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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[10/01/2008 - Present]/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 - 06/14/06]/ Archive XII [08/01/05 - 11/30/05]/Archive XI [04/30/05 - 07/31/05

09/30/2009: DHS Statistics of Nonimmigrant Admissions in 2007

09/30/2009: Advance Copy of Federal Register Release of TPS Extensions for El Salvador, Honduras, and Nicaragua

• These three notices will be published tomorrow.
• For the USCIS announcements and Questions and Answers for these TPS extensions, please refer back to our posting on 09/26/2008.

09/30/2009: Last Day for Filing H-1B Labor Condition Application Online Without Registration of Employer and Representatives

• Beginning from tomorrow, employers and their representatives will not be able to file and obtain certification of the Labor Condition Applications for H-1B, H-1B1, and E-3 Nonimmigrants, ETA 9035E unless the employer and the representative first file and complete registration online. Registration may not take too much time, but some employers and representatives may need extra time. Those who need the LCA certifications quick may as well file the applications within today.

09/30/2009: State Department Official Notice of DV-2010 Registration in Federal Register

09/30/2009: USCIS Database Consolidation

• DHS proposes to consolidate three legacy record systems: Justice/INS-013 INS Computer Linked Application Information Management System (CLAIMS) (67 FR 64132 October 17, 2002), Justice/INS-031 Redesigned Naturalization Application Casework System (RNACS) (67 FR 20996 April 29, 2002), and Justice/INS-033 I-551 Renewal Program Temporary Sticker Issuance I-90 Manifest System (SIIMS) (66 FR 6673 January 22, 2001) into one DHS/USCIS system of records notice titled, United States Citizenship and Immigration Services Benefits Information System. Categories of individuals, categories of records, and the routine uses of these legacy system of records notices have been consolidated and updated to better reflect DHS/USCIS's immigration application information record systems.
• The record includes the following:
  • Categories of Individuals Covered by the System: Persons who have filed (for themselves or on the behalf of others) applications or petitions for immigration benefits (other than asylum and refugee) under the Immigration and Nationality Act, as amended, and/or who have submitted fee payments or received refunds from such applications or petitions; current, former and potential family members of applicants/petitioners; persons who complete immigration forms for applicants and petitioners (e.g., attorneys, form preparers); name of applicant's employer; and individuals who seek access to records retained in the Benefits Information System under the Freedom of Information/Privacy Acts (FOIA/PA).
  • Categories of Records in the System:
    
    Individual's name;
    Social Security Number (if applicable);
    A-Number (if applicable);
    Addresses;
    Telephone numbers;
    Birth and death information;
    Citizenship or nationality;
    Immigration status;
    Marital and family status;
    Personal characteristics (e.g., height and weight);
    Records regarding tax payment and financial matters;
    Records regarding employment;
    Medical records;
    Military and Selective Service records;
    Records regarding organization membership or affiliation;
    Biometric and other information collected to conduct background checks;
    DHS issued card serial numbers;
    Records regarding criminal history and other background check information; and
    Case processing information such as date applications were filed or received by USCIS; application/petition status, location of record, FOIA/PA or other control number when applicable, and fee receipt data.
• Easier record management land accessibility with the resultant change in privacy of record. For the full text of the notice, please click here.

09/29/2009: State Department DV-2010 Instructions

09/29/2008: USCIS Processing Time Report as of 09/15/2008 or 07/31/2008?

• Yesterday, for some unknown reasons, the USCIS website changed its field offices processing times from 09/15/2008 to 07/31/2008. The data appears to be similar or identical. It is hoped that the USCIS clarifies for the confusions. They apparently changed it on 09/28/2008. Please stay tuned.

09/29/2008: Advance Copy of DV-2010 Immigration Lottery Official Notice

• This notice will be published in the federal register tomorrow, 09/30/2008.

09/29/2008: House Already in Session, 8:00 a.m. EST to Deal With Economic Stabilization Act, Nick-Name of Bail-Out Packet

09/28/2008: Congress Passes Military Personnel Citizenship Processing Act, S.2840 in the Evening

• The House agreed to and passed this Senate bill about 9:00 p.m. today, whereby the Congress passed this bill for the President's signature. The significant part of this bill includes:
  • SEC. 3. DEADLINE FOR PROCESSING AND ADJUDICATING NATURALIZATION APPLICATIONS FILED BY CURRENT OR FORMER MEMBERS OF THE ARMED FORCES AND THEIR SPOUSES AND CHILDREN.
    • (a) In General- Section 328 of the Immigration and Nationality Act (8 U.S.C. 1439) is amended by adding at the end the following: (g) Not later than 6 months after receiving an application for naturalization filed by a current member of the Armed Forces under subsection (a), section 329(a), or section 329A, by the spouse of such member under section 319(b), or by a surviving spouse or child under section 319(d), United States Citizenship and Immigration Services shall--
    • `(1) process and adjudicate the application, including completing all required background checks to the satisfaction of the Secretary of Homeland Security ; or
    • `(2) provide the applicant with--
    • `(A) an explanation for its inability to meet the processing and adjudication deadline under this subsection; and
    • `(B) an estimate of the date by which the application will be processed and adjudicated.
• It is indeed a good news in that despite the pressure of minute-by-minugte bail-out negotiation and eventual bi-partisan agreement to the final bail-out packet which will be on the floor tomorrow in the House, the House opted to come back to the floor this everning to take care of some other unfinished bills. It is indeed a breath-taking evening to see what other bills will be taken up tonight on the floor until it will recess again until tomorrow.
• The Senate is currently in recess for the Session subject to call by the Chair. Should the House be successful in passing the financial bail-out package, the Senate is likely to return to pass the bill. Otherwise, the Senate is not likely to return. Under the U.S. Constitution, any bill that involves taxpayer tax matters is mandated to be introduced in the House first. Accordingly, the Senate remains on a sort of stand-by stance to see the outcome of the House action tomorrow, Monday. Please stay tuned to this website.
  

09/27/2008: Senate Passed Consolidated Continuing Appropriation Bill, H.R. 2638

• Today, the Senate also passed this bill by agreeing to the House H.R. 2638 which the House paased earlier. Here is the vote count. This bill now goes to the President for his signature. The President is expected to sign all of these bills, including Consolidated Continuing Appropriation, Reauthorizations of Non-Miniter Religious Worker Special Immigration, and Conrad 30 International Medical Graduates National Interest Waiver bills before October 1, Wednesday. Otherwise, the federal government is destined to shut down and the immigration reauthorization laws will sunset and gone. The President is anticipated to sign these bills by September 30, 2008.
• Sad part is that the immigration reauthorization is valid only until March 6, 2009 just as the continuing appropriation act. Still, it is a good news in that most of the pending I-360 non-minister religious worker immigration petitions, Conrad-30 based I-140 petitions, and EB-485 applications related to these petitions are likely taken care of before March 6, 2009. The USCIS is currently holding in abeyance these petitions and related EB-485 applications pending the Congressional action. Since the Congress has now cleared the path, as soon as the President signs the bills, the USCIS is likely to pick up these petitions and 485 applications swiftly. Unfortunately, the Conrad 30 based EB-485 for Indians and Chinese may still have to deal with the visa number retrogressions in October 2008 Visa Bulletin. The non-religious workers do not have visa number problem as the visa number for these categories will remain current in October.

09/27/2008: House Agreed Today by Voice Vote to the Senate Amendment to Religious Worker Immigration and Conrad 30 Reauthorization Bills

• Today, the House floor passed by voice vote the Religious Worker bill and Conrad 30 IMG NIW law reauthorization as amended by the Senate. These bills will now become the law upon the President's signature.

09/27/2008: Religious Worker (Other Than Minister) Special Immigration Reauthorization as Amended by the Senate

• The Senate passed yesterday the Senate bill as amended by unanimous consent to reduce the extension period only until March 6, 2009 rather than three years, and because of the amendment and the Senate bill, the House must act on the bill. The Congressional record of the passage with the amendment is as follows:
  • Mr. REID. I ask unanimous consent the Senate proceed to the immediate consideration of S. 3606. The ACTING PRESIDENT pro tempore. The clerk will report the bill by title. The legislative clerk read as follows: A bill (S. 3606) to extend the special immigrant nonminister religious worker program and for other purposes. There being no objection, the Senate proceeded to consider the bill. Mr. REID. I ask unanimous consent the bill be read a third time, passed, the motion to reconsider be laid upon the table, and if there are statements I ask consent that they be printed in the Record. The ACTING PRESIDENT pro tempore. Without objection, it is so ordered. The bill (S. 3606) was ordered to be engrossed for a third reading, was read the third time, and passed, as follows:
  • S. 3606: 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 ``Special Immigrant Nonminister Religious Worker Program Act''.
    • SEC. 2. SPECIAL IMMIGRANT NONMINISTER RELIGIOUS WORKER PROGRAM.
      • (a) Extension.--Subclause (II) and subclause (III) of section 101(a)(27)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(C)(ii)) are amended by striking ``October 1, 2008,'' both places such term appears and inserting ``March 6, 2009,''.
      • (b) Regulations.--Not later than 30 days after the date of the enactment of this Act, the Secretary of Homeland Security shall--
        • (1) issue final regulations to eliminate or reduce fraud related to the granting of special immigrant status for special immigrants described in subclause (II) or (III) of section 101(a)(27)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(C)(ii)); and
        • (2) submit a certification to Congress and publish notice in the Federal Register that such regulations have been issued and are in effect.
      • (c) Report.--Not later than March 6, 2009, the Inspector General of the Department of Homeland Security shall submit to Congress a report on the effectiveness of the regulations required by subsection (b)(1).
      • (d) Effective Date.--The amendments made by subsection (a) shall take effect on the date that the Secretary of Homeland Security submits the certification described in subsection (b)(2) stating that the final regulations required by subsection (b)(1) have been issued and are in effect.
• For the House action, please stay tuned to this web site.

09/27/2008: Conrad 30 Reauthorization as Amended by the Senate

• The Senate passed yesterday the House bill as amended to reduce the extension period until March 6, 2009 rather than five years, and because of the amendment, the House must consent to the amendment before this reauthorization is enacted. The Congressional record of this passage with the amendment by unanimous consent is as follows:
  • Mr. REID. Mr. President, I ask unanimous consent the Judiciary Committee be discharged from further consideration of H.R. 5571 and we now proceed to its consideration. The ACTING PRESIDENT pro tempore. Without objection, it is so ordered. The clerk will report the bill by title. The legislative clerk read as follows: A bill (H.R. 5571) to extend for 5 years the program relating to waiver of the foreign country residence requirement with respect to international medical graduates and for other purposes. There being no objection, the Senate proceeded to consider the bill. Mr. REID. I ask unanimous consent a Conrad amendment which is at the desk be agreed to, the bill, as amended, be read a third time, passed, the motion to reconsider be laid on the table, with no intervening action or debate, and any statements be printed in the Record. The ACTING PRESIDENT pro tempore. Is there objection?
  • Mr. ALLARD. Mr. President, I wanted to make sure we had an opportunity to speak for 2 1/2 minutes. The ACTING PRESIDENT pro tempore. Without objection, it is so ordered. The amendment (No. 5654) was agreed to, as follows: (Purpose: To reduce the length of the waiver program extension) On page 2, line 5, strike ``June 1, 2013'' and insert ``March 6, 2009''. The amendment was ordered to be engrossed and the bill read a third time. The bill (H.R. 5571), as amended, was read the third time and passed.
• For the House action, please stay tuned to this web site.

09/26/2008: Has OFLC Abandoned Initial Plan to Initiate Monthly or Regular Online Report of Processing Times of Different Types of Labor Certification Applications?

• It has been a while since Dr. Bill Carlson released his idea to carry website report of the foreign labor certification processing times which are similar to the USCIS processing time reports. One wonders whether the Office has scraped and abandoned this plan for the customer-friendly services. When the processing times were short, the need for such processing time report was less helpful and desired. However, the situation has substantially changed since August 2007 and currently the PERM applications take from over four months to a year or longer depending on the types of cases. According to the attorneys' informal reports, it appears that currently the NPC is processing "straight forward and clean" PERM cases which they received in May 2008 and processing audit cases which they received in July 2007. No doubt, the OFLC's decision of September 17, 2008 to release a chunk of audit cases from the audit queue to the regular processing queue will definitely affect differently the processing times for the cases in the clean regular case queue and the cases in the audit queue - probably regular cases may take a longer time, while assumedly the audit cases may take a less time in the future. Under the circumstances, the agency's initiation of the website report of the processing times of different types of cases on a regular basis may be considered highly desirable and good services for the agencies' customers.
• Dr. Carlson, please think about this good community service from the perspectives of your public relations in order to bring a thaw to the current tense and strained relationship with the stakeholder community and customers. Demonstation of such leadership will be taken most admired and commended under the given circumstances.

09/26/2008: September 2008 CRS Report for Congress: Immigration Legislation and Issues in the 110th Congress

• This report is a goo run-down of legislative activities and immigration issue during the currently sunsetting 110th Congress in almost every area of immigration issues.

09/26/2008: Conrad 30 and Religious Worker Reauthorization Passed in Senate by Unanimous Consent

• AILA reports that this morning the Senate passed these two laws extended until March 6, 2009. As we predicted, the Senate passed it by unanimous consent.

09/26/2008: 18-Month TPS Extensions

• Honduras
  • Announcement
  • FAQ
• Nicaragua
  • Announcement
  • FAQ
• El Salvador
  • Announcement
  • FAQ

09/26/2008: Senate to Act on Consolidated Continuing Appropriation Act 2009 Tomorrow, Saturday

• The House passed the bill, H.R. 2638, on 09/24/2008 by 370-58 votes to fund the federal government until March 9 next year, which has been forwarded to the Senate immediately. The Senate majority leader, Harry Reed, is reportedly to move for cloture for the debates and attempt to pass this bill tomorrow.

09/26/2008: Senate and House Floors Under Tremendous Pressures for Passage of Bills by "Unanimous Consent Without Vote" Facing Recess

• There are hundreds of bills peding in the Senate and House for the 110th Congress. As the Congress is about to go into the recess, the Congress is facing a tremendous pressure from the members to pass some of these bills without votes using the legislative tool of unanimous consent in order to salvage their bills from the death row. Unconfirmed statistics indicates that whether we believe or not, 90% of the legislative bills are enacted without votes through unanimous consent and without the opportunity for the public and legislators to scrutinize the bills. Such pressure tends to mount when the Congress approaches the sunset at the end of Congressional year because unless the bills are passed, they face a death sentence and go into the death row(!). Let' see which bills are saved from the death row.

09/26/2008: OMB Clears TPS Extensions for Honduras and Nicaragua on 09/24/2008

• The TPS extension for the trio central American Countries (El Salvador, Nicaragua, and Honduras) were submitted to the OMB at the same time earlier, but the OMB approved El Salvador extension rule first on September 9, 2008, leaving the other two countries TPS extension behind. Well, now the TPS extension for these two countries is cleared by the White House. It is anticipated that the DHS and USCIS will release announce the extension for these two countries in the near future. The expansion program was already announced by the DHS and USCIS on 09/24/2008 "pending" release of the program in the federal register. Please stay tuned.
• There are currently the following TPS people in the U.S.:
  • 229,000 Salvadorans TPS
  • 70,000 Hondurans TPS
  • 3,500 Nicaraguans TPS

09/26/2008: DHS Seeks Expansion of US-VISIT Program From Nonimmigrants Only to Permanent Residents

• DHS submitted its final rule to OMB for approval to expand the targets of US-VISIT aliens from the current nonimmigrants and visa waiver visitors to permanent residents except Canadians visiting on B-1 visa status.
• In 2003, the Department of Homeland Security established the United States Visitor and Immigrant Status Technology Program (US-VISIT), whose objective is to create and maintain an integrated, automated entry-exit system that records the arrival and departure of aliens, verifies their identities, and authenticates their travel documents through comparison of biometric identifiers. The goals of the US-VISIT program are to enhance the security of United States citizens and visitors to the United States, facilitate legitimate travel and trade, ensure the integrity of the United States immigration system, and protect the privacy of visitors to the United States. In its early stages, US-VISIT applied only to nonimmigrants with visas and to those who did not require a visa as they were entering under the Visa Waiver Program.

09/26/2008: Here is Federal Register Release of School and Students Fee Increase Rule

09/25/2008: Notice of Service Disruption by American Embassy in Islamabad, Pakistan

• The notice indicates that all the immigrant and nonimmigrant visa services will be rescheduled because of the ongoing turmoil in the area.

09/25/2008: Witness Testimonies on Visa Waiver Program, Senate Judiciary Subcommittee Hearing of 09/24/2008

• Jess T. Ford, GAO, Director of International Affairs & Trade
• Stewart Baker, DHS Assistant Secretary, Office of Policy

09/25/2008: Advance Copy of School Certification and Student (J,F,M) Fee Increase Rule of USICE

• This regulation will be published tomorrow but the new fees will not take effect until October 25, 2008.

09/24/2008: Printed Transcript of House Judiciary Committee Mark-Up Hearing That Failed to Take Up the Scheduled Visa Recapture/Nursing Relief Bills on 09/23/2008

• Even though enactment of the visa recapture and nursing relief bills within the 110th Congress was slim, the foreign professionals watched the webcast of the hearing yesterday with a tremendous despair, adjourning the hearing without taking up these immigration bills. Guess what the last word of the Chairman was: Photo session of the Committee members on the 24th! It is gone, gone, and gone. No more glimmer of hope within this 110th Congress.

09/24/2008: USCIS Announces 18-Month Extension of TPS for El Salvador

• As we reported earlier, the OMB clearned this request very quickly but actual release in the federal register has been somewhat delays. It still has to be published in the federal register for this announcement to take a legal effect, but today's announcement plus frequently asked questions (FAQ) of USCIS will be very helpful for the eligible Salvadorans.
  • Announcement
  • FAQ
• As soon as it is published in the federal register, we will post it. Please stay tuned to this web site.

09/24/2008: USCIS Reminds Customers of Program Flexibilities

• USCIS has released this reminder on 09/24/2008 to advise the nonimmigrants in legal status in certain unusual circumstances at the home countries that the USCIS operates the nonimmigrant programs flexibly. Read on.

09/24/2008: Close of FY 2008 on 09/30/2008 and Upcoming House-Senate Joint Continuing Appropriation Resolution to Prevent Shut-Down of Federal Government After 09/30/2008

• The federal government fiscal year of 2008 is about to wind down at the end of September 30, 2008. Since the Congress has failed to pass the FY 2009 appropriation bills, the federal government faces a shut-down on October 1, 2008 unless the Congress passes a joint resolution of continuing appropriation until certain date in FY 2009 pending enactment of the appropriation legislation for FY 2009. Should the Congress go into the recess at the end of this week, it will pass such resolution within this week. Sometimes, the Congress passes other legislative bills as attachments to the continuing appropriation resolution but it is unusual to pass such attachments unless there is an exigency. The immigrant community is closely watching the Congress to see whether it will act on the pending reauthorization bills to extend certain immigration statutues that will sunset on September 30, 2008. Unless the Congress acts on these bills before it goes into the recess, any petitions and immigration applications under these statutes will be frozen since there will be no legislative authorization under any statutes for the USCIS to adjudicate these petitions or applications. For these bills to be enacted before sunset of the laws, the Senate may have to consider a legislative tool of "unanimous consent" passing bills without vote or attach them to the Continuing Appropriation Resolution. The House has already passed these bills. Accordingly, should the Senate attempt to pass these bills as its own bills as separte from the House bills or with some amendments to the House bills, logistically, time may not permit for the both Houses to pass such bills unless the House quickly passes the Senate amendments or Senate bill on unanimous consent. Those who are awaiting enactment of these reauthorization legislatiions should watch the floor actions in the both Houses very carefully this week, particularly the Senate for the next few days.

09/24/2008: Lawsuit Challenging 29-Month OPT Rule Not Over Yet

• The federal court in New Jersey denied a temporary injunctio earlier, but report indicates that both sides recently filed court papers on the "standing"at issue, in advance of an expected ruling by Hochberg in November this year. The arguments over legal standing can be boiled down to the question of whether tech workers have been injured by the Bush administration's decision to extend the length of time that foreign graduates can stay in the U.S. without obtaining work visas. The pro and con arguments on this as reflected in these papers, please read the report.

09/24/2008: Reuniting Families Act Introduced in the House and the Senate

• U.S. Senator Robert Menendez (D-NJ) and Rep. Mike Honda (D-CA) this week introduced the Reuniting Families Act in the Senate, S.3514, and House of Representatives, H.R.6938, to ensure that the immigration system emphasizes family reunification in its distribution of entry visas. Four million people are currently stuck in the entry backlog, many of whom are family members of U.S. citizens and legal permanent residents and are ready to help play vital roles in the U.S. economy and in American communities. Among other provisions, the legislation would direct thousands of unused visas from previous years to close family members of U.S. citizens and legal residents, reclassify spouses and children of legal residents as immediate family and would raise the per-country cap for visas from seven percent to ten percent.
• Specifically this bill covers the following:
  • Recapturing visas unused and unclaimed due to bureaucratic delay
  • Reclassifying lawful permanent resident spouses and children as “immediate relatives” and exempting them from numerical caps on family immigration
  • Increasing per country limits from 7% to 10% so that nations with a higher demand for workers can better equip the American economy with talent
  • Allowing families to reunite despite the death of a petitioner
  • Recognizing the sacrifices of our military by exempting children of World War II Filipino veterans from numerical caps; and
  • Allowing family members to reunite despite bars to reentry
• The visa recapture proposal was also proposed by Sen. Menendez in another bill earlier as part of the reauthorization of sunsetting laws. Considering the fact that the Congress may go into recess in the next two or three days, we wonder what the intent of these bills are. For the full text of the press release, please click here.

09/23/2008: BIA Decision of 09/23/2008 Matter of Guadarrama Regarding of Impact of False Claim of U.S. Citizhen on Good Moral Character and Deportability on AggFelon

• Today, the Board of Immigration Appeals handed down an important decision that an alien who has made a false claim of citizenship may be considered a person who is notof good moral character, but the catch-all provision of section 101(f) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f) (2006), does not automatically mandate such a finding. For the full text of the decision, please read 24 I&N Dec. 625 (BIA 2008), Interim Decision #3623 (BIA, September 23, 2008).

09/23/2008: WEST Memorandum of Understanding Creating Up To 5,000 J-1 Visas for South Korean Studets

• Secretary of State Condoleezza Rice and Foreign Minister Yu Myung-hwan of the Republic of Korea signed a Memorandum of Understanding on the WEST (Work, English Study, Travel) Program and expansion of other reciprocal exchange opportunities on September 22 in New York. The WEST program is an innovative exchange program that will allow up to 5,000 qualifying university students and recent university graduates from the Republic of Korea to enter the United States for a period of 18 months on J-1 exchange visitor visas that will allow them to study English, participate in internships, and travel independently. Participants will devote at least 450 classroom hours to structured English language training and coursework focusing on American business practices and business procedures, U.S. corporate culture, and general office management issues. The program will be coordinated by the private sector under the auspices of the United States Department of State’s Bureau of Education and Cultural Affairs. This program will be launched in 2009. The Government of the Republic of Korea intends to establish an eighteen-month Working Holiday Program (WHP) under which participants from the United States can pursue work, study, and travel opportunities in Korea. The WEST program and its governing Memorandum of Understanding reflects the future-oriented nature of the U.S. – Korea alliance by providing students from the United States and the Republic of Korea with a unique opportunity to develop foreign language skills while gaining professional experience in the international work place. This program will enable the American and Korean people to share their values while increasing their international understanding. As President Bush said in Seoul, “I believe the best foreign policy for America is for people to get to know our country firsthand.”
• For the State Department new release, please click here.
  

09/22/2008: Today BIA Rejected a Decision That Women Already Genitally Mutilated Should Not Have Any Fear of Persecution to Return to Home Counry

• On September 22, 2008, the Board of Immigration Appeals in Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008), Interim Decision #3622 (A.G. September 22, 2008) rejected its decision that rejected a claim for withholding of removal onthe ground that woman who had previously been subjected to female genital mutilation, reasoning that because her genitalia already had been mutilated she had no basis to fear future persecution if returned to her home country. See 24 I&N Dec. 617 (A.G. 2008) Interim Decision #3622. The BIA found such decision flawed, and vacated and remanded further decision pursuant to its decision in this case. Interesting decision which the adjudicators should learn that facts should not be mechanically taken without in depth analysis of the spirit and intent of the laws.
  

09/22/2008: USCIS Ombudsman Assistance Available for EAD Delay Cases

• If your EAD applications are pending more than 90 days and you need ombudsman's assistance, the following steps should be take:
  • Step 1: Call USCIS National Customer Service Center (NCSC) at 1-(800) 375-5283 and record the time/date of the call and the name/number of the customer service representative: Explain to the customer service representative that your EAD has been pending more than 90 days and ask for a “service request.” You should receive a response to your service request within a week.
    OR Ask the customer service representative to request an interim card for you. You should receive an EAD or response within a week.
  • Step 2: If you choose to visit a local USCIS office, schedule an INFOPASS appointment to visit that office on www.infopass.uscis.gov. At the appointment, ask to apply for an interim EAD. Note that USCIS local offices no longer issue interim EADs. The local office can review your case and determine eligibility. The local office will forward your request to the USCIS service centers. You should receive an EAD or response within a week.
  • Step 3: If you have tried both Step 1 and Step 2 and have still not received your EAD or an interim card, please email the ombudsman's office at cisombudsman.publicaffairs@dhs.gov with the details of your efforts. Please include the date and time of your call to the NCSC and the name of the customer service representative. If you visited a USCIS office, please provide that information. The office will look into your case and review how we may be of assistance.
• For the details, please click here.

09/22/2008: Don Neufeld, Actig Associate Director of Domestic Operations Issues a Memorandum on Handling of Non-Minister Immigrant Petitios Affected by 10/01/08 Sunset Date

• Mr. Neufeld issued a special memorandum on September 19, 2008 relating the above-subject guidance that requires expedite of eligible cases in both USCIS as well as consular proceedings as much as possible before October 1, 2008.

09/22/2008: House Judiciary Committee Schedules Continued Markup Hearing of H.R. 6598, H.R. 5882 (Visa Recapture), H.R. 5924 (Nursing Relief), H.R. 5950

• Hope Congress stays in the Hill longer than 09/26/2008 to take care of $700 bil financial relief bill and the immigrants witness a "miracle" in their lives tomorrow and in 2008. Webcase will be available again.

09/22/2008: Senate Judiciary Subcommittee Hearing on 09/24/2008 on Visa Waiver Program

• The Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security is scheduled to have a hearing on "The Visa Waiver Program: Mitigating risks to ensure safety of all Americans" on Wednesday. The Webcast will be available for this hearing.

09/22/2008: USCIS Proposed Final Rule on Acceptable Documents and Receipts for Employment Eligibility Verification (I-9)

• The Department of Homeland Security is amending its regulations listing the identity and employment authorization documents and receipts that individuals may present to their employers for completion of Form I-9, “Employment Eligibility Verification.” This rule changes the list of documents by: requiring that acceptable documents be unexpired, and eliminating several identity (List B) and employment authorization (List C) documents. A copy of the amended Form I-9 reflecting these changes will be published as an attachment to this rule. The purpose of this rule is to improve the integrity of the employment eligibility verification process by simplifying the list of acceptable documents for ease of use by employers, ensuring that the list contains secure and fraud-resistant documents, and adding safeguards to the verification process. This rule is under review by the OMB since 09/19/2008. Please stay tuned.

09/21/2008: Foreign Labor Certification Program Status, Direction, and Outlook: NAFSA Version of 07/15/2008 OFLC-Stakeholders Quarterly Meeting

• The AILA released earlier its version of this meeting. We post here the NAFSA version of this meeting that gives more detailed status report and outlook for foreign labor certification programs presented and answered by the Office of Foreign Labor Certification Division of DOL. The next quarter meeting information should be made available by the stakeholder entities in the future giving additional information on the OFLC's program direction and processing policies. Please stay tuned.
• We take this opportunity to express gratitude to the NAFSA for making the information available to the public.

09/21/2008: Non-Ministerial Category Religious Worker Immigration Law Sunset on 09/30/2008 and Announcement of USCIS Policy

• As we have repeatedly advised on this site, the House passed the reauthorization bill extending this law beyond 10/01/2008 but this bill is stuck in the Senate. Should the Congress fail to pass this reauthorization bill, this law will expire on September 30, 2008. What happens with the pending I-360 petitions and related I-485 applications until after the expiration date?
• Here is the policy: USCIS continues to receive and process “Petitions for Amerasian, Widow(er), or Special Immigrant” (Form I-360) for those immigrant religious workers affected by the upcoming expiration date. USCIS is also, to the extent that it can, expeditiously processing “Applications to Register Permanent Residence or Adjust Status” (Form I-485), based on approved Form I-360 petitions for special immigrant religious workers in the expiring categories. However, absent a congressional extension of the expiration date, USCIS will, beginning on Oct. 1, 2008, hold in abeyance any pending Form I-360 and Form I-485 affected by the expiration date until further notice. Also, unless or until Congress extends the expiration date, USCIS will reject Form I-360 petitions and Form I-485 applications filed on or after Oct. 1, 2008, which are based on the expired provisions. For the full text of the 09/19/2008 announcement, please click here.
• The USCIS will hold abeyance any pending I-360 and related I-485 beginning from 10/01/2008 because Congress has past record of passing the reauthorization bills for religious workers after the law had expired authorizing the INS to apply the law retroactively. Accordingly, the sunset of this law on 09/30/2008 will not affect pending I-360 and I-485 for religous workers even after October 1, 2008 inasmuch as they were filed on or before 09/30/2008. Once the Congress passes this reauthorization bill after 10/2008, no matter when, the USCIS is likely to adjudicate and approve these pending I-360 and related I-485 applications in the future.

09/20/2008: Upcoming Sunset of 110th Congress and the Fate of Pending Legislative Bills

• As we noted earlier, the business/employment immigration commuinity indeed missed a golden opportunity to enact legislative-fix piecemeal employment-based immigration bills when the House Judiciary Committee failed to mark up these bills on September 17. In fact, even if the Committee had passed the bills, the chances for these bills to be enacted as legislations were not too promising because of the racing time before the sunset of this 110th Congress and a long road ahead to complete legislative process including the passage of the bills on the full House floor and passage of the bills in the Senate. For these reasons, the future of these bills as stand-alone bills is practically gone.
• As people may know it, the House passed only one FY 2009 federal department appropriation bill and the Senate has failed to pass any single appropriation bill. It is likely that next week, the Senate will be obsessed with the House passed energy bill and a legislation or resolutions to fix the ongoing financial crisis.
• Then what is ahead? The chances for these immigration bills in this Congress are practically gone. But one cannot brush aside another attempts by the pro-immigration members of the Congress to introduce these bills as attachments to the federal department appropriation bills during the lame duck session of the Congress after the election, as the Congress is likely to return to such lame duck session to take care of the appropriation bills either in the form of separate bills or omnibus bill. The continuing appropriation resolution which both the House and the Senate may pass during the next week may just fund the federal government through certain period before the nation's biggest holidays. Practically the lame duck Congress will present the only opportunity for these legislative-fix bills to try as a last resort before the new Congress convenes next year. Such bills may include bi-partisan Nursing Emergency Relief Bill. As for the bills which are pending in the Senate for reauthorization of the existing laws may have some chance to pass within next week or during the lame duck Congress in the form of stand alone bills or consolidated bill or in the worst case, "unanimous consent" without a vote, assuming the Democrats will be successful in reaching compromise with the Republicans. For this reason, the USCIS has decided to keep the pending religious worker immigration cases on hold rather than denying until the Congress goes into the recess.
• Any bills that will fail to pass next week or during the lame duck session will automatically "die," as the 110 th Congress closes down at the end of the calendar year and new Congress, the 111th Congress, will open in the first week of January 2009. Some of the current bills may be reintroduced in the 111th Congress by the Senators and the members of the House, but the chances for the piecemeal employment-based immigration bills will be practically "nil" because the nation and the Congress will start picking up the "comprehensive immigration reform legislation" in the new Congress. Please stay tuned to this web site for the development.

09/19/2008: Congress Schedule to Recess in One Week and Ill-Fated EB Piecemeal Immigration Bills

• The H.R. 6020 which caused failure of visa recapture and nursing bill mark-up passed the Judiciary Committee and its recommendation is now moving to the full Senate floor. However, other bills which were scheduled to be marked up on September 17 may be practically considered dead because of racing time. The country is now shievering because of the financial market crisis, and the Congressional leaders are totally obsessed with this issue. Immigration is indeed turned into a backburner in such crisis.

09/19/2008: USCIS Denies the Rumor of Suspension of Retrogressed I-140 Petition Adjudication

• There was a rumor that because of the EB-3 retrogression, NSC and TSC stopped adjudication of EB-3 I-140 petitions. The USCIS HQ refuted such rumor. However, it is undeniable that the Service Centers have been processing and adjudicating different types of cases on priority basis to better use the limited adjudication resources during the period of recession of visa numbers. This was particularly noticeable in the stand-alone family-based I-130 immigrant petitions for preference cases that have always experienced retrogression in almost every category. Apparently, the USCIS does not deny that even though they refute that they stopped processing of retrogressed category I-140 petitions, they admit that it is their practice to process and adjudicate different types of cases per priority at a given time. Considering the impact on H-1B three-year increment extension, AC 21 change of employer, and now two-year EAD issues, I-140 approval remains critical for the EB immigrants, and we just wish that the issue of allocation of processing/adjudicating resources per priority basis on a concept of effective utilization of limited resources would not affect too critically for the visa number retrogressed I-140 filers. Maybe, this question turned "hot bottom" relating to the September 15, 2008 Nebraska Service Center I-140 processing times which showed unbelieveable progression in EB-2 I-140 when other EB category I-140 petitions remained tremendously backlogged.
• We hope that the USCIS resumes premium processing services for I-140 as soon as possible.

09/19/2008: Two-Year EAD Requires Approved I-140 Petition!

• The AILA-Service Center Operation Division (USCIS HQ) Liaison minute indicates that they revised the conditions for two-year EAD. The revised condition includes requirement of the approved I-140 petition, meaning that if I-140 petition is pending, you are out of luck. Hm......

09/18/2008: USCIS Issues Reminder Regarding Filing of Forms Associated with TPS

• Must use correct I-821 and I-765 forms. Read on.
  

09/17/2008: DOL Bombshell Announcement on 09/17/2008 Changing Policy on Pending Audits and Releasing Certain Pending Audits

• Here is the bombshell: "The Department has been presented with evidence indicating that prior to its recent audits, many immigration attorneys believed that the Department’s rule regarding consideration of U.S. workers did not apply to them unless they represented not only the employer seeking the labor certification, but also the alien for whom the certification was being sought. That interpretation is incorrect, as the Department’s recently issued PERM program clarifying guidance makes clear. Nevertheless, the Department will apply the requirements of the consideration rule as interpreted by its recent guidance only to labor certification applications the recruitment for which was begun after August 29, 2008, the date on which the Department’s final guidance was issued. All pending audits triggered exclusively by consideration rule concerns are therefore being released and will be processed in accordance with their original filing date."
• Wow! Good news not only for Fregomen clients but also for other cases in audit queue in that the audit queue will turn shorter.
  

09/17/2008: Visa Recapture and Nursing Relief Bills Rocked by Opponents' Amendments for Other Bill, H.R. 6020, in House Judiciary Committee Today

• The visa recapture and nursing emergency relief bills mark-up hearing in the House Judiciary Committee today were marred by the apparent anti-immigration member of the Committee using a high level practical filiburster tactics blocking take-up of these immigration bills by bombarding amendments to another bill, H.R. 6020. The House's targeted recess is September 26, 2008! Congratulations, FAIR?!?! On the Senate side, we see no light at the end of tunnel for the House-passed reauthorization legislations including Conrad bill, Religious Worker bill, and Regional Center Pilot Program bill, when the latter two existing laws are destined to sunset in 13 days!! The Senate is scheduled to go into recess on September 26 for the election. Incredible.

09/17/2008: Don't Miss House Full Judiciary Committee Mark-Up Hearing This Morning for Visa Recapture and Nursing Emergency Relief Bills

• webcast. Who is up in arm against these bills and their opposition campaign? You guessed it! FAIR! Anti-immigration forces make no distinctions between illegal and legal immigration.

09/17/2008: DV-2010 Immigration Lottery Schedule of U.S. Department of State

• According to the State Department, the DV-2010 Lottery online entry will begin at Noon EDT on October 2, 2008, and end at Noon EST on December 1, 2008. Information and instructions for the DV-2010 lottery will be published on the State Department website as soon as available. Stay tuned to this website for the official announcement of the DV-2010 lottery.

09/17/2008: Top 500 InformationWeek List Companies

• This list includes top 500 companies the Information Week has slected in the information area. The list will provide sources of information for businesses and IT professionals.

09/16/2008: DOL Launches Registration and Account System for Online H-1B Labor Condition Application Filing Effective 10/01/2008

• People must have noticed the following alert on the online Labor Condition Application site: Effective October 1, 2008, you must be a registered user to submit a Labor Condition Application (LCA) ETA Form 9035E through the LCA Online System. The LCA Online System will no longer accept electronic applications submitted by non-registered users on or after October 1, 2008.
• DOL has been developing a new ETA 9035E form which incorporates the account sytem for the employers and the agent/legal representatives, which will take effect on January 1, 2009. However, as they disclosed it earlier, they were planning on implementing the account system even earlier than January 1, 2009 using the current ETA 9035E form. Requirement for registration for filing of ETA 9035E effective 10/01/2008 reflects such changes. Additionally, the employers and the legal representatives should be prepared to deal with potential delays in obtaining the certification of ETA 9035E, even before January 1, 2009. Last minute filing of LCA may turn risky in the future, even though they have yet to announce the specific date when such delayed processing of LCA will be launched. Registration requirement may be taken as an overture of the upcoming changes. Currently online PERM filing requires such registration which has caused some delays for the registration alone, not to mention the delays in certification of the applications. The employers who need the last minute filing of H-1B petitions may as well file the LCA before October 1, 2008 to avoid any potential delays that may or may not evolve along with the launch of registration system, at least until the DOL releases the detailed procedure and requirements for the registration. Beware!

09/16/2008 (5:30 a.m. CST): House Judiciary Committee Schedules Continued Mark-Up of H.R. 5882 and Others

• The mark-up of the following bills were put off in the 09/10/2008 hearing for a procedural matter. The debates of these bills are now rescheduled tomorrow at 10:15 a.m., September 17, 2008. Webcast view will be available. The bills for the mark-up at this hearing are:
  • H.R. 6598
  • H.R. 5882 (Visa Recapture)
  • H.R. 5924 (Nursing Emergency Relief)
  • H.R. 5950
• Please watch the webcast.
  

09/16/2008: USCIS Updates N-400 Direct Mailing Procedure [USCIS Withdrew This Procedural Change o 10/10/2008!!!]

• This procedure was published in the federal register. This update is more legible than the federal register and will be more handy.
• USCIS FAQ has also been released. Read this FAQ for the guide.

09/15/2008: Frustrated IT Industry Lobby - After a Frustrating Year in Congress, Tech Groups Plan Merger to Reinforce the Industry's Lobbying Power

• Report indicates that the IT industry has failed in lobbying in support of employment-based immigration and other issues, experiencing repeated failures in the legislation as demonstrated in H-1B reform proposal and EB-visa number recapture, etc. For these reasons, the lobby groups in the IT industry are reportedly working on regrouping themselves including the merger among the groups for apparent purpose of reinforcing its lobbying power for the legislation and other political/policy decision. Read on.
  

09/15/2008: USCIS September 15, 2008 Processing Times

• Some odd notes for I-140 and I-485 processing times in NSC and TSC. When every other preference I-140 petitions are backlogged in Nebraska Service Center since mid-2007, its EB-2 Advance Degree & Exceptional Ability I-140 petition processing time is 03/13/2008. Too good to be true. It must be a typo. For I-485, TSC processing time remains at 06/23/2007. This is also weird. Hmmmm..........................................Besides, I-140 in TSC is backlogged since July 2007 across the board! Hm........Hmmmmm...................!!
• For nonimmigrant I-129 processing, a very good news for VSC. The H-1B extension has caught up other types and now May 2008!! Hooray, VSC! CSC processing times are well paired with the VSC processing times for I-129, May 2008.

09/15/2008: Risks Involved in Visa Waiver Program Expansion Under Increased Political Microscope

• Senate Judiciary Committee is scheduled to hold a hearing on this issue this week and GAO has also published a report of "Visa Waiver Program: Actions Are Needed to Improve Management of the Expansion Process, and to Assess and Mitigate Program Risk, September 2008." Expansion of Visa Waiver Program has been pushed by the Bush Administration as a reward for certain countries that cooperated and assisted the U.S. in the Iraq War and also to promote the trade between the U.S. and these countries. However, Democrats are increasingly nervous about the potential lapse in the nation's security against the international terrorists in the Administration's actions. Read on.

09/15/2008: USICE Final Rule for OMB Review on Supplment Safe-Harbour Procedure for Employers Who Recived No-Match Letter

• This final rule is under review by the OMB since 09/12/2008. The Department of Homeland Security (DHS) is proposing to amend its regulations that provide a “safe harbor” from liability under section 274A of the Immigration and Nationality Act for employers who follow certain procedures after receiving a notice from the Social Security Administration (SSA) – called a “no-match letter” – or from DHS – called a “notice of suspect document” – that casts doubt on the employment eligibility of their employees. The prior final rule was published on August 15, 2007 (the August 2007 Final Rule). Implementation of that rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. The district court based its preliminary injunction on three findings. This supplemental proposed rule clarifies certain aspects of the August 2007 Final Rule and responds to the three findings underlying the district court’s injunction.

09/15/2008: USICE Uses Federal Contract Debarment as Tool for Enforcement of Employers' Unauthorized Alien Hiring Practice

• The employers are familiar with the term "debarment" in the context of immigration law barring certain employers who hire employment unauthorized aliens from participating in any nonimmigrant and immigrant visa programs including PERM permanent labor certifications, H-1B and other temporary labor certification applications. These debarment programs have been enforced by the U.S. Department of Labor barring filing of labor condition application or labor attestaations or labor certification applications as well as the other division of U.S. Department of Homeland Security barring such employers from filing nonimmigrant and immigrant petitions, for a number of years.
• However, U.S. Immigration and Customs Enforcement (USICE) has started the debarment program in different context - not barring from participating in the labor certifications nor immigrant or nonimmigrant petition programs but barring from participating in any federal contracts, subcontracts, or other federal benefits under the federal laws. This enforcement tool can work as a more forceful and devasting punishment for the employers that are related to the business involving federal contracts and benefits directly or indirectly. The effect of the proposed debarments is as follows:
  • Each company's name has been entered into the Excluded Parties List System (EPLS), which is a web-based system that identifies parties suspended, debarred, proposed for debarment or otherwise excluded from receiving federal contracts, certain subcontracts, and certain types of federal financial and non-financial assistance and benefits.
  • The companies are immediately prohibited from competing for new government contracts.
  • The proposed debarment and immediate suspension apply government-wide. Neither ICE, nor any other federal agency, may award a new contract while these companies are on the EPLS. (The General Services Administration is the agency responsible for maintaining the EPLS. To view the EPLS and to find out more information about the system, please visit www.epls.gov. Businesses can also find out more about the ICE debarment process at www.ice.gov.)
  • Each company may, within 30 days, challenge the decision.
• On September 12, 2008, the USICE released the follosing list of companies for consideration of debarment:
  • Bynum Brothers Home Improvement Co. - Buffalo, N.Y.
  • CMC Concrete Construction, Inc. - Manassas, Va.
  • Hedges Landscape Specialists Inc. d/b/a Exterior Designs, Inc. and d/b/a Performance Irrigation, LLC - Crestwood, Ky.
  • Lochirco Fruit & Produce Inc. d/b/a Happy Apples - Union, Mo.
  • MC Cleaning - Bangor, Maine
  • Morgan Jones LLC d/b/a Jones Industrial Network and d/b/a Jones Networking - Baltimore, Md.
  • Stonewall Concrete, Inc. - Manassas, Va.
• Considring the fact that some contractors receive "billions" of dollars of federal contract benefits, this debarment can be indeed a very forceful enforcement tool. Ouch! Isn't the USICE also the E-Verify management and enforcement agency?
  
  

09/12/2008: 12,118 Iraqis Admitted to the U.S. as Refugees in FY 2008 (10/01/2007-09/2008)

09/12/2008: USCIS Requests OMB Approval of Final Rule of Religious Worker Immigrant and Nonimmigrant Provisions 09/11/2008

• This rule amends DHS regulations regarding the special immigrant and nonimmigrant religious worker visa classifications. This rule addresses concerns about the integrity of the religious worker program by proposing a petition requirement for religious organizations seeking to classify an alien as an immigrant or nonimmigrant religious worker. This rule also proposes including an on-site inspection for religious organizations to ensure the legitimacy of petitioner organizations and employment offers made by such organizations. This rule would also clarify several substantive and procedural issues that have arisen since the religious worker category was created. This rule proposes new definitions that describe more clearly the regulatory requirements, as well as add specific evidentiary requirements for petitioning employers and prospective religious workers. Finally, this rule also proposes to amend how regulations reference the sunset date, the statutory deadline by which special immigrant religious workers, other than ministers, must immigrate or adjust status to permanent residence, so that regular updates to the regulations are not required each time Congress extends the sunset date.
• As usual, the OMB review will normally take from 30 days to 90 days. Please stay tuned to this website for the development of this rule-making.

09/12/2008: Notice of Change of N-400 Naturalization Direct Filing Address to Lock Box Effective 10/14/2008 [USCIS Withdrew This Notice on 10/10/2008]

09/11/2008: Official October 2008 Visa Bulletin

• Predictions:
  • MEXICO F2A VISA AVAILABIILTY FOR OCTOBER
    • Heavy demand for numbers in the Mexico F2A category has required the establishment of a cut-off date which is earlier than that which applied in June (after which they became “unavailable” for the remainder of FY-2008). The Mexico F2A cut-off date for October will be 01MAY01. Forward movement during the first quarter of the new fiscal year is likely to be limited.
  • EMPLOYMENT VISA AVAILABILITY
    • Item E of the May 2008 Visa Bulletin (number 118, volume VIII) indicated that many Employment cut-off dates had been advancing very rapidly, based on indications that the Citizenship and Immigration Services (CIS) would need to review a significantly larger pool of applicants than there were numbers available in order to maximize number use under the FY-2008 annual limits. That item also indicated that if the CIS projections proved to be incorrect, it would be necessary to adjust the cut-off dates during the final quarter of FY-2008. The CIS estimates have proven to be very high resulting in: 1) the “unavailability” of all Employment Third preference categories beginning in July, 2) the “unavailability” of numbers for China and India Employment Second preference adjustment of status cases during September, and 3) the establishment of many October Employment cut-off dates which are earlier than those which applied during FY-2008. Little if any forward movement of the cut-off dates in most Employment categories is likely until the extent of the CIS backlog of old priority dates can be determined. It is estimated that the FY-2009 Employment-based annual limit will be very close to the 140,000 minimum.
• As for the India and China EB-2 I-485 processing, the rumor turned out to be true that there are no EB-2 visa numbers available for Indians and China during September 2008 despite the June 2006 cut-off date in the September 2008 Visa Bulletin. Can you believe that?!?! It is just unreal. It just blows off the minds of people..................................!.......................!!........................!!!...................!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!1

09/11/2008: Good News for Canadian and Mexican Professionals - Three-Year TN "Final" Regulation Approved by OMB Yesterday

• The long awaited three-year TN visa reform will come into reality soon as the OMB cleared yesterday the "final rule" of the 3-Year TN visas for Canadian and Mexican professionals as drafted by the USCIS. Since this is a "final" rule, the rule will take effect as a legally binding rule upon publication in the federal register unlike the proposed rule that requires additional steps to reach as a legally binding rule. Congratulations to Canadian and Mexican professionals. Please stay tuned this website for the release of this final regulation in the federal register.

09/11/2008: Visa Recapture and Nursing Relief Bills Pushed Off to a Later Date by the House Judiciary Committee Yesterday

• To a great disappointment to the business and higher learning institution communities, the House Judiciary was not able to debate these bills yesterday for a procedural matter and pushed off to a later date for its action. Please stay tuned to this website for the follow-ups.

09/11/2008: El Salvador TPS Extension Cleared by the OMB

• Out of the trio-TPS extension rules (El Salvador, Nicaragua, and Honduras), the El Salvador rule received the approval first from the OMB. Please stay tuned.

09/11/2008: October 2008 Visa Bulletin Bringing Happy Faces to Those Non-Indian and Non-Chinese EB-3 Skilled and Unskilled Workers

• EB-3 has been suffering from "unavailable" visa numbers accross the board. Consequently those whose EB-485 was pending could not anticipate any prospect for approval of their green card approvals. Additionally, those whose EB-3 labor certifications and I-140 petitions have been approved but was unable to file I-485 applications have lived in despair because of unavailability of the benefits that are attached to the 485 waiters that include (1) legal status pending 485 application; (2) EAD; (3) Travel Document (Advance Parole); and AC-21 portability, etc. Now, a door will open for some of these sufferers on Ocober 1, 2008, albeit a narrow door. We are happy for these future permanent residents.

09/11/2008: Plea to the USCIS Leaders to Accelerate Pending EB-2 Indian(/Chinese) 485 Applicantions That Face Visa Number Retrogression in the October 2008 Visa Bulletin

• The State Department has yet to release the official Visa Bulletin for October 2008, but the information which was reported at the site of the American Consulate in Mumbai, India indicates that the cut-off dates for EB-2 for India (and probvably China) are likely to move backward from 2006 in September 2008 to 2004 in October 2008. We do not know how many EB-2 visa numbers are available for FY 2008 that ends on September 30, 2008, but unless those Indians and Chinese whose EB-2 visa numbers are currently available in September receive the approval of their pending I-485 applications, they are likely to face a long delay to complete the protracted permanent resident application process. It is thus imperative that the USCIS should accelerate adjudication of these 485 applications before the end of September 2008 exhausting every single last number available for the FY 2008 quota in order not to waste any numbers for FY 2008 as well as to save these potential eligible permanent residents from further suffering on and after October 1, 2008. The Congress is currently working on a legislation to recapture of about 500,000 either unusued or wasted EB visa numbers since 1990 to bring a justice to these potential eligible immigrants under the present employment-based immigration quota system, but because of the time constraint, the fate of the legislative fix is uncertain at this point. We ask the USCIS leaders to consider the situation and exercise their discretion such that no single EB visa number for FY 2008 be left unused or wasted at the end of September 2008.

09/11/2008: Derivative Citizenship of a Child from Parent's Naturalization Not Available Unless the Child Was Admitted to a Lawful Permanent Resident Under Age 18

• The Board of Immigration Appeals ruled yesterday in the Matter of Nwozuzu, Interim Decision #3621 (BIA, September 10, 2008), 24 I&B Dec. 609 (BIA 2008) that to obtain derivative citizenship under former section 321(a) of the Immigration & Nationality Act, 8 U.S.C. § 1432(a) (1994), an alien child must acquire the status of an alien lawfully admitted for permanent residence while he or she is under the age of 18 years. Accordingly, should the child be not in a lawful permanent resident status before 18 years of age, such child is not eligible for a derivate citizenship from the parents' naturalization even if he or she was under the age of 18 years. This decision supports the DHS interpretation of the statute that an alien can derive citizenship pursuant to former section 321(a) of the Act only if three things occur while the alien is under the age of 18: (1) the naturalization of both parents, (2) the residence or presence of the alien in the United States, and (3) the lawful admission of the alien as a permanent resident. This law and the BIA decision are something which the naturalizing parents should keep in mind when they have children under 18 years of age.

09/10/2008: More Than 80 Business and University Leaders Urge In a Joint Statement to Senate and House Swift Passage of Green Card Measure

• Joint Statement Addressed to the Senate
• Joint Statement Addressed to the House

09/10/2008: October 2008 Visa Bulletin (Unofficial)

• Employment-Based:
  • ROW: EB-1=C, EB-2=C, EB-3=01/01/2005, EW=01/01/2003, EB-4=C, EB-5=C
  • India: EB-1= C, EB-2=04/01/2003, EB-3=07/01/2001, EW=01/01/2003, EB-4=C, EB-5=C
• Family-Based:
  • ROW: FB-1=04/15/2002, FB-2A=01/01/2004, FB-3=06/22/2000, FB-4=10/22/1997
  • India: FB-1=04/15/2002, FB-2A=01/01/2004, FB-2B=12/15/1999, FB=3-06/22/2000, FB-4=05/22/1997
    
    

09/10/2008: State Department Reportedly Estimates Unused Visa Number Since 1990 at "500,000"

• Wow! The recent legislative bill to recapture unused visa numbers focused on the unused and wasted visa numbers in recent years which were estimated at 200,000. However, report indicates that the number goes beyond the number if all the unused and wasted numbers are counted from 1990. Reportedly the numbers are as high as 500,000!
• This morning, the full House Judiciary Committee is scheduled to take up Rep. Zoe Lofgren's recaputre bill. We submit that it is a right thing to do for the Judiciary Committee to recommend this bill to the full House floor such that the legislative intent of the statute that allocated the annual visa numbers be implemented by permitting recapture of the wasted visa numbers over the years as quickly as possible.

09/09/2008: DHS Update on Pending FBI Name Checks and Projected Naturalization Processing Times

• With reference to FBI name check backlog:
  • Total name check backlog: There were 269,943 name checks pending on May 6, 2008. There are 95,449 pending as of August 12, 2008.
  • More than 6 months backlog: There were 185,162 name checks pending for more than six months on May 6, 2008. There are 61,817 pending more than six months as of August 12, 2008.
  • USCIS met its April 2, 2008 goal to process all name checks pending more than two years by July 2008. "USCIS and FBI Release Joint Plan to Eliminate Backlog of FBI Name Checks; Partnership Establishes Series of Milestones To Complete Checks."
• Projected Naturalization (N-400) processing times: USCIS now anticipates naturalization application processing will average 10-12 months nationally by the end of September 2008. Previously USCIS estimated that processing naturalization applications would take 16-18 months before reducing the estimate to 14-16 months and later to 13-15 months.
  
  

09/08/2008: Full House Judiciary Committee Mark-Up of EB Visa Recapture Bill and Nursing Relief Bill on 09/10/2008 10:15 a.m.

• By the direction of the Chairmain, the House Judiciary Committee is scheduled to debate and act on the following immigration bills:
  • H.R. 5882 Visa Recapture Bill (Zoe)
  • H.R. 5924 Emergency Nursing Supply Relief Bill (Wexler)

09/06/2008: ABC Class Settlement and Changes of USCIS in Making ABC Registration Determinations per Chaly Garcia v. U.S., 508 F.3d 1201 (9th Cir. 2007)

• USCIS Asylum Division has issued a memorandum: (1) to revise current guidance1 in determining what constitutes evidence of registration for ABC benefits by Guatemalan and Salvadoran nationals by applying Chaly-Garcia to all cases, and (2) to announce appropriate revisions to the ABC/NACARA Procedures Manual (NPM), in light of this new policy. For the details, please read the full text of this Memorandum.
  

09/05/2008: TPS Extension for Honduras, Nicaragua, and El Salvador Under OMB Review

• USCIS submitted yesterday these TPS extension rules to the OMB for its review and approval. It is anticipated that the DHS will release announcements in the near future. Please stay tuned to this website for the development of these Central American Countries TPS extension rules.

09/05/2008: Congress Returns to Session Next Week and Piecemeal EB Bills to Watch

• The following bills are currently pending in the House and the Senate. Readers may notice that Sen. Mernendez bill and Sen. Specter bill in the Senate are semi or mini-comprehensive immigration bill in the piecemeal employment-based immigration reform in that it consolidates several stand-alone separate bills into a single bill. Since the Senate and the House will have to face running clock during the short session before the national election, the consolidation approach and the single bill approach have their own advantages and disadvantes from the perspectives of the legislative strategists. On the surface, a consolidation bill looks a better strategy to pass the legislations quickly when the legislative clock ticks. This strategy usually works when all the consolidated bills are non-controversial. However, those who introduce the consolidation bills usually bring in controversial bills to tack such bills onto the non-controversial bills. Currently, the e-verify reauthorization and a couple of other reauthorization bills face resistance from the some Senators. The EB-visa number recapture or numerical limitation exemption parts of the bills also face their own opponents as separate from the different group of the legislators. Accordingly, unless the leaders of both parties are successful in quickly reaching a compromise and pass it without vote in the form of "unanimous consent" (a wild dream?) at the last minute before the next recess, the consolidated bills may not necessarily assure passage of the bills as we witnessed in the past in the Comprehensive Immigration Reform legislation process. For these reasons, it appears that the supporters of each bill have been working hard behind the scenes lobbying for the ealier mark-up of the individual bill which they supported and to gather support of their bills in the House and the Senate.
  • S. 3414 (Mernendez): Consolidated All the Piecemeal Bills, including Visa Recapture Bill, Reauthorization Bill , E-Verify Reauthorization, etc. Awaiting Senate Judiciary Action
  • S. 3257 (Specter): Consolidated only Reauthorization Bills and E-Verify Authorization Bill. Awaiting Senate Judiciary Action
  • H.R. 5882 Visa Recapture Bill (Zoe): Passed House Immigration Subcommittee and Awaiting Further House Action
  • H.R. 6039 STEM (Zoe): Awaiting House Action
  • H.R. 5921 Numberical Limit Exempt (Zoe): Awaiting House Immigration Subcommittee Action
  • S. 3084 Numerical Limit and STEM (Boxer), H.R. 5921 Companion Bill: Awaiting Senate Action
  • H.R. 5924 Emergency Nursing Supply Relief Bill: Passed House Immigration Subcommittee and Awaiting Further Action in the House
  • H.R. 5570 Religious Worker Immigration Reauthorization Bill: Passed the House and Awaiting the Senate Action of Consent
  • H.R. 5571 Conrad 30 Reauthorization Bill: Passed the House and Awaiting the Senate Action of Consent
  • H.R. 5569 EB-5 Regional Center Program Reauthorization Bill: Passed the House and Awaiting the Senate Action of Consent

09/04/2008: USCIS-Community Stakeholder Special Meeting of 09/02/2008 to Rollout N-400 New Test Q&A

09/03/2008: Immigration Cases and Naturalization Cases as of July 2007 and July 2008

• July 2007 represents a historical even when there was a huge surge in both "immigration" and "naturalization" cases as affected by the July 2007 Visa Bulletin fiasco and other developments. The following stastistics show a dramatic change for the same month of July in 2007 and 2008:

• 	07/07 Receipts	07/08 Receipts	% Change
  Immigration	1,105,200	389,359	- 65%
  Naturalization	460,289	50,625	- 89%

• 	07/07 Pending	07/08 Pending	% Change
  Immigration	3,694,593	3,211,157	- 13%
  Naturalization	1,239,625	558,793	- 46%

• The foregoing table shows that the naturalization cases have dramatically decreased both in the new receipts and backlog. Backlog has been reduced obviously by the USCIS' concerted efforts to achieve it under the tremendous political pressure. This is contrasted to the immigration caseloads. The new applications have been dramatically decreased, while the reduction of backlog was not that dramatic. Hmm...........................................

09/03/2008: USCIS Petition/Application Backlog (Pending) Statistics on 07/31/2008

• I-140: 122,785 (good news)
• I-485: 721,975
• I-765(EAD): 253,553
• N-400(Naturalization): 668,793 (huge reduction)

09/03/2008: USCIS New Petitions/Application Receipt in the Month of July 2008

• I-485: 41,995
• I-765: 125,412 (huge surge)
• I-130: 56,865
• N-400: 50,625

09/03/2008: Apparent Huge PERM Audit Backlog Affecting "Liberal" Approach of PERM Application

• According to the OFLC, as of July 15, 2008, they were processing the audit cases of priority date March 2007 PERM applications, and the processing queue of the audit cases were determined not by the dates of the audit notification issuance but by the priority dates, the dates when the PERM applications were filed. (Please refer back to our report on July 30, 2008). The report did not indicate that they made distinctions in audit processing queue by the different causes of the audit decisions. Accordingly, presumedly, once the audit notifications are issued for whaever reasons, the cases are likely to go to the end of the pending audit queue! Such processing backlog should scare the employers in handling new applications. When there were practically no audits, some employers had taken a very "liberal" approach in terms of the qualification requirements for the positions. Even though the Job Zone was restricted to a bachelor's degree, the employers filed their cases in EB-2 requiring a master's degree or bachelor's degree plus five years of experience with some success, because the risk was minimal at the time consideringthe fact that the current standard is "normal" which is not clearly defined and the DOL has been adjudicating the Job Zone issues in a more flexible manner. Besides, when a case was audited, the OFLC had taken to complete the audit cases. The current audit backlog and processing time delays have changed the landscape for the PERM strategies from the liberal approach to the convervative approach owing to the unusually high risk involved when a case is audited for whatever reasons, forcing the employers to wait and wait for over a year or longer to get the decisions. The risk is likely to increase beginning from January 1, 2009 when the DOL is scheduled to implement a new PERM form which replaces the standard of "normal" by the more clearly fixed standard of "Job Zone" and those PERM applications that exceeded the Job Zones will face increased risk of audit on the issue of business necessity. There may be some employers and their represenatatives who may continue to practice, indiscriminately and without a proper consideration of the changing environment, the way they had been handling PERM cases in the past at the cost of their alien employees/clients' expenses and suffering from the protracted legal process under the environment of continuing huge backlog in audit cases.
• The scale of audit decisions appears to be very overwhelming. According to a source of information which has just been released by the DOL, one law firm has been audited approximately 3,700 PERM applications out of approximately a total of 7,551 PERM applications which they had filed betweeen some time March or a little earlier or May 2008 and July 15, 2008. The record reflects that 49% of the total PERM applications filed by the firm were audited. These cases were apparently counted when the OFLC released information that as of July 15, 2008, they were processing the audit cases of March 2007. Remember that they were just processing March 2007 priority date audit cases as of July 15, 2008!! Go figure! One does not have to be a rocket scientist to figure out the level of risk involved with the "liberal" strategy in the PERM application. Foreign language requirement? Isn't it an automatic audit case? We had to just file such a case because it was absolutely required for the job, but we are preparing outselves to go into a dormant stage for this case as we know by now that there are a huge number of cases ahead of this case in the audit queue. Who says a history will never repeat? The labor certification backlogs are likely to repeat itself slowly being pulled into the old days when the people had to wait a long time to get a labor certification application certified.

09/03/2008: EAD Application Form I-765 Expiration Date 08/31/2008 Clarification

• People must have noticed that the current EAD application form I-765 shows the expiration date of 08/31/2008. Our research indicates that the OMB approved expiration date until 09/30/2008 pending extension of the comment period of the USCIS extension notice. Additionally, the USCIS submitted its request for extension of the current EAD form for 36 months on 07/28/2008, which is currently under the OMB review. Unconfirmed USCIS sources indicate that the current form is still valid "pending" the decision of the OMB on the USCIS extension rule and inasmuch as there has been published no notice in the USCIS form site that the current form is unacceptable. We hope that the USCIS releases a news on this question in its website such that I-765 applicants feel more comfortable in filing I-765 using the current form that expired 08/31/2008.

09/02/2008:New Orleans Field Office of USCIS Will Remain Closed Today and Tomorrow

• USCIS announces that it expanse the closing of its New Orleans Field Office to tommorow, Wednesday due to the impact of the Gustav Hurricane. The office will be closed today and tomorrow.

09/01/2008: Issue of EB-485 Applicants Returning from Overseas Trips in Unlawful H/L Visa Status Without a Valid Advance Parole

• When H-1B/L-1 professionals and dependant family members in H-4 or L-2 make an overseas trip and return on such nonimmigrant visa status when they are no long in lawul H/L visa status, they are subject to potential denial of I-485 applications on two different grounds unlike those who use and return to the U.S. on a valid Advance Parole. When it comes to the impact of unlawful H/L nonimmigrant status at the time of returning from the overseas trip on the pending EB-485 applications, the key issue remains denial of EB-485 applications on the ground of the unlawful H/L visa status or unauthorized employment when they return using a valid Advance Parole. Meanwhile, those who return to the country in H/L visa status without a valid Advance Parole can be subject to denial of the pending EB-485 applications on one another ground, to wit, abandonment of his/her 485 application because under the immigration rule, the returning of 485 applicant can keep his/her 485 application only when they entered in "a lawful H/L status if they enter on H/L visa status without an Advance Parole that had been issued prior to his/her departure from the U.S. The most bright-line situation can involve layoff or termination of H or L employment and withdrawal of the H-1B or L-1 petition by the employer. Since the rule requires that the alien was returning to resume the H/L employment to keep the pending I-485 application, return of such alien in H/L status presents a potential risk of denial of I-485 application not only on the violation of the nonimmigrant status but also on the ground of abandonment of pending I-485 application. When it comes to the first ground for denial, since the alien will be eligible for 245(k) benefit if the violation did not last longer than 180 days, the first ground can be overcome. Second ground of abandonment of application is a different story. Had the alien returned on an Advance Parole in an identical factual situation, he/she would be required to deal only with the first issue and not the second issue.
• For the EB-485 applicants who are literally "in a lawful H/L status," it is obvious that it is to his or her benefit to travel on H/L visa status from the standpoint of potential 245(K) benefits eligibility in the future or continuing stay and work in a H/L status even after the denial of I-485 application for whatever grounds. The same may not be true with those who are not in a lawful H/L status when they return from an overseas trip not on an Advance Parole but on an H/L visa status. People often assume that there is a simple lithmus test or a rule that applies to every EB-485 applicant in H/L nonimmigrant situation when it comes to choosing either Advance Parole or H/L visa when they make an overseas trip. The law is sometimes more complicated than spider-web and not that simple as the lay people hope it is what they think. People should always seek legal counsel. As the USCIS increases issuing 485 RFEs, people should be more conscious of the issues which are presented in this posting.

09/01/2008: Advisory for Permanent Residents Contemplating Filing of N-400 Naturalization Applications in the Future

• Currently N-400 is filed with the Service Center that has jurisdiction over his/her place of residence. Internally, such N-400 applications are processed by the National Benefits Center (NBC). The Receipt Notices for N-400 are issued by the jurisdictional Service Center and not NBC. Interview for examination is then scheduled at the local office of the USCIS at the location of his/her residence.
• This filing procedure will not last too long. The USCIS was contempolating a centralized "filing" procedure to a Lock Box and not to one of the four Service Centers of their residence jurisdiction. They hoped to initiate such new centralization of "filing" jurisdiction in September 2008 with their anticipation that by that time, the agency might have developed the required Lock Box for the N-400 filing. Consequently, the future N-400 applicants should carefully watch the USCIS announcement on such jurisdictional change from here on before they rely on the current procedure. Without doubt, the agency may give a period of transition to accomodate filing with a wrong Service Center, but they may as well pay attention to the upcoming changes in the name and location of filing. There is no firm information yet that the USCIS will definitely initiate such changes in September since its was just their prediction or plan back in April 2008, but it is likely that such change may be forthcoming sooner or later this year.
• In fact, the USCIS is planning to centralize all the immigration benefit including nonimmigrant as well as immigrant visa status application filings at Lock Boxes approximately by Spring of 2010. Once such centralization of all the immigration benefit applications is complete, present confusion on filing location as diverse as many different types of cases is likely to be removed. Just a heads-up!

09/01/2008: U.S. Passport Cards Gaining Popularity for U.S. Citizens Traveling the Border & Caribbean Countries by Sea and Land

• The State Department started issuing the Passport Card instead of a paper Passport Book beginning from July 14, 2008. As of August 28, 2008, 480,000 people have already submitted advance-order applications for the passport card, and 382,000 cards have already been issued, according to the spokesman for the State Department’s Bureau of Consular Affairs. The card would be displayed for travel to the U.S., Mexico, Canada, Bermuda and the Caribbean at a U.S. land border or at seaports. The card is not valid for international air travel to these countries and other countries of the world. Currently, a paper Passport Book may also be used for the travel to these border and the Caribbean countries at a land border of at seaports, but effective June 1, 2009, the Passport Card will be mandatory for such travel.
• For the details including the look, application procedures and places, and cost, please clickt the U.S. Passport Cards link in this heading here. The USCIS has already announced that the Passport Card would also serve the required evidence for I-9 employment eligibility document for the employers in lieu of the Passport Book.
  

08/31/2008: Tropical Storm Hurricane and Watch for USCIS Announcements for Potential Local Office Closings in Mexican Gulf Coast

• Hurricane Gustav is reportedly expected to hit harder than predicted and USCIS is prepared to temporarily close offices, if necessary, along the Gulf of Mexico coastline in the projected path of Tropical Storm Gustav. If an office is closed, or USCIS customers are evacuated from their homes, USCIS will automatically reschedule all appointments until a time when it is safe to resume operations.
• USCIS Has already announced that the New Orleans District Office is expected to be closed Tuesday, September 2, due to the anticipated landfall of Tropical Storm Gustav. Please check the USCIS home page frequently in the next few days if people live in that areas. During the last Katrina Hurricane, not only the immigrants but also the immigration practitioners in the areas were devastatingly affected by the natural disaster. We ask the people to pray for the people in the areas not to be too much affected this time around.
  

08/30/2008: I-140 Backlog and Need for Reinstatement of Premium Processing Services

• We reported on May 31, 2008 the following statistics of changes in I-140 processing backlogs. Since then the backlog has not chanced much as the I-140 backlog as of the end of June 2008 was 130,000 mark.

• Month/Year	Pending I-140 Petitions
  04/2007	92,355
  05/2007	101,590
  06/2007	103,563
  07/2007	120,955
  12/2007	147,923
  01/2008	150,292
  02/2008	147,913
  03/2008	146,092

• When we relook at the backlog table, it is obvious that a few developing events beginning early 2007 with the permanent labor certification program and the USCIS I-140 petition procedures must have resulted in such changes. Firstly, from the second quarter of FY 2007, DOL's action for elimination of subsitution of alien beneficiary by July 2007 triggered a gradual surge of I-140 petitions. Added to this cause was the USCIS decision to suspend the premium processing services in anticipation of a huge surge of I-140 petitions as affected by the DOL decision to eliminate alien substitutiion program by the middle of July 2007. The third factor was the DOL's schedule to eliminate all the backlog cases (360,000) and close down the Dallas and Philadelphia Backlog Elimination Centers by the end of September 30, 2007. To achieve the goal, the DOL accelerated production of certification of pending labor certification application at the Backlog Elimination Centers during the period. Along with these factors, a huge surge of naturalization applications in July and August 2007 and EB-485 applications in July and August 2007 as affected by the July 2007 Visa Bulletin fiasco added pressures to the existing resources of the USCIS to process petitions and applications resulting in delay in processing of non-emergency and non-politically charged cases such as I-140 petitions probably by adjustment of available resources of adjudicators to naturalization applications and I-485 applications.
• Out of the four foregoing factors, the two sources of backlogs have disappeared by now. One is elimination of substitution I-140 petitions in the middle of July 2007 in most cases and by second week of January 12 2008 for every single substitution cases. The second cause that has been eliminated is DOL's pre-PERM backlog cases. 99% of 360,000 backlog cases have been eliminated by the end of September 2007 pumping in massive approved labor certifications to the USCIS I-140 petition pipelines. However, even after disappearance of these two causes, I-140 processing remains continously in backlog. WHY? Unless there are some causes which the public should not be aware of, the remaining other two factors should be the causes of the current continuing backlogs in I-140 petition processing, to wit, continuing suspecnsion of Premium Processing Services of I-140 petitions and likely switted resources to the highly polically charged naturalization and other I-485 production lines under the pressusure of the Congressional oversight authorities. As for the second remaining factors, the USCIS is appropriated by the Congress to hire "3,000" new employees, according to the report of the USCIS on August 16, 2008 to deal with such backlogs and prevention of further backlogs. Reporedly, they have already hired over 1,400 new officials as adjudicators and 700 new people as processing workers. Using these additional resources, the USCIS has been currently pushing ahead naturalization application processing time reduction and backlog elimination program very aggressively with an ambitious goal of achieving the processing times to less than a few months in early 2009. Obviously, these new hires have not and will not help much in reducing I-140 backlogs "noticeably." As for the last cause of backlog - suspension of the premium processing services for I-140 petitions, the USCIS resumed the services only in a hair-thin types of cases, handling only a handful number of cases at this time. This leads to our conclusion that unless the USCIS expands the premium processing services soon, it will continously be trapped in a huge backlog in I-140 petitions. Look at the processing times of I-140 petitions in NSC and TSC. The processing times as of August 15, 2008 at the TSC is July 2007 accross the board. The situation at the NSC is not any better than TSC as far as the I-140 processing times are concerned. The twelve-month processing time is by any count too long, particularly from the perspectives of AC 21 benefits which should be available to these foreign workers by the mandates of the statute. We realize that the USCIS is under a tremendous pressure from the workload for the FY 2008 last quarter EB-485 applications and probably USCIS annual audit for the fiscal year and it may be unrealistic to suggest the agency to reinstate the I-140 processing services right now. We just hope that the agency considers reinstatement of PPS in the first quarter of FY 2009 that starts on October 1, 2008, by when the FY 2008 EB-485 workload could have been substantially removed hopefully making some additional resouces available for the I-140 production line. We will just cross our ten fingers until that time.

08/30/2008: Potential Implication of DOL PERM Program Guidance Restatement

• Considering the fact that allegedly one of the primary grounds for Fragomen audit decision was derived from an evidence that the law firm's clerical address was advertised as mailing address for U.S. workers' applications in the PERM recruitment process, this Restatement can be taken as a gesture of the DOL and its willingness to resolve the pending lawsuit brought by the law firm against the DOL and the first step towards the negotiation and settlement of the lawsuit. Settlement of the lawsuit will bring about at least four positive consequences: (1) Employer's right to legal counsel and legal community's right to represent their clients in the legal proceedings will be better protected. (2) Direct beneficiary can be foreign worker clients of the law firm whose cases have been placed under the audit track which currently experiences a huge backlog. (3) Indirect beneficiary can be other foreign workers whose cases have been placed under the audit track experiencing a huge backlog that may have been in part affected by the law firm audit cases. (4) Most importantly, the American taxpayers and the agency itself can be saved from potential needs for huge cost and time that the agency will have to keep pumping in the lawsuit with the resulting waste of tax money and ineffectiveness and inefficiency of the management of the foreign labor certification programs relating to the mounting backlog of audit cases.
• All in all, the result of this lawsuit will bring a long term positive fruit, albeit minor aches and pains the immigrant community may have to experience and endure in the interim, and we salute the Fragomen law firm for standing up for the interest of the justice and protection of the consumers and lawyers rights in the immigration proceedings. We look foward to the earliest resolution and settlement of this lawsuit by the DOL's recognition of the rights of legal representatives and their clients in the legal proceedings before the agency.

08/29/2008: Hurricanes: USCIS Releases Advisory "Customers Should be Prepared"

08/29/2008: DOL Restatement of PERM Program Guidance Bulletin of 08/29/2008 on the Clarification of Scope of Consideration Rule in 20 CFR § 656.10(b)(2)

• Restatement of PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR § 656.10(b)(2)
  The Department of Labor recently issued the following documents on the topic of attorney/agent consideration of U.S. workers under the permanent labor certification program: 1) Press Release, titled “U.S. Department of Labor auditing all permanent labor certification applications filed by major immigration law firm,” June 2, 2008; 2) Information Paper titled “Frequently asked questions on audit of permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP,” June 4, 2008; and 3) PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR § 656.10(b)(2), June 13, 2008 (collectively, the “Consideration Guidance Documents”). The Consideration Guidance Documents set forth the Department’s interpretation of 20 CFR § 656.10(b)(2) – in particular, with respect to the role an attorney may play in the employer’s recruitment and hiring process. The Department acknowledges that employers often require counsel when applying for permanent labor certification. However, the Department must also ensure that the employer’s recruitment and hiring processes are conducted in good faith, in accordance with the permanent labor certification program’s statutory and regulatory requirements. Since issuing the Consideration Guidance Documents, the Department has received considerable feedback from employers and employer representatives, including attorneys and agents, that regularly practice in or make use of the PERM Program. After consideration of these comments and suggestions, the Department has decided to issue the following Restatement of the PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR § 656.10(b)(2), which will supersede the Consideration Guidance Documents. The Department of Labor has a statutory responsibility to ensure that no foreign worker (or “alien”) is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. 8 U.S.C. § 1182(a)(5)(A)(i). The Department fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application. Accordingly, the Department relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith, even where the employer already has a temporarily-admitted foreign national working for the employer. The Department has long held the view that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process. In most situations, that normal hiring process does not involve a role for an attorney or agent (as defined in 20 C.F.R. § 656.3) in assessing the qualifications of applicants to fill the employer's position. It also does not involve any role for the foreign worker or foreign national in any aspect of the consideration process. However, given that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer’s normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process. Additionally, the Department respects the right of employers to consult with their attorney(s) or agent(s) during that process to ensure that they are complying with all applicable legal requirements. By prohibiting attorneys, agents, and foreign workers from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. § 656.10 (b)(2)(i) and (ii), the Department does not thereby prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer, and not the attorney or agent, must be the first to review an application for employment, and must determine whether