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THE OH LAW FIRM
Dedicated Professionals in Immigration Law for
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Breaking News Archive XVI
Matthew Oh Attorney Reporting
(08/01/2007 - 03/31/2008)
|
The Oh Law Firm and its Lawyers
are not responsible for reliance by the reader on this information
as each individual situation may be unique and different. The
readers are advised to seek legal counsel from a qualified immigration
attorney. The information stated here is subject to change. |
The posting in the Breaking
News requires visitors' some level of knowledge of immigration
issues. Reading one posting without closely following previous
postings will result in reading it out of context. The laws, policies,
and practices of agencies are constantly changing and people should
be careful in reading old postings. People should not take the
news in this page as a legal advice. The purpose of Breaking
News is to feed into the immigrant communities up to the minute
news, especially inside information of agencies' decision
making. Just like any other news reporting, the life span
of the news can be very short. This is not a text book
or a law book. It is a "news report." This site will
welcome "only" those visitors who follow the news reports
everyday just like the subscribers of daily newspapers. The sole
purpose of this site is to serve the immigrant communities..
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XV [04/30/2007 - 07/31/2007]/Archive XIV[06/15/2006
- 03/31/2007]Archive
XIII [12/01/05 - 06/1/06. ]
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. masters 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 Programs 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 ProgramBulgaria, 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 Greeces 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 DHSs 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:
- 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
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.
- 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
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 Securitys 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 USCISs 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. Masters Cap
Regular Cap Premium Processing
U.S. Masters 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. Masters 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 Drivers License (when
available this secure drivers 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*
- Drivers 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 spouses 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.
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
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
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:
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 OMBs 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:
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:
- 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. Levins 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 FBIs
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!
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 employers
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 activ