of redundant data. In some respects the account focus represents more comprehensive information than USCIS has previously collected at one time. However, an account focus eliminates redundancy in that customers will not have to give the same information repeatedly. In addition, in many respects the account represents less total information than is cumulatively
    collected today as customers file various applications in their lifecycle with USCIS. But the American public expects USCIS to ask what it needs to know and to link that data with biometrics in order to deter and detect fraud, and thereby reduce national security risks. Moreover, the account system allows USCIS to avoid burdening the customer with repeated requests for the same information. It allows for address changes to be made by individuals, employers, and representatives one time in one place for all purposes, solving a huge customer and administrative burden to date. This account system finds the common ground between USCIS objectives and customer service, national security, and administrative efficiency. USCIS will be promulgating a rulemaking in the near future.
• Since then, the rule-making has not been followed through for the apparent reason of the delay in the Transformation Program. However, it is obvious that as the Transformation Program initiatives move along, these forms will be formally published not just as a notice bur as a proposed rule or interim rule. Accordingly, interested people may review these forms by researching the following federal register notices:
  • Form I: Alien Beneficiary Registration [Alien Individual Account]
  • Form 2: Petitioning Employer Registration [Employer Account]
  • Form 3: Legal Representative (Attorney) Registration [Attorney Account]
• As soon as we pull out the forms, we will post the forms themselves.
  

10/22/2007: USCIS Work Slow-Down Season

• The USCIS processing time for various petitions and applications usually experiences slow-down around this time until the next year for the two main reasons, among others. One is the internal file audits as they get into a new fiscal year which starts on October 1 each year. Pending audits, some files remain in freeze. The second obvious reason is the nation's most important holiday season including Thanksgiving holiday, Christmas holiday, and New Year holiday. As is true with any other workers, whether private sector or government sector, the employees and contractors working with the Service Centers want to take advanatage of extended time beyond the vacation time by scheduling their vacation around the holiday seasons. Accordingly, those who need approval of any applications or petitions at the last minute should file the papers sufficiently ahead of time. USCIS has already issued an advisory that those who need international traveling should file Advance Parole by the end of this month.

10/21/2007: OMB Cleared Burundi TPS Designation Extension and EAD Automatic Extension Rule

• As reported earlier, USCIS requested the OMB clearance for this rule on 10/15/2007. OMB promptly cleared this rule making on 10/19/2007. It is thus anticipated that the USCIS will announce the TPS extension, automatic EAD extension, and other detailed procedures in the near future.

10/21/2007: Silent Teachers Who Help All of Us Grow Up in Each Profession but Often Demonized

• I want to share with the readers some thoughts which are often not come into our thoughts. The theme is "silent teachers." No matter which occupation one is in, there is one identical process everyone has to go through for one to grow up from a "baby" to a "matured expert" in each occupation. In old days, there was an established "apprenticeship" process, which no longer exists. In the professional occupations, one learns and grows from an ignorant to an expert in his/her own profession. Obviously, the first step is education, and we learn from the teachers and professors in higher learning institutions. We do appreciate these teachers for having prepared us to understand each field or profession we are stepping into. However, once we walk into a real world, we tend to ignore that there are more important teachers out there who help us to grow into a professional. When we come out of school and get a job, we are often subject to 60 hours or even 80 hours per week hard work at the job. The hard work and extended work become a norm for the new learners in each field of profession. Medical interns and residents are notorious for such process. So are the lawyers. When they are first hired as an associate, they work 60 hours or longer per week. Journalists are same. They are required to do reporter jobs which are not necessarily appreciated by the experienced journalists. What about engineers? All the same. We often hear these young people complaining that the employers are abusing them by forcing them to work unacceptably long hours and doing unappreciated type of works. One untold and unspoken rule which these young people do not understand is that the hard and long-hour work forms a fast-train taking the young people into a professional in his/her own profession, and those who are not recognized with his/her potential in the profession are not given such work by the employers. The first signal that young people get in his/her first job that he/she is not recognized and not appreciated is that they are not given hard works. A highest philosopher in the Chinese history once said that mother whips not onece but twice the leg of a child as an expression of care and love for the child and to make child into a respectful person in the society and world. This same rule applies in each profession and by the time one grows into a reputable professional, one has been taught by a number of people in the jobs who remained silent teachers without telling us how much they cared and how much they recognized our potential for the profession. In reality, they are usually pointed a finger as a demon and an abuser.
• The teaching method in the American law school is unique in that they teach students by questions and answers and by dialogue and discussion rather than a lecture by a teacher. They call it "Socratic Method." When this reporter attended the law school, he was not fluent in English and not familiar with the culture and system in this country. One day, in the Civil Procedure class which was attended by about 100 students, the professor called me up for five times. It happened on a day when I was not prepared for the class. By the time I was called up the fifth time before 100 classmates, I almost collapsed. At the time, I hated the teacher. However, over the years I have learned why the teacher did it to me. By the time I realized the special care and attention he had given me knowing the handicap a foreign student had and realizing that so much I had to work and study harder, he had been gone. I am walking on the fallen leaves and on this memory lane, remembering that he also taught me that when a leaf drops from a tree, it changes from a real property to a personal property.
• Readers, please look around yourself and see who these silent teachers were and are for you and thank them before too late.

10/20/2007: Reasons for H-1B Professionals in 485 Proceedings Applying for EAD+AP Despite No Intent/Plan to Change Employment

• Attorneys often advise the EB 485 clients to file EAD and Advance Parole Applications concurrently with I-485 applications even when the clients tell the attorneys that they do not have any plan to change employer such as AC 21 change of employment or taking second jobs. Why? It is "contingency." The law requires that the H-1B professionals comply with the terms and conditions of Labor Condition Application and USCIS H-1B regulation, no matter whether the alien is in I-485 proceedings or not in I-485 proceedings. When such violation takes place after filing of I-485, the alien's permit to remain in the U.S. pending I-485 application will not be affected and remain intact. However, continuing employment with the H-1B employer based on the H-1B visa status will constitute an unauthorized employment. This can haunt at the time of adjudication of I-485 applications. More importantly, it will affect eligibility of 245(K) when such violation exceeded six months or longer.
• Most of these violations are caused by the H-1B employers. For instance, nowadays, corporations and businesses are frequently going through merger or acquisition. Some of the merger or acquisition is considered a successor-in-interest entity to the H-1B employer and the H-1B employee's H-1B status will not be affected. Others are not considered a successor-in-interest entity to the H-1B employer. When such H-1B employer, after acquisition or merger, fails to file H-1B transfer timely or subsequently, the H-1B professional loses the H-1B nonimmigrant status with no fault of his or her own. Possession and instant availability of EAD will save the new employer as well as the H-1B professional since such alien is allowed to work for any new employer without a valid H-1B nonimmigrant status, including the new employer after unqualified M&A. Same is true with the bankrupcies of the H-1B employer, particularly reorganization under the supervision of the bankrupcy court. Some employers violate the H-1B and LCA rules by reassigning the H-1B employees at a location outside of the metropolitan area of the current H-1B petition with or without knowledge of the H-1B and LCA rules. EAD in the file can act a savior in certain circumstances in that the employer is not bound by the H-1B/LCA rules once they use the H-1B employees' EAD as the basis of employment authorization rather than H-1B nonimmigrant status. What about a failure to pay the H-1B wages which is evidenced by the alien's federal income tax return, 1040, and W-2? The 485 adjudicators are thoroughly reviewing and analyzing the alien's 1040 and W-2 to determine whether the H-1B employers paid the H-1B employees the H-1B salaries since payment of less than H-1B salary constitues a violation of the H-1B and LCA rules. Once the employer uses EAD rather than H-1B visa status for the authorization to employ an alien, the employer can pay whatever amount they want to pay inasmuch as the alien employees agree to the adjusted salary. Such employer is not bound by the H-1B and LCA prevailing wage rules. There are some H-1B professionals who provided certain services to others without knowing that it still contituted a self-employment and the alien received IRS 1099. This unauthorized employment is reflected in the alien's federal tax returns since those who received the services and paid some money to the H-1B aliens file 1099 with the IRS. Even baby-sitting on a payment of small amount constitutes an unauthorized employment for the H-1B aliens. Runing and managing own small businesses such as groceries, landscaping services, etc. all constitute the unauthorized employment violating the H-1B nonimmigrant status. EAD frees the aliens from the H-1B and LCA rules.
• Of course, the H-1B employers will have to revise I-9 relecting the basis of employment authorization from H-1B nonimmigrant status to EAD. I-9 must be timely revised before such changes. Still, the immediate availability of EAD will save the H-1B employers and the H-1B employees from potential serious violation of the H-1B and LCA rules in that the employers may not be subject to any sanctions for violation of H-1B terms and conditions, if timely changed the basis of employment, and the alien in I-485 proceeding may not face a potential denial of I-485 applications for unauthorized employment. The contingencies usually arise without prior warning or completely out-of-blue. When the H-1B is not in possession of EAD and AP, the alien is likely trapped into illegal status as EAD and AP applications take time. Attorneys tell the clients that EAD and AP are "assets" which they should not use, unless absolutely necessary, but must keep in their safe deposit box for a totally unanticipated contingent events. For the EB 485 applicants, EAD and AP can be expensive, but certainly they are worth the expenses and not a waste of filing fees. This reporter encountered a number of clients who refused to file EAD and AP arguing that they did not need it and they did not want to waste the money and afterwards came to our office in tears because of the development of unanticipated events. It is something which all of the H-1B professionals in EB-485 proceedings must think about. Not once but twice before making a decision.

10/19/2007: USCIS October 19, 2007 Receipting Backlog Update

10/19/2007: Namecheck Backlog Reduction Bill Introduced in the House on 10/15/2007, H.R. 3828

• As we reported yesterday, the Senate also passed a similar bill as part of the CJS FY 2008 Appropriations bill. It is thus extremely important tha the immigration communities work with the House members either to pass this bill or agree to the similar bill in the CJS appropriation bill in the Conference process. The House bill is as follows:
  • Citizenship and Immigration Backlog Reduction Act (Introduced in House), H. R. 3828 , to reduce the backlog in processing requests made by U.S. Citizenship and Immigration Services to the National Name Check Program of the Federal Bureau of Investigation.
  •  
  • IN THE HOUSE OF REPRESENTATIVES
  • October 15, 2007
    Ms. CLARKE (for herself, Mr. ELLISON, Mr. TOWNS, Mr. HONDA, Mr. PASTOR, Mr. VAN HOLLEN, Mr. HINOJOSA, Mr. STARK, Mr. RANGEL, Mr. SHAYS, Mrs. MYRICK, Mr. PERLMUTTER, Mrs. MCCARTHY of New York, and Ms. NORTON) introduced the following bill; which was referred to the Committee on the Judiciary
  • --------------------------------------------------------------------------------
  • A BILL
    To reduce the backlog in processing requests made by U.S. Citizenship and Immigration Services to the National Name Check Program of the Federal Bureau of Investigation.
  • Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
    • SECTION 1. SHORT TITLE.
    • This Act may be cited as the `Citizenship and Immigration Backlog Reduction Act'.
    • SEC. 2. BACKLOG REDUCTION.
    • (a) In General- Not later than 180 days after the date of the enactment of this Act, the Attorney General and the Secretary of Homeland Security shall jointly provide to the Committees on the Judiciary, Homeland Security, and Appropriations of the House of Representatives, and the Committees on the Judiciary, Homeland Security and Governmental Affairs, and Appropriations of the Senate, a plan for ensuring that, within 18 months of the date of enactment of this Act, the National Name Check Program, administered by the Records Management Division of the Federal Bureau of Investigation (FBI), will no longer have any requested name checks from U.S. Citizenship and Immigration Service (USCIS) in backlog status.
    • (b) Elements of Plan- The plan shall include the following elements:
    • (1) Necessary improvements to computer systems so that all records may be transmitted, maintained, and checked electronically, and whether it is possible to centralize this information in a single searchable database.
    • (2) How the FBI will improve communications with USCIS to ensure the maximum efficiency in processing name check requests from that agency.
    • (3) Security upgrades in transferring information between the FBI and USCIS to ensure the privacy of any individual receiving a name check.
    • (4) Long-term fixes that will prevent any future backlog, including a risk management analysis of changes that can be made to streamline the process and policies for obtaining FBI name checks in connection with applications and petitions for immigration benefits.
    • (5) An estimate of the funding required to complete the operation by the required date along with an estimate of any possible fee increases.
    • (6) A study regarding the best practices in assessing the level of risk presented by applicants. The study will determine whether the current risk assessment process should be modified.
    • (7) A report of the number of applications and petitions that remain pending at USCIS more than 6 months after the name check results have been returned from the FBI to USCIS.
    • (c) Effect of Backlog On and After 18 Months of the Date of Enactment of This Act- Beginning 18 months after the date of the enactment of this Act, the National Name Check Program is not authorized to have any file in backlog status. After that date, any name check request from USCIS held in the possession of the National Name Check Program for longer than 6 months--
    • (1) will be referred to the Secretary of Homeland Security, who shall adjudicate interim benefits in connection with the application with which the FBI name check was requested, unless the Secretary certifies there is reasonable cause to suspect that the applicant poses a threat to national security, otherwise poses a threat to the United States, or has broken United States immigration law; and
    • (2) the name check fee shall be fully refunded.
    • (d) Backlog- For purposes of this section, the term `backlog' means, with respect to a file sent to the National Name Check Program from USCIS, that the file has been pending under the jurisdiction of the Justice Department for longer than 6 months.
• This bill is in the House Judiciary Committee. Please contact your representatives to support this bill.
  

10/19/2007: Senator Durbin Introduced DREAM Act of 2007 in the Senate on 10/18/2007

• Senator Durbin is indeed committed and persistent for this legislation for the illegal youngsters in this country. He has introduced this bill over and over again as a stand-alone bill, as part of Comprehensive Immigration Reform bill, and as a rider to the federal departments appropriation bills. They all failed despite the bi-partisan support for the bill.
• Well, he is giving another shot. Yesterday, he introduced this bill as a stand-alone bill, S. 2205. For the full text of the bill, please click here. The bill itself has yet to be printed. The text of this legislative bill has been reported over and over at various sites, including this site.

10/19/2007: We Welcome USCIS Launch of Website Report of Community-Based Organization Meeting Minutes

• USCIS has just lanunched services reporting the minutes of its meetings with the community-based organizations in the form of Questions and Answers. We wholeheartedly welcome such move. Some of these CBOs have failed to release the meeting minutes which are critically important and valuable to the immigration consumers for months, even for six months. By the time the information is released by these CBOs, the information becomes so outdated and trash. In this time and age of cyber global world, timely access to the government services information by the consumers and public is extremely important and we find it very important that the government agencies remove such blocks to public's and consumers' prompt and timely access to information and communication by the intermediaries. Recent move of the Ombudsman's office to host periodical teleconfeences, not through the intermediaries but directly, and the just lanuched USCIS web services to report the discussion and information with the CBOs directly to the public and consumers and not through the CBOs should mark a beginning and not the end of such move. Hats-up to the leaders of the USCIS and the CIS! Immigrants, employers, and other consumers, please send "thank you" messages to the leaders of these agencies.

10/19/2007: Immigration Top Cop, Iron Lady Julie Myers, Assistant Secretary of Immigration & Customs Enforcement

• As "raid" intensifies, this position turns hot and hoter. Well, somebody has to enforce the law. Again, we want to humanize the law enforcement officer by introducing the officer from a human perspectives.

10/18/2007: Senate Passed FBI Background Checks Improvement Amendment to CJS FY 2008 Appropriations Bill

• A small good news coming out of the Hill, helping to pull achey teeth out of a large number of immigrants who have been suffering from namechecks related backlogs.The Senate has approved an amendment by Sen. Carl Levin, D-Mich., to improve oversight of the FBI National Name Check Program, which faces a substantial backlog. The program is used to run background checks on people applying for immigration benefits or seeking employment with the U.S. government, among many other purposes. Levin’s provision, which was included as an amendment to the Commerce, Justice, and Science (CJS) Fiscal Year 2008 Appropriations Bill, would require the FBI to report to Congress every year regarding progress made in improving the FBI’s system of processing background checks and automating investigative files. Thanks to the reader who offered the valuable information. For the amendment sponsor's announcement, please click here.
• Readers, please start contacting your Congressional delegation to support this bill through the Conference process!!!!!!! Send also thank you phone calls and emails Senator Levin. Thank you, Senator!
• BRAVO!
  

10/18/2007: Community Relations Meeting Q&A for National Stakeholders Meeting of September 26, 2007 [Non EB Proceedings Focused]

• This Q&A provides additional information, particularly relating to non-EB based proceedings and local district proceedings.

10/18/2007: USCIS Estimates that It Received 500,000 Naturaliztion Applications in July and August 2007

• This huge surge of filing of N-400 is anticipated to affect the processing times of N-400 cases.

10/18/2007: Community Relations Meeting Q&A Between USCIS and AILA of 09/25/2007 [EB Proceedings Focused]

• This material answers a lot of important questions which have not been made available. The USCIS has decided to release the Community Relations meeting record for the public. Please click here.

10/18/2007: Correction of July VB Fiasco I-485 Filings

• USCIS officially released the information that total I-485 applications which were related to July VB fiasco before August 16, 2007 were 320,000. During the period, the USCIS received 400,000 anxillary applications (EAD and AP), and substantial number of concurrent I-140 petitions. All of these figures added upto 800,000. For the USCIS verification of this information, please Q&A between the USCIS and AILA as part of the Community Relations meeting on September 25, 2007. This has been made available today.

10/18/2007: October 12, 2007 CIS Ombudsman Teleconference Minutes

• Caveat: Ombudsman is not part of the U.S. Citizenship and Immigration Services Directorate. Accordingly, the office is named not USCIS but just CIS Ombudsman. USCIS is distinguished from CIS in the DHS structure. Accordingly, the minutes is unable to give any definite answers to some questions which belong to the jurisdiction of the USCIS and the readers should keep this in mind in reading the minutes. The minutes are still helpful.

10/18/2007: Understanding USCIS Transformation Program - Ongoing Reenginering of Immigration Petitions/Applications Processing and Management System for the Future

• The USCIS has been pushing ahead so-called Transformation Program for the purpose of electronization, enhanced efficiency based on account-based database development and sharing for the purposes of fraud detection and prevention for the integrity of the immigration petitions and applications, backlog reduction, security enhancement. Once the new concept of "Transformation Program" is in place, the traditional system and jurisdiction of filing and processing which are based on the paper filing will disappear, and will be taken over by the new filing and processing system based on the electronic filing and account-based jurisdiction of the USCIS field offices. For instance, the current jurisdiction of employment-based petitions is determined by the place of employment and for years the petition had benn filed with one of the Service Centers that covers the place of employment and under the Bi-Specialization Program, it is determined by the type of petitions/applications and place of employment. This traditional and current bi-specializaation program is anticipated to be discarded and cases will be processed and managed, regardless of location of the employment or employer or alien workers, on the basis of single account per each each employer, each legal representative, each alien, etc. that cross physical locations of employment and different types of petitions or applications. Accordingly, once this transformation program is in place, each employer, each lawyer, each alien, each service providers like immigration medical doctor, etc. will be required to complete and file online a form of registration providing the details of each party. The program will require each party to update and revise the registration whenever there is a change to reflect the correct information for each party. Thus, every time each petition or application is filed, the informaion in the registration will be auomatically transcribed to such petitions and applications and all the petitions and applications which are filed by the same employer, same attorney, for its alien employees, will go into the same acount, allowing the agency to review in an eye-view the track record of all the pevious filings of the same employer or same legal representatives before the adjudication of the petitions and applications. Currently, the PERM electronic filing system adopts parially a similar concept of such operations. For the transformation program, the USCIS already released proposed registration forms for the employers, attorneys, aliens, etc. a couple of years back.
• We post here the USCIS Transformation Program - Concept of Operations document to give a heads-up and some perspectives to the employers, lawyers, and immigrant communities for the ongoing USCIS reengineering process and the future filing jurisdiction, processing procedures, and adudication system. This is a 61-page pdf document and people may want to save it in their systems and take time to read it whenever there is a spare time, for intance, during the week ends. The Transformation Program is reportedly schedueld to be completed and implemented in FY 2009.

10/17/2007: USCIS Centralizes H-2A "Filing" and "Processing" at California Service Center

• USVIS has announced that the agency is centralizing this nonimmigrant temporary agricultural worker petition at the CSC, requiring the petitioner to file the petition directly to the CSC. For the details, please click here.

10/17/2007: Total of 60,000+ EB-485 Applications Adjudicated During July-August-September by NSC and TSC

• AILA has reported that during the period of July, August, and September 2007, Nebraska Service Center and Texas Service Center adjudicated 60,000 plus EB-485 applications. Since EB visa number was unavailable for the entire EB cases in August, presumedly a substantial portion of these cases could include those cases for which the EB visa numbers were pull out before July 2, 2007 in June and adjudicated throughout the period as reported by some I-485 applicants who reported that their I-485 applications were approved when the visa number was unavailable. Interesting.

10/17/2007: EAD and Impact on H-1B Status for EB-485 Applicants in H-1B Nonimmigrant Status

• The issue of impact of the EAD and Advance Parole on the nonimmigrant status of I-485 applicants is governed by the old INS memorandum of Michael Cronin, Associate Commissioner, in May 25, 2000. This memorandum clarified two points on the impact of EAD and AP on the 485 applicant's H-1B nonimmigrant status as follows:
  • Application vs. Use of EAD or Advance Parole: Applying for and obtaining approval of EAD or Advance Parole does not affect the 485 applicant's "nonimmigrant status" including H and L. However, once the alien starts work using an EAD or travels on Advance Parole, the alien is considered no longer in a nonimmigrant status including H and L.
  • Impact of Using EAD for Another Employer Using EAD: The memorandum states: Question: If an H-1 or L-1 nonimmigrant or H-4 or L-2 dependent family member obtains an EAD based on their application for adjustment of status but does not use it to obtain employment, is the alien still maintaining his/her nonimmigrant status? Answer: Yes. The fact that an H or L nonimmigrant is granted an EAD does not cause the alien to violate his/her nonimmigrant status. There may be legitimate reasons for an H or L nonimmigrant to apply for an EAD on the basis of a pending application for adjustment of status. However, an H-I or L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the EAD to leave the employer listed on the approved 1-129 petition and engage in employment for a separate employer.
• Unmarried H-1B professionals in I-485 proceeding should seek legal counsel before they attempt to go into an open market seeking employment using EAD.

10/16/2007: File I -131 Travel Document Before 10/31/2007 for Holiday Travel

• USCIS advises to apply for the travel document before the end of October 2007 anticipating surge of applications during the busiest travel season of a year.

10/16/2007: A Reader's Theory of VSC I-140 Processing Time Report

• A reader has sent us the following persuasive theory as to why the VSC keeps reporting its I-140 processing times with the processing date at April 1, 2006. With the gratitude, we would like to share his theory with our readers as follows:
  • Over the past year, the USCIS Processing Times reports have listed VSC's I-140 processing times as April 1, 2006. March 30, 2006 was the last date that Vermont Service Center accepted I-140 applications, after which a new USCIS rule published at the time requiring all the I-140s to be filed with Nebraska Service Center, which in turn divided the workload between itself and Texas Service Center. It thus appears that any I-140 petitionw which were received by Vermont Service Center or California Service Center after April 1, 2006 have been forwarded to the Nebraska Service Center. Since that time, Vermont Service Center has consistently reported April 1, 2006 as its I-140 processing time, even though it was its last processing date.
• What do you think, readers? Should this be true, the USCIS may want to change its processing report for VSC's I-140 processing. It indeed confuses and misleads the consumers.

10/16/2007: DHS to Extend Burundi TPS Designation and Automatic Employment Authorization

• DHS intends to extend the designation of Burundi for TPS as soon as the White House clears it. The designation was submitted to the White House OMB on October 15, 2007 for its clearance. Please stay tuned.

10/16/2007: H-1B Six-Year Limit and Importance of Planning for H-1B Recapture for Employment-Based Immigration Journey

• There are two options for extension of H-1B status beyond six-year limit. One is AC 21 Section 104 that permits H-1B extension beyond six-year limit in three-year increment if the H-1B alien has obtained approval of I-140 petition. The second option is AC 21 Section 106 that permits H-1B extension beyond six-year limit in one-year increment if 365 days passed since filing of a labor certification or a labor certification waived I-140 petition. There are some H-1B professionals who started the labor certification process after reaching five years in H-1B status or who filed a labor certification waived I-140 petition close to the reach of their H-1B six-year limit. Current suspension of I-140 premium processing services and unusual delays in the I-140 adjudications pose a serious problem for the Section 104 option. At the same time, these H-1B professionals have already passed five years or longer in H-1B when they filed the labor certification application and face a problem in extending H-1B status beyond the six-year limit under Section 106. This creates a hardship to unmarried people, particularly Indians, who should keep H-1B status to marry and bring their spouses in a H-4 status.
• These H-1B professionals should seriously review and consider the options of recapture of H-1B time, which will practically stretch out the reach of H-1B six-year limit or earn time in a H-1B status until their I-140 petition is approved. There are currently two means of H-1B recapture. One is taking trips outside of the U.S. Anytime spent abroad are not counted in determination of their H-1B six-year limit. This will be particularly valuable for an unmarried person who has no option of converting their status to a dependent nonimmigrant status. The second option of stretching out the reach of H-1B six-year limit or until I-140 petition is approved is to change their H-1B status to H-4 if their spouses are in a H-1B status. Any time spent in a H-4 status will not be counted in determination of the H-1B six-year limit. Combination of these two options can stretch out the reach of H-1B six-year for a substantial period of time. Therefore, the later starters, for whatever reasons, of the labor certification process should carefully plan for the process of their H-1B recapture routes, the sooner and the earlier, the better. In worst cases, some people may even consider a change of status to other nonimmigrant status, again for the specific purposes of recapture of the H-1B time since any time spent in other nonimmigrant status is also not counted in determination of the H-1B six-year limit.
• These professionals would seek legal counsel to consider and implement such plans.

10/15/2007: October 15, 2007 USCIS Processing Times

• Vermont Service Center is still processing I-140 and processing time is 04/01/2006, while Texas Service Center processing time is reportedly six months. We urge the USCIS to clarify the confusion.

10/15/2007: Notice to The Oh Law Firm Clients

• It is incumbent upon you to notify this office and confirm any contact by the government agencies. You have been receiving fingerprint notices, EAD cards, Advance Paroles, and other communications from the USCIS lately. Some of you are religiously notifying this office via email but some do not. Lack of your cooperation can bring about unancipated lapse of legal deadlines or other deadly consequences. Unless you confirm us such contacts by the government agencies, we will not be responsible for any consequences that are resulted from your failure to cooperate with your legal counsels. We will not repeat this warning.

10/15/2007: End of DOL Backlog Elimination Program and Photos of the Leaders

• As the Backlog Elimination Program ended at the end of September 2007, the Secretary of U. S. Department of Labor extended her congratulation to the leaders in the program, including Chief of Foreign Labor Certification, Backlog Elimination Program Chief, Dallas Backlog Elimination Center Director, and Philadelphia Backolog Elimination Center Director. These leaders worked invisibly and behind any spotlights professionally and impersonally. It is the time to humanize their faces and with a great gratitude for their services well done, we would like to extend our best wishes to these leaders for their continuing careers in the foreign labor certification business.

10/14/2007: Who is Michael Aytes, Associate Director of Domestic Operations, USCIS?

• Many of our visitors have read either Memorandums or other policy announcements which have been released by this gentleman representing the U.S. Citizenship and Immigration Services. Previous to this, another famous name which the employment-based immigrants heard was William Yates. The Domestic Operations Directorate within the USCIS is the division at the USCIS Headquarters in Washington, D.C. that makes policy decisions on the immigration benefits operations, overseeing all the field offices including the Service Centers, District Offices, Field Offices throughout the country. Consequently, the head of the divsion daily determines the policies and directions affecting the lives of most of our visitors to this web site. The head of this division is called "Associate Director of Domestic Operations."
• I take this opportunity to introduce this gentleman who is a 30-year dedicated career immigration officer who has moved from the bottom up to the present leadership position. Probably, the single most and toughest challenge in his whole career after taking over the leadership position from Bill Yates for this division must have been the July 2007 VB Fiasco. He indeed endured the challenge and has survived from the almost insurmountable political pressures. Considering the amount of workload that avalanched the field offices under his leadership, particularly under the ongoing transition of the immigration benefits management system which is named "transformation program," we must say that thanks to his leadership, the benefits applications processing and management systems in the field offices have not collapsed. We ask readers to familiarize themselves with this leader. Thanks for your good public services!

10/14/2007: PERM Application Form Change on 04/01/2008 and Time for PERM Filers to Review Proposed Changes in the New Form

• The Labor Department has published proposed change in ETA 9089, PERM application form and is currently seeking comments from the consumers and stakeholders until 10/23/2007. The proposed change in the form which is scheduled to take effect on April 1, 2008 includes some positive changes clarifying some questions in the current form which are vague and confusing and allowing substituted preparer and substtitued authorized officials of the employer to sign the certified application where there is a change in the representative who prepared and filed the form, such as a lawyer, or in the designated company official. However, there are some other changes that can affect a successful certification and legal liability for the employers and lawyers for the misrepresentations in the proceedings. Assuming that the new form and changes will take effect on April 1, 2008, the employers who intend to file the applications on or after April 1, 2008 may have to start the recruitment process either now and in the near future to file on April 1, 2008. Obviously, the recruitment must be initiated not based on the current ETA 9089 form and requirement but the new form ETA 9089 and requirement. Otherwise, the PERM application may face a denial. It is thus critically important that the employers and their legal representatives start reviewing the proposed form and instructions seriously before they initiate the recruitment process.
• The immigration practitioners are already reporting late experiences which reflect changes in the National Processing Centers' practice. These changes may reflect the direction of NPCs' future practice. We will review some of these changes which the employers may have to deal with in the future:
  • Increased Audit: We have already reported that the DOL estimates that 30% of total filings may be placed in the audit track. There are reports of increasing number of audits received by the employers. Some of the audits are suspected to have been selected randomly. Obviously, the audits are and will be targeting at detecting frauds and misrepresentations.
  • Labor Certification Cost Liability and Enforcement: Effective July 16, 2007, a rule took effect that the employers must pay the labor certification cost including the attorney fees and the employers are prohibited from recouping the cost from the alien directly or indirectly. The new form reflects the DOL's policy to enforce this rule strictly against the employers and lawyers who violate this rule. The violation will be exposed to the agency either by the report from the aliens or other parties as well as from the audits. The new form intends to collect the details of the attorney's licenses for the apparentl purpose of pursuing the sanctions.
  • Alternative Requirement and Definition of "Equivalent"Education and Experience: The instruction of the proposed form indicates that the agency will read narrowly the "equivalent" requirement in the alternative requirement per its own definition. Accordingly, should the alternative requirement fail to meet "equivalent" qualification requirement, it is likely to deny the application. The most troublesome definition of "equivalent" in the DOL practice is equivalency of experience per education: (1) Associate Degree + 2 Years of Experience or Training = Bachelor's Degree; (2) Bachelor's Degree + 2 Years of Experience or Training = Master's Degree. Accordingly, if the labor certification requires a Master's Degree and alternatively Bacehlor's Degree plus 5 Years of Experience, the alternative requirement will exceed the primary requirement by three years. On the other hand, if the primary requirement is a Bachelor's degree plus 5 years of experience, and alternative requirement is a Master's degree, the alternative requirement is three years short of the primary requirement. Until now, DOL has been flexible on this issue, but it can change. Contrary to the DOL definitions, the USCIS definition of a Master's degree equivalency is a Bachelor's degree plus 5 years of progressive experience. This conflict of definitions between the DOL and the USCIS has been more or less resolved through the DOL's flexible application of equivalency. This is one of the areas which the consumers and stakeholders should bring up in their comments. We recommend that the DOL continue to give a due deference to the USCIS definition of equivalent combination of education and experience.
  • "U.S. Degree" Requirement and Equivalent Foreign Degree Qualification: The current form ETA 9089 implicitly requires U.S. degree as the primary requirement, and allows the employers to accept alternatively "equiivalent" foreign degree. In the new form, the DOL intends to make "U.S. Degree" requirement more formal. It is unclear at this point, how the DOL will define the "equivalent" foreign degree. At this time, the DOL has been accepting the foreign credential evalutiion reports. However, it is not clear whether the DOL will attempt to define "equivalent foreign degree" differently. Again, currently there is a conflict between the DOL and the USCIS relating to this issue.
  • Enforcement of O*NET Job Zone Definition for Education/Experience Requirement: The education and experience requirement for occupations have been downgraded in a number of occupations in the course of change of occupational classification system from DOT (Dictionary of Occupational Titles) to O*NET classifications. However, realizing that the O*NET job zones do not reflect the real-world actual requirement by the employers in certain industries, the Certifying Officers have continuously referred to the DOT and given due deference to the previous definition and certified applications rather than requiring a business necessity evidence or audit. This can change as well. We want the DOL to continue their current practice of considering the DOT defition for some occupations, such as IT occupations, cooks, etc.
• We wish to send our hats-off to the leaders of the DOL for initiating a process to revise the ETA 9089 to make the questions and requirements in the form clearer considering the painful intial experience of the PERM program producing massive denials because of the lack of clarifity in the form and instructions. At the same time, we want to request the DOL leaders not to take revision of the form as an opportunity to turn the substantive standards from the current liberal interpretation to the restrictive interpretation. We urge the DOL to continuously operate the certification process flexibly so as not to create another cycle of backlogs in the future foreign labor certification history.

10/14/2007: DHS Secretary's Response to No-Match Rule Injunction by Federal District Court - Employers & Illegals, Don't Jump and Dance Yet!

• Ouch!

10/13/2007: South Korea's Continuing Pressure on U.S. Government for Visa Waiver Program Participation

• Bush administration has been pushing expansion of designation of additional countries to participate in the visa waiver program which is currently limited to 27 countries, mostly European countries. These additional countries are reported to include those that have assisted the U.S. in the U.S. fight against the terrorism.
• In selecting the additional countries, one time the name of Poland surfaced in the media but there was a report that Poland had been dropped from the list, upsetting the Polish community in and outside of the U.S. South Korea has been named as one of the strongest candidates. State Department reports that the U.S. and the South Korean diplomatic representatives released a joint statement, wherein the South Korean delegate had reiterated its demand for participation in the visa waiver program. The only hangups in the designation of additional countries reportedly include the potential candidates' fairly high record of their nationals not returning to the home countries after visiting the U.S. on a visitor visa. Poland was reportedly dropped from the list for the reason. South Koreans are anxious to hear news of their participation in the program. South Koreans currently have a visa waiver program participation in Canada and they are freely traveling in and out of Canada without a visa. Visa waiver program has received mixed reviews in the Beltway because of the homeland security risks involved, albeit not to the extent involving diversity visa lottery program. One time there was a strong movement in the Congress to remove the visa waiver program and some of the State Department officials participated in the movement. However, visa waiver program affects trades with the nations and the U.S. hopitality and tourism industry can face a devastating impact. Accordingly, the voice against the visa waiver program lately has been silenced and subsided in the Beltway. The visa waiver program expansion has since been considered to reward certain countries that assisted the U.S. in the Afghanistan and Iraqi wars by way of boosting their trade with the U.S. and their economy. South Korea has been assisting the U.S. in the two fronts, one in the global fight against the international terrorism and the other in control of North Korean nuclear ambitions. Reportedly, the South Korea has recently witnessed a booming economy and its enhanced stance in the international community as witnessed by selection of a Korean diplomat as the Secretary of General for the United Nations. For the joint statement of the two countries' diplomats on the trade and visa waiver program discussions, read on.

10/12/2007: 10/12/2007 USCIS Receipting Update

• California Service Center and Vermont Service Center are currently assisting in data entry of employment-based I-485 and related forms (I-140, I-765, and I-131) received at Texas Service Center between the dates of 7/28 and 8/8. As a result, some applicants may receive receipt notices from a service center different than the one they originally applied to.

10/12/2007: USCIS October 2007 Monthly Newsletter

10/12/2007: USCIS Updates FAQ for Receipting Delays as of October 12, 2007

• This update adds and changes some items which are very important. For instance, if the checks expired or there was some defects in the filing fee checks, the uscis will just suspend and request the correct checks rather than rejection of I-485 filings. This information is somewhat inconsistent with the TSC teleconference information. We thank the USCIS leaders for being lenient and accomodative for the issue relating to the filing fee flaws. The applicants have been experiencing outright rejection of filings until now on a narrow reading of the USCIS regulation by the front-end staff of the Service Centers. Hats-off to you!
• Now our next question would be whether the USCIS would allow motion to reopen for those whose July VB I-485 applications have been outrightly rejected on the issue. We submit that they deserve such an opportunity so that their I-485 applications will be still considered timely filed before August 16, 2007.

10/12/2007: IEEE and Semiconductor Industry Association Joins to Urge Congress to Pass Employment-Based Immigration Legislation

• IEEE and SIA have traditionally been at odds each other when it comes to the H-1B visa quota reform, IEEE opposing the raise of H-1B quota and SIA supporting it. However, these two giant groups in the high tech industry joined their hands to write the House and Senate leaders to pass a legislation before the year is over to increase the employment-based immigration quota, exempt of STEM foreign professionals from the current immigration rules, and other relief. This move is considered a prelude to a symphony which will turn louder as the Congress approaches November when the Congress is expected to pick up the immigration reform debates again. However, it is uncertain as to whether such move will indeed produce the fruits before the year is over. The debates on the immigration reform, whether in the form of comprehensive or piecemeal, have surfaced towards the end of every year as a sort of "ritual" with no fruits being produced. Read on.

10/11/2007: Procedure for 245(K) Relief

• The 245(K) can be triggered at two different stages. One is to submit the evidence for eligibility of 245(k) and ask it in the I-485 cover letter requesting 245(K) relief and requesting waiver of violations for the statutorily stipulated period of time in terms of being out-of-status or unauthorized employment for less than six-month period immediately prior to submitting I-485 application. The other stage involves unauthorized employment after filing I-485 application which did not exceed six months. The USCIS I-485 Standard Operating Procedure indicates that the adjudicator of I-485 applications in the employment based cases almost as a regular procedure reviews and determines the eligibility of 245(K) relief even without a special request once they learn through the supporting documentation of I-485 application that the alien was out of status or engaged in unauthorized employment for a period less than six months pending I-485 application before they deny I-485 application. It thus appears that it is a standard procedure. For the violation of less than six month post filing of I-485 applications, the adjudicator also reviews the 245(k) eligibility at the final stage of adjudication of I-485 application if the alien has a record of working without employment authorization, such as the gap between the two EAD cards. However, it has been immigration practitioners' standard practice that they proactively request consideration of 245(K) relief when they file I-485 application for a client who has such violation issues, but not for the post filing violations. In the latter situation, the adjudicator usually issues a RFE requesting eligibility evidence or just approve I-485 application without issuing RFE. In the worst case, they may transfer the case to the local district office for an interview which does not appear to be common. People may now understand why their I-485 was approved despite their record of violation, especially employment authorization for a short period of time while waiting for adjudication of I-485 without any RFE or NOID or transfer to the local district offices. The "flash" word should be violation for "less than six month" and no longer. Total aggregate amount of time in out-of-status or unauthorized employment since the last entry should not exceed 180 days including the step one and the step 2.
• This message is posted as the response to our prior posting was overwhelming relating to the potential benefit of 245(K) benefits before and after filing of I-485 applications. Unlike the 245(i) relief, the alien files no special form nor pay any penalty in 245(K) relief. That is the beauty of this relief that shines through the dark clouds in the sky!

10/11/2007: July VB Fiasco I-485 Receipting Delays

• The USCIS has yet to release the detailed progress report on the receipting delays in terms of the numbers that have yet to be processed for receipting. The only thing people know through various private websites just indicates that there are a plenty of people who are still waiting for filing fee checks cashed or receipt notices received for the cases which were filed as early as July 2, 2007, not to mention any later cases.
• We reported earlier that the USCIS had allegedly received total of 800,000 cases for the July VB fiasco cases. There is an unconfirmed report that they have completed the receipting only half way through of the total, meaning approximately 400,000. There are no sources of information to verify or confirm the figures. However, if it is correct, the USCIS has yet to process mountains of receipting workloads ahead and the filers have some additional sleepless nights which they will have to endure for a while. AMEN!

10/11/2007: USCIS RFE/NOID Timeframe Rule, and Texas Service Center Practice Information

• As people are aware of it, the final USCIS rule on the flexible timeframe for response time to RFE and NOID also includes a rule that where the "initial evidence" is missing in the filings of petitions/applications, the USCIS has a discretion either to reject or accept and issue RFE. Since there is no release by the USCIS on the details for exercise of this discretion, the July VB fiasco filers who have yet to receive the Receipt Notices or filing fee checks cashed have lived in anxiety. This still remains in the closet.
• However, the AILA's 09/17/2007 teleconference record with the Texas Service Center indicates that generally they are not rejecting I-485 filings for the followings and will rather issue RFEs, except where the alien failed to signed on I-485, G-325A, G-28:
  * Missing attorney signature on othe forms I-485 and G-28
  * Missing G-325 form
  * Missing photos
  * Missing employer job offer letter
  * Missing medical exam
  * Missing copy of birth certificate
  * Missing English translations
  * Missing current passport copy
  * Missing I-485 Supplement A for 245(i) cases
• CAVEAT! This teleconference record is not legally binding and should not take as a legal standard. The rule stands that it strictly remains the discretion of each adjudicating official in each individual case. Accordingly, the new filers should strictly adhere to the I-485 instruction sheet listing the "initial evidence" and submit the initial evidence at the time of filing of I-485 applications. What it means is that even if the TSC rejects the I-485 applications for the missing intitial evidence which are listed in the teleconference record, they will not have a right or privilege to contest against such rejection based on the teleconference record.

10/11/2007: H-1B 485 Travelers: To Travel on H-1B or Advance Parole, That is the Question

• Advance Parole is a very convenient legal document that allows the 485 applicants to travel in and out of the country without a valid visa. However, assuming that an alien has a privilege of traveling and working on either of the two options, one should still make a tough decision as to which option one should choose. Inasmuch as the alien also possesses a valid EAD, traveling on Advance Parole and working on EAD on the surface appear to make more sense rather than traveling and working on a H-1B status.
• However, we have previously summarized advantages and disadvantages of these two options a number of times and we will not go into the details again. However, it suffice that we note the following few critical points to help these professionals to make a decision:
  • One of the huge advantage of traveling and working on a H-1B status is continuing a legal H-1B nonimmigrant status even after the I-485 application is denied. Becasue of the dual intent that is allowed to the H-1B nonimmigrants, filing or denial of H-1B does not affect their nonimmigrant status even if I-485 is denied. On the other hand, one who works on EAD and in a parolee status instantly loses their legal status as soon as the I-485 application is denied as the alien remained in either a parolee status or no nonimmigrant status, even though their stays have been authorized pending the adjudication of I-485 applications. Since the alien turns into an out-of-status alien, such alien cannot change the status to any nonimmigrant status after the I-485 is denied and must leave the country. This is a serious disadvantage for working on an EAD and AP. The advantage of 485 applicants who obtained AC 21 Section 104(c) H-1B extension in three-year increment will be allowed to try another green card application process even after the I-485 is denied as they will have a plenty of time to continue the legal employment in H-1B status in the future. Denial of I-485 application does not invalidate the H-1B status including the three-year increment extensions. For this reason, some of the 485 applicants want to change of employment using AC 21 portability using a new H-1B status through the new employer rather than using EAD.
  • Probably more important than the foregoing advantages of working on H-1B and traveling on H-1B includes a legal relief available in the event of nonimmigrant status violation pending I-485 application or before filing I-485 application within the six months prior to filing of I-485 applicattions. There is so-called 245(K) provision which forgives unauthorized employment or out-of-status within six month prior to filing of I-485 application or during the pending I-485 application inasmuch as the alien was "last admitted" to the U.S. in a valid nonimmigrant status. Thus, if one travels on a H-1B status and returns to the U.S. as a H-1B nonimmigrant, any unauthorized employment or violation of H-1B or other nonimmigrat status after such last admission will be forgiven and not affect the pending I-485 application. Since one can violate the nonimmigrant status or employment authorization during the course of I-485 waiting, this can present a very valuable relief to complete the I-485 journey. This 245(K) benefit is not avaiable if one travels and returns on a parolee status because "parole" is not considered an "admission." Accordingly, those H-1B aliens who traveled and returned to the U.S. as a parolee may want to leave the country again and return to the U.S. in a H-1B status this time to be admitted as a nonimmigrant in order to take advantage of the 245(K) benefit.
  • However, people should not misunderstand that keeping a H-1B status is a panacea for everyone. Once one opts to keep and remain in a H-1B status, one should strictly and religiously adhere to the complicated labor condition application rules and H-1B rules including the restriction to the job sites. Any violation of these rules will turn him or her into out-of-status affecting the pending I-485 application as it usually accompanies unauthorized employment as well. On the otherhand, working on EAD and Advance Parole frees him or her from any H-1B rules or conditions and practically allows him or her to complete the I-485 journey, which could have been precluded, had he/she stayed in a H-1B status. The EAD and AP also frees the employers from the H-1B and LCA rules including amount of pay they are required to pay, location of jobs, and even benching. Besides the alien can obtain a second or third job of any nature inasmuch as the employer does not object and the permanent labor certification job is maintained. Accordingly, those who face or will face potential violations of the H-1B rules and status because of the employer business or whatever reasons should quickly convert their basis of employment authorization from H-1B to EAD not to violate the immigration laws and jeopardize their ultimate journey of 485 approval. Sometimes, people use AC 21 change of employment to free themselves from the employer's business change potentially affecting their ability to keep the H-1B rules as remaining with the current employment will cause them violation of H-1B status not because of his/her own fault but because of the fault of the employer, to wit, bankruptcies, benching, less than prevailing wage payment, unauthorized location employment, etc. etc. Besides, should one completes the 485 journey with the original employer, depending on the alien's intent to work for the employer through the completion of the 485 approval, there can arise a potential issue of "misrepresentation" and potential issue of revocation of green card after completing the green card journey, should the USCIS obtain an evidence that the alien did not intend to work for the employer at the time of approval of I-485 application. When AC 21 portability is used, such issue of intent to work for any single employer more or less disappears or reduced and there is less of a chance of facing any revocation issue during the course of naturalization (citizenship) process. Depending on the circumstances, this can also free the employer from the burden of maintaining its intent to hire the alien "permanently" throughout the 485 application process and afterwards. One of the magics that lie with the AC 21 I-140 portability includes this issue.
• As the readers can see from the foregoing summary, the decision of choosing one of the two options will totally depend on each individual's circumstances. This is one of the typical situations that makes one a fool if one makes a decision because of the so-called "my friend did this or that" foolishness. People should seek legal counsel. ABSOLUTELY! I mean it!!!

10/11/2007: Notice to The Oh Law Firm Clients

• I have been traveling for a last few days to attend a family funeral service and just returned to the office, after enduring over five hours of flight delays and in a state of a street person (?) within an air port facility. Air travel is very treachorous these days.
• Our office record reflects that all of you but one have received the July VB fiasco I-485/I-765/I-131 receipt notices and some of you have already received the fignerprint notices and EAD approvals. We request that you send us confirmation emails every time you receive any communication, including receipt notices or any other notices from the agencies. With the original I-485 Receipt Notice, you will be able to travel outside of the U.S. if you are in a valid H-1B/H-4 and L-1/L-2 status, "provided" that you will have to have a valid H-1B visa in your passport at the time you return to the U.S. You should never return to the U.S. using other nonimmigrant visas in the passport, no matter how urgent the return trip will be. Such return will lead to denial of I-485 application in the future on the grounds of abandonment of I-485 applications. If your H or L visa expires during the trip, you should make it sure that you obtain the H or L visa renewal before you return. Without a valid H or L visa in the passport, you will not be able to return to the U.S. as a H or L nonimmigrant even if you carry a valid H or L visa extension approval notice from the Service Centers. If you do not have a valid visa in the passport and you do not intend to apply for the H or L visa renewal on your trip, please do not depart from the U.S. until you receive an Advance Parole. Even if you have yet to receive the EAD approval at the time you return to the U.S., inasmuch as you have a valid H-1B USCIS Approval Notice, you will be able to continue the H-1B employment even without an EAD under the current USCIS policy. This policy does not apply to those in other nonimmigrant status or no nonimmigant status. Unless you have a valid EAD at the time you return from the trip, you will not be able to resume employment even if you have other valid employment-based nonimmigrant status such as O visa, E visa, J visa, P visa, etc. You are returning not as a nonimmigrant but as a parolee and any employment authorization attached to the nonimmigrant status other than H-1B will give no employment authorization during the period of parole "unless you return as a parolee but with a valid H-1 status." In the case of H-1B nonimmigrants, you are still considered a parolee for the purpose of nonimmigrant status determination, but the USCIS presumes that you will be able to reinstate your H-1B status when you file an H-1B extension in the U.S. "withoiut" leaving the U.S. Until such time, though, your status will remain a parolee despite the presumption of continuation of the H-1B employment either with or without an EAD. Those of you who are in a nonimmigrant status other than H-1B can not reinstate the nonimmigrant visa status without leaving the country and reentering in a valid nonimmigrant visa and status. ONE IMPORTANT CAVEAT: Should you return on a nonimmigrant status other than a H-1B or L-1 or dependent status after the trip, your pending I-485 will be considered abandoned. Accordingly, if you are in a nonimmigrant status other than H-1B or L-1, please do not leave and return to the U.S. unless you carry a valid Advance Parole. This practically implies that those of you who are waiting for I-485 adjudication and who are in a valid employment-authorization nonimmigrant status other than H-1B or L-1 will be practically required to abandon your nonimmigrant status within the U.S. once you make a overseas trip as you will be required to travel and return on an Advance Parole and otherwise, your I-485 application will be considered abandoned. This does not however mean that certain type of nonimmigrant visas such as O and E will become automatically invalidated. You can resume such an nonimmigrant status in the future using a valid visa, provided that you decide to abandon the pending I-485 application or the agency denies I-485 application. For instance, those in O or E nonimmigrant visa status who mistakenly returns to the U.S. after filing of I-485 application will face denial of I-485 application at the last stage of adjudication of I-485 application. However, such denial of I-485 application will not invalidate O or E nonimmigrant visa status unless you reentered on a parolee status.
• I know some of you have already made a trip and returned on a parolee status, which is more likely a situation if you are a H-1B nonimmigrant from the Peoples Republic of China. Remember that despite the presumption of H-1B employment, you do not return to the H-1B status automatically. You still have to file an extension of H-1B status to reinstate the H-1B status within the U.S. It is still considered an "extension" petition and the filing fee will remain minimum, but it is your responsibility to seek extension petition, and neither your employer nor this reporter as a company legal representative will be required to file such extension petition since from the perspectives of the employer, you will be continuously authorized to work using an EAD rather than a H-1B nonimmigrant status.

10/08/2007: I-140 Portability After 180 Days of 485 Filing and Service Centers Standard Procedure of Review and Adjudication

• When there is a retrogression of visa numbers and anticipated long delays in 485 adjudication due to the massive July VB fiasco 485 filings, it is anticipated that there will be a substantial number of 485 applicants who may have to change employment along the way, either voluntarily or involuntarily, under AC 21 Section 106(c) provision. Accordingly, whether one reports the change of employment proactively or not, one should learn the internal review and adjudication procedures within the Service Center which are adopted by the adjudicators in adjudicating such I-485 applications.
• The good material to review on this procedure is the USCIS Standard Operating Procedure for the adjudicators. The SOP states that "If the alien is using the portability provisions of AC21 106(c), the adjudicator must determine that both the ported labor certification and the ported I-140 are still valid under the current employer, especially in regards to the continual payment of the prevailing wage, similar occupation classification, and the employer’s ability to pay the prevailing wage."
  • (1) Prevailing Wage Payment: The AC 21 106(c) does not specifically require that the new employer pays the prevailing wage or higher wage for portability. However, the adjudicators review the wage as part of their determination of "continuing validity" of the ported certified labor certification application and I-140 petition. When the applicant stays with the same employer without changing employer, payment of wage less than the prevailing wage should not present any serious issue inasmuch as the employer establishes that the employer was financially able to pay the prevailing wage and is continuously able to pay the prevailing wage until the green card is approved. However, when there is a change of employer who pays less than the prevailing wage, there is no clear-cut rule with reference to this issue. Payment of less than prevailing wage thus potentially can raise two issues when there is a change of employer. One is the adjudicator's argument that there is no continuing validity of the labor certification or I-140 petition. The other is the argument that different wage reflects that the labor certification job and the new job with the new employer are two different occupational classifications.
  • (2) Similar occupational classification issue: The similarity of the two positions involves not the "jobs" but "occupational classification." Accordingly, the old and new positions do not necessarily have to match exactly in every details, especially specific skill sets. Currently, the USCIS is looking up the Labor Department SOC/OES classifications of occupations. When the two jobs fall under the same occupational classification in the DOL occupational definitions, the two jobs are generally considered "similar" occupational classification. As long as the two jobs belong to a similar occupational classification, the applicant can work for the new employer anywhere in the United States. There is no physical location restrictions.
  • (3) Employer's financial ability to pay the wage: Again, AC 21 106(c) does not specifically require that the new employer must prove that the new employer has and will have a financial ability to pay the prevailing wage. However, the adjudicators appear to review the portability case considering the new employer's ability to pay as well as part of review of continuing vality of labor certification and I-140 petition.
  • Remember that when there is a portability issue, two things can ensue. If one proactively reports the eligibility of portability meeting all the foregoing requirment, the adjudicators are likely to decide the pending I-485 application on the merit. However, if the 485 applicants do not report proactively change of employment and the USCIS somehow obtains information of the alien's change of employment, for instance, by employer's report of termination of employment or withdrawal of I-140 petition or substitution of alien beneficiary, then 485 applicants are likely to be served a notice of intent to deny I-485 applications or in most cases, the adjudicator transfers the I-485 file to the local district office for interview.
• In AC 21 106(c) portability situation, the adjudicators also review the issue of the continuing validity of labor certification and I-140 petition involving the original employer, and are likely to raise similar issues which are described above. However, when the alien ports with the "approved" I-140 petition with a copy of the last paycheck and W-2, the adjudicators rarely revisit the original employer's foregoing issues in determining the 140 portability issue. The issues are raised when the alien ports before the I-140 petition is approved. Under the Yates Memorandum, when the alien ports before I-140 petition is approved, the alien has a burden of proof that the I-140 petition was approvable. Accordingly, inasmuch as I-140 petition was approvable and the alien ports after 180 days of I-485 filing, even if the original employer withdraws the I-140 petition, the pending I-485 will not be affected. Yates Memorandum indicates that in such a circumstance, the adjudicator should adjudicate the pending I-140 petition and if finds approvable, then recognizes 106(c) portability and continues to adjudicate the pending I-485 application. Without doubt, in the foregoing situation, the adjudicator will intensively and carefully review the issue of continuing validity of labor certification and I-140 petition issues which are specified above, particularly the employer's financial ability to pay the wage, and the applicant will have to overcome tremendous hurdles to deal with the challenges by the USCIS. Accordingly, people should not port before I-140 petition is approved unless they are assured that the original employer will continuously cooperate and support his/her green card process.

10/07/2007: "Give Me Your Passport!"

• I am now traveling in the East Coast for a family emergency, flying from Minneapolis to New York. When I approached the Northwest Airline "Domestic" flight ticket counter for luggage check-in, a foreigner-looking ground personnel spit out "give me your passport." I did not even say a single word. I said "Excuse me?" She said "Where is your passport?" I said "Why you need a passport for domestic travel?" She said "I thought you were a foreigner?" I said "Do all foreigners have to give you a passport to travel within the country?" She just kept staring and took my driver license.
• I bring up this story to ask immigrants to think about the image of themselves. We often talk about the country's xenophoebia, but even though I do not have specific statistics that I can cite here, there have been sufficient reports in the media that the people who have a negative image and even oppose the immigration are either permanent residents or naturalized U.S. citizen rather than native-born U.S. citizen. I am sure that number of readers of this message have experienced facing a person in the government offices or shopping centers who use fingers to explain without even hearing your voice. A lot of these people usually have an accent themselves.
• It is sad that naturalized immigrants tend to have a negative image of immigrants. I remember that when "ISN" was a very popular website for the South Asian high tech workers, when someone posted certain message with my name, a China-born immigration lawyer in the West Coast posted a comment saying "he is nothing but a Korean lawyer." He was spitting on his own face and I lost any word on the comment. In the first place, I am not a Korean lawyer. I am an American lawyer born in Korea and naturalized in the U.S. However, I do have a "foreign" face. This is not the first time when I asked a question to myself as to why some foreign-born "Americans" or "Immigrants" have a negative image on the immigrants themselves. Whenever I read articles or comments in the electronic or paper media written or spoken by "foreign-looking" faces, I had to think twice what the meaning of xenophoebia was.

10/06/2007: USCIS Updates Receipting Delays as of October 5, 2007

10/06/2007: USCIS Updates Receipting Delays Frequently Asked Questions and Answers as of October 5, 2007

10/05/2007: BEC Transition & Shutdown Process to Continue Through End of December 2007

• According to the DOL Office of Foreign Labor Certification, as of September 30, 2007, the Backlog in the Permanent Labor Certification program has been eliminated, with nearly 99% of cases completed and the remainder awaiting responses from employers. Both of the Backlog Elimination Centers (BECs) have started a transition and shutdown phase that will continue through December. Are you one of those remaining "nearly 1%" of the total Backlog Elimination cases? Then you should read the full announcement.

10/05/2007: November 2007 Visa Bulletin

• There has been no forward movement of the Employment cut-off dates for November. State Department explains that the reason for this is that it is still too early to see what impact the movement of the cut-off dates toward the end of FY-2007 may have on demand. Depending on the rate of demand being received from Citizenship and Immigration Services offices for adjustment of status cases, some forward movement of dates may be possible for December.

10/05/2007: USCIS Receipting Delay - How Does This Affect You?

• The Ombudsman of DHS is scheduled to have a teleconference on this topic on 10/12/2007 from 2:30 to 3:30 pm, Friday. How do you participate? Click here.

10/05/2007: USCIS Corrects Texas Service Center I-140 Processing Times in 09/15/2007 Processing Times Report

• In September 15, 2007 Service Centers Processing Times Report, people noticed abnomalities in certain reports including missing of I-140 processing times for Texas Service Center, I-140 processing times for Vermont Service Center, I-129 and I-539 processing times report for Texas Service Center. People were confused and puzzled by the abnomalities in the reports from the standpoint of the direct filing rule and Phase III Bi-Specialization Program.
• The USCIS has just corrected its September 15, 2007 Processing Times Report correcting the errors for the Texas Service Center I-140 processing times. It now says I-140 processing times is six(6) months. People may revisit the processing times report of the Service Centers in our home page.
• This correction of the Texas Service Center, however, adds another abnomality. The Vermont Service Center I-140 processing times is still there and reports I-140 processing times as April 1, 2006!!! What do you know?! It is indeed a mess. The USCIS webmaster may want to thoroughly review and correct all the mess and not just Texas Service Center I-140 processing times error.

10/05/2007: State Department Federal Register Notice of 2009-DV Registration

10/04/2007: Federal Government Long Weekend - Columbus Day Weekend

• Monday is the Columbus Day and the federal government offices will be closed. Those who need the last minute filing should ship out today for the Friday delivery and "filing."

10/04/2007: White House Announced FY 2008 Refugee Quota Allocation - 80,000

• Bush issued a memorandum to the Secretary of State notifying his determination of FY 2008 refugee quota as follows:
  • The 80,000 admissions numbers shall be allocated among refugees of special humanitarian concern to the United States in accordance with the following regional allocations; provided, however, that the number of admissions allocated to the East Asia region shall include persons admitted to the United States during FY 2008 with Federal refugee resettlement assistance under section 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988, as contained in section 101(e) of Public Law 100-202 (Amerasian immigrants and their family members):
  • Africa . . . . . . . . . . .16,000
  • East Asia . . . . . . . . . 20,000
  • Europe and Central Asia . . 3,000
  • Latin America/Caribbean . . 3,000
  • Near East/South Asia . . . .28,000
  • Unallocated Reserve . . . . 10,000
  • The 10,000 unallocated refugee numbers shall be allocated to regional ceilings as needed. Upon providing notification to the Judiciary Committees of the Congress, you are hereby authorized to use unallocated admissions in regions where the need for additional admissions arises. For the announcement, click here.

10/04/2007: Delay of I-140 Premium Processing Reinstatement and Impact on EB Immigrants

• Reportedly, the USCIS clarified in an AILA conference for the lawyers on 09/28/2007 that the premium processing would not be reinstated in the near future. What does it mean for the employment-based immigrants? Since I-140 backlog has been mounting lately, the following two groups of immigrants will witness unavailability of certain benefits, at least for a prolonged period of time, which are supposed to be available once I-140 is approved.
  • I-1485 Waiter Group: AC-21 allows those EB immigrants who filed I-485 applications and passed 180 days to change employment in a similar or same occupational classification, provided that I-140 had been approved. Accordingly, this group of people will experience this portability unavailable for a substantial period of time even after passage of 180 days after filing of I-485 application. The impact may be painful for those who will be laid off or terminated from the employment or employer business restructuring or going out of business or bankrupcy.
  • H-1B Group During the EB Visa Number Retrogression: Section 104(c) allows the EB immigrants to extend H-1B status in three-year increments during the immigrant visa number unavailability. This allows the "late-starters" of employment-based immigrant journey to remain in H-1B, even beyond the six-year limit, indefinitely until they can file I-485 applications after the immigrant visa numbers become available for them. Considering the just released statistics of 800,000 July VB fiasco 485 filing in less than two months, the waiting period can be indeed very long. The Section 104(c) would have made their life during the long wait less painful since they do not have to worry about keeping maintenance of a valid nonimmigrant status of H-1B all these years. This is particularly true under the circumstances where the labor certification can be obtained in a very short period of time under the PERM system. Indeed, availability of I-140 premium processing has offered a saviour for those who are not eligible for the 7th-year H-1B extension under AC 21 Section 106 that requires passage of 365 days after filing of labor certification and more importantly requirement of filing labor certification before they reach the 5th year in H-1B. Section 104(c) allowed a by-pass and short-cut to 106 option if I-140 is approved and the immigrant visa number remains unavailable for their priority dates. Accordingly the delays in reinstatement of I-140 premium processing services will indeed push some of the people in this group to the edge because of unavailability of H-1B extension during the wait.
• Under the circumstances, people may pay additional attention to Section 106 H-1B extension in one-year increment by starting the labor certification process early enough, certainly before they reach 5th year in H-1B status. The benefit of Section 106 extension is that it does not need a proof of visa number retrogression and even during the visa number being "current," one can continuously extend the H-1B status beyond the six-year limit. Additionally, people should file I-140 petition more meticulously such that adjudication of their I-140 is not futher delayed by RFEs. Such RFEs will cause double delays from the I-140 backlog plus protracted RFE process. As for the I-485 waiters, they should look into the option available for change of employment even before approval of I-140 petitions in emergency under the so-called Yates Memorandum, which states that inasmuch as the I-140 petition was "approvable" at the time of filing and has eventually been approved, change of employment after 180 days of I-485 filing will not affect the I-485 even if the alien changed employment before obtaining the I-140 petition. People should not count on availability of this option unless they first seek legal counsel relating to their eligibility for the option.
• We still hope that the USCIS reinstates the I-140 premium processing services as soon as possible.

10/03/2007: Total EB-485 Applications Received in July and August 2007 (Oops! Thanks Prabin!)

• The attendees of the AILA Conference on 09/28/2007 report that the total EB-485 application which were received relating to the July VB fiasco turned out to be approximately 800,000. Unbelievably, this number is close to 750,000 we predicted when July VB broke out. The numbers are reportedly broken out as follows:
  • 320,000 stand alone 485 applications
  • 40,000 concurrently filed 485 applications
  • About 400,000 485 applications filed by the spouses and children of the principal EB-485 filers.
• We anticipate that USCIS will officially release the information sooner or later. Please stay tuned.
• We are happy to repost our prediction on July 9, 2007 as follows:

07/09/2007: Guesstimate of Potential July 2007 I-485 Eligible Cases [Copyrighted. Do Not Copy Without Permission or Disclosure of Link]

• There is no specific information available about the total number of I-485 cases that could have been filed in July 2007, had there not been the revision of July 2007 and the decision of the USCIS to reject applications. To estimate the numbers, we need the numbers for the labor certification waiver cases of EB-1, and EB-2 (National Interest Waiver) plus labor certification-based cases plus Schedule A labor certification waiver cases.
• We have no statistics whatsoever for EB-1 and EB-2 (NIW) that could have been filed during one month period of July 2007. However, it is not difficult to assume that the numbers would have been more or less very limited. Accordingly, most of the I-485 cases would have been generated by two sources: One is allied healthcare workers, particularly nurses, and the other is labor certification cases.
• For the allied healthcare workers, we could guestimate that ever since 50,000 recapture numbers were exhausted, practically all of these cases have been subject to EB-3 allocations and could not file I-485 applications. Liberal guesstimate may be around 90,000 for this group alone who would have rushed to file I-485 in July 2007.
• For the labor certification-based cases, we have two sources of information. One is pre-March 28, 2005 cases which are called BEC cases. The other is post-March 28, 2005 cases. Total BEC cases were 364,000, according to the BEC report in Orlando, Florida. As of June, they reported that most of RIR cases (approximately 160,000) have been completed and TR cases (approximately 150,000 cases) are actively processed and adjudcated lately. In Orlando, they reported, they completed 310,000 cases out of total 364,000 cases. As far as the processing time was concerned, they did not go into the details that we all know that both BEC cases and PERM cases practically did not move much while they went through the transition stage under the labor certification reengineering program on March 28, 2005. Thus most of the cases were decided in 2006 and 2007. The timing is important to guesstimate the potential I-485 traffics in July 2007 because some of the earlier cases could already have been filed and considered I-485 pending or backlog cases. The later certified cases have been caught in the visa number retrogressions and they could not file I-485 cases and have been waiting for the visa number "current." The National Processing Centers of Chicago and Atltant reported in Orlando that they received total of 200,000, out of which they had certified approximately 160,000 (80%) as of June 2007. For the BEC cases, they reported that they completed processing of 310,000 cases as of June 2007. They did not give us the certification statistics, but there was a release of statistics through informal sources in early this year. According to this sources, the approximately certification was 50% since a chunk of cases had been withdrawn. Accordingly, we may guesstimate that the certified cases may number in the range of 150,000. Combining PERM certification guesstimate of 160,000 and BEC certification guesstimate of 150,000 will lead us to approximately 310,000 cases. Assuming that most of these cases were caught up in the visa number retrogression, close to total in the range of 200,000 and 300,000, including Schedule A, could have been waiting for I-485 filing in July 2007!
• The numbers do not end there. What about spouses and children of these foreign wokers. We do not remember the exact average numbers but we believe the conservative figure is 1.5 for each qualified foreign worker. Therefore, we will have to add at least 450,000 numbers for the spouses and children who would also have filed I-485 applications in July 2007. The foreign workers plus spouses and children would have added upto 750,000 more or less. Assuming that the difference between the old filing fees and the filing fees after July 30, 2007 is between $200 and $300 per individual including children under 14, the filing fee loss for the USCIS would have been between $150,090,000 and $225,000,000.
• Yesterday, we brought up the issues of potential lack of communication and coordination between the DOS and the USCIS behind the July 2007 Visa Bulletin fiasco. But the foreigoing guestimates also adds potential lack of communication and coordination not between two agencies of DOS and USCIS, but among three agencies of DOS, USCIS, and DOL in determination of the July Visa Bulletin!
• The actual figures can be rather more than less of the guesstimate figures herein. They are the victims of the DOS and USCIS actions for whom the AILF lawsuite are expected to address There are concerns which are expressed by the backlog I-485 waiters that they could be seriously negatively affected and the numbers that have already beeen given to them for their I-485 approvals before July 2, 2007 can be revoked. However, once they understand the issues, they will learn that it will not work the way they are currently worrying about. The issue is not actual EB visa numbers available in July 2007 but availabiliy of new "filing of I-485 applications" which will not affect the backlog cases. In other words, one of the theories for the class action could be that it is violation of the law that they revoked the July 2007 visa bulletin and because of the violation, the qualified applicants (assumedly 750,000 some applicants according to the foregoing guesstimate) who were eligible for filing of I-485 applications could not be filed in July because the agency rejected the application when the original July 2007 EB visa numbers were "Current." Under this theory, the real issue is not actual visa number available in July 2007 but the law that allows the aualified applicants to file I-485 applications as provided in the USCIS regulation. Of couse, the legal team may advance second or third theories in the name of "claims," but at least in this theory of violation of the specific regulation, the backlog I-485 waiters are not supposed to be negatively affected by this fiasco potspecific claim, at least in this reporter's opinion.
  • We are posting this information not intended to give a scientific and precise figures but intended to present the extent and scale of the problems and stakes which the current Visa Bulletinentially raises.

10/03/2007: USCIS Michael Aytes, Associate Director of USCIS, Release of the Following Information at AILA Conference on 09/28/2007

• Total July VB fiasco related I-485 cases: 320,000 (stand alone 485 applications only)
• No schedule for reinstatement of I-140 PPS in the near future
• USCIS in the process of working on a regulation to remove the requirement in the current I-485 regualtion that H or L visa I-485 applicants carry the original 485 receipt notices not to abandon the I-485 applications. Hooray!
• USCIS filing and processing system transit from the Bi-Specialization program to Employer Account Program, meaning that all the petitions and applications by a given employer will be filed in one Service Center. I believe the Account System is part of the ongoing Transformation Program. Historically, the Vermont Service Center once adoted so-called "sole jurisdiction" that allowed all the applications of an employer that was located in its jurisdiction and approved by the VSC to file with the VSC regardless of the location of the jobs. The difference in the Account concept may include that so called the employer profile registration will automatically transcribed in any applications/petitions filed by the same employer by the computer. But remember our previous report that this Transformation may not be materialized until 2009.

10/03/2007: Hybrid Facts of I-485 Applicants Traveling in H or L Status and Issue of Abandonment of I-485 Application

• Currently the rule requires nonimmigrants other than H or L travel with an Advance Parole and the nonimmigrants in H or L nonimmigrant status may travel on H or L visa status without an advance parole. Careful analysis of the rule indicates that the nonimmigrants must possess an "approved" Advance Parole at the time of departure from the U.S. as well as at the time of returning to the U.S. In the same token, the special rule for H or L nonimmigrants also requires that the alien must possess a valid H-1 or L status at the time of departure from the U.S. as well as at the time of returning to the U.S. There are some aliens who filed I-485 applications while they were in a nonimmigrant status other than H or L and departed from the U.S. in such a nonimmigrant status but returned in a H or L visa status based on the approved L or H petition which was approved after their departure from the U.S. I-485 Receipt Notice will establish in such case that the alien abandoned the I-485 application by having departed from the U.S. when the alien was in other nonimmigrant status. The immigration inspectors will not be able to deny the alien's admission in such L or H nonimmigrant status because they enjoy the dual intent and whether or not the alien abandoned the I-485 application is immaterial to the issue of admissibility of the alien as a H or L nonimmigrant. However, to the inspectors as well as the Service Center adjudicators, such trip clearly terminated the alien's eligibility for I-485 application as the alien abandoned it.
• The other hybrid fact pattern involves an alien who had a H or L visa status at the time of departure from the U.S. after filing I-485 application but who attempts to return to the U.S. in a nonimmigrant status other than L or H or who is no longer in a valid H or L nonimmigrant. In this case, the rule may also consider that the alien is entering in an other nonimmigrant or invalid nonimmigrant status at the time of returning to the U.S. and such admission constitutes abandonment of I-485 application.
• Consequently, those who fit one of the two foregoing fact pattern may as well travel on the approved Advance Parole rather than on H or L nonimmigrant status. The issue of abandonment does not arise until the actual adjudication of the pending I-485 application, long after the return from a trip.
• There are another issue relating to the alien's departure from the U.S. without the I-485 receipt notice because I-485 regulation seems to require that the I-485 applicants traveling on a H or L nonimmigrant status must possess an original I-485 receipt notice. The legacy INS memorandums did not specify this requirement despite the specific provision in the regulation and there have been a number of incidents where the INS approved I-485 applications. Analysis of the I-485 Standard Operating Procedures (SOP) also does not appear to require this specific steps which are required for the I-485 adjudicators to check this part of evidence to approve the I-485 applications. This still remains an unresolved issue in this regard, as evidenced by the late USCIS FAQ on receipting delays. The answer attempted not to go into a specific answer to this question. In fact, the language in the regulation itself is vague, leaving a room for different interpretation. It does not provide that the alien should seek admission "with" the original receipt notice. It states that the alien returns in a valid H or L nonimmigrant status and the alien is in possession of the original I-485 receipt notice. It thus leaves a room of interpretation that the alien who entered on a H or L visa status at the time of reentry and currently possesses an original I-485 receipt notice may argue that they satisfied the rule. However, the conservative interpretation may require that the H or L aliens should carry with them the original I-485 receipt notices at the time of readmission to the U.S. Additionally, unlike the foregoing discussion, it appears that the regulation is not specific about whether the alien should not depart without the I-485 receipt notices "at the time of departure." The regulation focuses more on the requirement at the time of reentry. Therefore, this leaves a room for a liberal interpretation that those who departed without a receipt notice but returned with the receipt notice could arguably not violated this specific provision. However, this is not a law nor an authoritative interpretation and people should not rely on such a liberal interpretation unless they are charged for such violation in the process of their I-485 applications in the future.

10/03/2007: I-140/I-485 Direct Filing per Phase III Bi-Specialization and Need for Clarification of TSC and VSC 09/15/2007 Processing Times Report

• For the irregualr jurisdictions as revealed in receipting modality, the USCIS explained that such irregularity was occasioned by the VSC helping the receipting workloads of TSC's unusual July Fiasco 485 receipting workload for certain period of time. It is understandable in light of the unsual workload occasioned by the July VB fiasco.
• However, the September 15, 2007 processing times reports of VSC and TSC raise a serious question as to whether the USCIS abandoned its basic conept of Phase III Bi-Specialiation within each of the two territories of West-Central Terriroty (CSC-NSC) vs East-South Territory (VSC-TSC), under which 140/485 is supposed to be filed and processed at either NSC or TSC and I-129/539 is suposed to be filed processed at either CSC or VSC depending on the location of the employer or the alien. Shockingly, the September report showed that I-140 petitions were processed by VSC and no I-140 petitions are processed by TSC. Additionally, I-129 cases were handled by both VSC and TSC. Was there a reshaping of the Bi-Specialization Program or it is again a temporary arrangement to deal with the workloads? Considering the fact that TSC was processing I-140 petitions in two or three months but now VSC is backlogged more than for over 18 months in I-140 processing raises a serious concern for the employers and the alien beneficiaries. We urge the USCIS leaders to clarify the ongoing confusion involving the VSC-TSC jurisdictions.

10/02/2007: Determination of Receipt Date in USCIS Service Center Filings

• We have posted this a number of times to remind people that unless the USCIS announces a special decision to accept the "post-mark" filings, the filing of any petitions and applications is not made nor considered accepted until the filing physically reaches the Service Center facilities during the office hours of the week days. This rule is adopted by all the Service Centers.
• Under the foregoing general rule, when a filing is made by the U.S. Expressmail, even if it is physically received by the Service Center designed post office in the area, it is not considered delivered to the agency until the package or letter is picked up by USCIS at the post office. For instance, in Vermont Service Center, its mail crew make two trips each day to pick up the mails in St. Albans post office, and if any mail is received at the post office after their second pickup (3:00 p.m.) which is their last pickup of the day, the package or mail is considered to have been received the following day when the agency crew takes poseesion of the package at the post office next day. When the packet is filed via commercial overnight delivery services, VSC accepts the courier deliveries until 5:00 p.m. Understanding of this rule for determination of the Receipt Date is very critical when one files a case at the last minute. Sometimes, people call the post office which is a designated post office to confirm that the packet reached the postal service facility. They should know that this does not guarantee a timely filing of the case if the date is the deadline unless they are confirmed by the Service Center that they physically received in their facility. Important to remember.
• There is another issue on determination of the Receipt Date. Despite the fact that the Receipt Date is determined by the physically received date, sometimes the hard copy Receipt Notice or online status site or other notice such as email notice in the Premium Processing cases show a receipt date which happens to be a date later than actual physical receipt date. According to the VSC, this is happening because the online status report of an individual case is programmed to report not the date of actual physical receipt date but the data entry date. Regardless of the online case status report, in this case, the legal receipt date should be actual physical receipt date and it is critically important for the last minute filers that they keep delivery tracking confirmation evidence meticulously. This was one time a big issue for the 245(i) filers whose cases were physically delivered to the agency but the hard copy receipt notices showed a date later than April 30, 2001, the dealine for the 245(i) grandfathering. The same was experienced in the last minute filing of 1986 illegal alien amnesty filings. People should always preserve the evidence.

10/02/2007: DV-2009 Immigration Lottery Starts at Noon, New York Time, Tomorrow!

10/01/2007: Initial Receipts and Pending Immigration Benefits Petitions and Applications at the End of August 2007

• It appears that the statistics in August do not reflect the I-485 applications which had yet to be receipted in the months. Read on.

10/01/2007: USCIS Transformation Program (Electronization) Not Expected Until 2009

• The electronization of filing and processing of petitions and applications has been considered a key to the reduction of backlogs. However, the official who is in charge of development of this program states that the transformation of the processing system will not be in place until 2009. In fact, this program was initiated in part to achieve the Bush's six months processing time commitment, but since the inital initiation, it has witnessed delays after delays, raising doubts even within the agency. Read on.

10/01/2007: H-2B Cap Reached for First Half of FY 2008

• USCIS has announced that the first half of FY 2008 cap reached and that September 27, 2007 is the final receipt date for new H-2B worker petitions requesting employment start dates prior to April 1, 2008. The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first six months of FY2008. For the details, click here.

10/01/2007: DOL Announces End of Backlog Program

• DOL announced today that nearly 99 percent of cases completed and the remainder awaiting responses from employers, and the Backlog Program is ended as scheduled. For the announcement, please click here.

10/01/2007: DOL Scheduled PERM Application Form (ETA 9089) Change At End of March 2008 & Estimate Audits

• DOL is currently collecting comments for the proposed change of ETA 9089 form which will end shortly. Beginning from the end of March 2008, the employers will be required to file a revised form that will reflect a substantial change from the current PERM application process and requirement. Most of the changes will bring positive results, but there are some areas that may bring some wrinkles. People should review and analyze carefully the proposed changes and send in their comments as soon as possible if they find some negative proposals.
• Lately there are some reports that ETA 9089 filers started witnessing some delays unlike their past experiences. There are also growing reports that more and more cases have been placed under "audit" track. We do not anticipate that there wiil be a drastic change in the DOL policy on this but considering the fact that they estimate the audit cases to be 30% of total PERM filing of 100,000 a year, approximately 30,000 cases are still expected to be placed under the audit process. We previously stated that total labor certification cases are estimated at 120,000 applications, but this figure included 20,000 applications for Schedule A and Sheep Helder cases. We also reported earlier that in the coming years, the processing time would be somewhat slowed down in the future, according to the DOL estimation for future performance goal. We encourage readers to revisit our posting on September 5, 2007 to review the proposed new form, changes in the form instructions, and the background statement on the proposed changes.

09/30/2007: Today Marks the End of FY 2007, and New Fiscal Year 2008 Dawns Tomorrow

• As the FY 2007 sunsets in the mid-night today, all the immigrant visa numbers for FY 2007 which have not been used will be wasted. Beginning tomorrow, the new FY 2008 immigrant visa numbers and certain nonimmigrant immigrant numbers that have annual cap such as H-1B, H-2B, H-C, etc. will be allocated and both new immigrants and nonimmigrants of these types either obtain new statuses or visas through the USCIS and the U.S. visa posts throughout the world.
• Today also marks practical end of the foreign labor certification Backlog Elimination Program. The DOL has yet to release information on the status of backlog elimination as at the end of today, but their earlier prediction was that because of the number of cases that requested reconsideration for denials and some unresolved issues such as correction of their errors, the BEC may continue for a while.
• FY 2008 will also mark a lead year to the national election in November 2008 and the national immigration policies and legislative activities will be heavilly affected by the election politics and loaded with the new policy decisions and legislations which are motivated by the election politics. The party politics will reach the peak until the primaries are over which will start in February 2008 and the division of the Democrats and the Republicans in the immigration issues will indeed extrapolate from one end to the other end as the Republican candidates will try to win the hardliner conservatives in the Republican power base and the Democratic candidates will try to win the hardliner liberals and progressive forces including labor unions, and the Hispanics in the Democratic power base. Accordingly, any immigration bills that are focused only on the one-party political agenda are likely to fail unless the other party's political agenda are in one way or another accomodated. For instance, the Senate Majory Leader, Sen. Harry Reid, promises to bring back the DREAM Act bill in the mid-November as an independent bill after failing to attach it to the National Defense Authorization Act, but unless the Senator Durbin's bill is substantially compromised and readjusted, it will face a steep opposition from the conservation members in the House and the Senate, even though the 40-million strong Hispanics will bite strongly in this issue with the threat to retaliate the Republicans in the national election just as they did in the 2006 mid-term national election. Currently the state tuition break remains one of the hot bottons. In the legal immigration legislation, the Republicans will face two challenges, one from its own ultra conservative forces within the Republican Party and the other from the progressive and liberal members of the Democratic Party. Accordingly, it will remain an uphill battle to see any legal immigration bills resolved before the primaries. Obviously, each party may introduce various immigration bills during the period, but most of these bills may be tainted in that they are politically motivated.
• Once the primaries are over, they turn somewhat flexible and freed from the extrapolated party politics. The focus will rather move to the public opinions. However, once the primaries are over, the Congress will have a very limited and short-duration sessions before the Summer recess and the national election, and because of this, the pundits have been predicting that the immigration legislations will not be able to see any light until after the national election in November and until early 2009 after the new Congress steps in.
• Immigrants will thus have to prepare themselves to deal with their current problems involving the bottlenecks in the legal immigration and the continuing challenges in the illegal immigrantion communities relating to the border security and immigration enforcement until 2009.

09/30/2007: President Signed H.J. Res. 26 Continuing Resolution Yesterday

• As we predicted, the President quickly signed the Continuing Resolution yesterday to keep the federal government open and continuously running on and after October 1, 2007, the new Fiscal Year 2008. There will be a continuous battle in the Senate and eventually in the Conference Committees to enace the appropriation bills through November 2007.

09/29/2007: USCIS Administrative Appeals Office (AAO) Processing Times as of 08/29/2007

I-140 EB1 (A) Alien with Extraordinary Ability 9 Months
I-140 EB1 (B) Outstanding Professor or Researcher Current
I-140 EB1 (C) Multinational Manager or Executive Current
I-140 EB2 (D) - National Interest Waiver 11 Months
I-140 EB3 (E), (G) - Skilled, Professional, or Other Worker 11 Months
I-687, 698, 700 Legalization Applicant; Special Agricultural Worker 10 Months
I-526 EB5 Alien Entrepreneur Current
I-129 L Nonimmigrant Intracompany Transferee Current
I-129 H1B Nonimmigrant Specialty Occupation Worker 10 Months
I-129 H2, H3 Temporary Nonimmigrant Worker Current
I-129 O Nonimmigrant Extraordinary Ability Worker 9 Months
I-129 F Petition for Fiancée Current
I-129 P1, P2, P3 Athletes, Artists and Entertainers 10 Months
I-129 Q Cultural Exchange Visitor Current
I-360 RW Petition for Religious Worker Current
I-360 VAWA Violence Against Women Act Petition Current
I-360 J Special Immigrant Juvenile Current
N-470 Application to Preserve Residence Current
N-565 Replacement Naturalization/Citizenship Document Current
N-600 Certificate of Citizenship Current
N-643 Certificate of Citizenship for Adopted Child Current
I-600 Petition for Orphan Current
I-485 Cuban Adjustment Certification Current
I-612 Application for Waiver Current
I-821 TPS Temporary Protected Status 12 Months
I-212 Application to Reapply for Admission 11 Months
I-601 Application for Waiver of Inadmissibility 20 Months
I-131 Application for Travel Document Current
I-485 LIFE Act Adjustment Application 20 Months
I-905 Application to Issue Cert for Health Care Workers Current
I-914 Application for T Nonimmigrant Status Current

09/28/2007: Wide Range of U.S. Employers Wrote on 09/27/07 a Joint Letter to House Speaker Pelosi Urging Action on H-1B Visa and Employment-Based Green Card Reform in 2007

• Orchestrated by the large business lobby group, CompeteAmerica.org, the larger employers wrote a joint letter to Madame Pelosi to act on the H-1B and EB immigration reform before this year is over. For the text of the letter, please click here.
  

09/28/2007: Federal Government Shut-Down on 10/01/2007 Abated

• Congress failed to pass the 2008 federal departmental appropriation bills for the new fiscal year of 2008 that starts on 10/01/2007. However, the Congress passed the Continuing Resolution yesterday, which the President is expected to sign before Monday so that the federal government will remain open. The Continuing Resolutions will provide a limited funding through part of November 2007. For the details, please click here.

09/28/2007: Depressing News for the Year-End Backend 485 Backlogs and Potential Waste of Visa Numbers for FY 2007

• Unconfirmed sources indicate that two days before the end of FY 2007, there may be a substantial number of 485 applications for which visa numbers are available but have yet to be adjudicated, indicating that some visa numbers could be wasted this year. We know that the Service Centers have been working day and night and did not have enough resources to deal with the crisis which was brought about by the recent Visa Bulletin fiasco. We just hope for the better new fiscal year that will start from October 1, 2007.

09/28/2007: USCIS Receipt Delays Frequently Asked Questions

• USCIS answers most of questions which are frequently asked as to why there has been so much delay in the receipting. Thank you the leaders of USCIS for helping immigrants and employers to learn the answers and find a relief from agonies, stresses, and anxiety. No matter what answers you have given, we find it very grateful because it shows that you really care for the immigrants. Thank you and thank again!!!!
• USCIS also explained in the companion release of the 09/28/2007 why some of I-140 or I-485 cases have been receipted in VSC or CSC. It states that California Service Center and Vermont Service Center are currently assisting in data entry of employment-based I-485 and related forms (I-140, I-765, and I-131) received at Texas Service Center between the dates of 7/28 and 8/8. As a result, some applicants may receive receipt notices from a service center different than the one they originally applied to. Thanks to the USCIS for this information as well.

09/28/2007: USCIS 09/28/2007 Receipting Delay Update

09/28/2007: USCIS "Faces of America" Program

• USCIS is soliciting immigrants to share their unique immigration journey story that deserves one of the Faces of America. Celebrity in itself may not automatically deserve a Face of America. Why not try it if you have a unique immigration journey story to share with America? Here is the link.

09/28/2007: Board of Immigration Appeals Grants Asylum for First Female Genital Mutilation, But Denies for Second Female Genital Mutilation for Asylum

• Yesterday, the BIA handed down an interesting rule that because female genital mutilation (“FGM”) is a type of harm that generally is inflicted only once, the procedure itself will normally constitute a “fundamental change in
  circumstances” such that an asylum applicant no longer has a well-founded fear ofpersecution based on the fear that she will again be subjected to FGM. Unlike forcible sterilization, a procedure that also is performed only once but has lasting physical and emotional effects, FGM has not been specifically identified as a basis for asylum within the definition of a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000), so FGM does not qualify as “continuing persecution.” Matter of Y-T-L-, 23 I&N Dec. 601 (BIA 2003), distinguished.
• Hmm......... See Matter of A-T-, 24 I&N Dec. 296 (BIA 2007), Interim Decision #3584 (BIA September 27, 2007)
  

09/28/2007: Reminder: Passport Flexibility Accommodation for Air Travel Ends September 30

• We reported on Steptemer 15, 2007 that the Senate passed H.R. 2638 DHS 2008 Appropriation Bill which extends the enforcement of the Western Hemisphere Travel Initiative program that mandates a passport within the Western Hemisphere. However, because of the difference between the House Bill and the Senate Bill, this bill has yet to be finalized through the Conference process. Consequently, as of now, the current DHS policy stands and the WHTI program will be enforced effective October 1, 2007 and the U.S. citizens will no longer travel in the Western Hemisphere and return after October 1, 2007 unless when they depart from the U.S., they carry a U.S. passport. The following is the USCBP reminder.
• (09/27/2007)U.S. Customs and Border Protection reminds air carriers and the traveling public that the temporary Western Hemisphere Travel Initiative accommodation allowing U.S. citizens to travel by air within the Western Hemisphere using a Department of State official proof of passport application receipt will end, as scheduled, at midnight Sunday, Sept. 30. U.S. citizens who departed the country under this travel accommodation prior to Oct. 1 with a Department of State official proof of passport application receipt and government-issued identification will be readmitted with these same documents if returning to the United States after Sept. 30. The federal government made this accommodation in June due to longer than expected processing times for passport applications in the face of record-breaking demand. As of October 1, U.S. citizens traveling by air to Canada, Mexico, the Caribbean and Bermuda must present a passport or other WHTI-compliant documentation to enter or depart from the United States. It is also strongly recommended that U.S. citizens verify the specific documentary requirements for their destination country prior to leaving. Passports are required as part of the Western Hemisphere Travel Initiative, which was enacted by Congress in the Intelligence Reform and Terrorism Prevention Act of 2004. This law addresses core 9/11 Commission findings for secure and reliable identification documents to prevent entry of terrorists across our borders, reduce use of fraudulent documents, and speed up entry procedures.
  
  

09/27/2007: New York State Foreign Labor Certification Office Moved!

• The Office of Foreign Labor Certification of DOL announced the following important message:
  • The New York Department of Labor's Foreign Labor Certification has moved its H-2B processing office from New York, New York to Albany, New York. To file an H-2B application in the state of New York, employers may forward their applications to:
    • New York State Department of Labor
      Foreign Labor Certification Unit
      Post Office Box 15127
      Albany, New York 12212
      Attn: Cynthia Baez
      Phone: (518) 457-6823
  • To file an H-2A application in the state of New York, employers may forward their applications to:
    • NYS Department of Labor
      Foreign Labor Certification – H2A
      Building 12, Room 266
      Albany, NY 12240
      518-457-7001
  • To obtain a prevailing wage determination you my contact the New York State Department of Labor at:
    • Supervising Labor Service Rep.
      New York State Department of Labor
      1 Hudson Square
      75 Varick Street
      New York, N.Y. 10013
      212-775-3767
  • For additional information please contact Ms. Cynthia Baez at H2BFLC@labor.state.ny.us or call 518-457-6823. Further information regarding the New York Department of Labor's Foreign Labor Certification move to Albany, New York, please log onto: http://www.labor.state.ny.us/agencyinfo/
    H-2BApplicationProcessingChange.shtm.

09/27/2007: DREAM Failed to Pass as Attachment to H.R. 1585

• Report indicates that S.A. 2919, the Dream Act, which was introduced by Sen. Durbin to attach to the H.R. 1585, failed today. However, this bill may again come up as a separate bill soon. Please stay tuned. Anti-immigration forces are elated on the news.

09/27/2007: USCIS Announces New Naturalization (Citizenship) Test

• Announcement
• Frequently Asked Questions
• Questions and Answers

09/27/2007: UACIS Announces Change of Address for Humanitarian Parole Applications

• The new address is:
  • U.S. Citizenship and Immigration Services
    ATTN: Chief, International Operations Division
    (Humanitarian Parole)
    20 Massachusetts Avenue, NW, Suite 3300 Washington, DC 20529
• For the announcement, please click here.

09/26/2007: Congressional Research Services Releases Updated "U.S. Policy on Permanent Admission."

• The CRS has been closely mornitoring the U.S. immigration policies and immigration trends. This September 12, 2007 update edition gives some upto-date perspectives of immigration policy issues and statistics. Weekend read material.

09/26/2007: BIA Hands Down Today Another Immigration Practioner Sanction Rule

• The BIA handed down another immigration attorney discipline rule today that where an attorney who was suspended from practice before the Board of ImmigrationAppeals, the Immigration Courts, and the Department of Homeland Security pending the final disposition of his attorney discipline proceeding sought reinstatement because he had been reinstated to the Florida Bar, but he had practiced before the Miami Immigration Court while under the Board’s immediate suspension order, his motion was denied, and he was instead suspended for 120 days, twice the recommended discipline in the Notice of Intent To Discipline. See, Matter of JEAN-JOSEPH, Attorney, 24 I&N Dec. 294(BIA 2007), Int. Dec. #3583 (September 26, 2007, BIA)

09/26/2007: State Department Formal Announcement of Launch of 2009 DV Program Registration

• On September 25, 2006, the State Department formally announced 2009 DV registration. Applications for the 2009 Diversity Visa (DV) Lottery will be accepted between noon Eastern Daylight Time (EDT) (GMT-4), Wednesday, October 3, 2007 and noon Eastern Standard Time (EST) (GMT-5) Sunday, December 2, 2007. Applicants may access the electronic Diversity Visa entry form at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on December 2, 2007.
• For other details, please read the full text of announcement.

09/26/2007: USCIS Launches Photo Identifying Tool for E-Verify Program

• Under this program, the photo tool will be available when a new employee presents an Employment Authorization Document (EAD) or Permanent Resident Card (“green card”) to complete the Employment Eligibility Verification Form (I-9). It allows the employer to compare identical photos – the individual’s photograph on the EAD or green card against the image stored in USCIS’ databases, which contains nearly 15 million images of individual documents. The tool is designed to help an employer determine whether the document presented reasonably relates to the individual presenting it and contains a valid photo. It is the USCIS Web-based system that allows participating employers to electronically verify the employment eligibility of newly hired employees. More than 23,000 employers are currently enrolled in the program – with more than 2,000 more joining each month – and will now be able to access the new photo screening tool to more accurately verify a new non-citizen employee’s identity. For the details, please click here.
  

09/25/2007: DREAM to Turn Reality in Senate This Week?

• As the Senate returned to the debate of H.R. 1585 National Defense Authorization Act this afternoon, the speculation is growing that Senate Majority Leader Harry Reid may schedule it on the floor and even attempt to take votes as early as this week. Such action needs cloture motion and unless the Senate gets 60 votes, it will fail to materialize. Hmm......

09/25/2007: USCIS Weekly Frontlog Reports Pushing Some Filers to the Edge and Anxiety

• USCIS weekly frontlog reports release the information on the progress of 485 receipting for NSC and TSC. There are however some 485 filers who filed their cases as early as July 2, 2007 and those who filed as early as July 19, 2007 after the USCIS announcement of reversing its decision, who have yet to receive the Recept Notices. Their fingers have been busy every day to check their online bank system to check the status of the filing fee checks with no avail. This pushes them to emotional distress and the edge of anxiety. Less anxious and less stressful but confused are those who receive in the mail boxes the Receipt Notices from other Service Centers, particularly CSC or VSC which they understood was not supposed to be involved in the adjudication of I-485 applications under the latest direct filing announcement and the Phase III Bi-Specialization Program. Release of some kind of information on the irregular receipting by the USCIS would be able to relieve these people from the anxiety, nervousness, and emotional fright. We urge the USCIS leaders to help these people out by releasing some information about the ongoing receipting process.

09/25/2007: Quo Vadis, BEC?

• DOL Becklog Elimination Program has only three working days to meet its promise to completely eliminate backlog cases by the end of September 2007. There was a report on the DOL website one time that BEC would continue and some of the unfinished cases would be continuously adjudicated at least through early 2008. But mysteriously, this report has been quickly removed afterwards. One wonders which one to believe: To eliminate all the backlog by the end of September 2007 or some of the cases may be behind and adjudicated after September 30, 2007? The fate of BEC as an entity may depend on the answer to this question. Dr. Carlson, could we expect your announcement soon?

09/24/2007: DHS Deputy Secretary, Michael Jackson, Departs Effective 10/26/2007

• Report indicates that the Deputy Secretary Jackson turned in resignation to leave the DHS effective 10/26/2007. Deputy Secretary is the second highest post in the DHS command and USCIS Director is under the direct command of the Deputy Secretary. It is unclear how the USCIS direction will be affected by his departure, but probably the impact will be very limited. The only concern is that increasing number of people are jumping from the Bush lame duck ship and the DHS may experience some vacuum and instability during the period of power transition. Read on.

09/24/2007: Full Text of Written Testimonies of Six Witnesses in House Judiciary Immigration Subcommittee Hearing on 09/20/2007 Regaring USCIS Fee Increase

• Thank you, Chairwoman Zoe Lofgren, for posting the full text of written testimonies of the USCIS and private sector witnesses.

09/23/2007: Immigration Lottery Program - Fraud Risks Complicate State's Ability to Manage Diversity Visa Program

• Immigration lottery program is intended to achieve a "diversity" of immigrants by allocating 50,000 immigrants from countries other than those where the largest number of immigrants immigrated to this country each year. However, this program has been continuously assaulted by the involved government agencies as well as the Congress for its potential fraud and security risks posed by these fraudulent immigrants. GAO reported on September 21, 2007 that it had been requested to review and recommend this controversial program. Despite its acknowledgment of contribution to the diversity, GAO reported it had been a problem-ridden program. This review will not affect already announced 2009 DV program, but people may want to read the GAO Report.

09/22/2007: House Judiciary Immigration Subcommittee Immigration Fee Oversight Hearing Witnesses

• Probably our readers have watched the webcast which we linked earlier. The Subcommittee called three witnesses from the USCIS and three private sector witnesses. USCIS witnesses included Deputy Director, Associate Director Michael Aytes, Finance Director, and one of the private sector witnesses included William Yates, former Associate Director. Among the USCIS witnesses, only the Deputy Director verbally testified but all three private sector witnesses made verbal testimonies. These witnesses have however submitted their full written testimonies for the hearing record and we hope that the Subcommittee make these written testimonies available to the public as soon as possible. Oral testimonies were reduced to the four because of the time constraint in the hearing.
• Private sector witnesses focused their testimonies on three points: (1) Substantial portion of the premium processing generated fund was used for security clearance and support of other functions, which should have been paid by the general revenue from the tax rather than fee revenue; (2) Improvement of improvement of USCIS management, homeland security should help not only the immigrants but also the general government system and the public, and in this regard, part of the funding should have been allocated from the general fund of tax money by the Congress; and (3) Backlog has been caused by the inefficient and ineffective management of immigration benefits petitions and applications by the USCIS and it is unfair that the immigrants should take over the burden from the agency's inefficiency.
• The USCIS witness justified the fee increase in that GAO report of 2004 recommended and sort of mandated it for backlog reduction and homeland security improvement. Additionally, in order to achieve the GAO recommendation, the agency needs improvement in infrastructures, electronization, account system initiation, other changes, which all require increased funding, and the USCIS revenue is currently generated from the fee income. Congressman Gutierrez from Illinoit grilled the government witness for the suspicious delay of implementation of green card rule changes to match close to the implementation of the fee increase rule implementation and the USCIS is required to submit the answer to this question in writing later.
• The time constraint for the hearing appeared to be related to the debates in the finance committee activities and the actual time spent for oral hearing was very short. We will post the written testimonies as soon as the Subcommittee releases it to the public. In the meantime, we urge the readers to watch the webcast during this weekend.

09/21;2007: State Department Released 2009-DV Immigration Lottery Registration Instructions

09/21/2007: USCIS September 21, 2007 Frontlog Processing Report

• This frontlog update indicates that NSC and TSC have made progress in I-140 and I-485 receipting activities. NSC is 08/09/2007 which is consistent with our law firm record, and TSC has made a great stride. This frontlog report does not reflect the recent VSC and CSC I-485 receipting activities.

09/21/2007: DREAM Act Reintroduced as Amendment to H.R. 1585, National Defense Authorization Act of 2008, by Senator Durbin in the Senate

• Senator Durbin introduced this bill in the Senate on September 19, 2007 with the list of following 14 cosponsors:
  • Sen Hagel, Chuck [NE] - 9/19/2007
    Sen Lugar, Richard G. [IN] - 9/19/2007
    Sen Hatch, Orrin G. [UT] - 9/19/2007
    Sen Bingaman, Jeff [NM] - 9/20/2007
    Sen Boxer, Barbara [CA] - 9/20/2007
    Sen Cantwell, Maria [WA] - 9/20/2007
    Sen Clinton, Hillary Rodham [NY] - 9/20/2007
    Sen Feinstein, Dianne [CA] - 9/20/2007
    Sen Kerry, John F. [MA] - 9/20/2007
    Sen Lieberman, Joseph I. [CT] - 9/20/2007
    Sen Menendez, Robert [NJ] - 9/20/2007
    Sen Murray, Patty [WA] - 9/20/2007
    Sen Nelson, Bill [FL] - 9/20/2007
    Sen Obama, Barack [IL] - 9/20/2007
• For the full text of the bill, please click here.

09/21/2007: Attorneys Subject to Discipline for H-1B Petition with Improperly Obtained Labor Condition Application

• The Board of Immigration Appeals handed down a serious decision on September 13, 2007 that can affect the immigration lawyers who practice the employment-based immigration law. The decision states that it is in the public interest to discipline an attorney who knowingly and willfully misled the USCIS by presenting an improperly obtained certified LCA under his signature in support of a nonimmigrant worker petition, Matter of SHAH, Attorney, 24 i&n dEC. 282 (BIA 2007), Interim Decision, #3580 (September 13, 2007). In the case, oddly enough, the attorney signed the Labor Condition Application on behalf of the employer client and filed such LCA with the H-1B petition. On the surface, the rule appears to be limited to the fact situation where the attorney "signed" LCA and knowingly and willfully misled the USCIS by improperly obtaining the LCA, but the scope of the rule can be much broader than the narrow facts involved in the instant case. Immigration practioners should read this decision.

09/20/2007: USCIS Fee Increase Hearing of House Judiciary Immigration Subcommittee Today

• The hearing has been completed as scheduled, but unlike previous practice, the Subcommittee made the text of hearing only on web case rather than documents. Those who wish to hear this web cast should go to http://judiciary.edgeboss.net/real/judiciary/immigration/immi092007.smi and after downloading the software, play the realplayer. To download the software, please go to the hearing site.
• We hope that Madam Lofgren post the testimonies in documents on its site to help the people who are not technically sophiscated.

09/20/2007: The Battle for DREAM Act Legislation Heating Up

• Pro and Con political and community forces are in full gear either to block or to pressure passage of this bill as part of the rider of currently debating Defense Authorization bill in the Senate. The Heritage Foundation and other conservative forces and anti-immigration forces are all over to reach their power base to send a message that this is an amnesty bill, while the pro-immigration forces, particularly, Hispanic groups, are mobilizing and adding their pressures on the Senators. Obviously, largest numbers of illegal youngsters come from Mexico with their parents and the Hispanic community has a stake in this bill. Senator Durbin from Illinois has been very dedicated to this issue and sees the Defense Authorization bill as the best chance to make through the Congress as a piecemeal legislation strategy. Once the Senate passes this bill, the bill will go to the Senate-House Conference as part of the amended Defense Authorization bill, H.R. 1585. Please stay tuned to this website for the development of this news.

09/20/2007: Admission of Iraqi Refugees Expected to be Accelerated

• Special Iraqi refugee program has been initiated by the Bush Administration to admit those Iraqis who assisted the U.S. in the Iraq war and and were under the treat of harm by the Iraqi insurgents. However, this program has been tangled with the bureacratic mess in the Department of State and the Department of Homeland Security and target of criticism from all corners of the political circles. Even though not to the level of the mess in the New Orleans hurricane, this has raised eye brows in the political leaders.
• Reportedly, under the extreme political pressures, the two departments are mobilizing resources and intend to accelerate the Iraqi refugee screening and admission process. Read on.

09/20/2007: I-140 and I-485 Applicants Confusion of Jurisdiction of Receipting, Processing, and Adjudication of Their Cases

• There are reports that I-485 applications which were filed per the USCIS new direct filing instructions have been receiving Receipt Notices from a different Service Center followed by another notice that the cases have been transferred back to the original Service Center. Some cases are transferred to other Service Center without any follow-up notices. Additionally, we have already posted that September 15, 2007 USCIS Processing Times report did not show I-140 processing times for Texas Service Center, while the Vermont Service Center reported the processing time reports for various different types of I-140 petitions. Rumor goes that all the I-140 petitions that were filed with the Texas Service Center have been transferred to other Service Centers, probably to Vermont Service Center. The consumers have also experienced a substantial confusion relating to the USCIS I-485 receipting frontlog reports. The situation raises a serious concern in the consumer community as to whether the USCIS is again shipping around the files among different Service Centers, because such transfers of files usually accompany delays in the processing of applications, not to mention frequent loss of files. Is the USCIS reconfiguring the Bi-Specialization program or abandoning such Bi-Specialization program? Lack of predictability on the agency's management and processing of the applications raises some cooncerns in the community. We urge the USCIS to release their updates on their modality of processing of I-140 petitions and I-485 applications as soon as possible.

09/20/2007: USCIS Memorandum for Field Adjudicators of Naturalization Application on Adjudication of N-648

• According to the memorandum issued by Mr. Donald Neufeld, Acting Deputy Director of Domestic Operations dated September 18, 2007, the USCIS has received numerous inquiries on the adjudication of N-648 issues because of some confusion on the part of applicants as well as on the part of medical professional who certified the disability. This memorandum is issued to give a guidance and clarification of some issues on this application. Naturalization applicants, who have a medically determinable physical or mental impairment that renders them unable to demonstrate a proficiency of the English language or knowledge of U.S. history and government, submit Form N-648 along with N-400 naturalization application in order to establish eligibility for an exception to the English and/or U.S. history and government requirements. For the full text of the memorandum, please click here.

09/19/2007: USCIS Growing I-140 Backlogs and Dilemma of Reinstatement of I-140 Premium Processing

• The September 15, 2007 Service Centers Processing Times report misses the I-140 processing times for TSC, but the processing times for I-140 as reflected in the NSC and VSC reports indicate that the processing times of I-140 have been continuously deteriorating. Additionally, the statistics of total I-140 pending cases grew from about less than 100,000 cases at the end of June to over 120,000 cases at the end of July 2007. This huge surge of backlog between June and July 2007 may have been affected by the elimination of labor certification substitutiion on July 16, 2007 and filing of substitution I-140 petitions could have brought about unusual increase in backlogs. Without doubt, termination of PPS for substitution cases could have been another factor in the surge.
• The DOL statistics indicates that they have been adjudicating average 10,000 PERM cases per month. For the Backlog cases, in about 45 days between July 20 and September 6, 2007, they adjudcated approximately 17,000 cases. Statistically, PERM certification rate was known to be approximately 80% and Backlog certification cases amounted to approximately 55%. Adding these sources of the labor certification approvals did not amount to a large number between August and early September 2007. Accordingly, these new labor certification cases should not affect a surge of I-140 backlog in August exceeding the figure at the end of July 2007, had the USCIS reinstated the Premium Processing Services on August 2, 2007. Unfortunately, the USCIS did not reinstate the PPS after August 2, 2007. It will be interesting to learn how such decision could have affected the I-140 backlogs at the end of August 2007.
• Unconfirmed sources indicate that the USCIS was and is not prepared to reinstate the PPS of I-140 petitions for fear of a potential opening of flood gate for PPS filings and their inability to meet the legal requirement of adjudication of such flooded cases within 15-day time limit. Such fear is well founded and understandable. However, the USCIS could have considered reinstatement of I-140 petitions in a step-by-step basis among different types of cases rather than completely continuing suspension of the PPS for all types of cases indefinitely. In a way, such option may resolve their current predicament. We have no idea how they should structure such step-by-step reinstatement of I-140 PPS among different types of cases, but from the perspectives of the USCIS goal to remove the backlogs and the perspectives of the foreign workers who need I-140 petition approvals for the purpose of AC 21 portability and three-year increment H-1B extension, such action may serve squaredly the "public interest" in all respects. We urge the USCIS leaders to consider the foregoing suggestion as soon as possible. The need for such action appears to be mouting in that the EB immigration process will take a long time in the future as affected by the flood of I-485 filing of July VB fiasco cases, while there is growing concern that the nation's economy may slow down as affected by mortgage market bubbles, and unless they take advantage of AC-21 portability and three-year H-1B extension, some of them may not be able to survive in the immigration journey after wasting years of their lives in navigating in a wild open ocean.

09/19/2007: Automatic Extension of Employment Authorization and Related Documentation for Liberians Provided DED Effective October 1, 2007

• This morning, the USCIS published a notice in the federal register to announce an 18-month automatic extension of employment authorization and Employment Authorization Documents for Liberians (and persons without nationality who last habitually resided in Liberia) who have been provided Deferred Enforced Departure (DED) in accordance with the Memorandum from President George W. Bush, to Secretary of Homeland Security, Michael Chertoff, dated September 12, 2007. In addition, this notice informs the affected Liberians and their employers, or prospective employers, that a copy of this notice presented in conjunction with an EAD expiring on September 30, 2007, that was previously issued to the person as a beneficiary of Temporary Protected Status (TPS), may be accepted as evidence of a covered individual's continued employment authorization through March 31, 2009. This notice further informs
  Liberians covered by DED and their employers how they may determine which EADs are automatically extended. Finally, this notice provides instructions for those Liberians who have been provided DED and who would like to apply for permission to travel outside the United States during the 18-month DED period. The 18-month automatic extension of employment authorization for Liberians who are eligible for DED, including the extension of their EADs, as specified in this notice, is effective as of 12:01 a.m. October 1, 2007. This automatic extension will expire on March 31, 2009. For other details, please read the full text of the notice.
• People may also read the USCIS Questions and Answers which was released earlier.
  

09/18/2007: Proposed H-1C Attestation Form and Rule

• DOL has submitted the Nurse employer H-1C attestion form and rule proposal to the OMB for its review and approval.

09/18/2007: USCIS September 15, 2007 Processing Times Report and Missing I-140 Processing Time for Texas Service Center

• It appears that there was an oversight or an error for the Texas Service Center processing times. The report fails to show the I-140 processing time for the Texas Service Center. We hope that this error be corrected as soon as possible.

09/18/2007: DREAM Bill Fights

• As we reported earlier, Senator Durbin has been looking for a chance to reintroduce this bill as a rider to one of the 2008 appropriation bills. Against such move, the anti-immigration forces have been engaging in a massive campaign to oppose such bill. Report indicates that Senator Durbin will indeed introduce this bill as an amendment to the 2008 National Defense Authorization Act bill, H.R. 1585, which the House has already passed and the senate is expected to act on this week. The DREAM bill will have a much better chance to make it as a piecemeal legislation rather than as a part of CIR because this bill has a bi-partisan support in both Houses. Please stay tuned.

09/17/2007: September 15, 2007 USCIS Processing Times

09/17/2007: Distinction Between L-1A Requirement and EB-13 Multinational Corporate Executive/Manager LC Waiver Requirement

• It appears that there are some multinational corporate workers who came to the U.S. in a L-1B specialized knowledge intra-company transferee and have been promoted to a manager or executive within the U.S. subsidiary or parent company after working several years in a L-1B status. This leads some of these workers to a confusion that since they are now in a L-1A status in a multinational corporate manager or executive, they will be eligible to file a EB-13 multinational national corporate executive or manager petition which does not require a labor certification application. This confusion was caused by their responsibilities and duties in the U.S. company. However, such alien is not eligible for the EB-13 petition unless they prove that they worked in the foreign parent or subsididay company in the manager or executive postion for one year or over. Inasmuch as the alien worked in such position overseas, such alien will be eligible for the EB-13 petition even if they came to the U.S. in a L-1B visa inasmuch as the alien is promoted to a managerial or exeuctive position in the U.S. subsidiary or parent company. Despite apparent similarity between the L-1A qualification requirement and the EB-13 qualification requirement, there is a clear disctinction which makes not all L-1A in the U.S. automatically eligible for the EB-13 immigrant proceeding. Lately we receive a number of inquiries from these types of foreign workers, apparently affected by the serious recession for India and China in EB-2 and EB-3 categories.

09/17/2007: DOL OFLC Reposted Foreign Labor Certification Performance Report

• Thank you, OFLC. They reposted this report which is very informative and useful to the employers and foreign workers. It serves the public well.

09/16/2007: Senate to Debate and Act on DHS 2008 Appropriation Bill, H.R. 2638

• The House passed this appropriation bill in July before the Congress left for the summer recess. The Senate is scheduled to debate and act on this bill coming Monday. The House passed bill included the following sections:
  • SEC. 530. EXTENSION OF THE IMPLEMENTATION DEADLINE FOR THE WESTERN HEMISPHERE TRAVEL INITIATIVE. Subparagraph (A) of section 7209(b)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458; 8 U.S.C. 1185 note) is amended by striking `This plan shall be implemented not later than three months after the Secretary of State and the Secretary of Homeland Security make the certifications required in subsection (B), or June 1, 2009, whichever is earlier.' and inserting `Such plan may not be implemented earlier than the date that is the later of 3 months after the Secretary of State and the Secretary of Homeland Security make the certification required in subparagraph (B) or June 1, 2009.'.
  • SEC. 543. PROHIBITION ON USE OF FUNDS FOR RULEMAKING RELATED TO PETITIONS FOR ALIENS. None of the funds made available in this Act may be used by the Secretary of Homeland Security or any delegate of the Secretary to issue any rule or regulation which implements the Notice of Proposed Rulemaking related to Petitions for Aliens To Perform Temporary Nonagricultural Services or Labor (H-2B) set out beginning on 70 Federal Register 3984 (January 27, 2005).
• The Senate has already agreed to these two provisions and it is likely that these two provisions will become law affecting the WHTI enforcement which has caused somewhat panderminium for the State Department and the U.S. citizen travelers, at least for a while, and the USCIS initiaive as reflected in H-2B program may be at halt.
• In the Senate, Senator Durbin from Illiois introduced an amendment to impose extra $1,500 fee to the nurses who use the recapture visa numbers and this is something which the allied healthcare worker community should watch in the coming week. There are no other employment-based immigration reform rider to this legislation, but it cannot be ruled out that such amendments can be introduced on the Senate floor. The rumor goes that AgJOBS may be introduced as a rider to the Farm Bill rather than this appropriation bill, but Senator Durbin may attempt to attach his DREAM bill to one of the appropriation bills.
• There is no information available about potential reintroduction of a piecemeal employment-based immigration bill as a rider to the appropriation bills. It appears that the political landscape indicates that unless such bill is introduced as a bi-partisan bill which is attached to one of the appropriation bills or a separate bill, a Republican initiated bill to make it within this year is questionable at this point. At this point, the employment-based immigration reform as part of CIR is considered hopeless as it will totally depend on the fate of the CIR and it is a sort of concensus that the CIR may not come into reality until 2009 at best, albeit there may be some sporatic attempts in the Congress to debate such bills before 2009. The Republican-led piecemeal employment-based immigration bills have been denied by the Congress at least two times: The first bill was S.1932 in 2005 which was introduced by Senator Spector, Senate Judiciary Committee Chairman at the time. This bill passed in the Senate, but the House denied it early 2006. The second attempt was Senator Cornyn of Texas who attempted to attach the SKIL bill to one of the 2008 appropriation bills but was unsuccessful because of the strong opposition from the Democrats in the Senate, particularly Senator Durbin. Unless there is a bi-partisan concensus formed very quickly, the chance for the employment-based immigration reform within this year remains questionable. We hope that the leaders of the both parties hear the voice from the business leaders as is evidenced by Microsoft Bill Gates testimony before a House subcommittee hearing earlier this year and the upcoming rally of highly skilled foreign workers in D.C. on next Tuesday to initiate such piecemeal employment-based immigration legislation before the end of the year.
  
  

09/15/2007: More Than 23,000 Newly Naturalized U.S. Citizen Born Through 125 Ceremonies Within Next Week

• The USCIS released information that within next week more than 23,000 people would be sworn into U.S. citizens. It also states that annually approximately 700,000 have been sworn into citizens over the years. For the USCIS announcement, please click here.

09/15/2007: U.S. Customs & Border Protection Updates on 09/04/2007 Actions Recommended for Nonimmigrants Departed Without Surrendering I-94

• The update of the information on this issue by the USCBP recommends that: If a nonimmigrant failed to turn in his/her I-94 Departure Record, he/she is recommended to send it, along with any documentation that proves that he/she left the United States to the following address only and not to any U.S. Consulate or Embassy or any other USCBP office in the U.S. or any address to correct the CBP records properly. It reminds the people that only at this location, the USCBP is able to make the necessary corrections to USCBP records to prevent inconvenience to the traveler in the future. The address is: ACS - CBP SBU, 1084 South Laurel Road,London, KY 40744. For the additional details, please click here.

09/14 /2007: USCIS September 14, 2007 Frontlog Report

09/14/2007: OFLC Pull-Off of 2006 Foreign Labor Certification Performance Report

• The DOL Office of Foreign Labor Certification has pull off two important disclosures. One is the 2006 Foreign Labor Certification Performance Report and the other is the progress report on the BEC program. We hope that the agency reposts the information for the stakeholders and the public. We thought the agency did a superb job for the consumers and the public.

09/14/2007: Special Announcement by Michigan SWA on Online Prevailing Wage Determination

• During the past several days, the Michigan Foreign Labor Certification web site was moved to a new server with a new URL. In order to submit a Michigan Online Prevailing Wage Request, please go to http://www.michigan.gov/mdcd/0,1607,7-122-1678_2661---,00.html and follow the instructions. No new Reference Code is required. You should continue to use your existing assigned Reference Code.
• For additional information, please contact Mira Patel, Occupational Research Section, Michigan Department of Labor & Economic Growth, 3032 W. Grand Blvd., Suite 9-400, Detroit, MI 48202, Tel: (313) 456-3017; Fax: (313) 456-3004, Email: PatelM1@michigan.gov
  

09/14/2007: USCIS September 2007 Monthly Newsletter

09/14/2007: Legislative Challenge to Increased Immigration Fees on the Move

• The House Judiciary Committee Immigration Subcommittee will hold a hearing on the immigration fee increase on September 20, 2007, Thursday, at 10:00 a.m. The Chairwoman of the Subcommittee, Madame Zoe Lofgren, is pushing on this challenge since the fee increase rule was finalized and enforced on July 30, 2007 and introduced a bill to challenge the fee increase rule. The Rep. Gutierrez from Illinois also earlier introduced another bill to challenge the immigration fee increases before the rule was finalized. Considering the fact that the immigration fee increase involves a complex issue of achieving the homeland security enhancement as well as the immigration benefits management improvemeent efforts, it will be interesting to see how the hearing will turn out. The USCIS is currently pounded by two pressures from the two opposite directions: One is the pressure from the GAO on the USCIS problem to achieve backlog reductions and need for changes in the USCIS immigration benefits management. The other is the pressure from the House to challenge the increase of immigration fees which are alleged by the USCIS to achieve the immigration benefits management and homeland security management improvement and enhancement. Almost entire sources of funding for the USCIS immigration benefits function are derived from the immigration filing fees. Please stay tuned to this web site for the testimonies of the witnesses next Thursday.

09/13/2007: USCIS Fact Sheet on Deferred Enforced Departure (DED) Per President's Directive for Liberians

• To implement the President's directive, the USCIS is scheduled to publish the DED program in the federal register soon. But pending the relase of the federal register notice, the USCIS has just released the fact sheet for the eligible Liberians outlining the program. For the full text of the fact sheet, please click here.

09/12/2007: Deportation of TPS Liberians Abated by the President Bush's Directive

• The Liberians who have been residing in the U.S. in a Temporary Protected Status (TPS) have been destined to be deported due to the DHS decision not to extend the TPS designation beyond October 1, 2007. A special bill was introduced in the Congress to grant a relief to these Liberians, but the Congress failed to pass the bill before the Congress went into the Summer recess.
• Today, the President issued an order to the Secretary of Homeland Security directing him to take the necessary steps to implement for these Liberians:
  • 1. deferral of enforced departure from the United States for 18 months from October 1, 2007; and
  • 2. authorization for employment for 18 months from October 1, 2007.
• This directive shall not apply to any Liberian national (or person without nationality who last habitually resided in Liberia): (1) who is ineligible for TPS for the reasons provided in section 244(c)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. 1254a(c)(2)(B); (2) whose removal you determine is in the interest of the United States; (3) whose presence or activities in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States; (4) who has voluntarily returned to Liberia or his or her country of last habitual residence outside the United States; (5) who was deported, excluded, or removed prior to the date of this memorandum; or (6) who is subject to extradition.
• For the full text of the President's directive, please click here.

09/12/2007: Nebraska Service Center EAD Processing Times

• The 08/30/2007 AILA-NSC Q&A indicates that the EAD for students and others are required to be completed within 75-days of receipt. As of August 30, 2007, they were processing in 40 days for EAD for students, and 45 days for EAD for others. Not too bad at all.

09/12/2007: Skilled Workers Immigration Reform: Mounting High Drama

• The highly skilled foreign workers have been closely following the news on the ongoing campaign to pressure the Congress to take an action on the reform of skilled worker immigration system. The BusinessWeek, however, summarized the status, issues, and other questions very succintly yesterday. We want the readers to read this report to update themselves on this topic. The employers have also been involved in this campaign directly or indirectly to push for such legislation. The CompeteAmerica is an arm of lobbying for the large U.S. businesses and released a statement supporting the 13 governors action.

09/11/2007: DOL Office Of Foreign Labor Certification Performance Report

• The OFLC has just released a thorough and extensive report of the foreign labor certification performance report. 28.3% of the certified labor certification applications have been taken by Indian workers! For all other interesting statistics on the certified labor certification cases, just read on. Very, very interesting!!!

09/11/2007: October 2007 Visa Bulletin

09/11/2007: Governors' Joint Letter to the Leaders of House and Senate for Skilled Worker Nonimmigrant & Immigrant Reform

• The governors in 13 states wrote a joint letter today requesting the Congress' action for reform of skilled worker immigration as soon as possible. For the full text, please click here.

09/11/2007: USCIS Online Status System Outage Schedule

• On Wednesday, September 12, 2007, at 9 PM EDT, certain USCIS web-based systems will be taken out of service for maintenance upgrades. They should be restored by the morning of Thursday September 13, 2007. These systems include:
  • Case Status Online (and processing times)
    Field Office Locator and Information
    Civil Surgeon Locator; and
    Change of Address Online
    

09/10/2007: BEC Processing Status and Future After 09/30/2007

• AILA has released the September 6, 2007 DOL Stakeholders/BEC processing update as follows:
• Processing Status:
  • Total Cases Completed: 351,000
  • Cases Yet to be Completed: 11,000 (2%)
    • 6,500 waiting for response to 30 or 45 day letter
    • 3,000 waiting for response to Notice of Findings
    • 1,500 in various final actions.
  • Most of remaining cases may be completed by the end of October 2007, but those cases which are not completed by that time will be continuously processed by the BEC even after October 2007.
• Future of the BEC and BEC Processing:
  • BEC will still stay opened beyond 09/30/2007 and until further notice in the federal register in the future (several months). Accordingly, until the DOL releases such federal register notice, people should assume that some of these cases or other unresolved cases will be continuously processed and people should keep sending inquiries even after 09/30/2007 to info@dal.dflc.us or info@phi.dflc.us.

09/10/2007: USCIS 09/07/2007 Frontlog Report

09/07/2007: Time for the Hill to Hear Voice from Foreign Skilled Workers

• We have reported again and again the importance of foreign brains for the sustained growth of this nation in every aspect of life as the most powerful leader in the world, including enrichment of culture, sustained economic growth, leadership in technology and business, etc. We have also reminded the political leaders through this website time and time again unfair treatment of these foreign brains and intentional or unintentional minimization of the tremendous contributions of these foreign brans to the nation. We even used the term that they remain "orphans" in terms of lack of attention and care from the American political leadership. We also reminded the political leaders of their failure to give "at least" an equal shake in the nation's immigration policy and legislative process, not necessarily unfair favor extended to these foreign brains over other immigrants. However, it is extremely frustrating to notice in the nation's capital that the "immigration reform" is perceived and considered "synanimous" with amnesty of illegal aliens or low-end industry unskilled workers. We do recognize that these latter immigration issues are as important as the immigration issues involving foreign brains. In stating such, we must underscore the term "as important as." The reality is though that the political leaders have been and are obsessed with one part of politically volitile immigration issue and closing their eyes to other part of important immigration issue, to wit, "legal immigration" and "inducement and retention of foreign brains." We find this unacceptable.
• These foreign brains deserve at least an "equal shake" in the political process. In a way, the nation has failed to give such equal shake because these foreign brain workers have been "under-represented" in the political and legislative process and it is time for the leaders in Washington, D.C. to hear voice from these foreign workers. As we reported earlier, these skilled foreign workers are scheduled to gather in the nation's capital on September 18, 2007 to call the nation's attention to the importance of this issue as they may not be able to "take it no more" being treated unfairly or neglected. This rally is organized and called upon by a group of foreign skilled workers named immigrationvoice. We usually do not encourage people to go out to the streets to address their views and opinions, but in this instance, we, as the watcher of the nation's politics and political process on the immigration, share with them the need for their voice heard in the nation through such action. We encourage the immigrants to participate in such activities to have their voice heard in the nation's capital.
• We also urge the business leaders, research and academic institutions, and political leaders to come forward to educate some of the misinformed and misguided political leaders and the members of the public with the critical issues involved in foreign brains immigration. We reiterate with regret that yesterday's House Judiciary Committee Immigration Subcommittee hearing on STRIVE ACT legislation missed the opportunity to hear the voice from this segment of immigrants, and the business community, academic community, and foreign brains are entiled to be outraged for the House's unfair treatment of the U.S. employers needs and foreign brains contribution to this nation. We trust that this unfortunate event will never be repeated in the future. The nation is impatient of the Capital Hill's engaging in politiking with the label of "do nothing" when it comes to the immigration legislation. One way for the nation's capital to recover from such label will be to solve issue by issue producing legislation rather than dumping hundreds of different issues under the name of "comprehensive" and fail to produce any single immigration legislation. We admire the House leaders for their initiaves to bring back CIR debate. At the same time, we want to urge these leaders not to neglect passage of piecemeal immigration legislation at the same time.

09/06/2007: House Subcommittee STRIVE Act Hearing Today and ComputerWorld's Cynical Review of the Hearing

• We noted earlier that the list of witnesses to testify before the House subcommittee lacked the representation of voices from the business and academic communities that needed the foreign skilled workers bad. Today, the leading trade journal in IT industry in the U.S., "ComputerWorld," also witnessed such deficiency in the today's hearing while allowing the anti-immigration group of FAIR to address their opposition to skilled worker immigration issues. Even though the employment-based immigration represents only 27% of total immigration annually, it does not translate that the weight and importance of these immigrants should be taken lightly. The business leaders and academic community should note of the problem and must come forward with a demand forcefully to correct such problem in the legislative process.

09/06/2007: Critical Review of DHS Improvement in Functions/Management by GAO and Swift Release of Disgreement by DHS

• Today, the GAO released a report critically reviewing its achievements in the various functions and management of DHS. In the USCIS function, the GAO noted the agency's failure to achieve the Bush's six-month baclog reduction plan. It also noted that the USCIS not only failed to achieve the six-month reduction plan in the past but also lacks a clear program to reduce the backlogs in the future. The DHS was swift in releasing its response to the GAO's negative review and recommendations to disagree to the GAO reviews in many areas. Readers may want to review these two materials during the weekend to see how ping-pong game is played between the GAO and the DHS.
  • GAO Report
  • DHS Response

09/05/2007: DHS Reminds End of Temporary Western Hemisphere Travel Initiative (WHTI) at Midnight 09/30/2007

• Read on.

09/05/2007: Proposed Revised PERM Application Form ETA 9089

• Proposed Revised PERM Form ETA 9089
• Instructions to the proposed revised ETA 9089
• Statement in Support of the Proposed Revision of ETA 9089

09/05/2007: List and Text of Testimonies of Witnesses To Testify at House Judiciary Immigration Subcommittee Hearing Tomorrow

• The list: For the full text of the testimonies, please click the names.
  • Congressman Jeff Flake, R-AZ, co-sponsor of STRIVE Act of 2007
  • Congressman Joe Beca, D-CA
  • Congressman Ray Lahood, R-CA
  • Congessman Brian Bilbray, R-CA
  • Tony Wasilewski, Small Business Owner, Schiller Park, IL
  • Eduardo Gonzalez, U.S. Navy Petty Officer Second Class, Jacsonville, FL
  • Rev. Luis Cortes, Jr., President Esperanza USA
  • Joshua Hoyt, Executive Director Illinois Coalition for Immigrant & Refugee Rights
  • Cassandra Q. Butts, Sr. Vice President for Domestic Policy Center for American Progress
  • David Lizarraga, Chirman of U.S. Hispanic Chamber of Commerce
  • Julie Kirchner, Director of Government Relations Federation of American Immigration Reform
  • Corey Stewart, Chairman At-Large, William County Board of Supervisors, FL
• The list indicates that the skilled worker immigrant worker community is not well represented in this hearing. We will post the text of the testimony as soon as it becomes available.

09/04/2007: Sayonara, Adieu, Good-Bye, ... to Backlog Labor Certification in 26 Days

• The Backlog Labor Certification program will sunset and completely closed at the end of September 2007. It is only 26 days away. Strangely, some of us ride a mixed feeling, particularly those who worked with the paper processing over the electronic processing.

09/04/2007: House Schedules a Hearing on "STRIVE ACT" [House Version CIR] on Thursday, September 6, 2007

• The Security Through Regularized Immigration and a Vibrant Economy Act of 2007 (STRIVE ACT of 2007), H.R. 1645, was introduced by Rep. Gutierrez from Illinois before the Senate acted on its version of CIR. It is a bi-partisan House version Comprehensive Immigration Reform legislation. The House Judiciary Committee Immigration Subcommittee is taking up this bill and scheduled to open a hearing on the bill at 1:00 p.m. of September 6, 2007, Thursday. Mesdames Pelosi and Lofgren, the two powerful women leaders in the House, are keeping their promise during the summer recess that the House would pick up the CIR bill when the Congress returns to the Hill. Please stay tuned to this website for the development of the House version CIR legislative initiative.
• 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

• 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.

09/03/2007: What's Ahead in the Senate as They Return to Session After Today?

• Reportedly, the Senate will return to the Hill with mountains of bills. However, the bills which stand on the top of priority list are known to be "11 Appropriation Bills." As seen in the chart, the Senate was successful in voting on only one appropriation bill before the Senate went into the Summer break. These 11 appropriation bills will come potentially with mountains of unrelated riders or attachments to each bill slowing down the floor actions. We reported earlier that these riders would include some piecemeal immigration bills including DREAM Act, AgJOBS Act, etc. Obviously, there will be other immigration bills that attempt to ride with one of the eleven bills. In fact, as far as the piecemeal immigration bills are concerned, the only opportunities these bills will even make to the floor are riding these appropriation bills and we predict that there will be a slim chance that an independent CIR bill will make through the full Senate floor at the early stage of the Senate fall and winter sessions, albeit the House may take up some of these bills as separate from the Senate agenda. It is thus expected that the Senators who sponsor these piecemeal immigration bills will keep attempting to attach their bills in each appropriation bill whenever there is a chance to make it. If the individual department appropriation bills fail to pass within the limited time, reportedly there may develop the Senate's strategy to pass the appropriation bills in the form of "Omnibus" Spending Bill which may give another opportunity for these immigration bills to attempt to ride with it. Whatever develops, it is a given agenda of the Congress that all of these appropriation bills or omnibus spending bills will have to go through the House-Senate conference committee processes along with the riders, suggesting that the immigrant community has a long and hard road ahead to see any fruits at all. In light of some attempts in the House to introduce CIR as well as piecemeal immigration bills, there will indeed arise sporatic and confusing developments of immigration bills in the House and the Senate and monitoring of all of these immigration bills will present a challenging task to the immigration stakeholders. We ask the readers to keep patience and to ride with us in this difficult journey for the next several months to monitor the activities in the Beltway. Please enjoy your holiday today before your body temperature may start rising ahead!

09/02/2007: Brewing Fierce Immigration Legislation Confrontation in Congress and Implication of AFL-CIO No Match Letter Lawsuit Results

• As the Congress is about to return to the Hill this week after the Labor Day holiday on Monday, 09/03/2007, pro and con immigration forces have been sharpening their knives against each other, mobilizing en masse their power bases. The Hispanic leaders are scheduling a massive rally in Lansing, Michigan on the Labor Day in support of the comprehensive immigration reform legislation. Foreign skilled workers are scheduling a rally in the nation's capital on September 18, 2007. The anti-immigration groups and legislators have launched a massive media campaign to oppose any immigration reform proposals giving relief to undocumented aliens and to promote their border security and enforcement only legislative proposals. Reportedly, the House Judiciary Committee Immigration Subcommittee may take up certain pieceemeal pro-immigration bills such as AgJOBS, DREAM, etc. The Bush Administration initiated its CIR campaign through the Border and Immigration Improvement Within Current Law proposals that focused on crack-down of illegal immigration and employers as a gesture and a mechanism to entice and soften the hardline conservative forces against the CIR.
• The Friday's grant of TRO to the AFL-CIO may implicate the ongoing immigration issues in two ways, among others. One is a serious set-back for the Bush's strategy to push the CIR legislation in the Congress and a boost for the border security and enforcement only supporters in the court of public opinion. The other is potential ignition of illegal immigration issues as a hottest botton in September along with the Iraq war funding legislation. This twist of event will bring back to the forefront the illegal alien relief legislation with the unpredictable result in the legislative actions in the House and the Senate this fall. At the same time, it may result in keeping in bay the legal immigration issues in the back-burner. September 2007 may turn out to be an oven boiling hottest oil. Please stay tuned to this website to watch how this new drama will unfold here on.

09/02/2007: Enforcement of No-Match Letter Rule Temporarily Halt by Court Order Until October 1, 2007

• The AFL-CIO brought a legal action against the DHS in the Northern District of California of the U.S. District Court seeking a temporary restraining order to halt impelementation of the recently announced no-match letter rule to crack down illegal immigrants and employers hiring illegal aliens. In a surprising move, the judge issued in a flash the Temporary Restraining Order on Friday, August 31, 2007 against the DHS and Social Security Administration from enforcing the no-match rule at least until Octopber 1, 2007 when the court will decide more permanent injunction against the agencies. For the court decision, please click here.

09/01/2007: Employment Based Immigrants Admitted in FY 2006 by Category

• Categories	2006	2005	2004
  Total	159,081	246,878*	156,330
  EB-1	36,960	64,731	31,291
  EB-2	21,911	42,597	32,534
  EB-3	89,922	129,070*	85,969
  EB-4	9,539	10,134	5,407
  EB-5	749	346	129

  Note: * The figures for 2005 in total and EB-3 reflect the use of recaptured numbers for nurses and healthcare workers upto 50,000. In 2006, the EB immigrants admitted for EB-2 were unusually small in number. It could have been affected by the visa number retrogression for EB-2 for India and China.
  

08/31/2007: 08/31/2007 USCIS Receipting Update

• Texas Service Center=I-140 8/13/2007 :I-485 6/30/2007
• Nebraska Service Center=I-140 7/26/2007 :I-485 07/26/2007
  

08/31/2007: Legal/Illegal Immigrants Will Add 105,000,000 to U.S. Population from 2007 to 2060?

• A study released in August 2007 by the Center for Immigration Studies projects that legal and illegal immigrants will add over 100 million to the U.S. population during the next 50 years. How credible is half of century foreign population growth projection and what is the purpose of releasing such study? Hope such study does not create xenophoebia. You be the judge of it.

08/31/2007: Monthly Service Center Processing Time Report Method Changed

• U.S. Citizenship and Immigration Services (USCIS) has improved the reporting procedure for processing times of immigration benefit applications. In the past, USCIS benefit processing reports indicated the specific type of applications or petitions that were being processed and the date the cases were received. However, the date the case was received did not provide a clear indication of when USCIS expected to complete the case, nor did it provide a clear indication of USCIS’ commitment to process cases within a certain cycle time. It also did not align with the processing times and cycle times the agency reports in other contexts. The changed reporting procedure is an effort to give the customers more accurate information that better reflects current processing time and USCIS service level commitments. Effective immediately, when USCIS is completing applications and petitions within the service level goals we will report the USCIS service level commitment. For example, when USCIS service level goal is to process a particular kind of case within six months, and if our processing time is six months or less, the report will show "6 months". When USCIS is not meeting their service level goal, the date posted will reflect the filing date of cases that are being completed. It should be noted that while in some instances reported processing dates may appear to have regressed due to this change, they do not reflect a lengthening of USCIS processing times, but simply the change in reporting.
• The processing time goal and each Service Center's processing status for selective employment-based cases as of August 15, 2007 are reported as follows: [Fo the full report including other types of cases, please go to our home page and click the Service Center Processing Times Link. The reporting date has changed from 16th to 15th, indicating that they may report it on the 15th every month.

  • Case	140	485	360	131-AP	EADC-9
    Target	6 mos	6 mos	6 mos	3 mos	11 wks
    NSC	NC	NC	C	C	NC
    TSC	C	NC	NC	C	C

    Case	H1B	H2B	H2A	H3	E	L	Lblk	P,Q.R,TN	539
    Target	2 mos	30 days	15 days	2 mos	2 mos	30 days	2 mos	2 mos	3 mos
    CSC	C	C	C	C	C	C	C	C	C
    VSC	C	C	C	C	C	C	C	C	NC

• We welcome the new reporting report since it is less confusing. We will see how it will change next month.

08/30/2007: USCIS 485 Receipting Frontlog, Applicants' Overseas Travel, and Request for USCIS Temporary Relief

• The July 2008 VB fiasco EB-485 filers (from July 2 through August 17) are currently experiencing a serious frontlog of USCIS receipting work. This is particularly true with those who filed the EB-485 application prior to July 16 announcement of USCIS reversing its position on the July 2007 filings. For the July 2 filers, the delay has lasted for almost two months. Worse yet, there is no indication that the hard copy receipt notice will be delivered to the applicants soon. These applicants are currently undergoing a nightmare when it comes to their need for international travel for business emergency or for family emergency regardless of their current nonimmigrant status. The nonimmigrants without a valid H-1B, H-4, L-1, or L-2 cannot travel as such trip without an approved advance parole will be considered abandonment of the pending EB-485 applications. On the other hand, those nonimmigrants who have a valid H-1B or H-4, L-1, L-2 are unable to leave the country, no matter how urgent it is, for fear that such international trip may be considered an abandonment of the pending EB-485 applications. See 8 C.F.R. 245.2(a)(4)(B) and (c).
• Under the circumstances, we urge the USCIS to issue an emergency memorandum temporarily waiving the rule requiring advance parole or receipt notices for the applicants who hold a "valid" nonimmigrant visa in the passport and suspending the rule on emergency basis that such trip will not be considered abandonment of the pending EB-485 applications in the event that the applicants have an evidence of exigent circumstances or humanitarian concerns. People may be able to hold off any international travel for personal pleasure but the system cannot demand to hold off certain international travel when a parent is deceased or when the alien must travel for business involving millions of dollars at stake or potential international lawsuit of millions or billions of dollars for breach of contract, etc. We beg the agency to take an emergency action as soon as possible.
• Those who meet the USCIS Expedite Criteria may request the expedite processing of receipt notices or advance parole by writing the Director of the Service Center directly giving the details of the filing including tracking number, delivery date, delivery evidence, employer name, alien name, type of case, etc.

08/30/2007: USCIS Website Outage Tonight

• The USCIS has annonced that beginning from 9 PM EDT until about 9 AM EDT of tomorrow morning, the following sites of the USCIS will be down for maintenance:
  • Case Status Online (and processing times)
    Field Office Locator and Information
    Civil Surgeon Locator; and
    Change of Address Online

08/30/2007: State Department Answers All the Frequently Asked Questions for Visa Waiver Program Travelers

08/29/2007: July 30, 2007 USCIS Fee Increase and January 5, 2004 Government Accounting Office (GAO) Fee Increase Recommendation to Congress

• The legacy INS and USCIS historically raised the user fees charged to the consumers for their immigration benefits services regularly to reflect the inflation rate. Accordingly, the primary basis for the fee increase lied on the inflation rate until 2004 when the GAO released investigation and study of the ailing USCIS backlog problems failing to meet Bush's five-year 6-month backlog reduction commitment and failing to meet the challenge of system changes to assure the homeland security through organization reform and electronization of the process. The GAO findings in the foregoing twin goals led the Congressional independent arm of GAO to recommend the Congress and the USCIS to increase the filing fees. We post this GAO report of 2004 to give backgrounds of the recent USCIS fee increase and more importantly, the background of fee increase that far exceeded to the inflation rate that had provided a basis for the fee increase until this fee increase was released in July 30, 2007. The Bush's Five-Year Backlog Reduction Committment is over without achieving the goal of the commitment and the organizational reform and electronization to reduce the backlog and to secure the nation against the international terrorists have yet to be accomplished. In a way, the Bush's commitment was political without a careful feasibility study and proper funding basis, imposing the "mission impossible" on the USCIS.
• Now, the USCIS has resolved the problem of funding for reform of their system to achieve the twin goals through the July 30, 2007 "skyrocket" fee increases and we want to see the agency to achieve the twin missions as soon as possible. The oversight authority, Congress, is not happy with the agency's progress in this mission and so are customers. We post this report for the two purposes. One is to bail out the USCIS from a political attack for raising skyrocket fees by offering a correct fee increase background information. The other motive is to encourage the agency to report to the Congress and the customers the precise picture of progress and time-table to achieve the intended twin-goals of backlog reduction and homeland security system. The first goal is far from reaching and the frontlog and backlog of the agency's processing of immigration benefits petitions and applications show no light for improvement at the end of tunnel. The consumers and stakeholders need a precise picture and plan of the agency to achieve these goals.

08/28/2007: USCIS Receipting Update 08/24/2007

• I-140: TSC=08/13/2007, NSC=07/24/2007
• I-485: TSC=06/30/2007, NSC=07/24/2007

08/28/2007: Misleading Statistics of Backlog of I-485 Applications

• At the end of June 2007, the backlog of I-485 applications including EB and FB and other cases recorded 597,844. However, the "official" DHS sources indicate that the number of the I-485 applications was reduced to 493,356 at the end of July 2007. Close examination of these numbers would easily tell the public that the numbers do not represent reduction of the backlogs but rather reflect the fact that the receipting of July 2007 VB cases practically halted in July 2007. It has been widely reported by the immigrants and immigration lawyers including this reporter that July 2 I-485 receipt notices have yet to be receipted despite there were a few reports of issuance of such receipt notices about two weeks back. This also implies that some recent release of July 2007 VB I-485 numbers by some sources including New York Times and other sources may not reflect the actual numbers when the actual numbers are actually data-entried and tallied by the Service Centers. The numbers could be higher than the information that has been flying around. Please stay tuned.

08/28/2007: Mounting I-140 Backlog

• The backlog of I-140 petitions is deteriorating rather than improving, probably affected by two factors, among others. One is suspension of I-140 PPS and the other is July 2007 VB filings. At the end of June 2007, the I-140 backlog reached 103,000 petitions. Now at the end of July 2007, it rised to 130,955. Considering the fact that July VB cases are still yet to be receipted, the actual number could have been much higher than this number, had the actual receipt cases in July been all counted. We have no information available about how the August filings would change the picture of I-140 backlogs. EB immigrants should be prepared for the anticipated delays in I-140 petitions and those who need the benefit from the approval of I-140 petitions which we explained earlier on this site may as well look for alternatives to deal with their problems relating to H-1B extensions beyond six years, AC 21 180-day employment change, etc. etc.
• Once again, we urge the leaders of the USCIS to reinstate the I-140 premium processing services. That appears to be the only solution for the agency to reduce the backlogs.

08/27/2007: State Department Announces DV-2009 Immigration Lottery Schedule

• The DV-2009 Lottery online entry begins at Noon EDT on October 3, 2007, and ends at Noon EST on December 2, 2007.

08/27/2007: Reminder of Importance of Turning In I-94 on Departure from the U.S.

• Nonimmigrants should return their I-94 at the port of departure unless they visit Canada or Mexico with a valid I-94 for a period less than 30 days for the automatic visa revalidation. The USCBP advises that failure to turn in your I-94 (or I-94W) when you leave the U.S. can create a serious problem. Without this record of your departure, you will be identified in our records as an "overstay." Being identified as an overstay means that you will be denied re-entry into the U.S. If you failed to turn in your I-94, please send it - along with any documentation that proves you left the U.S. to ACS Inc.1084 South Laurel Rd., London, Kentucky 40744.
• Documentation to prove your departure can include the boarding pass from your flight. If you exited the country by a land border it is much harder to verify that you did- in fact - leave the country on the date you claim. If you have any documentation of your arrival in your home country (i.e. passport stamp), then you should send a copy of that. If the above office does not have any supporting documents to substantiate your claim to have left the U.S. on a certain date, there is no guarantee that you will be entered into the record as having done so.We strongly urge you to keep a copy of what you send to ACS Inc. and to carry it with you the next time you come to the U.S. in case the CBP officer has any questions about your eligibility to enter.
• If you want to confirm that your I-94 was received by ACS, please give them 4 months to process the paperwork. Then you can write the following address to determine whether or not your departure was recorded. If you turned in the I-94 when you left the U.S. as required, please do NOT request confirmation that it is on file. This process is only for people who did not turn in the I-94 when they exited the U.S.
• You will need to provide your name, date of birth, passport number, and date of departure, in addition to asking whether or not your departure was recorded. U.S. Customs and Border Protection Air Sea Passenger Operations, Room 5.4D, 1300 Pennsylvania Ave., N.W., Washington D.C. 20229.

08/25/2007: Total Unavailability of Employment-Based Visa Numbers in August and Anticipated Heavy EB-485 Filing in September

• Most of the PERM or BEC labor certification application cases which were filed prior to August 1, 2007 and certified before August 18, 2007 received the benefit of July 2007 VB fiasco and USCIS decision opening the door wide for I-485 filing during the period. However, there were still a large number of cases within the DOL foreign labor certification system which had not been certified during the period. This is particularly noticeable with the Atlanta National Processing Center cases. Since there was a total vacuum of 30 days in August for any I-485 filings other than July 2007 VB fiasco cases, most of these cases are expected to be filed in September when visa numbers will be reopened for every EB categories other than "other workers." There were some immigrants who lost their breath on August 17, 2007 when they were unable to file their EB 485 applications because they had not received the labor certification approval before the date. The new opportunity will open for these immigrants beginning from September 2007. The only people who should keep fuming may include those whose priority date will not become current in September VB and in that regard, they lost the golden opportunity to file ther 485 applications regardless of their priority dates during the historical July 2007 VB fiasco period. Well, didn't someone say that life is a gamble? In a way, life tends to be more exciting and meaningful simply because our journey of life is unpedictable and is not controlled by "computer decision matrix." Please relax and enjoy the weekend with your family and friends, and most importantly, your kids if you are married.

08/25/2007: Important Reminder: End of Grace Period for Wrong Jurisdiction Filing of Direct Filing Cases on Next Tuesday 08/28/2007

• The USCIS launched the direct filing of employment-based immigrant cases of I-140, I-485, I-765, I-131, I-907, I-360, and I-129F effective July 30, 2007. In order to help the consumers filing with a wrong jurisdiction, the USCIS set up a 30-day grace period during when the Service Centers would not reject the filing of these cases that did not fall under their jurisdiction of direct filing program. For a number of reasons, the filers of these applications have intentionally or unintentionally filed these cases with one of the four Service Centers of their choice. This was particularly noticeable in I-140 and I-485 filings. This freedom of choice of jurisdiction and de facto forum shopping is practically gone since the next Tuesday will be the last day when these wrong jurisdiction filing cases will receive the benefit of "no rejection." Effective next Wednesday, 08/29/2007, any filing of these cases which a wrong Service Center receives will be rejected and returned to the filers. In old days, the INS exercised a discretion and rather than rejecting such filings, they often forwarded the filings to the right Service Center. People should not count on such discretion effective 08/29/2007 as the USCIS intends to push on their Phase III Bi-Specialization Program and Transition Program. See Direct Filing Instructions.

08/24/2007: DOL Announces Proposed Revision of ETA 9089, PERM Application Form

• In June 2007, we reported that the DOL was planning to revise this form and implement the new form at the end of March 2008. Today, as part of the rule-making process, the DOL announced in the federal register that they were revising the form to ensure that the form can be provided in the desired format, filing burden (time and financial resources) is minimized, filing instruments are clearly understood, and the impact of filing requirements on the applicants can be properly assessed. The proposed revised form is not released as part of the notice. However, the AILA will be able to obtain an advance copy and made available to the members and the consumers in the near future. The comment period will end on October 13, 2007. The revised form is expected to remove a lot of confusion and problems that have been identified in the two years of PERM program.
• It is interesting to note that the announcement estimates the number of annual PERM applications at 120,000. For the announcement, please click here.

08/24/2007: Immigrant's Confusion on Rule of Transfer of Priority Dates

• It appears that there are some people who are confused in the immigrant community on the rule of transfer of priority date in the immigration proceedings. The current rules are as follows:
  • The priority date of employment-based immigrant petition is retained only after the I-140 petition is approved and the alien beneficiary of multiple approved I-140 petitions through the same employer or different employers can claim the earliest priority date in the I-485 application proceedings.
  • The retained priority date is available for such transfer only between or among the multiple employment-based I-140 petitions for the same alien. The employment-based priority date cannot be transferred to a family-based immigrant petition of I-130 petition of the same alien or other non-employment based immigrant proceeding such as diversity immigrant proceeding or refugee proceeding.
  • The retained priority date is limited to the "individual" alien beneficiary only and cannot be transferred to other individuals including the spouse even if the spouse has another approved I-140 petition.
  • Distringuished from the transfer of a retained priority date is the rule of substitution of alien beneficiary which is a history by now. In the context of the substitution rule, the new alien takes over the priority date of another alien's priority date involving the alien's labor certification, but it is not considered a transfer. The new alien is just replacing the old employee either in pending labor certification proceeding or in the I-140 proceedings. It apparently confuses people as a transfer of priority date.
  • Even though an alien cannot obtain a transfer of priority date from the spouse, in the two contexts, some aliens can receive help from the spouse. One is the transfer of the alien's pending I-485 application which the alien filed as the derivative beneficiary of the spouse's approved I-140 petition to his own approved I-140 petition that has a different priority date. The same rule applies in vice versa. For instance, if my wife obtained I-140 petition and my wife and her family members including myself file I-485 applications based on her approved I-140 petition, assuming that the visa number is available, I can move my own pending I-485 application as the derivative beneficiary of my wife's I-140 petition to my own approved I-140 petition if my own I-140 priority date is more favorable than my wife's. My wife has two options in this context. Either she also moves her pending I-485 application to mine switching from a status of primary beneficiary of her own petition to a derivative beneficiary of mine to take advantage of my favorable priority date, or she can keep her pending I-485 application with her own employer without moving her I-485 application using my approved petition. This confuses people as transfer of priority date, but it is not a transfer of priority date. It is a rule of changing the underlying I-140 petition from his/her own to the spouse's. Such I-485 application transfer can take place back and forth more than one time depending on the visa number movement for different classification of employment-based immigration.
  • Another benefit an alien with the approved I-140 petition can receive from the spouse is the rule of cross chageability or alternate chageability of nationality. If the spouse was born in a different country and applies for I-485 as a derivative beneficiary of my I-140 petition along with me, both of us can use my wife's country of bith as our nationality for the purpose of the determination of the nationality in the Visa Bulletin. Obviously, Indians or Chinese, Mexicans, Philippines citizens, who are married to a spouse who was born in a country that is one of the Rest of the World (ROW) countries will receive a tremendous benefit from such spouse. The spouse can have a same citizenship with the principal alien and it is the place of birth of the spouse that determines the cross chargeability or alternate chargeability nationality. Again, this gives an impression of transfer of priority date, but it is not.
• As people may have to go through a long journey as affected by the July 2007 VB fiasco, the foregoing information should give some help to people who are confused about the priority date transfer or related issues.

08/24/2007: DHS Notice to Share Alien Arrival-Departure Database with Intelligence Agencies

• On August 22, 2007, DHS published a notice to broaden the sharing of the alien arrival and departure database with other agencies and foreign government for the homeland security and counterterrorim. The database, called the arrival-and-departure information system, contains information collected at U.S. ports of entry and departure on all foreigners who enter, travel within or leave the United States. Until now, reportedly, information in the database has been primarily shared only within Homeland Security. That is expected to change in the future. It is thus expected that intelligence agencies will contact the DHS more often for information on foreigners that are under investigation. The database could provide critical information during investigations, especially concerning whether a foreign subject is inside the United States. The information in the database may be shared with federal, state, local, tribal, foreign or international government intelligence or counterterrorism agencies; or components where DHS becomes aware of an indication of a threat or potential threat to national or international security; or where such use is to assist in anti-terrorism efforts and disclosure is appropriate to the proper performance of the official duties of the person making the disclosures. Reportedly information in the database can come from foreign governments. According to the notice, information may be derived from records related to entry or exit data of foreign countries collected by foreign governments. For the federal register notice, please click here.
  

08/23/2007: DV-2008 Immigrant Visa Lottery Results

• The following is the statistical breakdown by foreign-state chargeability of those registered for the DV-2008 program:
  • AFRICA
    
    ALGERIA 1,926 ETHIOPIA 5,241 NIGER 165
    ANGOLA 27 GABON 37 NIGERIA 8,773
    BENIN 438 GAMBIA, THE 57 RWANDA 138
    BOTSWANA 22 GHANA 5,914 SENEGAL 917
    BURKINA FASO 186 GUINEA 463 SIERRA LEONE 1,137
    BURUNDI 39 GUINEA-BISSAU 4 SOMALIA 214
    CAMEROON 3,152 KENYA 4,547 SOUTH AFRICA 713
    CAPE VERDE 13 LESOTHO 4 SUDAN 1,147
    CENTRAL AFRICAN REP. 8 LIBERIA 2,148 SWAZILAND 4
    CHAD 47 LIBYA 88 TANZANIA 218
    COMOROS 5 MADAGASCAR 43 TOGO 1,509
    CONGO 1,206 MALAWI 53 TUNISIA 150
    CONGO, DEMOCRATIC REPUBLIC OF THE 111 MALI 171 UGANDA 370
    COTE D’IVOIRE 614 MAURITANIA 27 WESTERN SAHARA 1
    DJIBOUTI 20 MAURITIUS 62 ZAMBIA 214
    EGYPT 4,392 MOROCCO 5,017 ZIMBABWE 167
    EQUATORIAL GUINEA 7 MOZAMBIQUE 8
    ERITREA 878 NAMIBIA 12
  • ASIA
    
    AFGHANISTAN 57 ISRAEL 150 QATAR 6
    BAHRAIN 11 JAPAN 382 SAUDI ARABIA 61
    BANGLADESH 5,983 JORDAN 56 SINGAPORE 70
    BHUTAN 10 NORTH KOREA 4 SRI LANKA 675
    BRUNEI 2 KUWAIT 46 SYRIA 94
    BURMA 653 LAOS 7 THAILAND 108
    CAMBODIA 187 LEBANON 190 TAIWAN 446
    HONG KONG SPECIAL ADMIN. REGION 69 MALAYSIA 87 UNITED ARAB EMIRATES 27
    INDONESIA 266 MONGOLIA 259 YEMEN 70
    IRAN 1,435 NEPAL 2,562
    
    IRAQ 164 OMAN 5

   

  • EUROPE
    
    ALBANIA 2,862 GERMANY 1,469 NORTHERN IRELAND 34
    ANDORRA 1 GREECE 77 NORWAY 43
    ARMENIA 1,130 HUNGARY 182 PORTUGAL 48
    Macau 19
    AUSTRIA 70 ICELAND 13 ROMANIA 1,526
    AZERBAIJAN 271 IRELAND 162 SERBIA 557
    BELARUS 1,072 ITALY 363 SLOVAKIA 157
    BELGIUM 89 KAZAKHSTAN 304 SLOVENIA 12
    BOSNIA & HERZEGOVINA 73 KYRGYZSTAN 180 SPAIN 135
    BULGARIA 1,567 LATVIA 75 SWEDEN 118
    CROATIA 41 LITHUANIA 334 SWITZERLAND 132
    CYPRUS 16
    LUXEMBOURG 12
    TAJIKISTAN 126
    CZECH REPUBLIC 158 MACEDONIA 343 TURKEY 2,188
    DENMARK 58 MALTA 5 TURKMENISTAN 124
    ESTONIA 37 MOLDOVA 474
    UKRAINE 5,018
    FINLAND 59 MONACO 4 UZBEKISTAN 3,101
    FRANCE 603 French Guiana 6 French Polynesia 6 Guadeloupe 4 Martinique 4
    MONTENEGRO 22
    GEORGIA 516 NETHERLANDS 123
    Aruba 8
    Netherlands Antilles 18

   

  • NORTH AMERICA
    
    BAHAMAS, THE 17
  •  
  • OCEANIA
    
    AUSTRALIA 649 NEW ZEALAND 260
    Niue 5 SAMOA 27
    FIJI 630 PALAU 7
    SOLOMON ISLANDS 2
    KIRIBATI 9 PAPUA NEW GUINEA 4 TONGA 120

   

•  
• SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN
  
  • ANTIGUA AND BARBUDA 1 DOMINICA 9 PARAGUAY 26
    ARGENTINA 106 ECUADOR 217 SAINT KITTS AND NEVIS 1
    BARBADOS 17 GRENADA 1 SAINT LUCIA 5
    BELIZE 14 GUATEMALA 74 SAINT VINCENT AND THE GRENADINES 1
    BOLIVIA 148 GUYANA 24 SURINAME 3
    CHILE 26 HONDURAS 42 TRINIDAD AND TOBAGO 82
    COSTA RICA 22 NICARAGUA 39 URUGUAY 23
    CUBA 691 PANAMA 17 VENEZUELA 256
    

08/23/2007: Can USCIS Save Trees and Our Tax Money With Enhanced Efficiency and Effectiveness?

• The USCIS processing of the immigration benefits petitions and applications involves a substantial number and amount of its "paper" communication with the consumers in the form of Receipt Notices, Approval Notices, RFEs, Denial Notices, etc. Currently these are all processed and handled by "papers," consuming enormous amount of human resources, their time, and our tax money. This is so-called "mail-room" function of the Service Centers. As we can imagine, this part of the Service Center workload, albeit undertaken mostly by "contractors," produces tens of millions of "mails," with the accompanying problems in the paper processing. We do not have statistics, but from this reporter's experience of visiting the Service Centers and observation of the processing of cases, this part of their business gives them enormous amount of workloads consuming tons of papers and trees and mailing expenses as well as delays in notices to the consumers. Everytime this reporter visited one of the Service Centers, this reporter wondered why they could not convert such notice processes from the paper mailing system to e-mail or other electronic notification system, which will save their time, resources, achieving enhanced efficiency and effectiveness. The immigrants, the consumers of their work, will also receive a tremendous benefit from such reform in that they receive such notices quickly. There may involve some evidentiary issues, but as the USCIS moves on electronization of processing and adjudication of the immigration benefits petitions and applications, this issue must have been resolved already. The inefficiency involved in the current USCIS notification system tends to be particularly noticeable when we enter the situation of April 2 one-day flooding of FY 2008 H-1B cap filings and the recent July 2007 VB fiasco I-485 filings that flooded the agency buildings with hundreds of thousands of filing. Such events, almost without exception, have created enormous amount of "frontlog" problems for the agency. Electronization of notification will be able to achieve to a great extent efficiency and effectiveness saving the trees and expenses, only at the cost of USPS mail business and private contractors jobs.

08/23/2007: CIR or Piecemeal, That Is The Question for the Fall Congress

• It appears that there are three schools of political forces being formed in the political arena relating to the immigration reform when the Congress returns in about 10 days from now. One school is "enforcement only" anti-immigrationists, the second being piecemeal immigration strategists, and the third being the CIR. Strangely enough, the third school is neither Democrats nor Republican legislators but Bush who wants to leave a legacy before he leaves the White House. As we opined earlier, the Bush's recent Border Security and Immigration Proposal within the current laws appears to be a hook thrown over the Hill to reactivate the immigration reform legislation debate. Sources indicate that Bush will continue to push his agenda for the CIR. The enforcement only school is without doubt a group of conservative Republican legislators in both Houses that oppose illegal alien immigration. Again, strangely, this school does not necessarily oppose the legal immigration or employment-based immigration reform and they can easily be aligned with the business community. The third school appears to be the Democrats that more or less focused on illegal alien immigration, and facing the steep opposition from the Republicans on the otherside of the aile, they seem to take a piecemeal immigration legislation strategy. AgJOBS bill, DREAM bill, etc. are illustrations of such strategy. There is a prediction that the Democrats will keep attempting to attach these piecemeal legislations to the pending appropriation bills when the Congress returns in September. Accordingly, illegal immigrant community will closely monitor and follow the debates and passage of the federal departments' appropriation bills.
• Where does the employment-based immigration legislation fit in the political dynamics? Democrats are generally aligned with the labor unions and oppose any employment-based immigration legislation that can increase the number of legal foreign workers. On the other hand, the Republicans generally support such legal employment-based immigration legislation either in the form of a piecemeal or comprehensive immigration legislation, but facing strong opposition from the Democrats, the chance remains an open question. Poor employment-based immigrant workers, Where to Go? They turn out to be "orphans" in the current political dynamics. Whichever they try, they will not be able to find "loving parents." Piecemeal bills will be continuously opposed and struck down by the Democrats, while Comprehensive Bill will be opposed by the Republicans and struck down because of the illegal alien and border issues. Facing upheal battle, some may feel "impotent!" Ahhhhhhhhhhhhh---------------------

08/22/2007: Post July 17, 2007 Nebraska Service Center EB-485 Receipting

• We have our first record of the NSC cashing EB-485 applications checks which they received on 07/20/2007, three days after the USCIS reversed its prior VB fiasco decision and started receiving July 2007 applications officially. This is a positive sign that despite of the USCIS official receipting update, apparently some cases are being data entried and processed for the post-July-17 filings. Right on!

08/22/2007: October 2007 EB Visa Bulletin Prediction of AILA

• Based on the discussion with Charlie Oppenheim, Chief of Immigrant Visa Control and Reporting, DOS, the AILA has just released the following predictions:
  • EB-1 (All Countries): Closely match to September 2007 VB
  • EB-2 (All Countries): Closely match to September 2007 VB
  • EB-3 (All Countries): Similar to January 2007 VB
  • EB-3EW (All Countries): 10/01/2001
  • EB-4: N/A
  • EB-5: C
• Please stay tuned.

08/22/2007: USCIS Proposed to Terminate Plastic Green Cards Without Expiration Date

• Currently, there are numerous lawful permanent residents who possess cards without expiration dates. USCIS intends to terminate the validity of such Forms I-551. This rule proposes to establish a 120-day period for lawful permanent residents who have Forms I-551 that do not bear expiration dates to apply for replacement cards. This proposed rule is published today with the comment date of 09/21/2007. It will take some time before this rule is enacted as a final rule, but those who do not possess the green card with the expiration date may as well apply for the new card now. For the rule, please click here.
• Read USCIS Q & A

08/22/2007: We Urge USCIS to Reinstate the I-140 Premium Processing Services

• The USCIS premium processing services have been suspended in a number of areas, including religious worker visa petitions, substitutiion I-140 petitions, and entire I-140 petitions afterwards. Each of these suspension decisions had a legitimate ground for the actions. However, in I-140 petitions, the ground for suspension was a feared flood of filings for labor certification substitution I-140 petition which ended on July 16, 2007 and again another fear of flood of I-140 petitions facing the aftermath of July 2007 VB fiasco to take advantage of the unusual opportunity for the immigrants to file "concurrent" cases plus the fee increase problem. Now, August 17, 2007 has come and gone and so has July 16, 2007 for labor certification substitution. The increased fees also took effect on July 30, 2007. Accordingly, a substantial portion of the grounds that justified the suspension of the PPS have disappeared.
• I-140 PPS serves important purposes for certain employment-based immigrants who face unexpected changes of circumstances like layoffs or justifiable needs for change of employment pending I-485 applications or certain H-1B aliens who face reaching six-year H-1B limit but are not eligible for the extension of their H-1B six-year limit because they are not eligible for the 7th-year H-1B extension. In August, the EB numbers were not available, and in September, the visa numbers will be available for some people, but some people may still experience their visa numbers retrogression. For these people, the three-year increment H-1B extension upon approval of I-140 petition can serve a savior in some cases to continue to stay and work in the country while they go through the rest of their immigration journey. The third group of people who need I-140 petiitions include those who need preservation of priority date such that they can transfer the priority date to another later-dated immigrant petitions (I-140) down the road. Currently, the priority date cannot be retained unless the I-140 petition is approved first for the purpose of the priority date transfer. There are another group or EB immigrants who need I-140 PPS desperately. They are Schedule A, particularly allied healthcare workers, and other labor certification waiver immigrants. They are eligible for the concurrent filing but cannot fully take advantage of the foregoing benefits unless the I-140 petitions are first approved.
• USCIS is urged to consider the amount of time and length of journey the post July 2007 VB fiasco filers or for that matter, any immigrants who come to the doors of the USCIS in the futre for the immigration journey may have to spend before they can move into the safety zone in the immigration process. Just six weeks of period of time during the July VB fiasco produced more than 300,000 and the other EB immigrants will continue to knock the door of the USCIS in the future to file green card applications. For some of them, it indeed can be a long journey considering the broken employment-based immigration system. As the Congress fails to address and remedy the broken system and such legislative prospects are becominng more and more uncertain, the fore-mentioned "administrative" remedy at the level of the executive branch of the government appears to be very critical and helpful. Please reinstate the I-140 PPS as soon as possible.

08/22/2007: Marvel of Electronic Age - An Eye Toward a Future for Electronic Visa and Electronic Entry & Exit with Electronic Passports

• As the cyber technology continues to develop, more and more information and data on immigration and visa are destined to be converted to "electronic." The USCIS has been working on electronic filing and processing system of the entire immigration benefit petitions and applications. The state department has launched issuance of electronic passport followed by issuance of electronic passports by most of other countries in the world. Report indicates that technology experts and companies working for the government are eyeing on developing electronic devices converting current visa stamp in the passport to "electronic." Additionally, the current entry and exit stamp and papers are being considered for electronic as well. These changes may not come in the near future, but it is likely to come sooner than expected. There is also a report that certain electronic device has been recently developed which can speed up the security clearance process which has created nightmares not only in the immigration process but also security clearance for government jobs. Read on.

08/21/2007: White House Press Conference on Discussion of Three Heads of States in Canada Yesterday

• As reported, the President and the heads of Canada and Mexico on immigration issue. They talked a little bit about the executive order that the President issued -- President Bush issued on October 10th, which was a combination of measures in terms of enforcement, especially on the employer verification side, but also in terms of dealing with H-2B visas for agricultural workers and then also expanding what's called the TN visa, which is the NAFTA visa for professionals. However, the White House did not go into the details of the discussions and any agreements on the related issues. It indicates that cabnet members of security on both sides were there and the details of the issues that were discussed yesterday among the leaders are expected to be developed in the future. For the press conference, please click here.
  

08/21/2007: USCIS Notice of Extension of El Salvador TPS Redesignation for 18 Months

• The TPS designation has been extended for 18 months to March 9, 2009, from its current expiration date of September 9, 2007. This Notice also automatically extends the validity of EADs issued under the TPS designation of El Salvador for 6 months, through March 9, 2008, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended. New EADs with the March 9, 2009 expiration date will be issued to eligible TPS beneficiaries who timely re-register and apply for an EAD.
• The extension of the TPS designation of El Salvador is effective September 10, 2007, and will remain in effect until 11:59 p.m. on March 9, 2009. The 60-day re-registration period begins August 21, 2007, and will remain in effect until October 22, 2007.
  

08/20/2007: USCIS August 16, 2007 Processing Times Report

08/20/2007: Reported Mishap of 08/17/2007 Last Minute July 2007 VB I-485 Filing

• We have recieved a number of reports that people had shipped out the last minute filing via overnight delivery services, but for a number of different reasons, the filings were unable to be delivered by the overnight delivery services. One reasons was weather related and the other reaons was related to U.S. postal service express mail practice not delivering the packages until the Service Center pickup truck picks up. For the reason that USCIS FAQ required that the applications be "physically" received by the Service Center, meaning the USCIS physical facility, people are panicking. What a nightmare!

08/20/2007: TPS Redesignation of El Salvador Scheduled to be Relased Tomorrow

• In May 2007, the OMB cleared the release of TPS redesignations for Hondurans, Nicuaragans, and El Salvadorans, but the rules were released in May for Hondurans and Nicuaragans. The rule for El Salvadorans has been a little bit delayed but now it is scheduled to be released tomorrow. Please stay tuned.

08/20/2007: Delay in Release of the 2008 Immigrant Visa Lottery Results

• The winners of the 2008 immigrant visa lottery should have received the notifications from the State Department from May through July 2007. Since the result has been tallied and completed, the State Department should have released the result of the lottery so that the public is aware of the details of this vulnerable program. The immigrant visa lottery program has been continuously assulted and attacked in every comprehensive immigration reform bills or other legislative bills and the future of this program is considered very vulnerable. The proposed eligimination of this program is known to be related to the security issues rather than reform of the immigration system. Please stay tuned.

08/20/2007: Heads of U.S.-Canada-Mexico Meeting 08/20-08/21/07 in Canada and Discuss Security and Prosperity Partnership and Potential Discussion of Three-Year TN Visa Issue

• The three heads of meeting for two two days at a location outside of Montreal, Canada, beginning from today to discuss broad inter-american security and prosperity issue including cooperation plan for fight against terrorism. The improved freer flow and traffic without compromising the security protection are considered one of the important issues in achieving mututal properity of the three nations. Last week, the White House disclosed for the first time that Bush was considering changing the terms of TN visas for Canadians and Mexicans from the current one-year limit to three-year limit with additional improvement in the conditions for their stays. There is no specific announcement that this is included in the agenda of the discussion in these meetings, but there is no question about that this issue will be seriously discussed and resolved at these meeting. Please stay tuned to this website for development of the news.

08/19/2007: Rep. Lofgren Responds to Administration Immigration Proposal

• Rep. Lofgren released her response to the Bush Administration's recent Border Security and Immigration proposal within the current laws. She sharply criticized the current Administration's capability to implement the proposals. The Bush Administration did not propose any specifics on the employment-based immigration reform. However, she addressed this issue in the following way which raises some concerns in the employment-based immigration advocates with respect to her view on the seriousness of the current broken employment-based immigration system and her likely restrictive proposal on the employment-based immigration reform when the Congress returns. Here is her statement:
  • "I agree with the Administration in recognizing that our employment-based visa system is far too complex and cumbersome. I will evaluate the details of its plan as they are released. Nevertheless, the answer is surely not to weaken protections that assure that American workers are not undercut by a foreign workforce willing to work for less than prevailing wages."
• We agree to her evaluation if she meant the system needed some level of cure for prevention and control of abuse and fraud for the sound management of the nation's policy on the employment-based immigration which will in a way protect the American workers. However, if she loses sight of the nation's needs for foreign brains to fill the vacuum and more importantly the employers' needs for these foreign forces to sustain the nation's competiveness in the global market, we must disagree to her assessment. Obviously the nation must maintain a balance between the employers' needs and the American workforces needs, and we should not find such balance in a way protecting the American workers at the cost of American workers' own long term interest in keeping the jobs in the country and prevent the employers from taking the business and employment outside of the country. We urge Rep. Lofgren to assess the employment-based immigration reform issues in broader and long-term perspectives. We take this opportunity to extend our gratitude for her courage and dedication that was shown during the July 2007 Visa Bulletin fiasco to correct the misguided management of employment-based immigration visas. We also want to encourage the Congress woman to look at the seriously clogged and broken employment-based immigration system as revealed by the result of I-485 filings in such a short periof of time as six weeks that flooded into the system, reportedly in excess of 300,000, after the fiasco had been fixed. Protection of the employers and businesses will be as equality important as the protection of American workers. The Democrats and the Republicans should work together to find a common ground on this issue to work out the employment-based immigration reform successfully. Otherwise, the Congress in September will turn into another partisan showdown on this issue and labelled again "do nothing Congress" for their failure to reach skillfully negotation and compromise to produce legislations.
• For the full text of her assessment, please click here.
  

08/19/2007: USCBP Launches Online Application for Cross-Border Travel Program for Canadians

• The USCBP launches the online NEXUS application program to make the registered Canadian travelers to travel back and forth between Canada and the U.S. easier. For the news release, please click here.
  

08/18/2007: More Than 300,000 July 2007 VB I-485 Applications Reportedly Received

• The final tally has yet to be completed, but according to the New York Times, the USCIS received more than 300,000 applications. The report indicates that the agency has received about 300,000 applications for the July 2008 VB fiasco cases, accoridng to the USCIS sources, but at the time of the news media's contact yesterday, the USCIS was still receiving applications for employment visas . Consequently, the total tally of applications received in the last six weeks was yet to be made available. Reportedly the USCIS was swamped by the applications it had already received, which was more than double the annual limit of 140,000 employment visas. As we reported earlier, in the three months before July the agency received an average of 54,700 applications a month for I-485 applications including employment based as well as family based.
• The number turns out to be somewhat lighter than this website anticipated, but considering the annual quota of 140,000, it will take number of years for these cases to leave the green card processing pipeline unless the Congress passes a legislation reforming the employment-based immigration system.

08/18/2007: Important Decision for Cuban Decendants in the U.S. for Cuban Adjustment of Status (Green Card) Act

• On July 31, 2007, the AAO handed down a decision in favor of the decendants of Cubans who were born outside of Cuba within the definition of eligible cuban for the purpose of adjustment of status to a lawful permanent resident under the Cuban Adjustment Act in Matter of Vazquez, A97918826 (AAO, July 31, 2007). More importantly, the USCIS adopted this decision on the same date as a precedent decision and binding all the USCIS officials.
• The summary of the decision of this case is as follows: (1) Applicants born in a country other than the Republic of Cuba and who hold the citizenship of that country may still establish Cuban citizenship for the purposes of adjustment under section 1 of Pub. L. 89-732 (November 2, 1966), as amended, the Cuban Adjustment Act, if they document their birth to a Cuban father or mother outside Cuba, as required by Article 29(c) of the Cuban Constitution. Individuals born outside Cuba whose Cuban citizenship is not documented with a Cuban passport, may establish Cuban citizenship for the purposes of adjustment under the Cuban Adjustment Act through the submission of a Cuban birth certificate issued by the Civil Registry of Cuba in Havana, or a Cuban consular certificate documenting their birth to at least one Cuban parent within the consular district served by the consulate. (2) Documentary requirements previously established by Matter of Buschini, USCIS Adopted Decision 06-0004 (AAO, June 30, 2006) are overruled and will no longer be followed by Citizenship and Immigration Services.
• For the full text of this memorandum adopting as the precedent binding AAO decision and the AAO decision, please click here.

08/18/2007: End of July 2007 VB EB-485 Filing Opportunity at the End of August 17, 2007 and Address of Gratitude for Two Service Center Leaders' Decision to Accept the Applications Off the Office Hours

• The July 2007 VB fiasco was very painful experience for the government as well as the consumers. Now it is behind us. We will find out the total number of cases the USCIS received during the period sooner or later. However, in putting the fiasco behind us, we must recognize the courageous decisions of the USCIS leaders (1) to accept July 2007 VB 485 applications beyond July 31, 2007 and until August 17, 2007, and (2) to accept the last minute July 2007 VB 485 applications yesterday beyond the office hours bending their practice of accepting applications only during the office hours. Additionally, the FAQs of USCIS have extended a discretion in favor of the eligible 485 filers bending some traditional practices, policies, and internal guidances in a number of areas. The leaders of the USCIS, including the leaders of the Service Centers, deserve our hats-off in this regard. We hope that these leaders keep their sprit of exercising discretions in favor of the filers and furrther exercise a discretion not to reject applications on minor procedraul matters other than missing signatures, flawed payment checks, or missing forms. The leaders have authority to exercise such discretion under the revised Timeframe Flexible Rule in that RFE or NOID instead of outright rejection of petitions or applications remains a matter of their case-by-case decision rather than mandatory.

08/17/2007: Last-Minute July 2007 VB EB-485 Filing

• The July 2007 VB EB-485 cases must be received by today to take advantage of July 2007 Visa Bulletin. Otherwise the applications will be rejected as there are no EB visa numbers available in August 2007 Visa Bulletin. Normally, the Service Centers do not take any overnight deliveries after the office hours. However there is a report that the Texas Service Center and the Nebraska Service Cengter will take Fedex or othr courier services deliveries until 11:30 p.m. this evening. However, the same information sources indicate that they will not, repeat not, accept any in-person filings. It is uncertain whether the commercial delivery services would extend their special evening services this evening to accomodate this special need of their 485 filer customers. People may contact their overnight delivery services to see where there will be any special arrangement available. Good luck!

08/17/2007: Service Centers 08/17/2007 Frontlog Update

• You guessed it. Literally snail pace progression of EB-485 Receipt Notice receipting. NSC has just completed the data entry and issuance of Receipt Date 07/02/2007 I-485 receipt notices and TSC has just completed the issuance of 06/30/2007 I-485 receipt notices. There are a huge number of people who filed during the period of 07/17/2007 - 08/17/2007 and who are anxious to receive their I-485 Receipt Notices and keep calling their poor legal counsel's offices for the update. They may as well just keep checking the USCIS weekly receipting report and their banks rather than calling the lawyer's offices. Unfortunately, they are miles and miles away accoming to these reports.

08/17/2007: USCIS Announcement on 485 Filing Fees Effective 08/18/2007

• On May 30, 2007, USCIS published the final rule, effective July 30, 2007, ``Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule,'' amending 8 CFR part 103 to prescribe new fees to fund the cost of processing applications and petitions for immigration and naturalization benefits and services, and USCIS' associated operating costs pursuant to section 286(m) of the Immigration and Nationality Act (INA), 8 U.S.C. 1356(m). 72 FR 29851.
  Then USCIS subsequently announced on July 17, 2007 that, beginning on as of that date and ending at the close of business on August 17, 2007, it will accept employment-based Forms I-485 filed by aliens whose priority dates are current under the Department of State's Visa Bulletin No. 107. Also, USCIS decided that aliens in employment-based categories filing applications pursuant to Visa Bulletin No. 107 should not be required to pay filing fees based on the fee schedule that was to become effective July 30, 2007, but, instead should be allowed to pay the fees that existed prior to July 30, 2007. This rule provides that the fee schedule that became effective for all immigration and naturalization petitions and applications as of July 30, will now apply for Forms I-485 filed pursuant to Visa Bulletin No. 107 and to all subsequent or ``renewal'' applications for advance parole and employment authorization based on pending Forms I-485 filed pursuant to Visa Bulletin No. 107. Applications that are submitted with the incorrect fee will be rejected. Similarly, this rule amends the Biometric Services Fee that must accompany Forms I-485, or Forms I-131 or I-765 that are based on a pendingI-485, that are submitted pursuant to Visa Bulletin No. 107 to set it at $80 as it is for all other benefits for which biometrics must be provided. This announcement takes effect on August 18, 2007.

08/16/2007: State Department Reports Interesting EEOC Decision on Somalian Women's Religious Right to Wear Garb at Work

• Read on.

08/16/2007: Another Round of CIR Legislative Process Both in the House and in the Senate

• We reported earlier that Sen. Specter had been pushing on his new CIR proposal in the Senate before the Senate went into the Summer break. There was also a report that on the House side, Rep. Lofgren was considering the House-version CIR bill introduced in the House after the Summer break. Reportedly, Madam Pelosi, the Speaker of the House, confirmed in the news conference in Arizona yesterday that the House is scheduled to take up a CIR bill after the Labor Day recess. Along with the White House attempt to drum up the immigration enforcement and border security actions, the CIR legislation is anticipated to move to the center stage when the Congress returns to the Hill after the Labor Day holiday. Please stay tuned to this website for the upcoming next round of struggle in CIR legislation in September.

08/16/2007: Come September, Some Step In and Some Step Out of EB-485 Queue

• From the perspectives of EB immigrants, September 2007 will present an opportunity for some immigrants to file new EB-485 applications or immigrant visas and for some immigrants who are waiting for the approval of their pending EB-485 or immigrant visas to obtain approvals and step out of the pipeline of EB-485 applications or consular immigrant visa applications. Unfortunately, these opportunities will not be available to the EB-3 nationals of India, China, and Mexico. However, there are some people from countries other than these three countries whose TR labor certifications are still pending at the BECs. Since the BECs are scheduled to eliminate the entire backlog cases by the end of September 2007, all of the TR applicants awaiting the decisions of BEC will be able to file EB-485 applications in September 2007 unless they are Indians or Chinese or Mexicans. As for the EB-2 immigrants, doors will be opened to file a new EB-485 application inasmuch as their priority dates are earlier than the cut-off dates in the September Visa Bulletin for any nationalities. We suspect that there will be practically none who are waiting for the PERM approvals with a priority date earlier than the September EB-2 cut-off dates as most of these cases have been adjudicated by the DOL by now and they filed concurrent EB-485 applications during July 2007 VB fiasco period of July 17, 2007 through August 17, 2007. The people who are likely to benefit from the September 2007 VB are those who are awaiting for the EB-2 TR labor certification applications. Most of these BEC EB-2 cases must have a priority date earlier than the EB-2 cut-off date in September 2007 VB.
• However, the fact that some people who are waiting for the PERM applications or BEC applications under the foregoing discussion may not be eligible to file EB-485 applications based on these labor certifications does not mean that the approval of the PERM labor certifications and BEC labor certifications would not mean anything. Some of these new labor certification application approvals during August and September will open doors to some people to file EB-485 applications during September 2007. A large number of either PERM applicants or TR applicants have another certified labor certification applications and approved I-140 petitions either through the same employers or different employers. Accordingly, those EB-3 TR cases which are not eligible for EB-485 applications because of the country's cut-off date or unavailability during September may open a door to file EB-485 applications inasmuch as two things happen. One is that they had the approved EB-2 I-140 petitions allowing the transfer of the priority date between the two approved I-140 petitions. The "catch word" in the foregoing sentence is "approved" I-140 petitions. Since the priority date is not retained for the purpose of the transfer of the priority date unless the I-140 is approved, it means that second event must take place, to wit, reinstatement of I-140 Prremim Processing Services which have been suspended during the period of July 2007 VB fiasco period. We predict that the I-140 PPS may return once the July 2007 VB massive filing is over. People should cross their fingers.
• The September 2007 VB will not only allow some people to get into the I-485 pipelines, but also allow some people in the pipeline to get out of the I-485 pipelines during September 2007. A substantial number of these cases have been approved during the past three months when the USCIS allegedly took out the visa numbers frantically facing the July 2007 VB fiasco. These cases are still being adjudicated and approved, producing a large number of happy faces. However, unless they were picked up during the period, these cases have been frozen in adjudication since the visa numbers became unavailable in all categories beginning from August 1, 2007. These cases will be picked up and adjudicated in September when the visa numbers become available again. Accordingly, a large of these EB-485 waiters will leave the pipeline with happy faces during September 2007.
• Come September, we also look forward to the fall season with colors of leaves changing and leaves falling on our step ways. It is not just a theme of an old movie. It is a month when we begin to think more philosophically and tends to think more deeply about the meaning of life. Some people will want to enjoy strolling or jogging or biking or driving "in solitude" to focus more on oneself. A month of melancholy. This reporter hopes to visit New Englands or Rocky Mountain Highs to enjoy fall colors and "solitude" after the painful journey of walking through the mountains of papers for July 2007 VB fiasco filings! Come September, I need your fresh and crispy air and your blue sky high in the day and twinkling stars in the night. Let all the universe and world come into my soul and turn me into the universe. I will be the king and I will be the beggar. Let this soul enjoy the spiritual "freendom" and "happiness" in solitude.
  
  

08/15/2007: September 2007 Visa Bulletin

• Surprise, Surprise. Total Shocker for EB-2!!
• ROW: EB-1=01/01/07, EB-2=01/01/07, EB-3=08/01/02
• CHINA: EB-1=01/01/07, EB-2=01/01/06, EB-3=U
• INDIA: EB-1=01/01/07, EB-2=04/01/04, EB-3=U
• MEXICO: EB-1=01/01/07, EB-2=01/01/07, EB-3=U
• PHILIPPINES: EB-1=01/01/07, EB-2=01/01/07, EB-3=08/01/02
• Explanation: Due to the return of unused July numbers by consular posts abroad, and the limited amount of pending demand eligible for final processing at consular posts, it has reestablished cut-off dates in EB categories. BINGO!!!!

08/15/2007: Deadline for July 2007 VB Extended I-485 Filing

• These applications must be "physically received" by the Service Center "on" or "before" August 17, 2007, Friday. There are some people who misunderstand that the postmark of August 17, 2007 will meet the deadline. Wrong. Accordingly, the latest one can ship out the overnight delivery packet will be tomorrow, August 16, 2007, Thursday. There is a caveat for filers who use the U.S. Express Mail services that potentially two risks are involved if they ship out tomorrow. The U.S. Express Mail has a cut-off time for the next day delivery different from the commercial overnight delivery services. The second risk is that depending on the Service Center, even if they meet the cut-off time and the package is delivered to the Postal Stations in the location of the Service Center, it is not considered "physically received" by the Service Center unless the Express Mail is picked up by the Service Center mail pickup truck and brought to the Service Center mailroom within the office hours of Friday. Be careful. People should re-read USCIS FAQ 1 through 3 carefully today.
• The FAQ indicates that the Service Center will accept the filing without a sealed medical report and those who are unable to obtain the sealed medical report should still ship out the package "timely" without the sealed medical envelope. However, they should realize that some contractors in the mail room of the Service Center are not well informed and confused. Accordingly, people should do everything possible to obtain the sealed envelope and include it in the packet.
• Finally, from time to time, the delivery services fail to deliver the overnite packets the next day for a number of reasons including their freight flight mechanical problem or airport problem. Accordingly, shipping out of the package on the 16th will still have some risk, albeit a low risk, that the package may not be physically delivered to the Service Center building within the office hours of Friday, August 17, 2007.

08/15/2007: No-Match Letter Rule Officially Published in Federal Register Today

• Employers, beware that this rule will take effect on September 14, 2007.

08/15/2007: $20 Surcharge for U.S. Passport Issuance Effective Today

• State Department published the Interim Final Rule today to surchage $20 for U.S. Passport issuance. It states that the surcharge will be collected from within the consular fee schedule. Read on.

08/15/2007: Challenge to DOL PERM Fraud Rule Mandating Employer to Pay All the Cost for Labor Certification Faces Hurdle

• Effective July 16, 2007, the DOL mandates the employers to pay all the cost for labor certification and prohibit the employers from recouping the cost from the alien employees directly or indirectly in whatever means. The AILF has been considering a lawsuit against the rule, probably in the form of a class action. However, reportedly, they are facing a hurdle in recruitingt employers to particpate in the lawsuit as a plaintiff. Apparently, the employers are hesitant to join the lawsuit not to project an image that the employers are advocating certain behaviors which some of the employers, particularly job shop foreign employers, had engaged in. The new rule currently presents a hardship on non-profit organization employers including the government employers and small employers that cannot affort to pay ever increasing cost of the labor certification process including the rising attorney fees. This could indirectly discourage such employers from sponsoring the permanent labor certification for foreign workers. Since the DOL intends to charge the filing fees for the labor certification applications in the future, it will indeed present a hardship on such employers. Please stay tuned to this website for the development of this news.

08/14/2007: No-Match Letter Final Rule Scheduled to be Published in Federal Register Tomorrow

• This USICE rule will be published tomorrow in the federal register.

08/14/2007: USCIS I-485 Workload Statistics

• The applicants of I-485 are expected to experience delays in obtaining the green card for two factors: One is the visa number cut-off date movement in the Visa Bulletin. The other is the processing delays within the USCIS field offices, including Service Centers. Accordingly, "current" of their visa priority in the Visa Bulletin may not assure them immediate adjudication of their I-485 applications depending on the I-485 workloads and the processing backlogs within the agency.
• The following statistics reflect a steady increase in the number of I-485 applications (including family-based and other cases) during the months before the July VB fiasco hit the roof as is shown in the following table:

• Month	New Receipt	Total Pending
  June 2007	69,098	597,844
  May 2007	68,265	594,706
  April 2007	59,266	580,507
  March 2007	62,020	572,779
  February 2007	45,554	574,783
  January 2007	52,082	583,682
  December 2006	50,411	588,039
  November 2006	53,016	578,805

• At this time, it is anybody's guess as to what the figures will look like for the months of July and August 2007 which have yet to be made available. It does not have to be a rocket scientist to figure out a totally different digit in the new receipt numbers and pending numbers for the next two months. These cases will have to be processed and adjudicated generally in the order of receipt in each queue for those cases whose visa numbers will become current in the future. The new statistics for July and August 2007 will add a body temperature to the new I-485 filers with the realization why it would be so important that the political leaders and the Congress should act and pass a legislation to reform employment-based immigration system coming fall. Without such legislation, their journey for immigration will remain intolerably painful.

08/14/2007: Status of July 2 Receipt Date I-485 Applications

• On August 10, 2007, the USCIS released its update on the receipting frontlog. This was not made available until today on its website, even though we were able to report it on our website yesterday. The report shows the receipting date of I-485 to be earlier date than July 2, 2007. However, there are increasing number of reports in the consumer community that they started receiving the I-485, I-765, and I-131 receipt notices in the mail for the July 2, 2007 filing.

08/14/2007: USCIS Launches Special Toll Free Number and Special Web Site for Alien Military Members and Families in the U.S. and Abroad

• Considering special circumstances they are in, the USCIS has just launched a special phone line and online information services for special assistance and information. Military members and families should visit the announcement to get the information. (1) Special Help Site; (2) Special Toll Free Number (1-877-247-4645); Announcement.

08/13/2007: USCIS Updates Service Centers Frontlog Report as of 08/10/2007

08/12/2007: I-140 Backlog and Anticipated Improvement in the Future

• The USCIS I-140 case load is not related to the immigrant visa number availability as the I-140 petitions could be filed even during the period of visa number retrogression. The record reflects that the USCIS had witnessed a growing volume of I-140 petitions just before they faced the July 2007 Visa Bulletin fiasco. The immigration statistics reflected that the growing I-140 cases had culminated in 103,563 cases pending at the end of June 2007, creating a crisis for the USCIS. The agency has yet to release the exact causes for the backlogs. However, it is obvious that there were a few factors that had led to such surge of I-140 petitions. One was the continuing reduction of backlogs in the DOL Backlog Elimination Centers and the improvement of processing times of PERM applications. We reported earlier the statistics of DOL permanent labor certification approvals as of June 2007. The second factor could have been the DOL decision to eliminate the substitution of alien beneficiaries for the labor certification applications by middle of July 2007. This must have created a tremendous surge in the number of I-140 petitions for substitutions by the employers before the deadline of July 16, 2007.
• Out of these two factors, one factor of substitution I-140 has already disappeared as of July 16, 2007. Additionally, DOL has already eliminated most of 360,000 backlog cases and there are a very few number of TR cases which will be completely eliminated by the end of September 2007. Accordingly, the only factor that will affect the USCIS I-140 case loads may turn out to be the number of PERM applications that will be produced by the DOL annually. The record reflects that these numbers are not that large. However, there were four other factors that could have contributed to the backlogs. One is the USCIS increased denials of I-140 petitions by adopting narrow standards in the aliens' educational degree issues and the employers' financial ability to pay issues. The second factor was the flaws in Phase II Bi-Specialization Program adopting a single window of filing and shipping around files between the Service Centers. The third factor was expansion of I-140 premium processing services that had led to a surge of I-140 PPS filing by the aliens to take advante of H-1B three-year increment extensions beyond the H-1B six-year limit. The temporary suspension of I-140 PPS may have halped the agency to even out the I-140 petition workloads over time. The fourth factor could have been the reinforced name check and security clearance backlogs. As for the flaws in the Phase II Bi-Specialization Program, the agency has just moved in part into the Phase III program adopting a "direct filing" system that would eliminate the need for shipping around of files among Service Centers. The just released White House initiatives promises the security clearance improvement. The only factor that currently creates the backlog of I-140 remains the Service Centers' too restrictive and narrow reading of the legal standards that creates massive RFEs, denials, and delays. Improvement in the current practice in this area is expected to further help the agency to achieve reduction of I-140 backlogs.
• All in all, the foregoing analysis leads us to believe that the I-140 processing times should improve substantially in the future. We just hope that the USCIS exerts added efforts to loosen up the restrictive and narrow reading of the I-140 standards such that the backlogs be eliminated in the accelerated manner.

08/11/2007: White House Initiative of Border Security and Immigration Without Legislative Reform

• Review of the White House initiatives which were released yesterday indicates that it is a political decision rather than a policy decision driven by the conservative political forces to help in part the Republican runners in the upcoming Primary beginning from February 2008 and the national election in November 2008. This is clearly reflected in the statement by the Heritage Foundation, the think tank of the coversative forces. Close analysis of this initiative will reflect that the initiative is more or less totally focused on border security and immigration enforcement, which the conservative Republican legislators in the House have been pushing for the past two years. The subject of the initiative misleadingly gives the impression that the initiative is also intended to work on improvement in "immigration" benefits. Howerver, there are no identified substances to the "immigration" improvement initiatives other than the proposed extension of TN visa period for Canadians and Mexicans from the current one-year to the three-years. Even this one, the Administration cannot initiate it without change of regulation which will again take time. The second initiatives which the White House initiatives addressed are H-2A and H-2B agricultural and nonagricultual unskilled temporary worker visa programs. The White House initiatives addressed a study of "procedural" improvement and nothing else. When these temporary guest worker programs are clogged not by the procedural roadblocks but by the limited annual quota, the benefit of this initiave to the U.S. employers in these industries will be very limited. These employers will rather be critically hurt by the so-called no-match letter and employer crack-down initiative which will indeed drive these employers to the corners. The third immigration benefits initiave which the White House initiatives addressed are improvement in background check. The current problems of background checks are caused by two factors, among others. One is the procedural and management system issue and the other is a substantive issue. Under the current circumstances of fight against the international terrorism and the nation's need for homeland security, there are indeed little the Administration will be able to change in this area. The benefits of this inititative are likely to be de minimus, if at all. The fourth initiative which the White House initiaves addressed in the immigration benefits is an "open-ended" direction to study high tech workers visas. Considering the fact that the employment-based immigration system is currently broken and ailing because of the unrealistic limitation to the "number" of the employment-based foreign workers the employers can hire annually and the political leaders' failure to face the 21st century challenge in the global economy and technological development, there is indeed and practically little the Administration can do to untangle the current problem in the employment-based immigration system without legislation.
• This website thus strongly opposes to the White House initiatives unless such initiatives are immediately followed by its legislative initiatives to aggressively push forward the legislative immigration reform such as the Senator Specter's propopsal as soon as the Congress returns in September. As the President has repeatedly acknowledged all along, the border security and immigration enforcement cannot be achieved without a companion initiave to reform the "legal" immigration system. In this regard, the legal immigrants, particularly employment-based immigrants and employers, will join this website to strongly oppose the White House initiatives unless the foregoing companion legal and employment-based immigration reform legislation is promptly addressed by the White House in September.

08/10/2007: Homeland Security Secretary Michael Chertoff And Commerce Secretary Carlos Gutierrez Announced A Series Of Reforms The Administration Will Pursue To Address Border Security And Immigration Challenges.

• As we reported yestrerday, these two Secretaries were scheduled to relase a joint statement on no-match letter enforcement initiatives. However, it turnout that the actually annouincement had covered much broader areas, and considering the importance of these 26 issues the Administration will initiate, we have decided to report the full text below. The announcement states that the following reforms represent steps the Administration can take within the boundaries of existing law to secure our borders more effectively, improve interior and worksite enforcement, streamline existing guest worker programs, improve the current immigration system, and help new immigrants assimilate into American culture.
  :
• BORDER SECURITY
• 1. The Administration Will Continue To Strengthen Security At The Border With Additional Personnel And Infrastructure. The Administration is committed to implementing the following border security measures by December 31, 2008:
  18,300 Border Patrol agents
  370 miles of fencing
  300 miles of vehicle barriers
  105 camera and radar towers
  Three additional UAVs
  The Administration will also work to ensure that 1,700 more Border Patrol Agents and an additional UAV are added in 2009.
• 2. The Administration Will Maintain The Policy Of "Catch And Return" For Illegal Aliens Apprehended At The Border. For years, limited detention space forced the release of many illegal border crossers from nations other than Mexico with nothing more than a Notice to Appear for a hearing before an immigration judge. Many aliens ignored these notices and instead blended into U.S. society. The Administration has ended this practice and instituted a policy of "catch and return," ensuring that all removable aliens caught trying to cross the border illegally are held until they can be removed. The Administration Will Further Increase Funding For Detention Beds So There Are Places To Detain 31,500 Illegal Aliens Until They Can Be Returned. The Administration Will Also Press Recalcitrant Countries To Work With The United States To Repatriate Citizens Who Are In The United States Illegally.
  3. The Departments Of State And Homeland Security Will Strengthen Legal Efforts To Keep International Gang Members Out Of The United States. Gangs are at the root of many U.S. crime problems today, and many of the most dangerous gangs draw significant membership from abroad. The Federal government already denies visas to known members of certain gangs from China, the former Soviet Union, and El Salvador. Today, the President is directing the State Department and the Department of Homeland Security (DHS) to expand this list of dangerous organized gangs from other nations and to ensure that members of those gangs are barred from entry into the United States.
  4. The Administration Will Expand Exit Requirements So Persons Who Overstay Limited-Duration Visits To The United States Can Be Identified. By The End Of 2008, The US-VISIT Exit Requirement Will Be Underway At All U.S. Airports And Seaports. The Department of Homeland Security will continue to explore effective and cost-efficient means of establishing biometric exit requirements at land border crossings. The Administration Will Establish A New Land-Border Exit System For Guest Workers, Starting On A Pilot Basis. This will help ensure that temporary workers in the country now follow the mandate to leave when their work authorization expires.
  5. The Administration Will Require All Travelers To Our Ports Of Entry To Use Passports Or Other Similar Secure Documents. Since January 2007, air travelers have been required to carry a passport for entry into the United States. Because of passport processing backlogs, a temporary accommodation has been made for U.S. citizens traveling in the Western Hemisphere, which will be phased out. Starting January 31, 2008, DHS will phase in a requirement for passports or other secure documents for sea and land ports of entry.
  6. Beginning This Fall, The Secretary Of Homeland Security Will Deliver Regular "State Of The Border" Reports. These reports will keep the American people informed of the Federal Government's progress in securing the border and hold the Administration accountable for continuing improvement.
  
• INTERIOR ENFORCEMENT
• 7. The Administration Is Training Hundreds Of State And Local Law Enforcement Officers To Address Illegal Immigration In Their Communities. The Administration is maintaining the 287(g) program and expanding other measures that help State and local law officials. These measures include a broad array of enforcement tools, such as formal task forces, greater use of the ICE Law Enforcement Support Center, delegated border search and seizure authority under Title 19, and enhanced partnerships to address location-specific threats, such as gangs.
  8. By This Fall, U.S. Immigration And Customs Enforcement Teams Devoted To Removing Fugitive Aliens Will Have Been Quintupled In Less Than Three Years. There were 15 seven-member Fugitive Operations Teams in 2005. As of this week there are 68; there will be 75 by the end of September.
  9. The Justice Department Will Initiate Regulatory Action To Close The "Voluntary Departure" Loophole Manipulated By Many Illegal Immigrants. Illegal immigrants who settle their cases by agreeing to voluntarily depart sometimes then gain extra time inside the United States by filing a procedural motion to reopen the case. New regulations will clarify that filing such a motion will terminate the voluntary departure status and make the alien subject to the order of removal. They will also set a presumptive $3,000 civil penalty for failing to comply with a voluntary departure agreement.
  
• WORKSITE ENFORCEMENT
• 10. Today, The Department Of Homeland Security Issued A "No-Match" Regulation That Will Help Employers Ensure Their Workers Are Legal And Help The Government Identify And Crack Down On Employers Who Knowingly Hire Illegal Workers. In cases in which an employer has a significant number of employees with inaccurate personal identity information, the Social Security Administration will send the employer a "No-Match" letter. The regulation clarifies that employers may be held liable if they ignore the "No Match" problems by failing to take specified steps within 90 days of receiving the letter.
  11. In The Coming Months, The Administration Will Publish A Regulation That Will Reduce The Number Of Documents That Employers Must Accept To Confirm The Identity And Work Eligibility Of Their Employees. Presently, no fewer than 29 categories of documents can be used to establish identity and work eligibility. Employers have little capacity to verify the authenticity of these documents, and the sheer quantity of accepted documents is an invitation to fraud. This regulation will reduce unlawful employment by weeding out insecure documents now used often for identity fraud.
  12. As A Civil Counterpart To The Administration's Strategy Of Using Criminal Investigations To Deter Illegal Employment, The Department Of Homeland Security Will Raise The Civil Fines Imposed On Employers Who Knowingly Hire Illegal Immigrants By Approximately 25 Percent. Efforts to secure the border will fail unless the "magnet" that attracts illegals is turned off. Unfortunately, the fines for relying on illegal workers are so modest that some companies treat them as little more than a cost of doing business. DHS will use existing authority to update civil fines for inflation in order to boost fines by about 25 percent, as much as is allowed under current law.
  13. The Administration Will Continue To Expand Criminal Investigations Against Employers Who Knowingly Hire Large Numbers Of Illegal Aliens. Arrests by U.S. Immigration and Customs Enforcement for criminal violations have increased from 24 in FY 1999 to a record 716 in FY 2006. There have been 742 criminal arrests since the beginning of FY 2007 (through July 31), and there is anecdotal evidence that companies are taking notice and adjusting their business practices to follow the law.
  14. The Administration Will Commence a Rulemaking Process To Require All Federal Contractors And Vendors To Use E-Verify, The Federal Electronic Employment Verification System, To Ensure That Their Employees Are Authorized To Work In The United States. The Federal government ought to lead by example. As there are more than 200,000 companies doing Federal business, this will significantly expand use of E-Verify, and make it more difficult for illegal immigrants to obtain jobs through fraud.
  15. The Administration Will Help States Make Greater Use Of E-Verify. Some States already mandate the use of E-Verify by some or all of their hiring agencies, and other States are considering similar requirements. The Administration will assist such efforts through outreach and offers of technical assistance.
  16. The Administration Will Bolster E-Verify By Expanding The Data Sources It Can Check. This will make it easier to catch individuals who commit identity theft. New sources of data will include cross-checks of visa and passport information.
  17. The Administration Will Seek Voluntary State Partners Willing To Share Their Department Of Motor Vehicles Photos And Records With E-Verify. Agreements to allow E-Verify access to the repository of photographs in state DMV databases will help prevent illegal immigrants from using fraudulent driver’s licenses to obtain employment. Such agreements will also lay the groundwork for further expansion of the electronic employment eligibility verification system.
  
• STREAMLINING EXISTING GUEST-WORKER PROGRAMS
• 18. The Department Of Labor (DOL) Will Reform The H-2A Agricultural Seasonal Worker Program. No sector of the American economy requires a legal flow of foreign workers more than agriculture, which has begun to experience severe labor shortages as our Southern border has tightened. The President has therefore directed DOL to review the regulations implementing the H-2A program and to institute changes that will provide farmers with an orderly and timely flow of legal workers, while protecting the rights of laborers.
  19. The Department Of Labor Will Issue Regulations Streamlining The H-2B Program For Non-Agricultural Seasonal Workers. Because businesses in seasonal industries such as landscaping and hospitality frequently have a difficult time locating temporary workers, the H-2B program has proven quite popular. Some employers report significant processing delays, however. DOL's proposed rule will speed processing by moving from a government-certified system to an employer-attestation system akin to the PERM system that has reduced backlogs in other areas.
  20. The Department Of Homeland Security Will Extend The Visa Term For Professional Workers From Canada And Mexico To Attract More Of These Talented Workers To The United States. The United States must compete for foreign professional workers, and those who elect to lend their talents to the U.S. economy should be welcomed with open arms, not given a bureaucratic runaround. Yet the roughly 65,000 workers who enter the United States each year on the TN visa must go to the trouble of renewing their visa every year. This regulation will extend the TN visa duration to three years – the same term as other popular professional visas.
  21. The Department Of Homeland Security And The Department Of Labor Will Study And Report On Potential Administrative Reforms To Visa Programs For Highly Skilled Workers.
  
• IMPROVING EXISTING IMMIGRATION
• 22. The Administration Will Reform And Expedite Background Checks For Immigration. Current mechanisms for conducting immigration background checks are backed up, slowing processing times and endangering national security. The Administration is investing substantial new funds to address the backlog, and the FBI and USCIS are working together on a variety of projects designed to streamline existing processes so as to reduce waiting times without sacrificing security.
  23. The President Is Directing The Department Of Homeland Security And The Social Security Administration To Study The Technical And Recordkeeping Reforms Necessary To Guarantee That Illegal Aliens Do Not Earn Credit In Our Social Security System For Illegal Work. Currently, aliens who make Social Security payments while working here legally can continue to accrue credits even if they overstay their visa. Improved data-sharing can lay the foundation for eventual Congressional action to eliminate this practice (which proved an obstacle to comprehensive reform). The relevant agencies are ordered to report to the President with a detailed plan for eliminating the problem.
  
• ASSIMILATION
• 24. The Office Of Citizenship Will Announce A Revised Naturalization Test In September 2007. The new test will emphasize fundamental concepts of American democracy, basic U.S. history, and the rights and responsibilities of citizenship. It will inculcate the basic values we share as Americans, and encourage civic knowledge and patriotism among prospective citizens. The New Standardized Test Will Ensure Fairness By Eliminating Current Wide Variations In The Quality Of Testing Between Regional Offices.
  25. The Office Of Citizenship Will Provide Additional Training For Volunteers And Adult Educators Who Lead Immigrants Through The Naturalization Process. In October 2007, the Office of Citizenship will introduce a web-based training program that covers U.S. government, civics education, and the naturalization process. To complement these on-line materials, USCIS will convene eight regional training conferences, beginning in October 2007, to improve the ability of citizenship instructors and volunteers to teach American history, civics, and the naturalization process to immigrant students. An on-line training module will also be available by the end of the year.
  26. The Department Of Education Will Launch A Free, Web-Based Portal To Help Immigrants Learn English, And Expand This Model Over Time. Knowledge of English is the most important component of assimilation. An investment in tools to help new Americans learn English will be repaid many times over in the contributions these immigrants make to our political discourse, economy, and society. Please see the White House release.
  

08/10/2007: USCIS Releases Details of No Match Letter Program Named "Partner"

• This enforcement rule is expected to be released next Tuesday or sometime thereafter within next week. This will take effect in 30 days from the date of release in the federal register. For the advance copy of the full text of this rule, please click here.
• The agency has released the following information to give an idea of how it will be enforced:
  • Full Story
  • Workstie Enforcement Fact Sheet
  • Worksite Enforcement Case Examples
  • IMAGE Program
• Please stay tuned to this web site for the full text of the rule.

08/10/2007: OMB Approved and Cleared No-Match Letter Regulation

• As we predicted, the OMB approved and cleared for federal register publication of this rule yesterday. Today, the Secretary of Homeland Security and the Secretary of Commerce will hold a joint press conference announcing this iniatiaves. Please stay tuned to this website for the release of this regulation and the press conference of these Secretaries.
• This initiative is considered an overture of the White House and Republicans to appease the conservatives in their new initiatives to drum up the Comprehensive Immigration Reform legislation coming fall. Report indicates that the Republicans lost the national election in 2006 because of the Hispanics votes and sources indicate that the Republican strategists appeared to recommend the party leaders to take an action to swing the votes of some of the middle-of-the round Hispanics who are known to be educated young Hispanics. The Comprehensive Immigration Reform legislation appears to be an important gesture to refute the image which was built as an aftermath of death of CIR in June 2007 that the Republicans are anti-immigrationists. In a way, Senator Specter's launch of campaign for refined immigration reform proposal appeared to be well orchastrated with the Administration's launch of employer crack down rule to send a message to the base of hardcore conservatives that the Aministration has taken an action to control illegal immigration from the Southern borders, whereby the Administration attempts to soften the extent of opportion to the CIR move from the hardcore conservatives in and outside of the Congress. As far as the industries that need the temporary workers from the Southern border are concerned, probably this may be a temporary cost which they will have to pay for the next several months to achieve passage of legislation to legalize illegal aliens which they desperately need. We will see how the drama will unfold during next several months. We hope that this initiative does not end up with just another "annual event" of show that eventually brings empty hands to the immigrants either at the end of year or early next year. The Congress has been infected with an inertia to repeat this cycle of shows during the second half of a year almost every year. This time around, the leaders should show a courage and leadership to public. Otherwise, the credibility of the leadership will be deeply damaged and the image of "do-nothing" Congress and leadership with same old politics will be deeply seated in the minds of the people.
• Aside from the politics, Senator Specter's proposal is darn well-refined reform bill, and this website whole-heartedly supports the proposal. We urge the leaders of the Democratic Party to work with the Senator and to take up the proposal as soon as they return to the Hill next month.

08/09/2007: Summary of Title V - Immigration Benefits (Employment-Based Only) Under Specter Discussion Draft

• VISAS FOR INDIVIDUALS WITH ADVANCED DEGREES.
  • (a) ALIENS WITH CERTAIN ADVANCED DEGREES NOT SUBJECT TO NUMERICAL LIMITATIONS ON EMPLOYMENT BASED IMMIGRANTS.--
    • Following Aliens added in the list:
    • ``(F) Aliens who have earned an advanced degree in science, technology, engineering, or math and have been working in a related field in the United States under a nonimmigrant visa during the 3-year period preceding their application for an immigrant visa under section 203(b).
    • ``(G) Aliens described in subparagraph (A) or (B) of section 203(b)(1)(A) or who have received a national interest waiver under section 203(b)(2)(B).
    • ``(H) The spouse and minor children of an alien who is admitted as an employment-based immigrant under section 203(b).''.
    • APPLICABILITY.--The amendment made by paragraph (1) shall apply to any visa application--
    • (A) pending on the date of the enactment of this Act; or
    • (B) filed on or after such date of enactment.
  • (b) LABOR CERTIFICATION.--Section 212(a)(5)(A)(ii) (8 U.S.C. 1182(a)(5)(A)(ii)) is amended-- (Pre-certification)
    • Adding at the end the following:
    • ``(III) has an advanced degree in the sciences, technology, engineering, or mathematics from an accredited university in the United States and is employed in a field related to such degree.''.
  • (c) TEMPORARY WORKERS.--Section 214(g) (8 U.S.C. 1184(g)) is amended--
    • 115,000 in the first fiscal year beginning after the date of the enactment of this clause; and
    • [Cap Exempt: Advanced degree in science, technology, engineering, or math.'';]
    • If the numerical limitation in paragraph (1)(A)--
    • ``(A) is reached during a given fiscal year, the numerical limitation under paragraph (1)(A)(ix) for the subsequent fiscal year shall be equal to 120 percent of the numerical limitation of the given fiscal year; or
    • ``(B) is not reached during a given fiscal year, the numerical limitation under paragraph (1)(A)(ix) for the subsequent fiscal year shall be equal to the numerical limitation of the given fiscal year.''.
  • (d) APPLICABILITY.--The amendment made by subsection (c)(2) shall apply to any visa application--
    • (1) pending on the date of the enactment of this Act; or
    • (2) filed on or after such date of enactment.
• ELIMINATION OF EXISTING BACKLOGS.
• (a) EMPLOYMENT-BASED IMMIGRANTS
  • ``(d) WORLDWIDE LEVEL OF EMPLOYMENT-BASED IMMIGRANTS.--
  • ``(1) IN GENERAL.--Subject to paragraph (2), the worldwide level of employment-based immigrants under this subsection for a fiscal year is equal to the sum of--
  • ``(A) 290,000;
  • ``(B) the difference between the maximum number of visas authorized to be issued under this subsection during the previous fiscal year and the number of visas issued during the previous fiscal year; and
  • ``(C) the difference between--
  • ``(i) the maximum number of visas authorized to be issued under this subsection during fiscal years 2001 through 2005 and the number of visa numbers issued under this subsection during those fiscal years; and
  • ``(ii) the number of visas calculated under clause (i) that were issued after fiscal year 2005.
  • ``(2) VISAS FOR SPOUSES AND CHILDREN.--Immigrant visas issued on or after October 1, 2004, to spouses and children of employment-based immigrants shall not be counted against the numerical limitation set forth in paragraph (1).''.
• ALLOCATION OF IMMIGRANT VISAS.
• (a) PREFERENCE ALLOCATION FOR EMPLOYMENT-BASED IMMIGRANTS.--Section 203(b) (8 U.S.C. 1153(b)) is amended--
  • (1) ``15 percent'' [EB-1]
  • (2) ``15 percent''[EB-2]
  • (3) ``35 percent'[EB-3 Skilled Worker]'; and
  • (5) OTHER WORKERS.--Visas shall be made available, in a number not to exceed 30 percent of such worldwide level, plus any visa numbers not required for the classes specified in paragraphs (1) through (4), to qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor that is not of a temporary or seasonal nature, for which qualified workers are determined to be unavailable in the United States.''
• (b) CONFORMING AMENDMENTS.--
  • REPEAL OF TEMPORARY REDUCTION IN WORKERS' VISAS.--Section 203(e) of the Nicaraguan Adjustment and Central American Relief Act (Public Law 105-100; 8 U.S.C. 1153 note) is repealed.
• COUNTRY LIMITS.
• 10 percent (in the case of a single foreign state) or 5 percent'';
• ELIMINATION OF DIVERSITY VISA PROGRAM.
• (e) Effective Date.--
  • (1) The amendments made by this section shall take effect on October 1, 2008;
  • (2) No alien may receive lawful permanent resident status based on the diversity visa program on or after the effective date of this section.

08/09/2007: Titles of Senator Specter's Discussion Draft for New CIR

• TITLE I--BORDER ENFORCEMENT
  Subtitle A--Assets for Controlling United States Borders
  Subtitle B--Other Border Security Initiatives
  Subtitle C--Other Measures
  Subtitle D--Asylum and Detention Safeguards
  TITLE II--INTERIOR ENFORCEMENT
  ``CHAPTER 75--PASSPORT, VISA, AND IMMIGRATION FRAUD
  TITLE III--WORKSITE ENFORCEMENT
  TITLE IV--NEW TEMPORARY WORKER PROGRAM
  Subtitle B--Seasonal Agricultural Nonimmigrant Temporary Workers
  Subtitle C--Nonimmigrant Visa Reform
  TITLE V--IMMIGRATION BENEFITS
  TITLE VI--ALIENS IN THE UNITED STATES PREVIOUSLY IN UNLAWFUL STATUS
  Subtitle B--DREAM Act
  PART II--CORRECTION OF SOCIAL SECURITY RECORDS
  Subtitle C--Agricultural Workers
  PART I--ADMISSION OF AGRICULTURAL WORKERS
  PART II--CORRECTION OF SOCIAL SECURITY RECORDS
  TITLE VII--MISCELLANEOUS
  Subtitle A--Miscellaneous Immigration Reform
  ``CHAPTER 6--LANGUAGE OF THE GOVERNMENT
  Subtitle B--Assimilation and Naturalization
  Subtitle C--American Competitiveness Scholarship Program
  TITLE VIII--MISCELLANEOUS
  Subtitle A--Unaccompanied Alien Child Protection Act of 2007
  TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND DETENTION
  TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO CHILD ADVOCATES AND COUNSEL
  TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN CHILDREN
  TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS
  TITLE V--AMENDMENTS TO THE HOMELAND SECURITY ACT OF 2002
  TITLE VI--AUTHORIZATION OF APPROPRIATIONS
  TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND DETENTION
  TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO CHILD ADVOCATES AND COUNSEL
  TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN CHILDREN
  TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS
  TITLE V--AMENDMENTS TO THE HOMELAND SECURITY ACT OF 2002
  TITLE VI--AUTHORIZATION OF APPROPRIATIONS
  TITLE IX--STUDY OF WARTIME TREATMENT OF CERTAIN PEOPLE
  Subtitle A--Commission on Wartime Treatment of European Americans
  Subtitle B--Commission on Wartime Treatment of Jewish Refugees
• Please stay tuned for the full text of the discussion draft and summary of selected provisions.
  

08/09/2007: Senator Specter Circulates Discussion Draft on Immigration Legislation (CIR) to All the Senators on 07/27/2007

• U.S. Senator Arlen Specter, ranking member on the Senate Judiciary Committee, circulated a discussion draft of an immigration proposal to the every member of the Senate on July 27, 2007. The modified proposal makes two key changes to the previous comprehensive immigration reform legislation (S.1639): (1) eliminates the path to citizenship for immigrants, and ( 2) does not tamper with the current family unity provisions. Since then, he has been very vocal to push for the CIR as soon as the Senate returns in September.
• Read the Senator's Speech on the full Senate floor on July 30, 2007 advocating immigration reform legislation.
• Read the Senator's Article "A Less Ambitious Approach to Immigration" published in the Washington Post on August 6, 2007.

08/08/2007: CIS 485 Filing FAQ3[08/08/07]

08/08/2007: Another CIR on the Horizon: Senator Arlen Specter Reportedly to Introduce Another CIR in September

• Conservative news sources indicates that Senator Specter has already completed the draft of new Comprehensive Immigration Reform bill allegedly taking out Z visa from the previous CIR which failed in the Senate in June 2007. Please stay tuned for the progress of this news.

08/08/2007: ohlaw@immigration-law.com Email Temporarily Down

• Our main email is temporarily down all morning . Those who sent us email are requested to forward the emails to matthewoh.attorney@gmail.com. Sorry for your inconvenience.

08/08/2007: Apology to the Online Wishers for This Reporter's Birthday

• After we reported anonimously somebody's birth day on the 5th, we have received many and many e-cards and even e-bay contacts on certain gifts. Unfortunately, our Server had to filter spams and certain commercial messages and we could not open the e-mails. We apologize for not being to able to send "thank you" message to these well-wishers. Please kindly take this message as this reporter's "thank you" note to each and every one of you who shared the birthday with the reporter.

08/08/2007: USICE Poised to Crack Down Employers Hiring Undocumented Alien Workers

• The USICE, the immigration law enforcement arm of the Department of Homeland Security, is about to release a regulation entitled "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter" in this week that will give the agency a powerful legal enforcement tool to crackdown employers, particularly employers in certain low-end industries hiring unauthorized aliens based on the fake Social Security card or EAD or other DHS employment authorization documents, based on the "constructive knowledge" of illegal aliens hiring or continued employment of such unauthorized aliens. The rule adds two more examples of situations that may lead to a finding that an employer has constructive knowledge that an employee is an unauthorized alien. These additional two examples involve an employer?s failing to take reasonable steps in response to one or the other of two events: (1) The employer receives written notice from the Social Security Administration (SSA) that the name and social security account number submitted for an employee do not match SSA records; or (2) the employer receives written notice from the Department of Homeland Security (DHS) that the immigration-status or employment-authorization documentation presented or referenced by the employee in completing Form I-9, Employment Eligibility Verification, was not assigned to the employee according to DHS records. The rule also describes steps that DHS considers to be a reasonable response, and clarifies that whether DHS will find that an employer had constructive knowledge that an employee was an unauthorized alien will depend on the totality of relevant circumstances. The rule describes "Safe Harbor" procedures an employer can follow in response to such a letter to be certain that DHS will not use the letter as part of an allegation that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States. The purpose of this rule is to clarify an employer's obligations and options when it receives a no-match letter, either from SSA or DHS. The rule will give employers a fixed period, perhaps up to 90 days, to resolve any discrepancies between identity information provided by their workers and the records of the Social Security Administration. If workers’ documents cannot be verified, employers would be required to fire them or risk up to $10,000 in fines for knowingly hiring illegal immigrants. Employers are likely to be given 14 days after receiving a no-match letter to check for clerical errors and consult with the employee to correct mistakes. If the discrepancies are eliminated and new, valid work papers are filed within the fixed period, employers would enjoy a “safe harbor” from penalties. This rule will be published in the form of "final rule" and will go into effect very swiftly. The final rule submitted to the OMB on May 10, 2007 which had upto 90 days to make a decision on the clearance. Accordingly, this final rule is poised to be cleared by the OMB within next two days, followed by release in the federal register soon.
• New York Times reports that USICE would be backed up by stepped-up raids on workplaces across the country that employ illegal immigrants once this rule is in place. Reportedly they ares are signaling that they intend to clamp down on employers of illegal immigrants even without a new immigration law to offer legal status to millions of illegal immigrants already in the workforce. Illegal workers often provide employers with false Social Security numbers to qualify for a job. Employers, especially in agriculture and low-wage industries were repoprtedly deeply worried about the new rules, which could force them to lay off thousands of immigrant workers. More than 70 percent of farmworkers in the fields of the United States are illegal immigrants, according to estimates by growers’ associations. These employers are scared, confused, holding their breath on the news of release of the new rules. A spokesman for Social Security reportedly said the agency expected to send out about 140,000 no-match letters to employers this year, covering more than eight million workers.
• This new rule is expected to play well with conservatives who have long demanded that the administration do more to enforce existing immigration laws, but it could also lead to renewed pressure from businesses on Congress to provide legal status for an estimated six million unauthorized immigrant workers, according to the news. Republican legislators in the Hill are also reportedly welcoming this move of the DHS. Illegal immigration community, particularly Hispanic community, was hit hard by the Congress failure to pass the CIR and now they will have to live in fear of the government's raids and law enforcement.
  
  

08/08/2007: USCIS August Monthly Newsletter

08/07/2007: Expansion of Visa Waiver Program Countries

• On August 3, 2007, the President signed into law H.R. 1, Implementing Recommendations of the 9/11 Commission Act. This bill includes a wide range of immigration provisions that will change the current immigration laws.
• One of the most noticeable changes include the expansion of the Visa Waiver Program countries under Subtitle B of Title VII of the Act which authorizes the DHS to expand the list of countries that are cooperating with the U.S. to prevent terrorist travel, including sharing counterterrorism and law enforcement information and whose nationals have demonstrated their compliance with the provisions of the INA regarding the purpose and duration of their admission to the United States. Please stay tuned to this website the details of the list of addtional VWP countries.

08/07/2007: Certified PERM Application (ETA 9089) Filing Advisory With USCIS

• The hard copy certified ETA 9089 is printed on a light blue color papers by the DOL to certify that it is the original. In filing I-140 petition, the employer is required to submit the original. However, in certain situations, the original is not available to the employer for a number of reasons including loss. In such instances, under the long standing agreement between the USCIS and the DOL, the USCIS can request and obtain a duplicate from the DOL.
• It has been a practice with the employers, aliens, and attorneys to print out a copy of PERM application at the time of online filing and once they received the certified ETA 9089, they just make a copy of the employer/alien/attorney signature pages for their files adding other pages from their file copy which they had kept right after filing of the PERM application. People should cease such practice immediately. The original of the certified labor certification application is not only distinguished in color but also the certification of validity period at the bottom of each page, which they started after July 16, 2007. Accordingly, unless the copy shows the validity period at the bottom of each page, it is not a valid copy of the original. Accordingly, people should make it sure that as soon as the hard copy of the original certified application is received from the DOL, they immediately make a copy of every page and keep it as a valid copy of the original certified PERM application. IMPORTANT, IMPORTANT.

08/07/2007: PERM Fraud Rule and DOL Publicity Campaign on E-Mail Report Availability

• We reported that the DOL published a federal register notice of e-mail address for report of the PERM fraud rule violations by the public including disgruntled employees. It appears that the DOL has started publicizing initiation of such e-mail report system through its local networks and other channels. The employers should beware of the serious nature of this new enforcement initiative and familiarize themselves with the details of the rule. The FAQ which we reported yesterday should answer a number of questions which had not been answered until yesterday.

08/06/2007: DOL Releases PERM Fraud FAQ Under New Rule Which Took Effect on 07/16/2007 as Part of Substitution Elimination Final Rule

• This is a very important material for the employers, aliens, and attorneys who file the PERM labor certification applications in two aspects. One is the civil, criminal, and debarment for violation under the rule. The other is completing the PERM application form that contains a question on this issue. Since the PERM is signed as an attestation by the employer, alien, and legal representative, wrong answer to the question can lead to a serious consequence. Considering the importance of the material, we have decided to report the full text (except Substitution questions) in this posting below:
  • Prohibition on Improper Payments and Transactions
  • (Q) How does the Department define “sale, barter, or purchase” of a labor certification?
  • (A) No application for labor certification or approved labor certification may be sold, bartered, or purchased as of July 16, 2007. A “sale” means an agreement between a seller and a buyer to transfer ownership of a labor certification in consideration of monetary payment or promise of monetary payment. “Barter” means the transfer of ownership of a labor certification from one person to another by voluntary act or agreement in exchange for a commodity, service, property, or other valuable consideration. “Purchase” means the voluntary agreement to transfer ownership of a labor certification from one person to another based on valuable consideration. The Final Rule adds these definitions to §656.3.
  •  
  • (Q) How does the Department define prohibited payments for “activity related to obtaining permanent labor certification?”
    (A) Pursuant to §656.12(b), an employer may not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, and when the work to be performed by the alien beneficiary will benefit that party. “Payment” includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or other “in kind” payments; and free labor. This includes the prohibition against the alien paying the employer’s attorneys’ fees in connection with the labor certification application.
  • (Q) What are activities relating to obtaining permanent labor certification?
    (A) “Activity related to obtaining permanent labor certification,” for purposes of §656.12(b), includes, but is not limited to, recruitment activity, the use of legal services, and any other action associated with the preparation, filing, or pursuit of an application. This section prohibits any such payment. An alien may pay his/her own costs, including attorneys’ fees for representation of the alien, except that when the same attorney represents both the alien and the employer, all costs related to preparing, filing, and obtaining the permanent labor certification must be borne by the employer
  • (Q) Does the rule prohibit reimbursement agreements?
    (A) The regulation prohibits payment by the alien beneficiary or others of employer-incurred costs related to labor certification, including attorneys’ fees. If, for example, a reimbursement agreement would require the employee to reimburse the employer for some or all of the attorneys’ fees it incurred associated with preparing, filing and obtaining the labor certification, such reimbursement agreement would violate the Final Rule.
  • (Q) What should employers do who have entered into contracts where payments from aliens are either owed after July 16, or owed prior to July 16 but not paid until after July 16?
    Section 656.12(b) prohibits an employer from seeking or receiving payment of any kind for activity related to obtaining permanent labor certification, including the employer’s attorneys’ fees. If the payment obligation, however, accrued prior to July 16, the employer has the right to seek the payment after the effective date. For applications filed on or after July 16, 2007, an employer who has sought this type of payment from the alien beneficiary of the application must answer “yes” to Question I-23 on ETA Form 9089 (“Has the employer received payment of any kind for the submission of this application?”), even if the employer has not yet received payment from the alien. Employers should describe the payment and from whom, and when appropriate clarify on the application, for the record, that the payment was for an obligation that accrued prior to the effective date of this provision (ie, July 16, 2007). Employers answering “yes” to Question I-23 must be prepared, if requested by the Certifying Officer, to explain and support the details of such payment.
  • (Q) What should attorneys do who have entered into contracts where payments from aliens for labor certification preparation and filing are either owed after July 16, or owed prior to July 16 but not paid until after July 16?
    (A) Both because the Final Rule governs the payment or reimbursement of an employer’s attorneys’ fees, and because an attorney is the employer’s legal representative (and so stands in the place of the employer), the rule prohibits payments to an attorney for the employer’s legal fees when such payments would not be permissible directly to the employer. If the payment obligation accrued, however, prior to July 16, the attorney has the right to seek the payment after the effective date and should note on the application, for the record, when the obligation accrued. For applications filed on or after July 16, 2007, if an attorney or firm completing the application represents the employer, or the employer and alien jointly, and has either sought or received a payment from the alien beneficiary that is directly related to the employer’s labor certification costs as outlined in the regulation, the attorney must answer “yes” to Question I-23. Attorneys answering “yes” to Question I-23 must be prepared to explain and support the details of such payments. The attorney should describe the payment, explain that the payment was to the attorney and from whom, and when appropriate clarify on the application, for the record, that the payment was for an obligation that accrued prior to the effective date of this provision (ie, July 16, 2007).
  • (Q) Do the regulations require attorneys to modify contracts for dual representation entered into before July 16, 2007?
    (A) The regulations state that an employer may not seek or receive payment from the employee (or a third party except in specific circumstances) after July 16 2007. Attorneys may represent employers in the preparation, filing and obtaining of a labor certification and may be paid for that activity by the employer. Attorneys may represent aliens in their own interests in the review of a labor certification (but not in the preparation, filing and obtaining of a labor certification, unless such representation is paid for by the employer), and may be paid by the alien for that activity. To the extent, however, that a contract exists between the attorney and the employee, which calls for the receipt on or after July 16 of payment for services rendered on or after July 16 in connection with the preparation, filing or obtaining of a labor certification, such services are to be paid for, under the regulation, by the employer.
  • (Q) Do the regulations permit counsel for the alien to voluntarily represent the employers on a pro bono basis?
    (A) No. But for the attorney’s representation of the alien, the attorney would not be furnishing such services to the employer. This is prohibited by the regulations.
    
  • Debarment:
  • (Q) When may the Department debar an employer, attorney, or agent?
    (A) Pursuant to §656.31(f), the Department may debar an employer, attorney, and/or agent from the permanent labor certification program for up to three years, when it determines such employer, attorney, and/or agent has facilitated or participated in one or more of the following actions, if such action was prohibited at the time it occurred:
    • Sale, barter, or purchase of an application for labor certification or approved labor certification;
    • Prohibited payment for an activity related to obtaining permanent labor certification;
    • Willful provision or assistance in the provision of false or inaccurate information for an application for labor certification;
    • Pattern or practice of failure to comply with the terms of Form ETA 9089, Application for Permanent Employment Certification, or Form ETA 750, Application for Alien Employment Certification;
    • Pattern or practice of failure to comply with the Permanent Labor Certification audit process;
    • Pattern or practice of failure to comply with the Permanent Labor Certification supervised recruitment process; or
    • Fraud or willful misrepresentation involving a Permanent Labor Certification, as determined by a court, the Department of Homeland Security, or the Department of State.
  • (Q) When does an approved labor certification expire?
    (A) The expiration date of an approved labor certification depends on when it was approved. For labor certifications approved prior to July 16, 2007, the labor certification expires 180 days after July 16, 2007 – that is, January 12, 2008-- unless filed prior to its expiration with the Department of Homeland Security in support of a Form I-140 immigrant petition for alien worker. Labor certifications approved on or after July 16, 2007, will expire 180 days from their date of issue, unless filed prior to expiration with the Department of Homeland Security in support of a Form I-140 immigrant petition for an alien worker.
    

08/05/2007: Hooray! This is Somebody's Birthday!

08/05/2007: USCIS Fee Schedule Changes, Partial Phase III Bi-Specialization Program Implementation, and Importance of Using Correct Updated Forms

• Lately, the USCIS initiated two important changes in the immigration benefits petitions and applications. One is partial implementation of Phase III Bi-Specialization Program which changed the filing jurisdictions in the employment-based nonimmigrant and immigrant petitions and applications. The other is the fee increase. These two initiatives mandate the USCIS to revise the immigration forms reflecting the changes. Most of the visitors of this website are very knowledgeable on these changes and importance of using the upto-date immigration forms. However, there are a large number of immigrants who are not all that knowledgable about the computer, internet access, and ongoing immigration process changes. The ongoing revisions of the immigration forms are not substantive in nature, but some are. It is thus critically important that unless the filers are lawyers who use commercial immigration form softwares that update the forms quickly, they should always check the USCIS Immigration Forms site before they use any immigration forms. We have thus created a link to the USCIS Form Site in our home page. We recommend people to visit our home page to get access to the ever-changing immigration forms

08/05/2007: Caution on Taking the Publication of USCIS 485 National Standards Operating Procedures (SOP) as "Current" Processing Standards and Procedures

• AILA has recently released this publication to the members of the organization to help the members to understand the standards and procedures of I-485 processing and adjudication within the USCIS field offices. This material indeed helps to learn the general knowledge on the USCIS practices, standards, and procedures in handling I-485 applications. Obviously this publication has been made available to the clients by some of the member lawyers. However, people should read this publication with a caution that it may not be taken as "current" standards and procedures in a number of areas. We learned that this publication had yet to be updated and in that regard, a number of information in the publication was outdated. Additionally, this publication warns at the outset that it is not a binding rule and depending on the specific or unique circumstances of each field office, the actual standards and procedures can vary and people should not take it as a rule. I have a number of people who asked why they had to submit G-325A Biographic Information when they had been staying in the U.S. more than one year based on this publication. This is just one illustration of problems a lay people can make a mistake if they attempt to apply the information in their specific cases without the full knowledge of the immigration law, rules, policies and procedures. This warning is particularly true when the people will have to submit July 2007 VB 485 applications frawless. For this reason, we opted not to publish the I-485 SOP publication on this web site.

08/05/2007: A Story Too Unreal and Too Comic to Believe It!

08/05/2007: Direct Filing of Concurrent I-140/I-485 and Filing Jurisdiction Confusion

• Ever since July 30, 2007, direct filing of I-140 and I-485 has been in place, and according to the USCIS news release, the USCIS will not reject any of these petitions or applications which are directly filed with a wrong Service Center (between TSC and NSC) until August 28, 2007. Any direct filing with the wrong Service Center after August 28 will be rejected.
• When it comes to the stand-alone I-140 petition or stand-alone I-485 application, it is clear that such I-140 petition must be filed with one of the two Service Centers depending on the location of the employment, while I-485 application must be filed with one of the two Service Centers depending on the location of the residence of the alien.
• However, when it comes to the direct filing of "concurrent I-140 and I-485," there are currently two conflicting instructions from the USCIS. According to the July 30, 2007 version of I-485 application form, such concurrent I-140 and I-485 must be filed with either TSC or NSC that has jurisdiction over the residence of the alien and not location of employment. On the other hand, the direct filing chart of I-140 and I-485 asks that concurrent filing I-140 petition and I-485 application must be filed with either TSC or NSC that has jurisdiction over the place of employment. Since there are a substantial number of 485 applicants who reside in Nebraska Service Center jurisdiction while working in Texas Service Center jurisdiction or vice versa, the current USCIS instructions raise a serious confusion for these filers. Since the USCIS intends to reject the filing of I-140 petition and I-485 application that are filed with the wrong Service Center out of the two Service Centers after August 28, 2007, the USCIS should immediately release new direction to remove and correct the current confusion in the jurisdiction of concurrent I-140/I-485 filing.

08/04/2007: USCIS Service Centers Receipting Status 08/03/2007

• USCIS announced today that it has experienced a tremendous increase in the number of applications filed, which has resulted in a front log of cases awaiting data-entry. The actual received date will be honored and recorded on the receipt notice. This date will appear in the “Received Date” box on Form I-797, Notice of Action. The received date on Form I-797 is different from the “Notice Date,” which also appears on the Notice and identifies the date the receipt notice was actually generated. Delay in data entry and fee receipting will not affect Change of Status or Extension of Stay eligibility, assuming all other eligibility requirements are satisfied.
• As of August 3, 2007, Nebraska Service Center and Texas Service Center reportedly have completed data entry and have issued receipt notices for the following applications and petitions received on or before the following dates:

  • NSC	TSC
    485=07/01/2007	485=06/26/2007
    140=07/01/2007	140=07/30/2007
    EAD=07/02/2007	EAD=06/26/2007

  • Considering the volume of July 2007 VB 485 applications filings in July and August 2007, it is anticipated that issuance of receipt notices for I-485, I-765, and I-131 may be further delayed and the filers should learn to live with it.
• As of August 3, 2007, California Service Cener and Vermont Service Center reportedly have completed data entry and have issued receipt notices for the following applications and petitions received on or before the following dates:

  • CSC	VSC
    129=08/01/2007	129=07/24/2007
    539=08/01/2007	539=07/24/2007
    N400=07/16/2007	N400=07/11/2007

• USCIS will update the report "weekly" and we have set up a monotor in our home page.

08/04/2007: Shift of Immigration Legislation from Comprehensive Approach to Piecemeal Approach and Current Score Cards of Piecemeal Immigration Bills

• As reported earlier, since the death of CIR in June 2007, there is a concensus in and out of the Beltway that there will be no another CIR legislation at least until a new adminsitration moves into the White House in 2009. Such negative prospect for the CIR has triggered a move in the Congress to resolve the immigration legislation on a piemeal basis. The two leading piecemeal legislative bills are AgJOB bill sponsored by Senator Diane Feinstine of California and DREAM bill sponsored by Senator Durbin of Illiois. These two Senators have indeed shown a strong committment and dedication to these two legislative issues and repeatedly attempted to pass the bills as a rider to another legislative bills without any success.
• However, New York Times reports that these bills generally receive a bi-partisan support and have some chance to make it after the August recess.
• Contrasted to these legislative pushes, the employmengt-based immigration relief have remained and still remains a backburner despite the strong demand and supprt by businesses. We want to reiterate our demand to the Congress to give an equal shake to the employment-based immigration legislation. We reported earlier that the professional immigrant workers were organizing a rally in D.C. on September 13, 2007 to call for actions by the political leaders on the employment-based immigration legislations. However, people should realize that the August break will give them a best and most effective opportunity to contact and work with the legislators in their communities to solicit their support for the employment-based immigration legislation. We realize that a rally in the nation's Capitol may draw a strong publicity on employment-based immigration issues. However, it is this reporter's opinion that organizing the network for contact with the legislators at the community-level may turn out to be as important as the rally or even more effective than the rally. We hope to see more visible organizing activities at the communitiy level during the next few weeks.

08/04/2007: Senate and House Go to One-Month Break (08/06/2007-09/03/2007)

• The Congress starts taking one-month Summer break with a disasterous record of legislation in the immigration issues.

08/03/2007: Bridge Collapse in Minneapolis and Moment of Silence in the House Yesterday

• Readers should know the catastrophic event that took place in our town, Minneapolis, Minnesota. Not knowing who were missing, we often received phone calls or emails both locally as well as outstates about the satety of the residents in the twin cities. Yesterday, the House of Representatives began the session with a moment of silence for those who had been affected by the tragedy. This reporter wishes to address a personal appreciation to the House members for sharing the emotional pains with us.

08/02/2007: Unconfirmed October Visa Bulletin Prediction

• The Immigration Bulletin website has reported October 2007 Visa Bulletin reported by an attorney. We thank the Immigration Bulletin for carrying this news.

08/02/2007: Advisory for Labor Certification Employers

• The labor certification substitution elimination Final Rule, which took effect on July 16, 2007, (1) prohibits an employer from receiving payment of any kind as an incentive or inducement to file, or in reimbursement of the costs of preparation or filing of, an application for labor certification, including covering the costs of the employer’s attorneys’ fees, except as specifically provided for certain third-party payments, (2) prohibits an employer filing an application for labor certification from reducing the wages, salary or benefits of an alien named on the application for any expense related to the preparation and filing of the application. This prohibition includes the payment by the alien of costs (for recruitment or other activities in furtherance of the labor certification) as well as the employer’s attorneys’ fees; (3) prohibits employers engaged in the labor certification process from withholding from an alien’s wages, either in increments or in lump sum, any payment in reimbursement to the employer for costs associated with that process. Prohibited payments include, but are not limited to: Employer fees for hiring the alien beneficiary; receipt of ‘‘kickbacks’’ of part of the alien beneficiary’s pay, whether through a payroll deduction or otherwise; reducing the alien beneficiary’s pay for purposes of reimbursement or prepayment; goods and services or other wage or employment concessions; kickbacks, bribes or tributes; or receipt of payment from aliens, attorneys, or agents for allowing a permanent labor certification application to be filed on behalf of the employer.
• Consequences of violation of this rule can include civil and criminal penalty and debarment from filing any permanent labor certification applications for upto three years. Accordingly, the employers sponsoring permanent labor certification application post July 16, 2007 should familialize themselves with the LC Substitution Elimination Final Rule not to face any legal problems. As we reported earlier today, the DOL intends to enforce this rule very agressively by encouraging the alien employees and other parties to report any violation via email and toll free free telephone numbers in the future.
  

08/02/2007: DOL to Enforce Agressively Violation of New Labor Certification Integrity Requirement Rules

• DOLhas published an e-mail address for the receipt and processing of reports of potential violations of its recently published Final Rule seeking to protect the integrity of the permanent labor certification program and reduce incentives for fraud and abuse. They are also planning to use toll free number for reporting such violations. This email box will be monitored for reports of alleged non-compliance with the regulations governing the permanent labor certification program. The DOL will determine an appropriate course of action for each report, and may refer individual inquiries to DOL's Employment Standards Administration, the DOL Office of Inspector General, the Department of Homeland Security, and/or other authorities. If appropriate, DOL may determine that no response is required.
• This part of the regulation is considered undermining the right to defense and representation of the people and is expected to face a serious challenge in federal courts in the future. The AILF and AILA are considering a lawsuit to challenge this rule.

08/02/2007: Fact Sheet: Naturalization Through Military Service

08/01/2007: E-Filing Outage Scheduled 08/02/2006

• The e-Filing System system will be temporarily unavailable on Thursday, August 2, 2007, from 6:00 PM EDT until 11:00 PM EDT for necessary maintenance.

08/01/2007: Two Months for Complete Phase-Out of BEC Program!

• The DOL officially announced that it would eliminate all the backlog labor certification applications in two months. The backlog elimination program as part of the labor certification system reengineering strategies of the DOL has gone through a lot of ups and downs and is about to turn into a chapter of history. We thank all the women and men in the BECs for their hard work in eliminating over 360,000 cases successfully and hope that they accelerate the adjudications for the remaining cases such that some waiters will receive the benefits of filing of I-485 applications by August 17, 2007. Dr. Carlson, hats off to you!

08/01/2007: No Outage of Immigration Online Filing Today

• We thank the USCIS for its decision not to reschedule online filing system outage yesterday and today for maintenance. It assisted some last-minute concurrent I-140 filers in time within July 2007. Under the current July 2007 VB I-485 filing policy, those whose priority date is fixed will be allowed to file July 2007 VB I-485 applications until August 17, 2007. Hats Off to the leaders of the CIS!

08/01/2007: USCIS Publishes Rules for July 2007 VB I-485/I-765/I-131/Biometrics Fee Schedule During 07/01/2007-08/16/2007

• The USCIS released this information in the form of press release, but today it formalized and published in the federal register giving a little more detailed information about the fee schedules for the July 2007 VB 485 filings. For the fee schedule, please click here.

For the pre-August 1, 2007 news, please click here.