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THE OH LAW FIRM

Dedicated Professionals in Immigration Law for Over 25 Years@

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

Current Page[07/01/2010 - Present]/Archive XXI[03/01/2010-06/30/2010]/Archive XX[05/01/2009-02/28/2010/Archive XIX[10/01/2008-04/30/2009]/Archive XVII[03/31/2008 - 09/30/2008]Archive XVI[08/01/2007 - 03/31/2008/Archive XV [04/30/2007 - 07/31/2007]/Archive XIV[06/15/2006 - 03/31/2007]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. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap."
• "This rule also stipulates that if USCIS determines the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during this time period. If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit."
• "The rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits. Those filing fees will not be returned."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

03/14/2008: April Visa Bulletin Reposted

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

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

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

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

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

03/13/2008: April 2008 Visa Bulletin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Summary:

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

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

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

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

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

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

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

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

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

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

02/23/2008: USCIS Case Status Inquiry Guidance

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

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

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

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

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

02/21/2008: Special Notice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Announcement
• E-Verify FAQ

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

02/12/2008: March 2008 Visa Bulletin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

01/25/2008: HHS Poverty Guideline

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

01/09/2008: February 2008 Visa Bulletin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12/27/2007: USCIS December 2007 Monthly Newsletter

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

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

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

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

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

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

12/24/2007: USCIS Outages Resolved and Restored

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

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

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

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

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

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

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

12/21/2007: Adieu to Backlog Elimination Centers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12/11/2007: January 2008 Visa Bulletin

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

12/11/2007: USCIS November Newsletter

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

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

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

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

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

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

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

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

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

12/06/2007: USCIS Website Scheduled Outage Announcement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11/19/2007: USCIS November 2007 Newsletter

11/19/2007: State Department Updates Passport Regulation

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

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

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

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

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

11/17/2007: November 16 USCIS Frontlog Status

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

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

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

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

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

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

11/14/2007: December 2007 Visa Bulletin

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

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

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

11/12/2007: Immigrant Veterans and Naturalization

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Ouch!

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

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

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

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

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

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

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

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

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

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

• Oh, Boy!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Wow, impressive progress.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Ouch!

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

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

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

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

10/12/2007: USCIS October 2007 Monthly Newsletter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

10/05/2007: November 2007 Visa Bulletin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• As the FY 2007 sunsets in the mid-night today, all the immigrant visa numbers for FY 2007 which have not been used will be wasted. Beginning tomorrow, the new FY 2008 immigrant visa numbers and certain nonimmigrant immigrant numbers that have annual cap such as H-1B, H-2B, H-C, etc. will be allocated and both new immigrants and nonimmigrants of these types either obtain new statuses or visas through the USCIS and the U.S. visa posts throughout the world.
• Today also marks practical end of the foreign labor certification Backlog Elimination Program. The DOL has yet to release information on the status of backlog elimination as at the end of today, but their earlier prediction was that because of the number of cases that requested reconsideration for denials and some unresolved issues such as correction of their errors, the BEC may continue for a while.
• FY 2008 will also mark a lead year to the national election in November 2008 and the national immigration policies and legislative activ