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02/27/2010 Interesting Report of Suspicious Effectiveness of E-Verify Program to Detect Employment Unauthorized Workers

• E-Verify program initially witnessed a problem of inability to match authorized workers such as U.S. citizens and lawful permanents in some queries for the users. However, a study reports that the system is now matching up legal workers with the proper status with 99 % accuracy. Good enough for E-Verify program advocates. However, the same report indicates that shockingly E-Verify system reportedly inaccurately identifies workers unauthorized for employment in the U.S. as authorized 54 % of the time. Since unauthorized worker queries reportedly consists of only 6.2% of entire queries, the damage may be minor. Such report could just give a weapon for the E-Verify program opponents to abandon this program. Hmm.......... Interesting. Read on.

02/26/2010: USCIS Announces Change of I-485 Filing Location (Lockboxes with a Few Exception) and Form Revision Effective 02/25/2010

• USCIS has announced that beginning February 25, 2010, most applicants must submit Form I-485 to a USCIS Lockbox facility, depending on the eligibility category under which they are filing, as provided in the form instructions. USCIS Service Centers will forward all Form I-485 applications to the appropriate Lockbox facility until March 29, 2010. USCIS will accept previous versions of Form I-485 until March 29, 2010. After March 29, 2010, USCIS will only accept the Form I-485 dated “12/03/09.”Any previous versions of the the form that are submitted will be rejected. After the transitional period, the Service Centers will return any incorrectly filed Form I-485 with instructions to send the application to the correct location. At this time, applicants should not concurrently file Form I-485 with an Immigrant Petition for Alien Worker (Form I-140) at a USCIS Lockbox facility. Refer to the Form I-140 filing Instructions for information on how to file forms concurrently.
  • Announcement
  • Filing Locations
  • Revised I-485 Form
• Please revisit our alert and warning of 02/19/2010 on the ongoing USCIS filing location changes and form changes!!
  

02/26/2010: USCIS Announces Change of I-360 Filing Location and Form Revision Effective 02/05/2010

• USCIS has announced that beginning February 25, 2010, applicants must file a Form I-360 with either the Vermont Service Center, the Nebraska Service Center, or at a USCIS Lockbox facility. Where applicable, USCIS Service Centers will forward Form I-360 petitions to the appropriate Lockbox facility until March 29, 2010. After the transitional period, the Service Centers may return incorrectly filed Form I-360 with instructions to send the petition to the correct location. USCIS will accept previous versions of Form I-360 until March 29, 2010. After March 29, 2010, USCIS will reject previous versions of the form submitted.
  • Announcement
  • Filing Locations
  • Revised I-360 Form
• Please revisit our alert and warning of 02/19/2010 on the ongoing USCIS filing location changes and form changes!!

02/25/2010: USCIS is Urged to Correct Inconsistent Information on LCA Requirement as Initial Evidence for H-1B Petition Acceptance

• There are at least conflicting information in the USCIS documents. These conflicts should be corrected as soon as possible:
  • I-129 Form Filing Instruction: It states initial evidence required for H-1B petition filing is the evidence that LCA has been filed. This language does not require "certified" LCA at the time of H-1B petition filing. From the current known USCIS policy, this is an error.
  • The USCIS announcement and memorandum (two separate documents) which were released in November 2009 states that the USCIS will accept H-1B petition which is filed on or before March 4, 2010 without the certified LCA and with a proof of LCA filed and pending for at least 7 days.
  • The USCIS Q&A site on the same subject states they will accept such petitions filed on or before March 9, 2010. It appears that this is an error.
• Some consumers are confused by these conflicting information which are found in the H-1B petitiion filing instruction or information release. Pending such correction, the H-1B employers are advised that the deadline for this temporary accomodation of H-1B filing with the proof of LCA filing only is not March 9, 2010 but March 4, 2010 (next Thursday). Another important point: It must be "physically received" by the agency during work days before the end of the business day of March 4, 2010. Therefore, the deadline for this policy is different from the revised I-140 petition form which they will accept the current form until March 2, 2010 with the proof of "postmark" dated 03/02/2010. Beware!

02/25/2010: Potential Looming-Up of Piecemeal Immigration Reform Bills Ahead

• There are two developments in this country that can affect the Congress and White House for piecemal immigration reform legislative activities. It is obvious that a CIR bill may be introduced in the Senate sooner or later. Historically, some piecemeal immigration reform bills had been introduced before or during CIR was introduced and considered. Secondly, the piecemeal immigration reform supporters may see that they have a better opportunity this year because of the current political landscape and environment that suggest that the enactment of CIR in 2010 is either slim or practically nil as time progresses. They realize that there are many critical areas and issues of immigration reform that have been caught in political struggle involving CIR. Please wait and see.

02/24/2010: Kerry-Lugar EB-6 Enterpreuner Immigration Bill Introduced in the Senate 02/24/2010

• Today, Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.) introduced in the Senate a bill S.3029 'StartUp Visa Act of 2010.' The StartUp Visa Act of 2010 will allow an immigrant entrepreneur to receive a two year visa if he or she can show that a qualified U.S. investor is willing to dedicate a significant sum – a minimum of $250,000 – to the immigrant’s startup venture. This bill will also create a new employment-based immigrant visa category of EB-6 for immigrant entrepreneurs. After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she would receive permanent legal resident status. For the news release, please click here. Reportedly, more than 160 venture capitalists from across the country have endorsed the senators’ proposal. To download a copy of their letter of support, click here.

02/24/2010: USCIS Releases Revised I-140 Form and Previous Editions Acceptable Only With Postmark of 03/02/2010 or Earlier Dates

• Employers filing I-140 petitions should be alerted that the USCIS has revised and released revised 01/16/2010 version. According to the USCIS announcement, earlier version is acceptable inasmuch as it is post marked 03/02/2010 or earlier dates. Accordingly, all the I-140 petitions which are received after 03/02/2010 without such post mark will be rejected. Please beware! For the announcement, please click here.

02/24/2010: All H-2A Temporary Agricultural Worker Labor Certification Application Data Files for 2009 and Previous Years Now Available

• Please click here.

02/24/2010: All H-2B Temporary Non-Agricultural Worker Labor Certification Application Data Files for 2009 and Previous Years Now Available

• Please click here.

02/24/2010: H-1B LCA 2009 Application Data Files Now Available

• All the LCA applications filed by each employer in 2009 and all previous years are now accessible online. It is searchable by year, by employer name, and by employer's EIN. Please click here.

02/24/2010: PERM 2009 Application Data Files Now Available

• Please click here.

02/24/2010: Effective Today, I-765 (EAD Application) Filing Location Changed to Lock Boxes

• USCIS has announced today that beginning February 24, 2010 applicants must now submit Form I-765 to one of the USCIS Lockbox facilities or the USCIS Vermont Service Center, based on the classification under which they are filing. The Service Centers will forward incorrectly filed applications to the USCIS Phoenix and Dallas Lockbox facilities for the first 30 days, until March 26, 2010. After March 26, 2010, applications incorrectly filed at USCIS Service Centers will be returned to the applicant, with a note to send the application to the correct location. For other details, please visit the following sites:
  • USCIS announcement
  • Filing location chart

02/22/2010: Effective Today, I-102 Filing Location Changed to Lock Box

• USCIS has announced that beginning February 22, 2010, applicants submitting Form I-102 by itself must mail their application to the USCIS Phoenix or Dallas Lockbox facility, based on where they are located. For other details, click here.

02/22/2010: Dallas H-2A Briefing Place Change From Anatole Hilton to Dallas Fairmon

• OFLC has announced that the briefing meeting place in Dallas, Texas scheduled on February 25, 2010 has changed the Dallas Fairmont. For the announcement, please click here.
• For the briefing agenda and up-to-date briefing places, please click here.

02/21/2010: USCIS Devices & Mechanisms Under Development or Consideration for Achievement of Integrity and Reduction of RFEs (Request for Evidence)

• USCIS has been considering certain devices to achieve integrity of the petitions and applications (fraud prevention and detection) and reduction of RFEs that have burdened the USCIS with added workloads tremendously in terms of budgets and workloads. There are two devices, among others, which this reporter wants to discuss here today. One has been actively developing for the last few years and the other has been under consideration. The former is its business transformation program and lock box filing concept pending a full launch of transformation program. The latter is precertification of employers in the employment-based proceedings. By now, readers have been fairly well informed and educated with the concept and goal of the USCIS transformation program. The concept stands on electronization of filing and adjudication process and development of account system per each employer, each alien beneficiary, each representatives, each private service providers such as medical doctors, the information of which will cross all the petitions and applications that have been filed and to be filed by each of these account holders. The goals are to enhance national security and detection of undesirable elements (criminals, terrorists, etc), integrity (fraud prevention & detection) of the petitions and applications, and whereby the agency would also achieve effectiveness and efficiency in filing and adjudication of petititions and applications. Once the business transformation program is fully implemented, the full information is accessible and shared by agencies for the records, history of filing activities, and background of each account holder, leading to achievement of the foregoing intended goals and at the same time, alleviate needs for requesting evidence repeatedly for each account holder. Efficiency is achieved through technical process of the certain basic data automatically populating when the cases are processed. The transformation program is likely to be backed by "registration" of each account holder. We hoped that agency would complete and launch the transformation program as soon as possible, but the agency has faced a number of problems including funding and technical process that have delayed launch of the program. It appears that pending completion and launch of the transformation program, the agency has been developing and launching centralization of front-end filing, data entry, and data-check through "lock boxes." Currently, the USCIS goal is to convert current service center and field office filing procedure to the centralized lock box filing for all the petitions and applications. Apparently, full implementation of lock box filing procedure has experienced some delays, and pending complete change of filing location chance, the USCIS has been implementing the centralization of front-end procedure "internally." Accordingly, report indicates that when petitions and applications are filed with the service centers and field offices, some of these petitions and applications have been "internally" forwarded to the lock boxes for front-end process and the files have been returned to the service centers and field offices of the involved jurisdictions from the lock boxes. It appears that the lock box concept will help in developing the account system in transition, albeit paper filing and albeit manual front-end process, to help the agency to transition into the transformation program smoothly and partially achieving its intended goals during the transition. Once lock box filing system is fully implemented, there is likely a drastic reduction of RFEs because the adjudicators will have a full access to the account electronically and do not need identical information repeatedly from the customers over and over again.
• The other concept which is specifically targetted at efficiency and RFE reduction is so called "precertification" of certain qualified employers in the employment-based proceeding. The concept is not new in that in a slightly different format, this was implemented years back for the employment-based petitions in the East Coast through Vermont Service Center permitting certain large corporate employers headquartered in the East Coast to file all the petitions with the same Service Center regardless of the location of job site for the petition inasmuch as such employers met certain qualification criteria. The "precertification" concept which USCIS has been considering for the last couple of years is expansion of the concept nationwide. Large corporate employers with the established credibility were to be precertified such that the adjudicators were not to request mountain of supporting documentation and to bypass RFEs. The precertified employers would have benefited from all those nasty boiler plate RFEs and requirement of identical evidence repeatedly over and over again. We thought this program would have been a very good arrangement during the transition to reduce the backlogs, to reduce the unnecessary RFEs, to reduce the workloads, and other benefits, whereby it could have led the agency to achieve the efficiency at the highest level.
• This program was unfortunately dropped in the lastest rule-making agenda of the USCIS. However, it is our understanding that this concept has not been completely abandoned and depending on the decision of the USCIS leadership, it can be revived and launched after going through certain rule-making process. This reporter strongly encourages the USCIS leadership to adopt and implement this concept "pending" full launch of the transformation program in the future.

02/20/2010: USCIS Invites Federal Contractors and Subcontractors to E-Verify Information Seminars Scheduled in D.C. on 02/23/10(Tue) and 02/24/10(Wed)

• E-Verify program has been a big political issue and under litigation in federal courts, but because of current political environment, E-Verify requirement may turn into reality both at the local and federal levels and will be a matter of time that employers may have to learn to live with it and familialize themselves with this program. This is particularly true considering the Obama administration employment enforcement policy switching from employment enforcement against employment unauthorized "aliens" to employment enforcement against the "employers" that hire employment unauthorized aliens. There are plenty of sources of information available out there, but this type of presentation will help them to understand the nuts and bolts of the program better and we encourage not only federal contractors and subcontractors but also general employers, business owners, human resources specialists, payroll administrators, and others involved in contracting with the federal government to attend the seminars. Unfortunately, unlike other collaborative sessions, participation in these seminars by telephone is not available and the interested people may have to register and attend the seminars in person at Washington, D.C. location. For other details, please visit the following sites:
  • Seminar Schedules and Location
  • E-Verify Program power-point resources: Going over these materials before attending the seminars will help the attendants better to understand or address their questions at the meetings.
• The USCIS also scheduled a similar session earlier in the form of collaborative seeion for stakeholders in general on 02/05/2010, but because of the severe weather that hit the area, it has been postponed and currently no information is available about their rescheduling. Benefits of collaborative sessions include the agency's accomodation of stakeholder participation by telephone. But collaborative seesion will focus on broad subject of employment verification issues including E-verify program, but not specifically on issues related to the federal contractor and subcontractor employers. For the reasons, such contractors may have to attend the next week's special seminars in persons in Washington, D.C. area.

02/19/2010: USCIS Continues its Initiatives to Centralize Filing of All Petitions and Applications to Lock Boxes

• The USCIS disclosed last year that it was planning to centralize, at least by the end of March 2010, filing location and the front-end processing of all the petitions and applications to the lock boxes, bifurcating the front-end filing and receipting phase of all the petitions and applications at the centralized lockboxes and the back-end adjudication phase of all the petitions and applications at the Service Centers and the local field offices. As part of the initiatives, the USCIS has been actively revising the petition and application forms incorporating certain features that can create quasi-account system as a transmition matter pending launch of forthcoming business transformation program that will focus on electronic filing and building accounts per each employer, alien, representative, etc. for the purpose of homeland security and achievement of effective and efficient management of petitions and applications. The front-end process is likely to focus on receipting, data entries per account, and initial check of records and evidence before the cases are forwarded to the Service Centers and the local field offices.
• Readers should understand that this is a year of active transition for the USCIS petition and application management system and people should be alert to the quite infrequent changes in the filing forms and locations. It means that everytime they file any petition or application, they should double check the validity of the forms and filing locations through the USCIS form sites. There is no magic to a bullet-proof acceptable filing other than confirmation of the validity and filing location of each form before and everytime they file it. Otherwise, they are likely to encounter unpleasant and annoying rejection of the filing based on invalid form or filing with a wrong jurisdiction.

02/19/2010: Effective Today, I-824 Form and Filing Location Changed

• USCIS has announced that beginning February 19, 2010, applicants must file Form I-824 with a USCIS Lockbox facility, based on which Service Center or local office approved their original petition or application. Detailed guidance is available in the updated Form I-824 instructions. USCIS Service Centers will forward all Form I-824 applications to the Lockbox facility for the next 30 days. After February 19, 2010, the Service Centers will return any incorrectly filed Form I-824 applications with instructions to send the application to the correct location.
  • Updated Form I-824
  • Filing Locations
• This form is used mostly to obtain duplicate of approved petitions or applications by those who lost the original or the original has been destroyed. This form is also popularly used for those who has just obtained a permanent resident status to request the USCIS to forward the duplication of the approved petitions or application to the state department to bring their following-to-join spouses and children from their home countries.

02/18/2010: Challenging Policy and Legal Issues That Surfaced in Today's USCIS H-1B Employer-Employee Relationship Collaborative Session

• Success of public engagement sessions of USCIS can be assessed in a number of different angles. Some may want to see on-the-spot answers from the agency participants on certain given issues. Had this been the primary purpose of the public engagement session, probably the result of today's session was considered a failure in that practically no answers have been given by the agency participants. However, success of this type of sessions may be assessed, in this reporter's opinion, from a different angle in that government policy makers heard and learned certain issues from the stakeholder participants which the agency could have missed in forming a memorandum like this one or they learned from the session that the agency's memorandum had produced certain unanticipated consequences or negative by-products by the memorandum. From the latter standpoint, today's session was very successful in that the stakeholder participants brought up certain issues and consequences of the memorandum which the policy makers admittedly did not intend when the memorandum was written. This reporter wants to report only three of many such issues which were brought up in the session:
  • The memorandum was allegedly issued for the purpose of giving a guidance to the adjucators for consistent decisions, which were in turn supposedly to bring about reduction of number of RFEs issued by the adjudicators. However, the reality is that the memorandum has induced the adjudicators to issue increased number of RFEs not only in the H-1B petitions but also in other employment-based petition proceedings such as L-1, I-140 petition, etc. Obviously, such result has been quite opposite ,slapping in the face of the intent and purpose of the memorandum, which the participating policy makers have learned from today's session.
  • There are certain employers other than staffing businesses that inherently require placement of their employees with other business sites such as higher learning institutions placing cap-exempt H-1B researchers with othe private or public research or industrial sites or vise versa under the current regulation. Another example is the foreign worker physicians are placed with hospitals, particularly in certain medically underserved areas for the purpose of J-1 waiver in H-1B status by employers other than the hospitals. Apparently, the agency has learned from the today's session that these are areas which they did not intend to be branded as a sort of job shop employment.
  • Allegedly, the definition of employer-employee relationship under this memorandum contradicts with that under the IRS regulation as well as EEOC (equal employment opportunity[Oops!] commission) regulation. Even though these two federal agencies and their conflicting regulations are intended to regulate completely different issues unlike the USCIS employer-employee relationship memorandum which is supposed to protect the integrity of the immigration process relating to employment of foreign workers, it appears that this was an issue which they apparently did not look into and will have to look into in the future to justify the memorandum.
• Without doubt, the agency will consider various issues which they heard at the session in the future. In this regard, this reporter finds today's session very and very productive, meaningful, and successful. It was particularly important that the session was attended by both the director and associate director of the Service Center Operations who were deeply involved in developing this memorandum. We thank them for patiently listening to and learning these issues for almost two hours and we look forward to their consideration of these legal and policy issues in the future.

02/18/2010: Public Engagement - One of the Most Admirable Achievements of the New USCIS Leadership Team Under Director Mayorkas

• One of the essential elements of a democratic government is "responsiveness" of the government process that opens an opportunity for the constituents and consumers of the government services to participate in the government decision making process through dialogues with the government agency in open sessions that give an opportunity for them to hear the agency's reports and views, a sort of 'state of the agency', sharing of opinions on issues between the agency and the stakeholders, and opportunity for feed-backs of their opinion into the decision making process. Gains from such responsive government reach beyond the public relations benefits for the agency. Its constituents and consumers gain huge benefits in terms of accessibility, opportunity of dialogues and feed-backs into the government process. Participation, participation, participation!
• The new leadership of USCIS has boldly initiated this process by the following actions:
  • Establishing Public Engagement Directorate as one of the key components of the agency functions
  • Agressively scheduling open sessions with the stakeholders and public at the two levels allowing their participation either by telephone or in person:
    • National-level sessions in Washington, D.C.
    • Local-level sessions and events in various cities and communities.
• This reporter has had a privilege to participate in some of these national-level sessions by telephone and cannot extend enough his salutations to the USCIS leadership and the Public Engagement Directorate members for the marvellous job they have done for the stakeholders. A Big Hats-Off to these well-deserved public servants!

02/18/2010: DOL Updates PERM Application Processing Times on 02/18/2010

• The following are the PERM processing status as of 01/31/2010:
  • Analyst Review: April 2009 (Receipt Date)
  • Audits: December 2007 (Receipt Date)
  • Standard Appeals: September 2007 (Receipt Date)
  • Government Error Appeals: Current
• For the official report, please visit iCERT site of the Office of Foreign Labor Certification.

02/17/2010: TARP-Funded Employers That Have Returned the Money and H-1B Filing Procedure

• USCIS is currently in the process of revising I-129 Data Collection Supplement Form that creates a separate item to answer for the employer who received TARP money and paid back. The instruction will include what type of evidence the petitioner must submit to file without H-1B Dependent Employer attestations. Please stay tuned.

02/17/2010: USCIS Updates Processing Times 02/17/2010

• The update reflects the processing times as at 12/31/2009. Please see our home page.

02/17/2010: DOL Notice of Adverse Effect Wage Rates, Allowable Charges for Agricultural Workers' Meals, and Maximum Travel Subsistence Reimbursement for H-2A Workers 2010

• This rate will take effect on March 15, 2010. For the details, please click here.

02/17/2010: DOL Schedules Public Briefing Sessions on H-2A Final Rule

• The DOL is scheduling three (3) public briefings to educate stakeholders, program users, and other interested members of the public on changes to the H-2A program made by the Final Rule and on applying for H- 2A temporary labor certifications under the new regulations using the ETA Form 9142. The three briefings will take place in late February and early March of 2010 in San Diego, California; Dallas, Texas; and Raleigh, North Carolina as follows:
  • San Diego, California: February 23, 2010, Tuesday, 8:30 AM – 3:00 PM at San Diego Marriott Hotel and Marina, 333 West Harbor Drive, San Diego CA 92101, Tel: 1-619-234-1500, fax: 1-619-234-8678.
  • Dallas, Texas: February 25, 2010, Thursday, 8:30 AM – 3:00 PM, at Anatole Hilton, 2201 Stemmons Freeway, Dallas, TX 75207, Tel: 1-214-748-1200, fax: 1-214-761-7520.
  • Raleigh, North Carolina: March 2, 2010, Tuesday, 8:30 AM – 3:00 PM, at Hilton North Raleigh, 3415 Wake Forest Road, Raleigh, NC 27609, Tel: 1-919-872-2323 Fax: 1-919-876-0890.
• To register for a briefing session please complete the registration process on-line, by visiting www.acclaroresearch.com/oflcbriefings. Due to space considerations, attendance will be limited to those who register online. In the event of cancellation or change, participants will be notified. For other details, please click here.

02/17/2010: DHS Inspector General Review Report of USCIS Implementation of Kendell Frederick Citizenship Assistance Act

• Executive Summmary: "In June 2008, Congress passed the Kendell Frederick Citizenship Assistance Act to streamline the process for U.S. military service members seeking to become U.S. citizens. The act directs the Secretary of Homeland Security to accept fingerprints submitted by military citizenship applicants at the time of their enlistment or from prior submissions to the Department of Homeland Security, expedite the processing of citizenship applications, and implement procedures to ensure rapid electronic transmission of biometric information and safeguarding of privacy. As directed by the Congress, we assessed USCIS’ implementation of (1) the act’s requirements, including an assessment of the technology used to improve the efficiency of the naturalization process for members of the United States Armed Forces and (2) the impact of this act on privacy and civil liberties.
  USCIS has taken actions to meet the act’s requirements. Specifically, USCIS has implemented a process to use previously submitted fingerprints for military naturalizations, and it tracks and reports processing time to ensure that it completes adjudication of applications timely. USCIS has also undertaken several information technology initiatives to improve the military naturalization process. However, USCIS’ information technology systems, such as the application processing system and background check support systems, do not meet all user requirements. As a result, personnel must devote resources to work around system limitations. Further, USCIS had not yet completed a privacy assessment for its process to obtain enlistment fingerprints from partner agencies. Without such an assessment, we were unable to assess whether that process was properly safeguarded. We are recommending that USCIS: (1) address those requirements not met by existing information technology systems through its ongoing information technology transformation process; (2) implement mobile fingerprint capabilities overseas; (3) pursue expanding the use of video teleconference technology in the naturalization process; and (4) finalize the privacy impact assessment for the system used to store fingerprints obtained from partner agencies."
• For the full text, please click here.

02/17/2010: USCIS Collaborative Session on Employer-Employee Relationship for H-1B Petition, 02/18/2010, 01:00 p.m. est

• This is a very important session to discuss the topic which has been very controversial after the related Neufeld memorandum was issued recently. This session can be participated in person or by telephone. Employers, particularly the consulting service employers, should participate in the meeting.
• The consulting service employers should also know that even though the memorandum is limited to the H-1B petitions, currently similar requirements have been adopted in L-1 petitions filed by the consulting companies.
• Interested people should visit the agency's invitation site to register either by email or telephone.

02/13/2010: FY 2011 H-1B Cap Filing Beginning 04/01/2010 and Potential Problem Relating to Labor Condition Application Certification Delays

• In order to file a H-1B petition on 04/01/2010, the Labor Condition Application ETA 9035E must be certified before 04/01/2010 since it has to accompany the H-1B petition. Currently, DOL is experiencing delays of minimum of seven (7) days to certify the LCA via iCERT portal system. Besides, a large number of LCAs have witnessed much longer than one week, even two or three weeks or longer, when the iCERT system could not verify the employer's federal employer identification number (FEIN). Considering the hardship this problem posed to the H-1B filers, the USCIS has been implementing a temporary measure allowing such employer to file H-1B petition before the LCA was certified inasmuch as the LCA had been filed and the employers received email notification of receipt of LCA application at least seven (7) days before submitting I-129 H-1B petitions. However, this temporary relief is available for the H-1B petitions which are field on or before March 4, 2010. Accordingly, any H-1B petitions which are filed after March 4, 2010 "without certified LCA" will be either rejected or denied.
• At this time, no one can predict the volume of H-1B cap filings during the first week of April 2010. Considering the record in 2009, the volume may or may not be slow in FY 2011 H-1B cap filing as well. However, there are a couple of factors that can affect the volume relating to the recent development of circumstances. One factor is gradually recovering economy, particularly in high tech sector, health care sector, and finance industry. The second factor is the lately released policy decision allowing H-1B cap filings to hire new employees by the employers who received TARP money but have since paid back. Accordingly, it may be prudent that the employers prepare themselves with the assumption that the FY 2011 H-1B cap could reach in a fairly short period of time. There are employers who will be affected by the LCA certification delays. Most of large or medium-sized employers have already filed a number of LCA since the DOL initiated iCERT filing system and have overcome LCA certification problem relating to the verification of FEIN. These employers are fairly safe and may obtain LCA in seven (7) days. The story may be quite different for small employers or emerging employers or employers that have gone through Merger & Acquisition or other corporate restructuring that can affect FEIN verification problem. In the latter situation, size of the new company with the new FEIN may be irrelevant and they may face serious delays in obtaining LCA certifications. In calendar-wise, the employers still have one month and 10 days or so to get to April 1, but these employers may have a very limited number of days to take care of LCA certification to file the FY 2011 H-1B cap petitions in the first week of April 2010. Other employers who want to use private wage survey for LCA may also face some delays depending on which private wage surveys the employers use. This is the time for the employers to start on the internal process to develop their cases for FY 2011 H-1B cap filing.

02/13/2010: Severe Weather and USCIS Advisory of 02/13/2010 on Local Appointments and Appearances

• Currently, a number of areas in the country are hit by severe weather, potentially affecting the services by local field offices of the USCIS. For the reasons, the USCIS has just posted advisory to alert that the local field office services can be affected by severe weathers, and any one who you plans to visit a USCIS office in an area affected by the severe weather or who believes may be affected by severe weather,should call the National Customer Service Center (NCSC), 1-800-375-5283, to ensure that the office is open for business and for further instructions on rescheduling appointments if the office is closed.
  

02/13/2010: DOL Inspector General's FY 2009 Second Half Congressional Report Reveals iCERT Portal System Flaws and Eye-Opening Records of Prosecutions for Frauds During the Period

• This IG report will push OFLC to improve the portal system. The IG's report of the fraud prosecution during the period is an eye-opener for the immigration practitioners and immigration stakeholders. A publication worth reading during the weekend. Foreign labor certification part is reported in pp. 17-21 of this IG report.

02/12/2010: DOL H-2A Final Rule New Releases and Related Materials

• DOL Secretary Announcement in English
• DOL Secretary Announcement in Espanol
• DOL Secretary Conference Call Audio
• Fact Sheet
• H-2A Final Rule published in the federal Register

02/12/2010: Senate Agreed to the House Concurrent Resolution to Adjourn Until 02/22/2010

• Yesterday, the Senate floor agreed to the House concurrent resolution to adjourn. Both the House and and Senate will not return to the floor until 02/22/2010 or later. By that time, February will be almost gone without any single immigration legislation to fix ailing immigration system, in piecemeal or in comprehensive. Soon they will be busy to deal with legislative agenda that can bring a political success to the parties in the November mid-term national election. For the next couple of months, this reporter will have to go through an emotional pain to report the last-minute comprehensive immigration reform talks or bills on the Hill and in the White House, knowing that all of the activities may not have any substance nor a fruit. Without doubt, pro and con spinners may spin the wheel vigorously during the period. It is indeed painful and frustrating. But this reporter will have to report the news!

02/12/2010: Master Degree and H-1B Proceedings

• As the season for FY 2011 H-1B cap filing will open beginning from April 1, 2010, there are a few rules which often confuse the master degree holders in the H-1B proceedings. The rules involve eligibility for special 20,000 annual H-1B cap numbers for master degree holders and eligibility for H-1B employment with H-1B dependent employers exempt from recruitment and no-displacement attestation requirments. The definitions for "master's" degree differs between these two rules. The following will help the involved employers and master degree holders to understand clearly the distinctions so that they can better prepare themselves with the upcoming H-1B cap filing season.
  • Master's Degree Requirement for 20,000 Special Cap:
    • Degrees earned from U.S. higher learning institutions only. Accordingly, those who earned a master or higher degree in foreign countries are not eligible for this special cap filing.
    • Degrees in "any" specialty are acceptable for the purpose of 20,000 cap eligibility. It does not require that the degrees must be earned in the specialty (major) related to the H-1B employment. Accordingly, even "music" master degree holder is eligible for this special cap number for the IT position. However, it is one thing whether one is eligible for 20,000 cap number and it is other thing whether one is eligible for the specialty requirment for the H-1B petition. For the latter, one must have minimum of a bachelor's degree or equivalent combination of education, training,and experience or simply equivalent years of progressive experience (3 year progress experience = 1 year undergraduate degree program). In the illustration, the foreign worker can prove it by a bachelor's degree in Computer Science or related fields of study or alternatively AA degree in combination of years of experience in Computer Science related jobs or simply 12 years or longer years of proressive experience in the Computer Science related jobs.
    • Years of work experience or training cannot substitute a master's degree requirement. The foreign worker must have a "degree" and equivalent experience is not acceptable unlike the H-1B petition thresholds and unlike green card proceeding that accepts a bachelor's degree plus five years of progressive work experience as equivalent to a master's degree. It ain't working in 20,000 H-1B special cap benefits.
  • Master's Degree Requirement for Employment with H-1B Dependent Employment Without Being Subject to Recruitment and No U.S. Worker Displacement Evidence and Attestations:
    • Degrees earned from any higher learning institutions in the world acceptable. All foreign master degrees which are equivalent to U.S. master degrees are acceptable for this purpose. It is not limited to U.S. degree holders.
    • Degrees must be earned in the specialty which are related to the H-1B employment. Accordingly, unlike the 20,000 special cap number eligibility, here the major field of study in the master degree program must be in the specialty area required for the H-1B position. Those who hold a master degree in music is not eligible for this benefit if the job is an IT job.
    • As for master's degree equivalent experiences, the same rule applies here that years of work experience or training cannot substitute a master's degree requirement. The foreign worker must have a "degree" and equivalent experience is not acceptable unlike the H-1B petition thresholds and unlike green card proceeding that accepts a bachelor's degree plus five years of progressive work experience as equivalent to a master's degree. It ain't working in H-1B dependent employer exemption from the attestation requirements.
• Hew......................................

02/12/2010: OPM Notice to Employees of Federal Agencies in Washington, D.C. Area: Offices Are "Open" Today!

• Federal agencies in the Washington, DC, area are OPEN under a DELAYED ARRIVAL/UNSCHEDULED LEAVE policy. Employees should plan to arrive for work no more than 2 hours later than they would normally arrive, and employees who cannot report for work may take unscheduled leave.
  This Means . . .
  • Employees should plan their commutes so that they arrive for work no more than 2 hours later than they would normally arrive. Employees who arrive for work more than 2 hours later than their normal arrival time will be charged annual leave or leave without pay for the additional period of absence from work.
  • Employees who cannot report for work may request unscheduled leave for their entire scheduled workday.
    Telework employees are expected to report for work on time.
  • Emergency employees are expected to report for work on time.
• Please wake up and be ready to report to the work!

02/11/2010: H-2A Final Rule for Temporary Employment of Agricultural Worker

• This rule will take effect 30 days from tomorrow. As we reported earlier, this rule-making has gone through a lot of zig-zags during the period of the transition of government. The farm and farm product processing businesses and their temporary workers should pay attention to the overhaul of the procedural and substantial changes in this final rule.

02/11/2010: Continuing Shut-Down of Federal Agencies in D.C. Area and H-1B Policy Guidance Issues

• OPM has announced that the federal agencies in the Washington, D.C. area will be closed today. When it comes to its prolonged weather-related shut-down of the federal agencies in the area, its impact is considered minimimal as far as filing and adjudication of the immigration benefits petitions and applications are concerned since most of these petitions and applications are filed with the field offices in areas other than Washington, D. C. Of course, administrative appeals may suffer delays from the office closure.
• One area that suffer delays from the agencies' closure in the D.C. area is the policy guidance relating to the upcoming FY 2011 H-1B cap filing that will begin on April 1, 2010.
  • One policy guidance that needs clarification from the DOL/OFLC is the H-1B LCA filing procedure and guidance for the TARP-funded employers that have paid back the money. The USCIS has recently made it clear that such employers will be able to file a new H-1B for a new employee inasmuch as it submits evidence of return of TARP money from U.S. Department of Treasury or Federal Reserve, depending on where the employer received the TARP loans. However, it adds that the employer must submit a LCA that matches with such policy. Currently, DOL requires to check an item in the LCA online form that the employer attests to compliance with the recruitment and no-displacement attestations, if the employer received TARP money. It appears that the DOL may have to change this instruction to be consistent with the USCIS policy on the former TARP-funded employers.
  • The second policy involves a potential procedural change in H-1B filing procedure on the part of the USCIS. The USCIS had an agenda to require a "pre-registration" of cap-subject H-1B petitions. Changing environment relating to limited volume of H-1B petition filing in FY 2010 might or might not have affected its initial decidion to implement such revised procedure beginning from FY 2011 H-1B cap filing. But considering the fact that the new H-1B cap filing for FY 2011 is approaching fast, more or less, the employers and the foreign professional workers may want to know any potential changes in filing procedure ahead.
  • The third policy involves ICE that manages F-1 foreign student OPT programs. When it comes to the OPT extensions, there are two different programs: One is STEM-specialty student extension of OPT for additional 17 months and the other is non-STEM specialty OPT's cap-gap extension. Currently there are very complex policies in place for these foreign students when it comes to the eligibility of automatic extension of employment authorization for the cap-gap H-1B filers and other authomatic exension of employment authorization pending timely-filed EAD application for the STEM-specialty program students. Complication with the rules involves extension of two separate benefits: One is EAD and the other is "authorized stay" pending the proceedings. All the F-1 student in a valid F-1 status but not in post-completion OPT at the time of H-1B filing who are scheduled to graduate before October 1, 2010 will be entitled to the extension of their lawful stay in the U.S. pending timely filed H-1B cap petition at least until H-1B petition is decided or October 1, 2010 when they can start H-1B employment. But these students are not entitled to the automatic employment authorization during the periof of gap, meaning between the date of graduation and October 1, 2010. In other words, they are currently entitled to automatic extension of their permited stay until H-1B petition isdecided or October 1, 2010 but not entitled to automatic extension of employment authorization since they did not have post-completion OPT. Even if they had an EAD on "Pre-Completition" EAD or were authorized employment on CPT, these employment authorization is not automatically extended, and when it comes to their employment authorization, they will have to live in a situation where they will be autorized to a continuous stay pending the H-1B decision or October 1, 2010, whichever comes first "without" any employment authorization during the cap-gap period. The cap-gap automatic extension of employment authorization is extended only to those "post-completion" OPT sudents who were in the period of a valid OPT and more importantly who had a valid post-completion OPT EAD at the time of tiling of a H-1B cap petition. Currently, school DSO (Designated School Official) is the primary authority to manage the programs when it comes to the authorization of exended stay and extension of employment authorization together with OPT extensions. At this time, we are uncertain whether there will be any changes to the details of management of these programs. There was an unconfirmed source of information that the ICE was scheduled to release a certain regulation of these OPT extension programs. We are anxious to learn any potential changes in these programs regardless of its small or big impact on the fates of these students in the year ahead.
• It is hoped that when they return to the office on February 16, 2010, these three agencies release some information on their policy guidance for the upcoming FY 2011 H-1B cap filing. Please stay tuned.

02/10/2010: Dormant Nation's Capital

• OPM Notice indicates that the federal agencies will again remain closed today. USCIS Washington Offices will also remain closed today.
• The House passed a concurrent resolution, H.Con.Res.235, yesterday to recess until 02/22/2010, which the Senate is likely to concur today. It means no legislations for almost two weeks, zippo! Who said there would be a CIR 2010 legislation!? Dream on.

02/09/2010: State Department Plan of Development, Modernization, and Enhancement of its Consular IT Systems and Technology

• According to a report, State Department Office of Consular Systems and Technology plans to upgrade its software that supports its visa, U.S. citizen services and passport systems to develop, modernize ,enhance, and bolster its automated systems.Some objectives include:
  • Flexible access to the Consular Consolidated Database.
  • Increased access to other government databases.
  • Common interfaces and functionality for all users.
  • Comprehensive reporting management tools.
  • Increased internal controls for personally identifiable information.
• The project will take a while, but it is hoped that once the project is completed, the current problems in the visa processing are expected to be alleviated somewhat. It is a cyber and automation age, for sure!

02/09/2010: Federal Register Notice of State Department's Proposed Consular Service Fee Schedule Changes

• This is the official publication of the advance copy which we posted yesterday.

02/09/2010: OPM Notice - Federal Agencies in D.C. Area Remain Closed Today

• The snow in the area continues to freeze federal agencies in the nation's capital and its vicinity area. In the immigration proceedings, it causes delays in processing of cases by the agencies which are located in the area. One of the proceedings which will affect the customers nationwide will include processing of prevailing wage determination, ETA 9141, for temporary and permanent labor certification applications. Employers should adjust their schedules of their internal processing of these types of cases so that they do not experience any problems.
• USCIS has also issued an alert that the storm impacts could be felt through the week of February 8, 2010.
• USCIS Public Engagement Office has scheduled a stakeholder meeting on the issues of acceptable signatures on applications and petitions today, but those who are registered and planned on taking a trip to attend the meeting or particupate the meeting by telephone may contact the engagement office as the schedule could have been affected by the federal office closures in the D.C. area.

02/08/2010: Advance Copy of State Department Proposed New Consular Services Fee Schedule

• The State Department will publish this proposed rule tomorrow in the federal register with 30-day comment period from tomorrow. As one can figure out, they are raising fees substantially. It suffice to note particularly the following three points:
  • They will raise Employment-Based Immigration Application fee from current $365 to $720, almost double, while other types of immigrant visa applications will just go up slightly.
  • Renunciating your U.S. citizenship will no longer be free. They will charge $450 for renunciation of a U.S. citizenship.
  • International litigations, beware that their support for your litigation, including deposition, will be quite expensive.
• Well, things are changing.

02/08/2010: Government Offices Closures in the Washington, D.C. Areas on Monday, 02/08/2010

• The blizzard hit hard in the D.C. and surrounding areas. For the reasons, at the decision of the federal Office of Personnel Management, the federal government offices in the areas closed at 1:00 p.m. on Friday, 02/05, 2010. AILA reports that because of the severety of the hit of the blizzard, the federal government in the D.C. area will remain closed on Monday, 02/08/2010. So are many Maryland and Virginia metro governments and offices. AILA which is located in the D.C. area will also be closed. We wish well for the people in the areas.

02/07/2010: March 2010 Visa Bulletin

• EB Literally Moves in Snail Pace. Thank God, No B ackward Move, Though!
  • EB-2: Worldwide - Still current
  • EB-2 India - 02/01/2005
  • EB-2 China - 07/08/2005
  • EB-3 Worldwide - 12/15/2002
  • EB-3 India - 07/01/2001
  • EB-3 China - 12/15/2002
  • EB-3: Mexico - 07/01/2002
  • EB-3: Philippines - 12/15/2002
• FB Moves in Turtle Pace. Thank God, No Backward Move, Though!
• No predictions, Ladies and Gentlemen!

02/07/2010: USCIS to Revise I-129 Form

• I-129 form is used for employment-based nonimmigrant visa petitions including H-1B. FY 2011 H-1B cap filing is scheduled to open effective April 1, 2010. Watch for the forthcoming revised I-129 form. Nowadays, the immigration forms are revised very frequently and employers and immigrants should always check the USCIS form site to assure that the forms they use are up to date. Just heads-up!

02/07/2010: iCERT Portal System is Back Up and Running

02/06/2010: iCERT Portal System is Down

• As of this evening, DOL's iCERT Portal System is down and none of the temporary certification applications including Labor Condition Application for H-1B and prevailing wage determination using ETA 9141 are available. It is hoped that the system be fixed as soon as possible.

02/06/2010: Are You a Naturalizaton Applicant and Interested in Naturalization Information Sessions Offered by USCIS in Your Area?

• Please check it out the sessions which are scheduled in your areas. The topics will include: Below is a list of upcoming naturalization information sessions for legal permanent residents and interested naturalization applicants. Topics covered at these FREE sessions will include: (1) naturalization eligibility requirements; (2) naturalization process; (3) naturalization test and (4) rights and responsibilities of U.S. citizenship.

02/06/2010: USCIS Schedules a Collatoration Session on Signatures on Applications and Petitions Filed with USCIS on 02/09/2010, 1:00 P.M., EST

• USCIS invites national stakholdrs to participate in a teleconference to discuss the implementation of recently developed policy and guidance clarifying the accetability of signatures on applications and petitions filed with USCIS. For the details on the teleconference, please click here.

02/06/2010: Foreign Worker Employment in Northern Mariana Islands and Guam Are Exempt From H-1B and H-2B Annual Cap

• Workers in H-1B and H-2B classifications who are admitted to perform labor and services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam are exempt from the H-1B cap and H-2B cap from November 28, 2009 to December 31, 2014. The Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229, provides a special exemption to the statutory numerical limitations (or “caps”) for temporary workers in H nonimmigrant classifications mentioned in Section 214(g) of the Immigration and Nationality Act (INA). However, the same employees' employment, either parti-time or full-time, in the mainland USA and Hawaii will be subject to the annual cap and the H-1B visa holders through employment in these two islands are not permitted to perform work in the mainland USA and Hawaii, unless a separate cap-subject H-1B petition has been granted. Read on.

02/06/2010: Rep. Yvette Clarke of New York Introduces H.R.4616 To Temporarily Expand the V Visa Category to Certain Haitians.

• The bill was introduced in the house to temporarily expand the V nonimmigrant visa category to include Haitians whose petition for a family-sponsored immigrant visa was approved on or before January 12, 2010. If enacted, certain beneficiaries of family immigration petitions will be allowed to come to the U.S. in V visa status pending the immigrant visa number available inasmuch as they meet the V nonimmigrant visa thresholds.

02/06/2010: USCIS Interpretation of Refunded TARP-Funded Employers for H-1B Filing Procedure and Need for Identical Interpretation by DOL

• There are many employers who received TARP money, particulaarly in financial community, and have been handicapped in filing H-1B petitions to hire new H-1B employees. In order to relieve such employers from such handicaps, the USCIS has taken two steps releasing its interpretation of the law in two different sequence. One is the one which was released earlier and the other is the one which they just released yesterday. These releases have cleared two issues as follows:
  • Eligibility of Current Employees of the TARP-Funded Employers: To either change status from other non-immigrant status to H-1B cap petitions or extension of their current H-1B status. Earlier, the USCIS released its interpretation that the new applies only to the "new" hires and does not apply to any existing employees, no matter in what nonimmigrant status they were in. Accordingly, those who have been working for such employer in F-1 OPT status or L-1 or E-1 or E-2 or any other types of nonimmigrant visa status will be able to file FY 2011 H-1B cap petitions. For the cap exempt employers, the same rule will apply. As for those who have been working for such employer already in H-1B status and need extension of the H-1B status, these employers are not subject to the addtitional attestations of recruitment and no displacement of U.S. workers from the perspectives of the USCIS and they will be able to file H-1B petitions to extend their status with the same TARP-funded employer.
  • TARP-Funded Employers Who Paid Back the TARP Money to the Feds: Under the just released guidance, they should be able to file new FY 2011 H-1B petitions to hire new employees in H-1B status without being subject to addtiional attestations as H-1B dependent employer.
• However, there remains one grey area which the DOL will have to remove as quickly as possible. DOL form ETA 9035E still requires to follow its own rule relating to the question of TARP-funded employers relating the additional attestation requirements. We urge the leaders of the DOL/OFLC to revise its LCA filing guidance as soon as possible in consistence with the newly released USCIS interpretation relating to the TARP-funded employers who have returnded TARP money.

02/05/2010: USCIS Guidance on TARP-Funded Employers That Have Returned the Fund and Their H-1B Petition Process

• Good news for these employers who have long awaited the USCIS answer to this question. It is very timely in that the FY 2011 H-1B cap filing date, 04/01/2010, is soon approaching. The TARP funded employers who have returned the fund and their future H-1B employees should read the following USCIS releases carefully:
  • USCIS announcement 02/04/2010
  • USCIS earlier announcement on the TARP-fund employers and H-1B filing restrictions.
• DOL has yet to announce its policy on LCA.

02/04/2010: USCIS Releases Names of Employers and Number of H-1B Cap Petitions Filed by Each Employer in FY 2009

• This is the information which was reported by the Computerworld as we reported earlier. However, this USCIS report is more direct sources of information that even covers by employers in foreign countries. It is a huge document. Read on.

02/04/2010: USCIS Releases Findings of the E-Verify Program Evaluation, December 2009

• This is a very voluminous (330+ web pages) document, but the employers and their representatives may want to review this report during the weekend.

02/04/2010: Naturalization Applications Processing Statistics as of 12/31/2009

• Naturalization receipts in December 2009 increased 124 % when compared to December 2008, while approvals/oaths decreased by 32 % and denials decreased 48 %. The number of pending N-400 cases reached 245,064 in December 2009, a decrease of 35 % compared to the same month in fiscal year 2009. For the full details, please click here.

02/04/2010: USCIS Immigration Applications/Petitions Processing Statistics as of 12/31/2009

• Receipts of applications and petitions for immigration benefits in December 2009 decreased 41 % compared to the number received in December 2008. Approvals in December 2009 decreased by 24 %, and denials increased by 24 %, and pending cases decreased by 47% compared to December 2008. However, there were 100,107 EAD applications pending. For the full details, please click here.

02/04/2010: USCIS Withdraws Memorandum on "Acceptable" Signatures on Applications and Petitions

• This memorandum which was posted yesterday has been pulled off of its website. According to the AILA, the USCIS has decided to withdraw this memorandum.

02/04/2010: OMB Clears H-2A Final Rule on 02/03/2010

• The H-2A rule making has witnessed a lot of roller coaster ride during the last 14 months. This final rule was enacted as the last minute rule making agenda of the Bush Administration. After the Obama Administration board the ship, this rule was initially suspended and afterward withdrawn. Then the Obama Administration reintroduced the H-2A final rule removing "poisonous" elements from the perspectives of the new government. This final version of the rule was finally cleared by the OMB of the White House yesterday and is expected to be released in the federal register sooner or later. Please stay tuned.

02/04/2010: "Acceptable Signature" Memorandum and Premium Processing Request Filing Advisory [USCIS Reportedly Withdraws the Memorandum]

• The USCIS memorandum which this reporter posted yesterday was issued on 01/19/2010 but released on 02/03/2010. The memorandum amended the Adjudicators Field Manual and the adjudicators who adjudicate all the nonimmigrant and immigrant visa petitions and applications after 01/18/2010 were supposed to follow the AFM as amended per the memorandum. No wonder why there have been a numerous reports that employers who filed Premium Processing Requests through their outside representatives have witnessed rejection of their filings lately. It appears that in light of the date of the amendment which was only about ten days back, the field offices appear to be in a state of confusion themselves as to whether the memorandum applies to I-907 Premium Processing Requests, judging from the late unofficial information that certain Service Center had denied such I-907 but later released information backing off from the rejection practice. Close reading of the memorandum indicates that it applies to all the application and petition forms which are filed with the USCIS.
• It will thus be prudent, not to experience rejection or denial of filings, that when the employers and the aliens file I-907 Premium Processing Request through outside representatives including an attorney, the authorized employees of the company or individual applicant should sign the I-907 form.

02/03/2010: USCIS Memorandum on "Acceptable" Signatures on Applications and Petitions[USCIS Reportedly Withdraws the Memorandum]

• The USCIS has just released a memorandum issued by the new USCIS Acting Deputy Director, dated 01/19/2010, concerning the above-entitled subject. Point blank, non-employee legal representatives cannot sign the forms in place of their clients!!!! Any applications and petitions without the authorized signature of the petitioner or applicant in violation of this memorandum will be "rejected." For other details, please read the memorandum.

02/03/2010: Prospects for Changes in Foreign Labor Certification Processing Plan During FY 2011

• The FY 2011 DOL Performance Plan reflects that in FY 2009, there was no specific plan in permanent labor certification program to set aside certain applications for "integrity" performance. This, however, changed in FY 2010, targeting 60% of applictions for integrity process leading to the current PERM application processing time delays to 10 months and audit case delays in processing since late 2007. The FY 2011 performance target for integrity work will increase to 61%, which may be reflected in the forthcoming reengineered revised ETA 9089 filing form and filing procedure changes, further focusing on "integrity" of the PERM applications. Accordingly, the employers will have to endure not only the down-turn times for the next year relating to the slow economic recovery but also from difficulties and delays in hiring needed foreign workers for "permanent" employment for a prolonged period of time. Employers may as well learn to live with the current delays in permanent labor certification process at least another a year and a half. Not a promising news for the employment-based immigration community as well.

02/03/2010: FY 2011 (10/01/2010-09/30/2011) Foreign Labor Certification Program Budget Proposes Labor Certification Application Fees

• During th past few years, the DOL has been considering charge of filing fees for temporary and permanent labor certification applications. Thus far, it has never materialized. However, in the FY 2011 budget proposal, it again proposes to charge filing fees. Its justification goes: "Currently, employers do not pay a fee to the Department for the processing of permanent foreign labor certification applications. Employers are the primary beneficiaries – at taxpayers’ expense – of the permanent admission of specific foreign workers and of the attestation-based review of applications they receive under the current process. Therefore, it is reasonable to require that employers pay the processing expense to the Department of providing this service. Second, it is proposed that the Department keep application fees paid by employers under the H-2A temporary agricultural worker program to offset its processing costs ($100 base fee plus $10 per worker, up to a maximum of $1,000 for each application approved). However, the Department does not retain these H-2A fees to offset its processing costs. Third, it is proposed that the Department be permitted to charge employers a fee to support the processing of applications for the H-2B nonagricultural program. H-2B fee revenue also would be used for a new apprenticeship initiative that would expand apprenticeship opportunities across the country through a competitive grant program that could lessen our dependence on foreign labor for these occupations."

02/03/2010: DOL iCERT Portal System Problem Fixed and Now Up and Running

• For a few days, the foreign labor certification application new online filing system named iCERT portal system experienced a problem and witnessed outage. This has created a problem for H-1B petitioners and PERM employers since they could not file H-1B Labor Condition Application, ETA 9035E, and Prevailing Wage Determination Request, ETA 9141. Thank God, the problem has been fixed, and since yesterday afternoon, the system has been up and running again without any problem. We thank the OFLC leaders and technical team working hard during the weekend to deal with the technical problem.

02/02/2010: USCIS Alert - Approx 500 Incorrect 129 & 539 Approval Notices Issued Between 01/20/2010 and 01/27/2010

• USCIS has issued special alert that the agency issued approximately 500 incorrect approval notices for I-129 and I-539 between January 20 and January 27, 2010, and the agency is in the process of issuing revised approval notices, which the involved parties should receive it by February 8, 2010. For the details, click here.

02/02/2010: State Department Notice of Secondary School Student Exchange Visitor Sponsor Onsite Reviews

• The State Department will initially conduct on-site reviews of all fee charging program sponsors. Excluded from this first round of review are all Rotary programs, schools, school districts, and government programs. Following the first round of on-site reviews, the Department will determine whether to conduct on-site reviews of some or all of the remaining non-fee-charging sponsors, or if a comparable review of these programs can be conducted through some alternative method. The Department intends to examine a broad range of sponsor operations. The process will encompass in-depth financial review; examination of program pricing structures; appraisal of organizational operating models; review of hiring criteria and training policies for program employees and agents; evaluation of third party contractor relationships; and standard operating procedures, especially those related to the screening and selection of host families and the repatriation of program participants. Other areas of review will include, but are not limited to, decision-making processes (including the numbers of students accepted); self-imposed compliance mechanisms; procedures for handling student problems; standards for the selection of housing with host families; and policies for refunding deposits or payments when applicants cannot participate due to visa denial or sponsor inability to secure a placement. The Department will also examine the relationships between sponsors and third parties, including foreign partners. In the case of foreign partners, the Department will review their role in the overall placement process and the fees they charge for their services. The State Department will scrutinize all contractual relationships under which designated sponsors outsource “core” services, i.e., the screening, selection, placement, orientation, and monitoring functions that constitute the core elements of international exchange programming. For the other details, please click here.

02/01/2010: Effective 03/04/2010, DHS to Enforce Amended Rule for Professional Conduct for Practitioners, Procedures, Representation, and Appearances

• DHS is amending the rule for practitioners who will practice before the agency as well as procedures, representation, and appearances. This rule will take effective 30 days from tomorrow. Those who appear before various agencies of the DHS, including law students, should make themselves familiarized with the amended rules. Read on.

01/29/2010: USCIS Announces Appointment of Associate Director, Eddie Brown, for the New Customer Directorate Under the Realigned USCIS Structure

• Mr. Brown will be responsible for the USCIS National Customer Service Center, a multi-site, state-of-the-art call center operation providing automated and live assistance services to more than 16 million customers annually; the USCIS Customer Assistance Office which responds to written inquiries received by the White House, the Secretary of the Department of Homeland Security, the USCIS Director, and the USCIS Ombudsman; Local Services Office which develops and manages customer self-service and notification tools such as Case Status Online and Portfolio Management, Change of Address Online, and Online Content Management; and Planning and Coordination which manages the budget, contracts, and personnel in support of the Directorate. For the biography of Mr. Brown, please click here.

01/29/2010: USCIS National Stakeholder Meeting (01/26/2010) Minutes

• This minutes covers the subject as to how H-1B cap number count has been counted and announced with reference to special Singapore and Chile H-1B1 numbers. Our readers will learn that our report of USCIS cap count method and prediction during last year hit the nail. This minute also dicloses that ICE is expected to release its final rule on Cap-Gap rule for H-1B pending or approved F-1 foreign students in cap-gap situation. Please stay tuned to this website for this upcoming release of the final cap-gap rule.

01/29/2010: Matthew Oh Launches Questions & Answers Page for FY 2011 H-1B Cap and Related OPT or Other Issues

• Readers must have noticed that we have just set up a link to Question & Answer Sessions page for discussion of H-1B and related issues for our visitors. FY 2011 H-1B cap filing is only about two months away and we want to discuss with the visitors in the form of Q&A. The Q&A site will be activated beginning from Monday, February 1, 2010. We encourage visitors to send questions to us by email to: matthewoh.attorney@gmail.com. The questions will be posted anonimoualy but people should not give any information or facts that can give some clues to others as to the identity of the question sources. We will also edit the text of the questions.

01/28/2010: Recent USCIS Memorandum on Employer-Employee Relationship for H-1B Petition Puts the USCIS in the Storm of Controversy and Potential Target for Lawsuit

• This memorandum which we reported earlier has been causing serious challenges by the agency against the nonimmigrant and immigrant petitions filed by the IT consulting businesses as well as challenges faced by the H-1B foreign consultants returning from overseas trips. Additionally, this memorandum poses a serious threat agaist the beneficiaries of immigrant and nonimmigrant petitions where the beneficiaries own controlling shares or self-employed business petitioner. To address the problem, the AILA has written a letter to the Counsel of the USCIS to review the legality of this memorandum from the standpoint of various rules and laws, particularly APA, and also from the standpoint of the agency's age-old tradition and practice permitting self-owned business filing employment-based petitions under certain circumstances. The issue of whether or not the agency should have followed the procedure under the Administrative Procedure Act and taken rule-making route instead of memorandum format is vulnerable to the legal challenge in federal courts. Please stay tuned to this website for the development of this news.

01/28/2010: State Department Estimate of DV Immigration Lottery Registrations of Approximately 6,000,000

• The State Department has been conducting annually immigration lottery registration electronically and out of the restrants, the agency randomly selects 50,000 who will be eligible for immigrant applications. The agency is currently using DS-551 electronic registration form and seeks reauthorization of this form from the White House. According to the information, the agency estimates at approximately 6,000,000 restrants annually. Wow! Read on.

01/28/2010: BIA Rules "Alien Reentered Without Inspection After Unlawful Stay for 1-Year and Departing from the U.S. is Not Eligible for 245(i) Benefit

• This decision affects those mostly from the border states who enter the U.S. without inspection and stays in the U.S. for one year or longer and departs afterward from the U.S. and reenter the country, again without inspection. In this case, the Board of Immigration Appeals ruled yesterday that they are not eligible for 245 benefits even if they are grandfathered for the 245(i) benefits and otherwise eligible for I-485 application based on family-based or employment-based immigrant petition. See Matter of DIAZ and LOPEZ, 25 I&N Dec 188 (BIA 2010), Interim Decision #3672 (BIA January 27, 2001)

01/27/2010: USCIS Special Notice: To Reissue Certain Advance Parole Documents

• USCIS announced today that it will reissue Advance Parole documents (Form I-512) in response to documents that were mailed to applicants with an incorrect issue date of January 5, 1990. All affected documents have been identified and USCIS will automatically reissue documents to individuals who have received a document with the incorrect issue date. All documents continue to be valid as the expiration dates remain accurate, therefore it is not necessary for applicants to contact USCIS regarding their pending application unless their application is outside the normal processing time of 90 days. If you need to travel urgently and you have received a document with an invalid issue date, then you may travel using the incorrect document. U.S. Customs & Border Protection (CBP) has been alerted however, you may be questioned about the issuance date. Therefore, please print this explanation to share with CBP if necessary.

01/27/2010: USCIS Announces Change of Filing Location for Form I-601 (Application for Waiver of Ground of Inadmissibility)

• Read on for the new filing location.

01/27/2010: USCIS Fact Sheet: Humanitarian Parole

01/27/2010: USCIS Releases Q&A on Requirement & Procedure for Requesting Fee Waiver for Haitian TPS Applications

• Read on.

01/27/2010: Board of Immigration Appeals Ruled on 01/25/2010 No Hardship Waiver Required For Alien Spouse Whose Spouse Deceased During I-751 Condition Removal Proceeding

• The BIA handed down another good decision in Matter of Rose, 25 I&N Dec 181 (BIA 2010), Interim Decision #3670 (BIA, January 25, 2010) that a conditional permanent resident under section 216(a) of the Immigration and Nationality Act who is seeking to remove the conditional basis of that status and who has timely filed the petition and appeared for the interview required under the law does not need a separate hardship waiver if the petitioning spouse died during the 2-year conditional period. Please read the full text.

01/27/2010: Bills to Regulate Involvement of Foreign Nationals by Certain Contributions

• This is an election year and election related issues is slowly heating up. Yesterday, both in the House and the Senate, three legislators introduced identical/similar bills to ban on contributions and expenditures by foreign nationals to domestic corporations which are owned or controlled by foreign principals, etc. Obviously, they want to regulate influence of foreign businesses and foreign nationals in the country's national election. These bills are proposed to amend the current Federal Election Campaign Act. Foreign nationals and businesses may follow up the legislation process of these bills. The three bills are:
  • H.R. 4522 sponsored by Rep Pascrell, Bill, Jr. New Jersey
  • H.R. 4523 sponsored by Rep Perriello, Thomas S.P. Virginia
  • S. 2954 sponsored by Sen Menendez, Robert. New Jersey

01/26/2010: Comprehensive Immigration Reform in 2010 - A Soccer Ball of Politics?

• Read on.

01/26/2010: USCIS Issues Warning Against Immigration Scams Targeting Haitian TPS Applicants

• Warning
• What to do and what not to do

01/25/2010: CRS 'U.S. Immigration Policy on Haitian Migrants' Report of 01/15/2010 Reviews Ever-Complicating Post-Haiti Trauma U.S. Immigration Policy Issues

• As Haiti ends rescue mission, the Haiti is struggling to deal with post-rescue recovery related social, economic, and political issues. Relating to the issues, the United States is facing massive and flood of Haitian refugee relief and migration policy issue which raises national migration policy from a long term national policy perspective. The conflicting views are gradually looming up. This CRS report reviews the issues from various perspectives.

01/25/2010: Pearl Cheng, Acting Chief of Office of Policy & Strategy Replaced by David Howell in the New USCIS Leadership Team

• After six months of taking charge of USCIS Directorship of USCIS in August 2009, Mr. Alejandro Mayorkas appears to reshaping up his new leadership team to assist him with management of the agency. Pearl Cheng has been in charge of the Office of Policy & Strategy, an important post for formulating policies, but she has just been replaced by Mr. David Howell. It is uncertain whether the ongoing shake-up of the USCIS headquarters leadership will trickle down to the next layer of leaderships in the field office posts. Please stay tuned.

01/25/2010: H-1B Visa Usage by U.S. Employer and List of H-1B Employers in 2009

• According to the report of Computerworld, the U.S. companies continued to hire people using H-1B visas. See the list of U.S. employers by the size of H-1B visa usage.

01/24/2010: USCIS Follow-Up Session on Business Transformation Program: External Data Interface Standards (EDIS)

• On Januaary 20, 2010, USCIS had a collaboration session to present and discuss the technical details of forthcoming operation of business transformation program. This presentation gives the perspectives of the forthcoming reengineered immigration benefits management system and procedures of filing, processing, and adjudication. Read on.

01/24/2010: DOL ICERT Portal System End User Advisory

• DOL posted on 01/22/2010, advising end users to contac oflc.port@gol.gov in case that the users experience any difficulty accessing any portion of its iCERT portal application. As we posted earlier, the DOL reconfigured iCERT Portal System and started accepting online the prevailing wage determination application using iCERT portal system. Understandably when a system is reconfigured, there can arise some unexpected and unanticipated technical diffulties. DOL thus wants to know any difficulty the users may experience so that the DOL can try to fix the problems. There are some reports relating to filing of ETA 9141 prevailing wage determination request through iCERT portal system. We urge the end-users to cooperate and assist with the DOL to detect the problems. Read on.

01/23/2010: New Lineup of USCIS Leadership

• The following list represents the new line-up of the USCIS leadership as of now:
  • Alejandro "Ali" Mayorkas, Director, U.S. Citizenship and Immigration Services
  • Lauren Kielsmeier, Acting Deputy Director of USCIS
  • Rendell Jones, Associate Director, Management Directorate
  • Donald Neufeld, Associate Director, Service Center OperationsDirectorate
  • Gerri Ratliff, Associate Director, Enterprise Services Directorate
  • Debra A. Rogers, Associate Director, Field Operations Directorate
  • Lori Scialabba, Associate Director, Refugee, Asylum and International Operations Directorate
  • Roxana Bacon, USCIS Chief Counsel
  • Rebecca S. Carson, Chief, Office of Citizenship
  • Hubert "Buck" Humphrey, IV, Chief, Office of Communications
  • David R. Howell, Acting Chief, Office of Policy and Strategy
  • Pearl Chang, Acting Chief, Office of Policy and Strategy
  • Gregory Collett, Chief, Office of Transformation Coordination
  • Donald Hawkins, Chief, Office of Privacy
  • James McCament, Chief, Office of Congressional Relations
  • Joe Moore, Chief, Office of Performance and Quality
  • Perry Rhew, Chief Administrative Appeals Office
• For the biographies of these leaders, please click here.
• For the new organization chart of the USCIS, please click here.

01/23/2010: Ms. Debra A. Rogers, New Associate Director of Field Operations Directorate of USCIS

• The Field Operations Directorate of USCIS oversees all the local field offices of the USCIS within the United States other than the Service Centers which come under the jurisdiction of the new Service Center Directorate headed by Mr. Donald Neufeld as Associate Director. Mr. Neufeld is no longer a "Acting" Director but permanent Director.
• Ms. Debra Rogers has served the USCIS as the Associate Director, Customer Service Directorate, United States Citizenship and Immigration Services until the new appointment. Ms. Rogers served as the Acting Deputy Associate Director for Domestic Operations, U.S. Citizenship and Immigration Services (USCIS). Prior to her selection in July 2008, she served as Senior Counselor to the USCIS Director on detail while Chief, Information and Customer Service (ICS) Division in the Domestic Operations Directorate, where she had served since July 2006. Prior to her ICS selection, Ms. Rogers had served as Director of the San Diego District Office since January 2004 after serving as Interim District Director. Prior to her appointment as Interim District Director, Ms. Rogers had served with the San Diego District Office of the former Immigration and Naturalization Service since 1995, progressing to Acting Assistant District Director for Adjudications in 2002. In this capacity, she managed a staff of more than 120 Adjudications and Records and Information personnel. Prior to this, Ms. Rogers was the Section Chief for the Adjudications Special Projects Unit. This unit was responsible for benefit fraud investigations, orphan petitions, citizenship, intelligence and security, the National Security Entry/Exit Registration System (NSEERS), and the Student/Schools Program. In San Diego, she also managed the Naturalization and Immigration Benefits Units, strengthened the community outreach program, and established a model public and attorney inquiry system. Prior to San Diego, Ms. Rogers served as a Deportation Officer in the Washington District’s Detention and Removal Unit. She began her immigration career in 1984 as a student intern in the Boston District Office Investigations Branch and upon graduation started as an Immigration Inspector at Boston’s Logan Airport. Ms. Rogers holds a Bachelor of Arts degree from Northeastern University.

01/23/2010: USCIS Questions & Answers for Information for U.S. Citizens in the Process of Adopting a Child from Haiti

• The tragic earthquake in Haiti has produced a huge number of infants and children who have lost their parents and become orphans. Some of them had been orphans even before the earthquake undergoing a long process of adoption by the U.S. citizens. There are others who have fallen into orphans by the earthquake. The DHS and DOS are currently reaching out their hands to help these prospective U.S. citizen parents. The USCIS is responsible for managing and processing adoptees' petition processes here and overseas. The agency has just released a helpful information for these prospective parents in the form of Q&A. We have also posted another Q&A of the USCIS on its new policy on humanitarian parole for these Haiti orphans. Read on.

01/22/2010: Group of Representatives Introduced Yesterday H.Res. 1026 To Reinforce Immigration/Border Enforcement and to Bar Legalization of Illegal Aliens in any CIR Bills

• Mr. CHAFFETZ (for himself, Mr. HUNTER, Mr. KRATOVIL, Mr. NYE, Mr. FLEMING, Mrs. LUMMIS, Mr. COFFMAN of Colorado, Mr. MCCLINTOCK, Mr. POSEY, Mr. ROE of Tennessee, Mr. HARPER, Ms. JENKINS, Mr. BARROW, Mr. BRIGHT, Mr. LUETKEMEYER, Mr. OLSON, Mr. TAYLOR, Mr. PATRICK J. MURPHY of Pennsylvania, Mr. MCINTYRE, Mr. KAGEN, Mr. SHULER, and Mr. CHILDERS) submitted the following resolution; which was referred to the Committee on the Judiciary, and in addition to the Committees on Education and Labor and Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned:
• RESOLUTION
  Expressing the sense of the House of Representatives that the continued peace, prosperity, liberty, and national security of the United States and its people depend upon the rule of law and credible and effective immigration enforcement policies which both welcome lawful immigrants and non-immigrants and also prevent the unlawful entry or unlawful continuing presence of foreign persons.
  • Whereas the United States, as a nation of immigrants, recognizes and celebrates the economic and cultural contributions of generations of lawful immigrants;
  • Whereas the United States must remain a place where lawful immigrants can come to enjoy the promises of religious, political, and economic freedom; and
  • Whereas the continued peace, prosperity, liberty, and national security of the United States and its people depend upon the rule of law and credible and effective immigration enforcement policies which both welcome lawful immigrants and non-immigrants and also prevent the unlawful entry or unlawful continuing presence of foreign persons: Now, therefore, be it
  • Resolved, That it is the sense of the House of Representatives that--
    • (1) the use of a basic pilot program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note; commonly known as the E-verify program) by employers of workers within the United States should be mandatory, and that enforcement policies should hold both employers and employees responsible whenever an individual's employment violates United States immigration law;
    • (2) installing and sustaining the necessary border infrastructure and manpower to effectively secure and control United States borders to prevent the unauthorized passage of persons or contraband is a critical responsibility of the Federal Government; and
    • (3) any immigration reform proposal adopted by Congress should not legalize, grant amnesty for, or confer any other legal status condoning the otherwise unlawful entry or presence in the United States of any individual.
• Hmm.......................................! Hmmm..........................................................!!
  

01/22/2010: USCIS Leadership Shake-Up Continues - Michael Aytes Replaced by Lauren Kielsmeier for Acting Deputy Director

• Without much publicity, the USCIS named a new Acting Deputy Director replacing the current Acting Deputy Director, Michael Aytes. The new Acting Deputy Director is the current Chief of Staff, USCIS. Ms. Kielsmeier served in senior policy and management roles in the administration of former Arizona Governor Janet Napolitano. As education policy advisor, Ms. Kielsmeier provided recommendations for education policy, legislation and budget. She worked to implement the governor’s education agenda through the Governor’s P-20 Council (Council), a state-wide education advisory body charged with improving and aligning Arizona’s education systems from early childhood through postsecondary education as well as aligning Arizona’s education systems to the expectations of 21st century employers. One of the Council’s key accomplishments was raising Arizona’s high school graduation requirements in an effort to increase student college- and career-readiness and ensure better alignment between secondary and postsecondary education systems. Ms. Kielsmeier was also responsible for state-level AmeriCorps and youth development programs and funding, and provided oversight to the Governor’s Commission on Service and Volunteerism, Arizona Statewide Youth Development Task Force, Governor’s Youth Commission and the Arizona State Citizen Corps Council. Prior to her work in state government, Ms. Kielsmeier held senior management roles in both the corporate and not-for-profit sectors. At the San Francisco-based technology innovator, RespondTV, she managed the development of interactive television campaigns for high-profile corporate clients. Ms. Kielsmeier also directed a large AmeriCorps program at Civicorps Schools in Oakland – the oldest and largest regional urban corps in California. In this role, she trained, motivated and managed teams to work with and teach young people in the Oakland Public Schools. Ms. Kielsmeier earned a Masters in Business Administration from the University of San Francisco and a Bachelor of Arts degree in Political Science and Community Health from Tufts University. She holds a Multiple Subject Teaching Credential from California State University, East Bay.
• Lately, Domestic Operations Directorate was eliminated and then two sub divisions of Service Center Operations and Field Operations have been moved up to the two separate directorates. Then Acting Associate Director of Domestic Operations has then been appointed as Associate Director of the new Service Center Operations Directorate. The new Acting Associate Director for the Field Operations has yet to be made public. Prior to that, the Chief Counsel of the USCIS was also replaced.
• Obviously, the on-going shake-up of the USCIS leadership may bring with it some changes in the direction and policy of the USCIS immigration benefits management, probably reflecting new USCIS Director's policy agenda. Please stay tuned.

01/21/2010: USCIS 01/21/2010 Q&A on I-140 Filing Procedure and Processing

• This Q&A provides some helpful information on the I-140 filing as well processing information for the employers.

01/21/2010: Small Good News for AC-21 I-140 Portability Invoked I-485 Applicants in Immigration Court Proceeding

• Until yesterday, those I-485 applicants who invoked AC-21 portability and changed employer had faced a serious problem if they for whatever reasons face removal proceedings in immigration court because of the BIA rule that the immigration judge or BIA did not have jurisdiction to recognize sustainability of I-485 applicant's legal status when the I-485 applicant invoked AC-21 I-140 portability and changed employer. Today, the Board of Immigration Appeals overturned and overruled its prior decision in Matter of Marcal Neto, 25 I&N Dec 169 (BIA), Interim Decision #3669 (BIA, January 21, 2010). Read on.

01/21/2010: iCERT Prevailing Wage Determination Request (ETA 9141) Mandatory Effective Today

• Office of Foreign Labor Certification now initiates the centralized prevailing wage determination process through iCERT portal system effective today. People can still file it by mail, but the agency strongly discourages such mail filing. It is uncertain at this point whether the employer may as well file the ETA 9141 online about 60 days ahead of their need for PWD to initiate recruitment or file vaious temporary and permanent labor certification applications. Currently, the ETA 9141 which was filed on 01/04/2010 have yet to be adjudicated. OFLC has already alerted the people that the request may be filed 60 days ahead of time. Accordingly employers should be alerted for the anticipated delays in obtaining PWD in planning on initiating foreign labor certification applications. For the iCert prevailing wage determination request, people may go to iCert Portal System which is posted on our homepage and click the form page and click ETA 9141 form. However, under the Quick Start Guide which we posted yesterday, employers should first register themselves in iCert Portal System.

01/21/2010: HHS Extension of 2009 Poverty Guidelines to March 1, 2010 or Beyond Pending Release of Updated Guidelines

• Every year, the HHS has been publishing yearly poverty guidelines before March of the year. However, this year, (HHS) poverty guidelines will remain in effect until updated 2010 poverty guidelines are published, which shall not take place before March 1, 2010. Accordingly, the USCIS I-864 Affidavit of Support filers may continue to use the current USCIS poverty guidelines of 2009 which is printed in I-864P form until March 1, 2010 or beyond and until the HHS publishes 2010 guidelines. The economy in 2009 was disastrous, but the inflation rate remained steady because of the Federal Reserve's control of interest rate. Please stay tuned.

01/21/2010: H.R. 4471 & S. 2935 Bills in the House and Senate to Exclude Visa Revocation from Judicial Review

• Yesterday, Rep. Lamar Smith of Texas in the House and Sen. Chuck Grassley of Iowa in the Senate introduced these companion bills to provide that the revocation of visas and other matters are not subject to judicial review. Another flora of restrictive immigration bills to take advantage of and to ride the anti-immigration sentiment in the country under one of the harshest economic downturn of the country in the century.
• Text of the bills:
  • SECTION 1. JUDICIAL REVIEW OF VISA REVOCATION.
    • Section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)) is amended by striking ``There shall be no means of judicial review'' and all that follows and inserting the following: ``Notwithstanding any other provision of law, including section 2241 of title 28, United States Code, any other habeas corpus provision, and sections 1361 and 1651 of such title, a revocation under this subsection may not be reviewed by any court, and no court shall have jurisdiction to hear any claim arising from, or any challenge to, such a revocation.''.
  • SEC. 2. EFFECTIVE DATE.
    • The amendment made by section 1 shall--
    • (1) take effect on the date of the enactment of this Act; and
    • (2) apply to all visas issued before, on, or after such date.
• Alas!

01/21/2010: Here is Haiti TPS Federal Register Designation Notice Published 01/21/2010

01/20/2010: F and M Foreign Student Data at End of 2009

• This Sevis by the Numbers which is released by ICE on January 14, 2010 gives data on foreign students at the end of December 31, 2009. Read on.

01/20/2010: iCERT Prevailing Wage Quick Start Guide of DOL

• Today, there is outage of iCERT portal system and people cannot use iCert portal to file temporary labor certification application. DOL is currently reconfiguring the system to add iCERT Prevailing Wage Determination Request (ETA 9141) feature online. Beginning from 01/01/2010, DOL required the employers to file prevailing wage determination request with the DOL office in Washington, D.C. in papers until tomorrow when the DOL will open iCERT operation for ETA 9141 filing online. DOL has thus released this Guide to give information to the new online filing procedure and requirement. Employers should review this Guide very carefully in order to file ETA 9041.

01/20/2010: Advance Copy of USCIS Federal Register Notice of Designation of Haiti TPS Effective 01/21/2010 Through 07/22/2011

• This notice will be officially published tomorow. 180-day registration period will begin from tomorrow. Read on.

01/20/2010: State Department Q&A on HIV Final Rule Implementation in Visa Processing

• Q: Why has it taken the United States so long to implement changes for non-U.S. citizens who are HIV- positive to visit or live in the United States?
  • -- On July 30, 2008, President Bush signed the United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, which amended the Immigration and Nationality Act (INA) to eliminate language that specified HIV infection as a public health condition that can prevent non-U.S. citizens from entering the United States with HIV without first obtaining a waiver from the Department of Homeland Security (DHS).
  • -- The Act did not change the regulatory framework under which HIV is handled for visa purposes. Because HIV was still on the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention's (HHS/CDC) list of communicable diseases of public health significance, HIV-positive applicants who applied for United States visas or entry into the United States remained inadmissible and still required waivers from DHS.
• Q: Why is the CDC removing HIV infection from both the definition of communicable disease of public health significance and the scope of the medical examination for visa purposes?
  • -- On July 2, 2009, CDC proposed a rule change to amend Title 42 of the Code of Federal Regulations (CFR), Part 34, by removing HIV from the list of communicable disease of public health significance and from the scope of the medical examination for aliens, which was published in the Federal Register as a Notice of Proposed Rulemaking (NPRM) for a 45-day public comment period.
  • -- The CDC reviewed all public comments it received and published a Final Rule in the Federal Register on November 2, 2009, which contains no changes from the NPRM. The final rule is effective January 4, 2010, and it removes HIV from the definition of a communicable disease of public health significance and references to HIV from the scope of medical examinations for aliens.
  • -- The CDC determined that while HIV infection is a serious health condition, it is not a communicable disease that is a significant public health risk for introduction, transmission, and spread through casual contact.
  • -- We refer you to the CDC for further guidance.
• Q: How does this new regulation change the visa application process for applicants who are HIV-positive?
  • -- Until the final rule goes into effect on January 4, 2010, non-U.S. citizens who are HIV-positive cannot be admitted to the United States unless granted a waiver by the Department of Homeland Security (DHS). Certain nonimmigrants may qualify for issuance of visas from consular officers without applying to DHS for waivers under a streamlined process established by DHS in its HIV Waiver Final Rule.
  • -- Effective January 4, 2010, visa applicants required to receive medical examinations will not be tested for HIV, and HIV-positive visa applicants will not be found ineligible for visas under Section 212(a)(1)(A)(i) of the INA and will not need waivers from the Department of Homeland Security (DHS) prior to being issued visas, if otherwise qualified.
  • -- Although applicants with HIV cannot be found ineligible for visas under Section 212(a)(1)(A)(i) of the INA starting on January 4, 2010, they still must overcome INA Section 212(a)(4), public charge, by demonstrating to consular officers that they will have means of support in the United States and that they, therefore, will not need to seek public financial assistance.
• Q: How will this change affect HIV-positive applicants who have previously been refused a visa?
  • -- Effective January 4, 2010 applicants who were previously refused visas only under INA Section 212(a)(1)(A)(i) and only because they were HIV positive may be eligible for a visa. These applicants may reapply for a visa. A consular officer will then determine whether or not the applicant is qualified.
• Q: How will this change affect how applicants complete their visa applicant forms?
  • -- The DS-156 Nonimmigrant Visa Application, DS-160 Online Nonimmigrant Application, and DS-230 Application for Immigrant Visa and Alien Registration forms contain the following question: "Have you ever been afflicted with a communicable disease of public health significance or a dangerous physical or mental disorder, or ever been a drug user or addict?" Effective January 4, 2010, HIV- positive visa applicants will no longer have to answer "Yes" to this question based solely on their HIV status. Applicants who are HIV-positive, and can otherwise answer "No" to the question, should answer "No" beginning on January 4, 2010.
• Q: Are there any restrictions under this new rule?
  • -- No. After the final rule goes into effect on January 4, 2010, HIV-positive visa applicants will no longer be ineligible to receive visas under Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (INA.)
• Q: How will non-US citizens with HIV find out about this new change?
  • -- All U.S. embassies and consulates will disseminate information on the final rule to the general public as necessary.
  • -- Consular officers will inform any visa applicants with HIV infection who apply for and are found ineligible for visas between now and January 4, 2010 about the final rule. Until January 4, 2010, visa applicants with HIV may still apply for waivers of ineligibly under Section 212(a)(1)(A)(i) of the INA from DHS. Certain nonimmigrants may qualify for visas without first applying to DHS for waivers under a streamlined process established by DHS in its HIV Waiver Final Rule. Alternatively, applicants previously refused visas under Section 212(a)(1)(A)(i) of the INA may opt to wait to apply for visas until January 4, 2010, when they will no longer be ineligible.
  • -- Additional guidance is available on CDC's website (http://www.cdc.gov/ncidod/dq/laws_regs/fed_reg/remove- hiv/final-rule-hiv.htm).
• Q: Before the effective date of January 4, 2010, what changes will take place for non-U.S. citizens with HIV infection who wish to enter the United States?
  • -- Until the final rule goes into effect on January 4, 2010, non-U.S. citizens who have HIV cannot be admitted to the United States without waivers granted by the Department of Homeland Security (DHS). Certain nonimmigrants may qualify for issuance of visas from consular officers without first applying to DHS for waivers under a streamlined process established by DHS in its HIV Waiver Final Rule.
• Q: Who is affected by the rule change?
  • -- Effective January 4, 2010, all non-U.S. citizens with HIV who apply for visas or who apply for entry to the United States will be affected by the final rule because they will no longer be ineligible under Section 212(a)(1)(A)(i) of the INA.
  • -- Additionally, all immigrant visa applicants and refugees and some nonimmigrant visa applicants are required to have medical examinations prior to entrance into the United States. Effective January 4, 2010, they will be affected by the final rule because it removes HIV from the scope of medical examinations for visa applicants, including HIV testing.
• Q: Will the rule change increase the risk that average Americans will contract HIV?
  • -- The CDC has determined that allowing non-U.S. citizens with HIV infection to enter the United States will not pose a health risk to the American public because HIV is preventable and not spread through casual contact or day-to-day activities.
  • -- We refer you to the CDC's website (http://www.cdc.gov/ncidod/dq/laws_regs/fed_reg/remove- hiv/final-rule-hiv.htm) for further information.

01/19/2010: DHS Announces Humanitarian Parole Policy for Certain Haitian Orphans

01/16/2010: State Department Consular Cable of December 2009 on HIV Removal From Communicable Diseas and Guidance for Processing of Visas at Visa Posts

• The CDC final rule removing the HIV from communicable diseas that rends visa ineligible is in full force since January 4, 2010. In order to implement and give a guidance for visa processing at visa posts, the State Department issued a cable in December 2009, amending Foreign Affairs Manual on this issue. Please read the cable for the full guidance.

01/15/2010: Haitian Emergency Relief Other Than TPS

• The USCIS is also offering other immigration relief to Haitians other than TPS relief. Please read and follow the following two USCIS releases of 01/15/2010:
  • USCIS Director Alejandro Mayorka's special annoucement of initial relief other than TPS
  • USCIS Q&A on such other relief
• Those who seek either Haiti TPS or other special reliefs may contact community organizations or services that may be available with or without charge. USCIS warns against potential scams that may try to take advantage of human misery.

01/15/2010: USCIS Haitian TPS Q&A Clafifying Implementation Process and Application Procedures

• The USCIS Q&A indicates that the USCIS will implement the DHS Secretary's decision to designate Haitian TPS by an emergency notice which will be published in the federal register probably after the long holidays. The notice is likely to encompass some type of protection for those eligible Haitians relating to their stay in the country pending publication of the federal register notice. For the details, please read the Q&A carefully and follow the USCIS plan of implementation which is enumerated in the Q&A.

01/15/2010: DHS Secretary Announces TPS Designation for Haitians Who Were Present in the U.S. as of 01/12/2010

• Release Date: January 15, 2010
  • "As part of the Department's ongoing efforts to assist Haiti following Tuesday's devastating earthquake, I am announcing the designation of Temporary Protected Status (TPS) for Haitian nationals who were in the United States as of January 12, 2010. This is a disaster of historic proportions and this designation will allow eligible Haitian nationals in the United States to continue living and working in our country for the next 18 months. Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this Administration's continuing efforts to support Haiti's recovery.
  • "At this moment of tragedy in Haiti it is tempting for people suffering in the aftermath of the earthquake to seek refuge elsewhere. But attempting to leave Haiti now will only bring more hardship to the Haitian people and nation. The international community has rallied to deliver relief to Haiti. Much has already arrived and much more is on its way. The Haitians are resilient and determined and their role in addressing this crisis in their homeland will be essential to Haiti's future.
  • "It is important to note that TPS will apply only to those individuals who were in the United States as of January 12, 2010. Those who attempt to travel to the United States after January 12, 2010 will not be eligible for TPS and will be repatriated.
  • "The Department of Homeland Security continues to extend sympathy to our Haitian neighbors and support the worldwide relief effort underway in every way we can. Four Coast Guard cutters have arrived in Haiti, in addition to a variety of Coast Guard assets that were already in the area to support military air traffic control, conduct damage assessments and rescue people in need of assistance. The Federal Emergency Management Agency (FEMA) continues to work closely with the U.S. Agency for International Development (USAID) and the State Department - the lead U.S. federal agencies in the response - while coordinating the deployment of state and local Urban Search and Rescue Teams from across the country to Haiti and standing by to provide food, water and other resources as requested. U.S. Customs and Border Protection (CBP) has provided aircraft to support response efforts.
• "Haitians in the U.S. who are eligible to apply for TPS should go to www.uscis.gov or call USCIS toll-free at (800) 375-5283."

01/15/2010: Amazing Changes in Immigration Benefits Applications During Last One Year: Drastic Drop of New and Pending Cases and Drastic Denial of Cases

• The immigration benefits applications statistics record as at the end of November 2009 reveals that overall new receipts had dropped 28% and pending cases dropped 44% from 3,162,606 in November 2008 to just 1,765,472. Meanwhile, denial increased 46% over November 2008 from 36,020 in November 2008 to 52,453 in November 2009. In November 2009, during the one month period, they received 39,682 I-485 applications that included all types of I-485s such as EB, FB, Asylum-based, etc. As for the I-129 employment-based nonimmigrant temporary worker petitions which include all types of EB nonimmigrant cases, the agency received only 22,738.
• For the details of Immigration Benefits and Naturalization Applications record as of the end of November 2009, please read the following statistics:
  • Immigration Benefits Applications
  • Naturalization Applications
• No wonder why the USCIS is facing a serious funding shortfalls.

01/15/2010: Alert to Low-End Wage Foreign Worker Labor Certification Employers for State Minimum Wage Changes Effective 01/01/2010 in Connecticut and Kansas States

• OFLC alertsthat effective 01/01/2010, the State Minimum Wage for the States of Connecticut and Kansas increased: The Connecticut minimum wage increased to $8.25 and Kansas to $7.25. Employers in all other states may access to their State Minimum Wages through http://www.dol.gov/esa/minwage/America.htm.

01/15/2010: USCIS Updates Processing Times (Posted 01/15/2010)

• USCIS has just posted its Service Centers and Field Offices processing times as at the end of November 2009. I-129 EB nonimmigrant petitions take 2 months or 1 month depending on the types of cases, I-140 takes 4 months across the board, and more importantly, they were processing EB-485, cases at the end of November 2009, which were received in the first week of June 2009. The July 2007 Visa Bulletin fiasco cases were long gone! Of course, the report includes only those cases for which priority dates were earlier than the cut-off date and visa numbers were available. There are a huge number of EB-485 cases which they have completed adjudication and are waiting for the visa number availability. Overall EB-485 processing shows a rosy picture. For the monthly report, please visit our homepage.

01/15/2010: Notice of Designation of 39 Countries Eligible for H-2A and H-2B Visa Programs

• The USCIS is required to publish notice the list of such eligible countries annually since such notice will be valid only for one year and the agency is required to publish the notice every year. This new notice will remain valid from 01/19/2010 to 01/18/2011. The 39 countries include: Argentina,Australia,Belize,Brazil,Bulgaria,Canada,Chile,Costa Rica,Croatia,Dominican Republic,Ecuador,El Salvador,Ethiopia,Guatemala,Honduras,Indonesia,Ireland,Israel,Jamaica,Japan,Lithuania,Mexico, Moldova,The Netherlands,Nicaragua,New Zealand,Norway,Peru,Philippines,Poland,Romania,Serbia,Slovakia,South Africa,South Korea,Turkey,Ukraine,United Kingdom, and Uruguay.
• This notice does not affect the status of aliens who currently hold H-2A or H-2Bnonimmigrant status. Please read the full text.

01/15/2010: Advance Copy of DHS Final Rule on Naturalization for Certain Persons in the U.S. Armed Forces

• DHS will publish on 01/19/2010 its final rule amending the naturalization qualification and procedure for certain persons in the U.S. Armed Forces. The amended naturalization will include, among others:
  • Reducing from three years to one year the length of time a member of the United States Armed Forces has to serve to qualify for naturalization through service in the Armed Forces;
  • Making eligible for naturalization individuals who served or are serving as members of the Selected Reserve of the Ready Reserve of the U.S. Armed Forces during specified periods of hostility;
  • Removing the requirement to submit Form G-325B, Biographic Information, with Form N-400, Application for Naturalization, for applicants applying for naturalization through service in the U.S. Armed Forces. By eliminating the Form G-325B requirement, the rule will reduce the response burden and amount of time it takes U.S. Armed Forces members to complete the paperwork required with a naturalization application
• The final rule will take effect on February 18, 2010. For the full text, please click here.

01/15/2010: Federal Government Observes Martin Luther King Jr. Federal Holiday

• For the federal government employees, a long weekend starts tomorrow and ends on 01/18/2010. The federal government including both Houses of Representatives and Senate will return on Tuesday, 01/19/2010.

01/14/2010: DOL iCERT Portal System Outage Alert

• DOL will start accepting online ETA 9141 Prevaing Wage Determination Request Form on iCert portal. Accordingly they need the portal system maintenance, and it has released the following alert for the iCert porta users:
  • The iCERT system will be unavailable starting on Wednesday, January 20th at approximately 6:00 AM EST and will not be available until Thursday January 21st at 6:00 AM EST...
    Scheduled system maintenance will be performed during this time. Please contact the OFLC help desk at oflc.portal@dol.gov for further information on the outage. For specific questions on your application, application status, or other questions that do not pertain to the outage, please contact the OFLC National Processing Center at lca.chicago@dol.gov for H-1B issues or the OFLC National Prevailing Wage and Helpdesk Center at flc.pwd@dol.gov for Prevailing Wage questions.
• DOL is scheduled to additional information to give a guide for using iCert portal to request prevailing wage determination using ETA 9141. Please stay tuned.

01/13/2010: Mr. Donald Neufeld, Current Acting Director of USCIS Domestic Operations, Takes the Position of Associate Director of Service Center Operations

• As we reported earlier, the USCIS removed the post of Directorate of Domestic Operations, splitting it into two Directorates: Service Center Operations and Field Offices Operation. Information indicates that Mr. Donald Neufeld has taken the post of Associate Director of Service Center Operations. Besides, he will be a formal Associate Director rather than an Acting Associate Director. Considering his long career with the California Service Center before he was moved to the Headquarter, this appointment is considered very appropriate. We welcome his new appointment.

01/13/2010: How to Establish Employer-Employee Relationship in Filing H-1B Employees by Consulting Company?

• During the past two years, IT consulting companies have been receiving RFEs from the USCIS demanding tons of documents.when they filed H-1B petitions. These employers must have have noticed the Service Centers were asking the employers to submit evidence to establish the "employer and employee relationship," particularly when the employees were placed at the client sites for consulting services. The standards and guidance for requiring evidence have been vague leading the adjudicators to demand a boiler place list of documents or arbitrary list of evidence. On January 8, 2010, the USCIS issued a memorandum to give guidance for determining employer-employee relationship for adjudication of H-1B petitions, including third-party site placements. Considering the fact that the problem has been encountered mostly by IT consulting businesses, this memorandum is likely to give a help for these employers to collect and file evidence in filing H-1B petitions pursuant to this guidance to alleviate RFEs. This reporter urges the consulting employers to read this memorandum carefully and try to follow the agency's guidance to alleviate receiving a boiler plate RFEs.
• For details, please read carefully the following releases:
  • Memorandum
  • Q&A

01/13/2010: House Back to Session Yesterday and Senate to Return Only on 01/19/2010

• House returned to the session yesterday without any hot legislative actions, not to mention immigration bills. Further more, the Senate is not even scheduled to return to the session until the 19th. As for the pending bills, Congress does not have any immigration bills which are positive other than a few fingers, but there are a number of "restrictive" bills, particularly in the Senate, that await the Congressional actions. The most typical of these includes Senders/Glassley 'Employ America Act of 2009.' In both Congress and the Administration, integrity of immigration benefits management may continute to receive one of the highest priorities and attention under the persisting highest unemployment rate in the nation. This is also reflected in the USCIS realignment announcement by the USCIS Director yesterday who emphasized its top prioritty to be placed on fraud detection and prevention. Please stay tuned.

01/12/2010: PERM Processing Times as of 12/31/2009

• Final Review: March 2009 (OOPS!)
• Audit Cases: December 2007
• Appeal: August 2007
• OFLC Error Review/Appeal: Current

01/12/2010: DOL Reintroduces H-2A Reengineering Final Rule

• H-2A reengineering rule-making process has gone through a lof of ups and downs. The final rule was "enacted" by the Bush White House as the last minute rule-making that may have some lasting foot-print of the departing political leaders in the farm community and constituencies. This rule has then been suspended by the Obama White House after it took the office. Now, the Obama DOL is reintroducing its version of "final rule." The fule was submitted to the OMB on 01/07/2010 for the White House clearance.
• Here is the statement on background of H-2A reengineering final rule making needs of the DOL: "The Department has determined for a variety of reasons that a new rulemaking effort is necessary for the H-2A program. The Department believes that the policy underpinnings of the 2008 Final Rule, e.g., streamlining the H-2A regulatory process to defer many determinations of program compliance until after an application has been fully adjudicated, do not provide an adequate level of protection for either U.S. or foreign workers. In addition, the Department’s experience under the program since January 2009 demonstrates that the policy goals of the 2008 Final Rule have not been met. One of the clear goals of the 2008 Final Rule was to increase the use of the H-2A program and to make the program easier and more affordable to use for the average employer. However, applications have actually decreased since the implementation of the new program. Not only has usage not increased under the program revisions, there has actually been a reversal of an existing multi-year trend toward increased program use. While factors other than the regulatory changes may play a role in this decrease, the Department can not justify the significant decrease in worker protections if the prior rules’ goal of increasing program use is not being accomplished. The Department believes that there are insufficient worker protections in the attestation-based model in which employers merely confirm, and do not actually demonstrate, that they have performed an adequate test of the U.S. labor market. Even in the first year of the attestation model, it has come to the Department’s attention that employers, either from a lack of understanding or otherwise, are attesting to compliance with program obligations with which they have not complied. Such non-compliance appears to be sufficiently substantial and widespread for the Department to revisit the use of attestations, even with the use of back-end integrity measures for demonstrated non-compliance. The Department has also determined that the area in which agricultural workers are most vulnerable – wages – has been adversely impacted to a far more significant extent than anticipated by the 2008 Final Rule. The shift from the AEWR as calculated under the 1987 Rule to the AEWR of the 2008 Final Rule resulted in a substantial reduction of farmworker wages in a number of labor categories, and the obvious effects of that reduction on the workers' and their families' ability to meet necessary costs is an important concern. "
• Please stay tuned to this website for the details of the new versions of the Final Rule.

01/11/2010: USCIS Realigns Organizational Structure

• USCIS has announced the following changes in the USCIS organizational structure: The realignment of the USCIS organizational structure was reflected in its FY 2010 USCIS budget proposal to the Congress as we reported during the period of Congressional legislation process for FY 2010 DHS Appropriations Act. The organizational structure realignment also reflects its preparation for new forthcoming management and processing concept and system for immigration benefits applications to implement the Business Transformation Program. In a way, the restructure also reflects its preparation for potential legislation of comprehensive immigration reform which will dump over 12 million legalization of undomented aliens mostly through the local field office operations.
  • Creation of a Fraud Detection and National Security Directorate, reflecting its anti-fraud and national security responsibilities. The USCIS will bring greater focus to them.
  • Creation of a new Customer Service Directorate, reflecting its prioritization of customer service and adopting the cutting edge of service modeling.
  • Break-Up of Current Domestic Operations Directorate into Two Separate Directorates: Service Center Operations Directorate and Field Operations Directorate. This means that the USCIS has removed one layer of domestic operation structure in line of command by eliminating the Domestic Operations Associate Director position. It also means that Mr. Donald Neufeld position that has been overseeing these two components has been removed. Accordingly, the Service Center Operation and the local Field Operation will fall under the direct command of the USCIS Director through the Deputy Director. The future of current Acting Domestic Operation's Associate Director, Donald Neufeld, has yet to be announced. It is also not certain whether or what other shake-ups will follow the organizational restructuring.
• See the following for the details:
  • New Organization Chart
  • Announcement of 01/11/2010

01/11/2010: EB-5 Regional Center Immigrant Investors Doubled Last Year?

• Read on.

01/09/2010: Permanent Labor Certification Program Integrity Goal and Forthcoming PERM Application Procedure Changes

• As we have reported from time to time, the federal agencies dealing with the immigrations programs have been pushing cyber programs of immigration and visa processing procedures and management programs with goals to achieve the triple primary goals, among others. One is national security, the other is detection and prevention of frauds and achieving integrity of the programs, and the third is achievment of efficiency and effectiveness of the programs through online application, processing, and management of the programs. These goals can be achieved through a concept that is consistent across the agencies allowing sharing of the data and information. Online system based on "account" system across the board will permit the agencies to achieve the goals. For the purposes, the USCIS has been developing and accelerating the "Business Transformation Program," the Department of State has also been gradually transforming visa application and management programs to online system, and the Labor Department has been developing its own program under the concept ICert Portal System.
• DOL report indicates that the Office of Management and Budget has approved revised PERM and H-1B forms and electronic programs have been developed for enhanced web-based submission using a new Foreign Labor portal system. Obviously, the new portal system named iCERT Portal System represents an integrated portal system that will encompass all of the temportary and permanent labor certification application programs. The new H-1B component was launched on April 15, 2009. However, the PERM system reengineering into the iCERT Portal System has reportedly encountered technical program which requires delays and the PERM program in iCert Portal System which has been under development is scheduled to be launched on July 1, 2010, according to the DOL report.
• However, the DOL cannot afford delaying its goals of achieving, albeit in limited fashion, integrity of the PERM program. Accordingly, it launched a new internal processing guidelines that demanded processing and adjudication process heavily focusing on checking and investigating applications for integrity of the applications. This has led to a drastic delay in adjudication of PERM application from initial less than 6-month target to 10-month processing target. According to the DOL report, the overall decrease in this measure from one year ago is due to the impact of increasing integrity activities in light of the declining economy and continued filings for positions where there are U.S. workers. (Increased integrity activities are being implemented to protect U.S. workers and satisfy statutory responsibilities and require additional processing time.)
• It thus appears that the DOL apparently planned two steps of reengineering of the PERM system for the purpose of integrity of the system. The first step was to revise the PERM application form, ETA 9089, additing features in the application that require employers and representatives to provide certain additional information that can help the job of tentative creation of account concept in the system and investigation of the application for frauds. This new form has been approved by the OMB and DOL was considering to launch the new form as early as July 2009, which has been pushed off to September 2009 and eventually so-called "indefinite" delays in launching the new form. However, according to the DOL report, the OFLC is scheduled to implement the enhanced PERM performance measure and the new PERM integrity measure at the beginning of FY 2010. Obviously, "at the beginning" did not mean October 1, 2009. At this point, for the specific schedules and timelines of the OFLC, we will have to wait and see. However, no one will be too surprised if they will launch the new form around the end of March 2010. Since the new form may represent its form under iCERT Portal System, employers may as well start studying the new form carefully to plan for their PERM application filings in Spring or Summer at the latest.

01/08/2010: February 2010 Visa Bulletin

• EB-2 India: No move (01/22/2005)
• EB-2 China: Moved to 5/22/2005
• EB-3 Worldwide: 09/22/2002
• EB-3 China: 09/22/2002
• EB-3 India: 06/22/2001
• EB-3: Mexico: 07/01/2002
• EB-3: 09/22/2002
• EB-EW: All countries - 06/01/2001

01/06/2010: USCIS Q&A of 01/04/2010: HIV Infection Removal from CDC List of Communicable Diseases of Public Health Significance

01/06/2010: USCIS Q&A of 01/05/2010: Vaccination Requirements

01/06/2010: Lamb for Initiative of Comprehensive Immigration Reform - Employment Enforcement

• The DHS and USCIS may intensify enforcement activities. In fact, there is already a sign that they have initiated. Such move is ripe because of the two factors. One is the comprehensive immigration reform history that has repeated over the years. Whenever there was a push for the CIR, the government reinforced its enforcement activities to demonstrate that the government was taking care of illegal immigration and violation of immigration laws in order to appeace both ultra right wing conservatives and ultra left progressive wings. It has been used as an overture and a bargaining chip for the CIR sponsors and supporters to work with these forces. The CIR 2010 is currently facing a difficulty because of the delays in the Healthcare Reform legislation, the resolution of which has been pushed off, according to the reports, to February 2010, and other mounting top priority issues that have developed, including national security and economic reform. Despite the hostile environment, the CIR political forces are likely to be forced to initiate the CIR reform bill in the Senate early this year, and to support such legislative move, the government must intensify the historical cycle of employment enforcement activities. There are already news reports that the key CIR sponsors in the Senate are seeking joining of pro-CIR Republican Senate leaders in the CIR process using such chips. It is uncertain, at this point, how successful such move has been. Pending the negotiation and compromise, the employment enforcement may intensify by the government including site visits and audits. The second factor is this administration's decision to go after the employers and not the employees to control unauthorized employment and immigration violation. Some observers consider such policy a politics not to offend Hispanics who are their political power base and turn out to be mostly employees, when it comes to the employment enforcement. Whether right or wrong, the employers and businesses are increasingly likely to face tough employment-based proceedings and employment authorization enforcement. It is time for the businesses and employers to reinforce their "internal compliance" system.

01/06/2010: Department of State "Reinitiates" Proposed Rule to Reform Exchange Visitor Program for Secondary School Students

• This controversial program has been under attack by media and gone through a nightmare because of poor management of homestay programs of foreign students and visitors by the Department. In response to the political fire, the Department initiated the rule-making process and even published the proposed rule, which recently ended up with the unfornate action of withdrawal of the published proposed rule because of the premature release before the completion of the OMB clearance. Now, they are starting it all over again and the Department submitted it to the OMB yesterday for its clearance and approval. Please stay tuned.

01/06/2010: DHS Seeks OMB Approval for Identification of Foreign Countries Whose Nationals Are Eligible to Participate in the H-2A and H-2B Visa Programs

• DHS submitted to the OMB today for its release of a notice for identification of foreign countries whose nationals are eligible to participate in the H-2A and H-2B temporary worker visa programs. The details have yet to be released and it is uncertain what changes it will make with the current designation of foreign countries which are eligible for these programs. Please stay tuned.

01/05/2010: USCIS Latest Update of H-1B Statistics: Who Are They, Where Are They From, and How U.S. Government Managed Them and Their Employers?

• The following two latest publications of the USCIS give readers an opportunity to learn the characteristics and origins of H-1B foreign professionals and the USCIS processsing and adjudication records. The publications were released between April and May 2009, but made available only in November 2009. These documents may also shed light on the characteristics and origins of professional foreigners who eventually settle down in this country in most cases through professional levels of employment-based immigration process with or without foreign labor certification applications in that majority of them start their immigration journeys from the nonimmigrant employment in this country. Read on.
  • Charateristics of H-1B Workers [10/01/2007 - 09/30/2008]
  • USCIS FY 2008 Annual Report to the Congress on H-1B [10/01/2007 - 09/30/2008]
• As the country witnesses one of harsh est economic downturns of the century and the international economic competition grows fiercely among the countries, this visa category has been facing increased challenges and undergoing negative reforms against the foreign workers and hightech industry.

01/04/2010: USCIS Latest Update of Employment-Based I-485 Applications Inventory Statistics 12/11/2009

• USCIS has released this latest update of EB-485 inventory statistics. This stastistics represents employment-based green card applications which are pending before the Service Centers at the time of update. For the related Q&A, please click here.

01/03/2010: U.S.-Bound Travelers From 14 Countries Reportedly Subject to Enhanced Airport Screening Process Effective 01/04/2010

• Report indicates that the Transportation Security Administration announced today that it will begin enhanced screening procedures from 01/04/2010 on any U.S.-bound air passenger traveling through "state sponsors of terrorism or other countries of interest." The four state sponsors of terrorism and ten countries of interest reportedly include the following:
• List of State Sponsors of Terrorism Countries:
  • Cuba
  • Sudan
  • Syria
  • Iran
• List of Countries of Interest:
  • Afghanistan
  • Algeria
  • Iraq
  • Lebanon
  • Libya
  • Nigeria
  • Pakistan
  • Saudi Arabia
  • Somalia
  • Yemen
• No details have been released as to the nature and types of "enhanced" screening procedures. Additionally, the State Department has not released any special travel alert visa processing guidance since the Chirstmas incident. However, the travelers from the foregoing countires may go through certain special procedures, even though it remains a speculation at this point.

01/01/2010: DOL/OFLC Announcement of New Prevailing Wage Determination Procedure in Place

• This announcement is dated January 4, 2010 considering New Year holiday and weekend holidays. The announcement states that the Office of Foreign Labor Certification’s (OFLC) National Prevailing Wage and Helpdesk Center is open and is currently accepting for processing Prevailing Wage Determination (PWD) requests for use in the H-1B, H-1B1 (Chile/Singapore), H-2B, E-3 (Australia) and the permanent labor certification programs, as well as PWD requests for use in the Commonwealth of the Northern Mariana Islands. Please read the following FAQsand Updated PWD Policy Guidance.
  • Frequently Asked Questions (FAQs) that address the filing and processing of PWD requests.
  • Prevailing Wage Determination Policy Guidance Updates for use in the Nonagricultural Immigration Programs.
• We reminded earlier importance of the employers to familiarize themselves with the technical details of filing process in order to avoid any substantial delays owing to rejections or denials.

01/01/2010: USCIS Extends Policy of Extending Validity of Medical Certification Until 01/01/2011 Beyond One Year Pending I-485 Application

• Medical certification by the immigration civil surgeons on I-693 is supposed to be valid only for one year from the date of certification. Accordingly, unless the USCIS takes a certain policy, I-485 waiters would have been required to go back to the civil surgeons to go through another medical examination and file a new sealed I-693. However, considering the backlog in I-485 application relating to its own backlog as well as visa retrogression, the USCIS has been releasing a policy in January each year extending validity of the medical certificate beyond one year pending I-485 applications. Since such policy decision is valid only for one year, the USCIS had to release new policy of extending such policy. The latest policy extending the validity of I-693 expires on 01/01/2010.
• On December 31, 2009, the USCIS issued a new policy memorandum extending the validity of medical certification at least until January 1, 2011. The policy states that "the validity of the civil surgeon’s endorsement on Form I-693, when submitted in support of an adjustment of status application, is extended until the time of adjustment if no Class A or Class B medical condition is certified by the civil surgeon in section 2, 3 or 4 of Part 2 of the Form I-693. A Form I-693 remains valid until the time of adjustment even if section 6 of Part 2 shows a Class B medical condition other than those addressed in section 2, 3 or 4. This policy will be in effect until January 1, 2011." This means that the current I-485 waiters whose I-693 on file is older than one years do not have to retake medical examination for certain part of the certification at least until January 1, 2011. We thank the USCIS for continuing its traditional policy of extending the medical certifications relieving the I-485 waiters from the time and expense of taking medical examination every year pending I-485 applications.

01/01/2010: USCIS Grants One-Time Accommodation for Sheepherders in H-2A Status

• U.S. Citizenship and Immigration Services (USCIS) announced on 12/30/2009 that it would allow H-2A workers in the sheepherding industry more time to fully transition to the three-year limitation of stay requirements under the agency’s final rule that became effective on Jan. 17, 2009. USCIS is making the one-time accommodation in deference to the industry’s prior exemption from the 3-year limitation. This exemption does not impact other H-2A categories. The time spent as an H-2A worker performing labor or services as a sheepherder prior to the effective date of the final rule will not be counted toward the 3-year maximum period of stay. Instead, USCIS is ‘starting the clock’ on Jan. 17, 2009 for sheepherders who were lawfully present in the United States in H-2A classification on that date. Any I-129 petition that was denied solely on the basis that the beneficiary, who would be performing labor or services as a sheepherder, had exceeded the three-year limitation of stay, may be reopened by initiating a Service Motion to Reopen via e-mail request to: csc-ncsc-followup@dhs.gov (include ‘H-2A Sheepherder Service Motion Request’ in the subject line). USCIS will only review denials of petitions for which it has received a written request. Such requests will be accepted through Jan. 30, 2010. No fee is required.

01/01/2010: New Prevailing Wage Determination Procedure Takes Effect on 01/01/2010

• From 01/01/2010, the employers filing temporary or permanent labor certification application must apply for the prevailing wage determination to the USDOL and not state SWA, using the new form ETA 9141. From January 1, 2010 through January 19, 2010, the prevailing wage determination form must be filed with the DOL office in Washington, D.C. at the address which is specified in the new regulation by mail or overnight delivery services only. From January 20, 2010 and onward, the form will be filed online using the iCERT portal system. When it is filed by mail, people should provide their email address so that the DOL can transmit its determination via email. Otherwise, it will send the determination only by regular U.S. mail, ignoring the filer's request to use their prepaid overnight delivery envelope.
• The new procedure affects those employers and type of labor certification applications that required prevailing wage determination by the state SWAs befor the centralization of the prevailing wage determination function at the DOL. Accordingly, unless the employer seeks a safe haven for the prevailing wage determination, the H-1B employers can keep using SOC/OES or other wage data sources which are acceptable in the Labor Condition Application for H-1B petitions. For the details, please read and follow the regulation and instructions.
• In order to assist our visitors to get access to the form and relevant information, this reporter has set up the links to the form, filing instructions, and the new regulation in our home page. Please visit our home page.

12/31/2009: Sudan TPS Extension - USCIS Official Notice in Federal Register Taking Effect Today

12/30/2009: USCIS Stakeholder Meeting with AILA and Q&A Released by USCIS

• In this stakeholder Q&A, the AILA presented a host of issues and recommendations to tackle the ongoing problems and issues. Read on.

12/30/2009: USCIS Stakeholder Q&A of 12/14/2009 on EB-5 and Investment Immigration

• USCIS answered the questions presented by the AILA and Invest In USA stakeholders on the subject on December 14, 2009. This Questions and Answers material gives a very helful information on EB-5 investment immigration of the USCIS. Read on.

12/30/2009: USCIS Transformation Program - Full Text of Concept of Immigration Benefits Program Operation

• This publication gives a full picture of the concept of the Transformation Program and the operation of immigrant and nonimmigrant benefits applications programs operation in details under the new program. This is a large and voluminous document. We post this document to give an opportunity to the immigration practitioners, employers, petitioners, and alien beneficiaries, as well as civil surgeons performing immigration examination when the Transformation Program is fully implemented. This is a good material to read during the New Year holiday period. Read on.

12/30/2009: USCIS Scheduled to Publish Notice of Extension of TPS Designation for Sudan Tomorrow

• The advance copy indicates that the designation will be extended for 18 months from its current expiration date of May 2, 2010, through November 2, 2011. The registration for extension of TPS will start tomorrow and continue for 60 days from tomorrow. The qualified applicants should file registration as soon as possible, certainly within the 60-day period.
• See also the following:
  • USCIS Announcement
  • USCIS Q&A

12/28/2009: Short-Lived State Department Proposed Rule for Reform of Exchange Visitor Program for Secondary School Students

• On December 23, 2009 the State Department published in the Federal Register a proposed rule titled Exchange Visitor Program – Secondary School Students. The Department revised existing regulations to provide greater specificity and clarity to sponsors of the Secondary School Student category with respect to the execution of sponsor oversight responsibilities under the exchange visitor program. This rule is being withdrawn because it was submitted prior to OMB completing review. The proposed rule is withdrawn in its entirety. Hmm...........................

12/28/2009: Congress Legislative Schedules

• The First Session of 111th Congress practically ended on the Christmas Eve after the Senate passed the House-Senate current resolution relating to the opening schedules of the Second Session of 111th Congress that start with January 4, 2010. The concurrent resolution indicates that the House may practically remain adjourned until 01/12/2010, and the Senate, until 01/19/2010 unless the two leaders of both chambers decide otherwise for emergent matters. Because of such Congressional schedules, we often take February of a year as the month that activates legislative activities. There are two hot legislative agenda which are hangining in there regarding health care compromise and energy legislation that call for the Congress attention at the beginning of the Second session.
• Earlier we predicted unless the Congress resolves the comprehensive immigration reform bill by May 2010, the chance for the CIR in 2010 may be very slim because of the current legislative priorities in the Congress, limited legislative schedules before the summer, and anticipated heat of the Mid-Term national election in 2010. We will keep our readers posted of the activities in the Beltway as we get into the new session of the Congress. Please stay tuned.

12/26/2009: OMB Clears USCIS Extension of TPS Designation for Sudan

• On 12/23/2009, the OMB approved the USCIS plan to extend the TPS designation for the natonals of Sudan. The notice of TPS designation extension will be published in the federal register soon. Please stay tuned to this website.

12/24/2009: Prevailing Wage Determination Procedure Changes Effective 01/01/2010 and Potential Delay in Obtaining Prevailing Wage Determination to Initiate PERM Applications

• As we posted earlier, the DOL is centralizing the prevailing wage determination function at the DOL and state offices that have been performing the prevailing wage determination will be faced out effective January 1, 2010. There were a few state SWAs that had experienced delays in prevailing wage determination in the past but most of the SWAs have provided the prevailing wage determination in a matter of a day or a few days, allowing the employers to initiate the PERM recruitment process fairly quickly. This will turn into a history. It is expected that the prevailing wage determination by the federal office will cause delays in the prevailing wage determination at least for a number of reasons. Firstly, the new procedure requires to file the prevailing wage determination request only in papers by mail or overnight delivery services at least until January 20, 2010 when the procedure will turn into an online filing using iCERT system. When the requests are received in papers and by mail, obviously the agency may have to perform data entry into their system which requires resources and will take time. Secondly, just as the employers currently experience with the problems with the online LCA filing for H-1B through iCERT system, until the employers are accustomed to the new online filing procedures, it is likely that initially the system may produce a lot of denials for a while because of the filers' lack of familiarity with the technical details of filing out the online forms. The SWAs have been instructed to take the prevailing wage determiantion request until 12/31/2009, but considering the fact that there are only less than four working days before January 1, 2010, employers may not be able to seek the determination by the state offices timely.
• Without this problem, the PERM applications have been taking minimum of ten months to receive the decisions. The delay in obtaining prevailing wage determination will certainly cause delays in the initiation of the recruitment process for filing the PERM applications. Such delays must be added to the agency's processing delays for employers to plan on filing PERM applications coming year.

12/24/2009: USCIS Issues Memorandum on 12/22/2009 for Guidance on the Continuous Residence Exception for Naturalization Applicants Who Worked as Translators or Interpreters in Iraq or Afghanistan

• This law has been in effect since June 15, 2007. Under the law, such applicants are presumed not to have broken their "continuity" of residence during the time they were performing those services. This memorandum reminds, among others, the following two points. Firstly, the benefits extend to applicants who performed the qualifying employment "prior" to June 15, 2007. Secondly, this law provides exception for the "continuious residence" issues only and not "physical presence" requirements for naturalization for those applicants. For the details of these points and other important issues, those N-400 applicants who worked as a translator or interpreter in Iraq or Afghanistan may want to read the full text of this memorandum.

12/23/2009: Full Text of 'H-2B Program Reform Act of 2009' Sponsored by Rep. Zoe Lofgren of California

• The Congresswoman is proposing to reform the current H-2B nonagricultural temporary worker program adding a strong teeth of labor unions. Please read the full text of this bill.

12/22/2009: H-1B Cap Reached on 12/21/2009

• USCIS announces that as of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009 USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.

12/22/2009: Advance Copy of State Department Proposed Changes in Exchange Visitor Program Rule for Post Secondary Students

• Recent incidents of placement of exchange students with unsuitable host families have brought the Department, Congress, the American public, and members of the exchange community together in an initiative to upgrade this program to ensure a safe and positive exchange experience for every foreign student invited to participate in this exchange program. To achieve this goal, the Department has engaged in a series of actions and outreach to focus the Secondary School Student exchange industry on best practices and continued improvement in selection and monitoring of host families and students. The proposed changes focus on six areas: 1) the utilization of a standard application form for all host family applications; 2) the requirement for photographs of all host family homes (to include bedrooms, living areas, kitchen, outside of house and grounds) as part of the host family application process; 3) whether the host family application references should include references from family members or local coordinators, and whether one reference should be from the school in which the student is enrolled; 4) whether fingerprint-based criminal background checks should be required of all adult host family members and sponsor officers, employees, representatives, agents and volunteers who come, or may come, into direct contact with the students, and whether guidelines regarding the interpretation of criminal background checks are needed; 5) the establishment of baseline financial resources for potential host families, and 6) the establishment of limitations on the composition of potential host families. This proposed rule will be published in the federal register tomorrow with 60-day comment period. For details of the proposed changes, please read the proposal.

12/18/2009: USCIS Notice of N-400 Filing Address Change Effective "Immediately"

• USCIS has released an important notice for naturalization applicants that the filing addresses have changed effectively immediately. Read on.

12/17/2009: When Will FY 2010 H-1B Cap Reach?

• Today, the USCIS released its statistics that they had received 64,200 as of 12/15/2009, Tuesday. From this statistics, everyone knows the imminency of reach of the annual cap. The question remains "how soon?" The statutory annual cap is 65,000 and some people may misunderstand that they have only 800 numbers available before they announce reach of the annual cap. However, that is not the way how it works. There are two wild cards relating to the USCIS policy to determine reach of the annual cap. One is the H-1B1 numbers of Singapore and Chile which are included in the total figure of 65,000. If they take out these numbers, the annual cap stands at 58,200. The unused H-1B1 numbers will be eventually pooled back into the annual cap, but we are still in the first quarter of FY 2010 and even if the number of filing of H-1B1 are known to be very low, the agency may not be able to include all of these numbers to determine the date of announcement of the reach of annual cap. Accordingly, we cannot count too much on these special numbers to figure out the available balance of H-1B cap numbers at this point. The more important wild card is the agency's statistics of denials, revocations, and withdrawals. In old days, they estimated that approximely 10% of total filings ended up with denials, revocations, and withdrawals. Accordingly, the agency announced reach of the annual cap once they received cap numbers PLUS additional 10% of the cap numbers to announce the reach of the cap and close the fiscal year H-1B cap filings. However, one does not have to be rocket scientist to learn how the rate of denials, revocations, and withdrawals have increased lately in the enforcement environment under the microscope. The agency has never released the current rate or recent rate, but there was some information or discussion in various meetings and releases that it could be about 15% or higher. Assuming that this is the rate, 15% of 58,200 constitutes 8,700 and adding these two figures up, the probable number they would need to announce reach of annual cap might have been 66,900 or less, assuming that the agency would not proactively borrow and add their estimated available H-1B1 cap numbers to the regular cap numbers.
• Would we then assume 66,900 as the cut-off figure for the agency to announce reach of the cap? Nope! This calculation could have worked if the annual cap had reached in one day or two days or less than 10 days as we experienced in earlier years. But this year, even after eight (8) months have passed from April 1, 2009, the annual cap is yet to reach. The trick is the basis of the agency's periodic release of cap counts this year. When they announced the cap counts, they added that the cap count had been slow and very low "considering denials, revocations, and withdrawals." Accordingly, the period release of cap count could already have taken out the numbers of denials, revocations, and withdrawals when they released the periodic cap counts. Accordingly, unless the agency includes some of estimated unused H-1B1 cap numbers , it is evident that the reach of annual cap may be very imminent. They may release announcement on one of the next few days either after they have received more numbers and giving additional date)s) to close filing with scheduling of H-1B lottery for the cases which the agency have received on the announcement date and the following dates. We will witness the thrill of waiting for the announcemnent, probably early next week or even as early as at the end of tomorrow, which we experienced in earlier years on April 2 or April 9 or 10. Please stay tuned.

12/17/2009: Sunset of Disadvantaged Area H-1C Nurse Visa Law on 12/21/2009 and USCIS Guidance

• For the past three years, this law authorized upto 500 special nonimmigrant nurse visas of H-1C in certain disadvantaged areas, but this law is scheduled to sunset at the end of the day of December 21, 2009, Monday. Since the Congress has failed to extend this program, the USCIS has just released its announcement that the USCIS will accept petitions only until Monday, Dec. 21, 2009. It also states that this expiration does not affect the ability of H-1C nurses currently in status to continue employment during their authorized period of stay or the authority of USCIS to adjudicate a petition properly filed on or before Dec. 21, 2009, or the eligibility of the beneficiary of an approved H-1C petition to be admitted to the United States as an H-1C nonimmigrant. Read on.

12/17/2009: H-1B Cap Count as of 12/15/2009=64,200

12/17/2009: "Legible" Version of Full Text of Gutierrez CIR Bill

• The is the officially published text of the bill which is legible and also gives other information on the development of the bill.
• Readers may compare this bill with his 2007 CIR bill entitled 'STRIVE ACT of 2007'

12/17/2009: Gutierrez CIR Bill and Stake of Nonimmigrant High Tech Professional Workers H-1B Visa Program

• The H-1B visa program has been under assault politically and administratively for the last few years and any comprehensive immigration reform proposal cannot bypass the reform of H-1B visa program. ComputerWorld analyzes and reports the impact of this bill. Simply put, the bill sponsors attempts to politically accomodate both H-1B program opponents, such as Sen. Sanders, Sen. Grassley, and Sen. Durbin, and H-1B program proponents, high tech industry and higher learning institutions, by increasing the high tech worker numbers by creating a new visa and allowing recapture of over 320 ,000 H-1B cap numbers which have been wasted and unused cap number for 17 years and at the same time imposing requirements for mandatory market test prior to filing a H-1B petition and other conditions and requirements. Read on.

12/17/2009: Bill Introduced to Grant Israelis Nonimmigrant Trader and Investor Visas

• Rep. Anthony Weiner of New York introduced H.R.4406 yesterday to render nationals of Israel eligible to enter the United States as nonimmigrant traders and investors. Identical status currently granted to certain nationals of countries that have such international treaty with the United States in the forms of E-1 and E-2 visas. For the details, please stay tuned.

12/17/2009: Rep. Zoe Lofgen of California Introduces Legislative Bill to Reform H-2B Non-Agricultural Nonimmigrant Temporary Worker Visa Program

• Yesterday she introduced this bill, H.R.4381, to reform the H-2B program. For the details, please stay tuned to this website.

12/16/2009: Full Text of Gutierrez Comprehensive Immigration Reform Bill, H.R. 4321

12/16/2009: USCIS Updates Its Monthly Processing Times Report Today

• See our home page.

12/16/2009: Half-Day Closing of Federal Executive Departments and Agencies on Thursday, December 24, 2009, Christmas Eve

• The President issued an executive order to this effect.

12/16/2009: Rep. Gutierrez Comprehensive Immigration Reform Bill, H.R. 4321

• Immigration Policy Center Summary
• This bill is anticipated to face a strong reaction from the opposite party PLUS employment-based immigration reform supporters, potentially further weakening the chance for the reform legislation in 2010. See presumedly CIR supporting media reaction.
• Bill sponsors: Mr. ORTIZ (for himself, Mr. CONYERS, Mr. SERRANO, Mr. RANGEL, Mr. PASTOR of Arizona, Mr. STARK, Mr. GUTIERREZ, Mr. WAXMAN, Mr. BECERRA, Mr. FRANK of Massachusetts, Ms. ROYBAL-ALLARD, Mr. BERMAN, Ms. VELÁZQUEZ, Mrs. CHRISTENSEN, Mr. HINOJOSA, Mr. TOWNS, Mr. REYES, Mr. LEWIS of Georgia, Mr. BACA, Mr. PALLONE, Mr. GONZALEZ, Mr. ANDREWS, Mrs. NAPOLITANO, Mr. MCDERMOTT, Mr. GRIJALVA, Mr. ENGEL, Mr. CUELLAR, Mr. FALEOMAVAEGA, Mr. SALAZAR, Mr. NEAL of Massachusetts, Mr. SIRES, Mr. ABERCROMBIE, Mr. LUJÁN, Ms. NORTON, Mr. PIERLUISI, Mr. MORAN of Virginia, Mr. SABLAN, Mr. NADLER of New York, Mr. OLVER, Ms. WATERS, Ms. CORRINE BROWN of Florida, Mr. FARR, Mr. FILNER, Mr. GENE GREEN of Texas, Mr. HASTINGS of Florida, Ms. EDDIE BERNICE JOHNSON of Texas, Mrs. MALONEY, Mr. RUSH, Mr. SCOTT of Virginia, Ms. WOOLSEY, Mr. BLUMENAUER, Mr. FATTAH, Mr. JACKSON of Illinois, Ms. JACKSON-LEE of Texas, Mrs. CAPPS, Mr. DAVIS of Illinois, Ms. DEGETTE, Ms. KILPATRICK of Michigan, Mr. KUCINICH, Ms. LEE of California, Mr. MCGOVERN, Mr. MEEKS of New York, Ms. SCHAKOWSKY, Ms. BERKLEY, Mr. CAPUANO, Mr. CROWLEY, Mr. WEINER, Mr. CLAY, Mr. HONDA, Mr. ISRAEL, Ms. WATSON, Ms. BORDALLO, Mr. MEEK of Florida, Mr. CLEAVER, Mr. AL GREEN of Texas, Ms. MATSUI, Ms. MOORE of Wisconsin, Mr. CARSON of Indiana, Ms. CLARKE, Ms. EDWARDS of Maryland, Mr. ELLISON, Ms. FUDGE, Ms. HIRONO, Mr. JOHNSON of Georgia, Mr. PERLMUTTER, Ms. RICHARDSON, Mr. WELCH, Ms. CHU, Mr. HEINRICH, Ms. PINGREE of Maine, Mr. POLIS of Colorado, and Mr. QUIGLEY).

12/14/2009: USCIS Full Implementation of New Law Providing Permanent Residence Eligibility for Surviving Spouses and Children of U.S. Citizens

• See announcement.
• For additional details, please read the Memorandum.
• Fact Sheet

12/14/2009: H-1B and H-2B Cap Count as of 12/11/2009

• H-1B=62,900
• H-2B First Half=31,186
• H-2B Second Half=2,537

12/13/2009: Scope of Sanders-Grassley 'Employ America Act of 2009'

• These Senators previously sponsored H-1B amendment legislation prohibiting TARP-funded employers from hiring new H-1B workers unless the attestations of recruitment and no displacement of U.S. workers are made. This H-1B restriction for TARP-funded employers is currently in effect.
• Employ America Act marches foreign worker employment restriction legislation in different context. This proposed bill is not limited to a single immigration program of H-1B but restrictions for hiring of any foreign workers and such foreign workers' loss of employment in the event the employers faill into this category. The bill is predicated on certain employers' filing notice of a mass layoff pursuant to the Worker Adjustment and Retraining Notification Act and for readers to understand the parameters of this proposed Senate bill, the readers should read both this bill and the relevant sections of Worker Adjustment and Retraining Notification Act. Until this proposed bill and related statute are fully digested and posted, readers may have access to the bill and the statute through the following links:
  • Full text of 'Employ America Act' bill
  • Relevant sections of Worker Adjustment and Retraining Notification Act.

12/13/2009: Scope of EB-5 Regional Center Permanent Program Legislative Bill

• This bill which is pending in the House involves much more than turning the immigration program from a temporary pilot program to a permanent program in the immigration statute. Some of the key changes this bill propose include:
  • Availability of Premium Processing Services: Unlike the current premium processing services, this bill proposes 60 days instead of 15 days for this program only. Additionally, for this special premium processing services, the government is to charge $2,500 instead of $1,500 for the premium processing fees.
  • This bill will allow concurrent filing of I-485 application with the underlying investment immigration petition.
  • The filing fee will be increased to $2,500.
  • The bill proposes to increase the annual visa numbers for this program from 3,000 to 10,000.
  • The bill proposes to expand 245(k) relief to EB-5 Regional Center petion based I-485 application eligibility. Currently 245(k) is not available for the I-485 applicants who file the green card application based on this program.
  • The bill also expands the parameters of EB-5 Regional Center eligibility.
• For the full text of the bill, read H.R.4259.

12/12/2009: H-1B Cap Count as of 12/10/2009: 62,500

12/12/2009: Additional Information on State Department EB Visa Number for FY 2010 Predictions as to Timeline

• AILA reports that the State Department official discussed some of the EB visa number predictions in November before the January 2010 Visa Bulletin was released. The information is very much coincide with the Visa Bulletin. However, the information gives prediction of visa number progression timelines for various EB visa categories. The timeline predictions appear to be:
  • Worldwide EB-3: The cut-off date was predicted to start to move forward in January or February 2010.
  • India EB-3: There were 58,000 applications pending for the FY 2010 and it predicted that numbers would move forward up to 5 weeks altogether for the entire FY 2010.
  • India and China EB-2: State Department predicted that annual limits would reach no later than May 2010, but because of the anticipated otherwise unused 2nd preference visa numbers, the cut-off dates may progress to October-December 2005. It is a promising information which was not made available in the Visa Bulletin. But prediction is a prediction and people will have to wait and see.
• Considering the terrible EB-3 prediction for Indians, the EB-3 prediction for worldwide is considered more or less promising.

12/11/2009: Congressman Gutierrez of IL Announces His Schedule to Introduce CIR Bill on 12/15/2009

• The bill will be titled Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP). Please stay tuned.

12/11/2009: Advance Copy of Proposed New Schedule of Consular Service Fees

• The State Department will publish this proposed rule notice in the federal register tomorrow to raise the consular nonimmigrant visa application fees and other consular service fees. After 60-day of comment period, the State Department will be ready to seek final rule reflecting the comments and as soon as it obtains the OMB approval, it will publish the legally binding new schedule of fees. Accordingly, earliest the new fee when the new fees will be charged will be not until Spring of 2010. Please stay tuned.

12/11/2009: EB-5 "Permanent" Regional Center Program Bill Introduced in the House 12/10/2009

• Yesterday, Representative Jared Polis of Colorado silently introduced H.R.4259 in the House to permanently reauthorizing the EB-5 regional center program to facilitate investment in the United States. Such bill was previously introduced in the Senate and failed. We will see whether this revived move will make it this time around.

12/10/2009: USCIS Memorandum with Specific Guidance for Handling H-1B Petitions Without "Certified" LCA and With Proof of "Pending" LCA

• This memorandum lays out detailed guidance over and beyond its initial announcement as a news release, and employers and practitioners should review this memorandum carefully. There are three points which need special attention in this memorandum. These three key points include:
  • This temporary policy applies only to the H-1B petitions "filed" between November 5, 2009 and March 4, 2010, four months from the date of this memorandum. Any H-1B petitions which are received after March 4, 2010 without the "certified" LCA will be rejected.
  • The "certified" LCA must be submitted in 30 days after filing the H-1B petition without the certified LCA. If the certified LCA is a different LCA, the H-1B petition will be denied. For instance, if the employer files LCA and files H-1B petition immediately after 7 calendar days from the date of LCA filing and the LCA is denied for whatever reasons including FEIN issue, the H-1B petition will be denied. The DOL is required to decide LCA in 7 calendar days, but in the past, there were some LCAs which the DOL failed to decide in 7 days. It is thus risky if the employers file a H-1B petition before the employers file a "new" LCA after the initial LCA is denied and DOL resolved the issues for the denial in writing.
  • For untimely filed H-1B petitions after expiration of I-94 for extension of status or change of status, adjudicators are instructed to review the totality of the circumstances for exercise of nunc pro tunc relief under 8 CFR 214.1(c)(4) or the relief under 8 CFR 248.1(b)(l), "provided that" the petitioner submited evidence that the late filing was "solely" due to DOL processing delays of LCAs and no other reasons. This guidance applies regardless of whether the petition was filed before or after the 120-day acceptance window period of time. Accordingly, those employers who file H-1B petitions at the last minute and fail to receive decision of their initial LCA may want to review and and assess very carefully the course of action between option in the foregoing paragraph and option in this paragraph.
• It is hoped that DOL improves the LCA processing system such that the employers do not face a hard decision and are forced to make such decision at the last minute.

12/10/2009: News for International Medical Graduates (IMG) From ECFMG on Fee Increases

• Effective January 1, 2010, the fees for those applying to ECFMG for USMLE Step 1, Step 2 Clinical Knowledge (CK), and Step 2 Clinical Skills (CS) will increase. The examination fees for USMLE Step 1 and Step 2 CK will increase from $710 to $740 for each exam registration. The examination fee for Step 2 CS will increase from $1,200 to $1,295 for each exam registration. Additionally, it is expected that Prometric(tm) will increase the Step 1/Step 2 CK international test delivery surcharges, which apply to applicants who choose a testing region other than the United States/Canada. ECFMG will post additional information on the increases to the international test delivery surcharges to the ECFMG website as it becomes available. Both the new examination fees and the new test delivery surcharges will be assessed for all Step 1, Step 2 CK, and Step 2 CS applications submitted to ECFMG on or after January 1, 2010.
• For more information on the fees and surcharges associated with applying for USMLE Step 1, Step 2 CK, and Step 2 CS, refer to Fees in the ECFMG Information Booklet, available on the ECFMG website at www.ecfmg.org.

12/10/2009: State Department Predictions (Estimate) for EB Cut-Off Date for Remainder of FY 2010 (09/30/2010)

• EB-2:
  • China: July through October 2005
  • India: February through March 2005
  • (If Section 202(a)(5) were to apply, China and India: October through December 2005)
• EB-3:
  • Worldwide: April through August 2005
  • China: June through September 2003
  • India: January through February 2002
  • Mexico: January through June 2004
  • Philippines: April through August 2005
• State Department Explanation of the Numberical Constrol System and Cut-Off Date Projections
  • WHAT CAUSES THE ESTABLISHMENT OF CUT-OFF DATES?
    • The Visa Office (VO)subdivides the annual preference and foreign state limitations specified in the Immigration and Nationality Act (INA) into twelve monthly allotments. The totals of documentarily qualified applicants that have been reported to VO are compared each month with the numbers available for the next regular allotment and numbers are allocated to reported applicants in order of their priority dates, the oldest dates first.
    • - If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered "Current." For example, if the Employment Third preference monthly target is 3,000 and there are only 1,000 applicants, the category is considered "Current."
    • - Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be "oversubscribed" and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the Employment Third preference monthly target is 3,000 and there are 8,000 applicants, a cut-off date would be established so that only 3,000 numbers would be used, and the cut-off date would be the priority date of the 3,001st applicant.
    • Applicants entitled to immigrant status become qualified at their own initiative and convenience and upon the completion of various processing requirements. Therefore, it is extremely important to remember that by no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action. On the contrary, visa allotments are made only on the basis of the total applicants reported qualified each month, and consideration of other variables. Demand for visa numbers can fluctuate from one month to another, with an inevitable impact on cut-off dates.
  • HOW IS THE PER-COUNTRY LIMIT CALCULATED?
    • Section 201 of the INA sets an annual minimum Family-sponsored preference limit of 226,000, while the worldwide annual level for Employment-based preference immigrants is at least 140,000. Section 202 sets the per-country limit for preference immigrants at 7% of the total annual Family-sponsored and Employment-based preference limits, i.e. a minimum of 25,620.
    • - The annual per-country limitation of 7% is a cap, meaning visa issuances to any single country may not exceed this figure. This limitation is not a quota to which any particular country is entitled, however. The per-country limitation serves to avoid monopolization of virtually all the visa numbers by applicants from only a few countries.
    • - INA Section 202(a)(5), added by the American Competitiveness Act in the 21st Century (AC21), removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available. In recent years, the application of Section 202(a)(5)has occasionally allowed countries such as China-mainland born and India to utilize large amounts of Employment First and Second preference numbers which would have otherwise gone unused.

12/10/2009: Family-Based Cut-Off Date Projections of the State Department for FY 2010

• Cut-off date movement in most categories continues to be greater than might ordinarily be expected, and this is anticipated to continue for at least the next few months. This is because fewer applicants are proceeding with final action on their cases at consular posts abroad, and the volume of CIS adjustment cases remains low. Once large numbers of applicants begin to have their cases brought to final action, cut-off date movements will necessarily slow or stop. Moreover, in some categories cut-off date retrogression is a possibility. Therefore, readers should be aware that the recent rate of cut-off date advances will not continue indefinitely, but it is not possible to say at present how soon they will end.

12/10/2009: January 2010 Visa Bulletin

12/10/2009: Replay of DOL/ETA Live Q&A Session of 12/08/2009 on DOL/ETA Regulations and Prevailing Wages

• We reported on 12/08/2009 that DOL was hosting live online Q&A Session on the topic. This replay gives opportunity for those who missed the session.

12/09/2009: H-1B Cap Count as of 12/08/2009=61,500

• Maybe coming close to the cap.

12/09/2009: Death of U.S. Citizen and Immigration Petitioners and Immigration Benefits of the Surviving Family Members

• The law and rule on this issue have been heavily litigated and lobbied for passage of legislation. When the Congress passed and the President signed DHS Appropriation Act of 2010, a bill relating to this issue was included, together with the extension of sunsetting immigration programs. An immigration attoney who dedicated himself to this issue has written and released an article on the specifics of this legislation. No one wants to see U.S. citizen and permanent resident spouse or parents deceased, but it is a fact of life that everyone can face from time to time. This reporter encourage readers to read this well-deserved article. Read on.
• USCIS Fact Sheet

12/08/2009: EB Visa Number Retrogression and I-485 Applicant's Wonderland With Multiple Approved I-140 Petitions of Same or Different Preference Classifications

• There are a large number of I-485 applicants with multiple approved I-140 petitions with different priority dates and different preference classifications. The key for survival in the green card journey other than the opportunity to change of employment under AC 21 Act involves many different and extremely confusing legal tools. One is 'transfer of another approved I-140 to the pending I-485." The other is "transfer of pending I-485 applications from the I-140 petitions which was concurrently filed with the I-485 application to another stand-alone approved I-140 petition. The third is "recapture of priority date(P/D)" with or without amendment of the petition. These three legal tools are complicated enough, but there are additional variants that affect these legal tools. One is the question underlying I-140 petition: whether I-485 petition was filed with earlier priority date I-140 petition or with later priority date I-140 petition. The other is whether mutilple I-140 petitions were filed by the same employer or different employers. The following matrix should encompass most of EB-485 applicants with multiple approved I-140 petitions and help the readers to understand how their case fits into the matrix and which legal tools are available in their individual situation.

	Earlier P/D Approved I-140	Later P/D Approved 2nd I-140	Remarks
EB Classifications	EB-3	EB-3	(A) Same Employer: P/D recapture issue only. Different Employer: Again P/D recapture issue only (B) Same Employer: P/D Recapture issue only Different Employer: Again P/D recaputrre issue only
	EB-3	EB-2	(A) Same Employer: P/D Recapture & I-485 or I-140 transfer. Different Employer: P/D recapture & I-485 transfer to EB-2 petition (B) Same Employer: P/D recapture only. Different Employer: P/D recapture only
	EB-2	EB-3	(A) Same Employer: Inconceivable. Different Employer: P/D Recapture only. (B) Same Employer: Inconceivable. Different Employer: P/D Recapture only
	EB-2	EB-2	(A) Same Employer: Inconceivable. Different Employer: P/D recapture only. (B) Same Employer: Inconceivaable. Different Employer: P/D recapture only.
Pending I-485 & Underlying I-140 (A)	Pending I-485 Concurrently filed with above I-140 petition
Pending I-485 & Underlying I-140 (B)		Pending I-485 Concurrently filed with above I-140 petition

• Foregoing matrix is drawn on the basis of the immigration rules including: (1) Eariler priority date is retained and can be recaptured regardless of change of employer; (2) Recapture of priority date does not accompany transfer of the preference classification of the earlier petition. (3) Change of preference classification is available only by transfer of the favorable I-140 petition to the pending I-485 or transfer of pending I-485 application to the favorable I-140 petition. (3) The approved I-140 petition or pending I-485 cannot be transferred unless (a) visa number is current for the favorable approved I-140 petition and both favorable and unfavorable I-140 petitions must be "valid" at the time of transfer. Accordingly, if the approved I-140 petition from which one wants to tranfer to a favorable approved I-140 petition is revoked or withdrawn or invalid for other reasons, transfer of I-140 petition or I-485 application is not available. (b) Once I-140 or I-485 is transferred, the current USCIS policy/practice indicates that transfer-back to previous situation will not be allowed.
• Foregoing matrix applies only to the I-140 beneficiary alien and neither priority date nor preference clasifications can be transferred to other aliens. One time priority date transfer was available in the context of substitution of the beneficiary of certified labor certification, but such substitution has been eliminated. The spouse's priority date is determinated by the principal alien's priority date in the event that the spouse filed I-485 application as the derivative dependent beneficiary. Accordingly, priority date recapature or transfer of pending I-485 for the dependent spouse depends on the principal alien's situation in the foregoing matrix. However, should the dependent spouse be a professional with a preferred preference classification and preferred priority date for his or her own approved stand-alone I-140 petition, the couple can switch around the role if the spouse's priority date is current by the spouse transfering his or her own I-485 to his or her own stand-alone approved I-140 petition as principal alien beneficiary and his or her previous principal alien tagging along and transfer his/her own I-485 application as dependent beneficiary of her spouse's approved I-140 petition. Such transfer of I-485 is available only when the spouse's stand-alone I-140 priority date becomes current. Bear in mind, though, that once the couple switch their roles and transfer the pending I-485 applications, the agency may not allow to switch back to the previous situation.
• The foregoing matrix and desription are drawn from this reporter's understanding of the rules and should not be considered laws. People should seek legal counsel for the issues of laws and should not rely on this article. This reporter or law firm will not be responsible for the consequences of reliance on this article.

12/08/2009: New H-1B and H-2B Cap Counts As of 12/04/2009

• The new cap count which the USCIS released today shows:
  • H-1B Cap Count: 61,100
  • H-2B Cap Count: 30,120 (for the first Half) and 1,492 (for the 2nd Half)
• "The USCIS will continue to accept both cap-subject H-1B petitions and advanced degree H-1B petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn."

12/08/2009: USCIS "Local" and "National" Outreach Program and Session Schedules and Contacts

• These outreach schedules and contacts involve the programs at local and national levels. Today, from 9:00 am to 11:00 am (EST), there will be live national stakeholder meeting for "Year in Review."

12/08/2009: DOL/ETA Goes "Live Q&A" Sessions: Today's Topic - Rule Making Agenda at Noon (EST)

• Those who may be interested in the DOL agenda may participate in the live Q&A session today. We welcome the public relations move of the agency. The USCIS launched such move beginning from August 2009.

12/07/2009: PERM Processing Times as of November 30, 2009

• Final Reviews: February 2009
  Audits: November 2007
  Standard Appeals: August 2007
  Gov't Error Appeals: Current

12/07/2009: USCIS Summary of Its Community Collaborative Session Q&A on Upcoming New Electronic Filing System

• USCIS hosted the first of multiple collaborative information exchange sessions on Thursday, November 19, 2009, to discuss a new method for electronic filing which involves the transfer of data directly through a system-to-system interface. The purpose of this first session was to introduce the initiative and discuss the role of stakeholders in the development and implementation of the External Data Interface Standards, or “EDIS.” The release includes a summary of event and Q&A, as well as links to additional information regarding EDIS. Stakeholders and immigrants may want to familiarize themselves with the upcoming filing procedural changes. Read on.

12/07/2009: State Department Proposed Rule to Increase Consular Processing Fees Clears the OMB

• The proposed fee increase rule is expected to be published soon with 60-day comment period ending in February 2010. The rule raises from $131 to $140 the fee charged for the processing of an application for most non-petition-based nonimmigrant visas (Machine-Readable Visas or MRVs) and adult Border Crossing Cards (BCCs). The rule provides new application fees for certain categories of MRVs. The rule increases from $13 to $14 the BCC fee charged to certain Mexican citizens who apply in Mexico. For other details, please stay tuned to this website for the release of proposed rule in the federal register.

12/07/2009: DHS Intends to Extend TPS Designation for Sudan

• DHS requests OMB to clear its plan to extend the TPS designation for Sudan. Please stay tuned.

12/06/2009: H-1B Cap Count as of 11/27/2009: 58,900

• As we reported earlier, the regular annual H-1B cap is 58,200 excluding Singapore and Chile H-1B1 cap numbers. The USCIS is, however, taking certain additional numbers beyond 58,200 considering their estimate rejection, redenial, withdrawal, and revocation cases. It is thus obvious that the agency may announce reach of the H-1B cap sooner or later. Please stay tuned.

12/06/2009: USCIS New Semi-Annual Rule Making Agenda

• The USCIS new rule-making agenda will be released tomorrow. This agenda shows the rule making plans, which can be implemented or delayed or abandoned depending on the change of circumstances and policies, but it gives some ideas as to what new rule-making they are considering at this time. Following represents a part of the list which our reader may find interesting:
  • Immigration fee adjustment rule: Considering releasing of the proposed rule in May 2010 with the 60-day comment period. Initially, the agency was planning to release December 2009. In this regard, the plan has been pushed off.
  • Termination of I-140/I-485 concurrent filing system and adoption of pre-registration system for I-485 applications: Initially this proposed rule was scheduled to release in December 2009, but the plan has been pushed off for six months. The new plan considers release of this proposed rule in June 2010.
  • Electronic Signature on Applications and Petitions for Immigration and Naturalization Benefits: Final action is considered in January 2010. The change is considered to allow the USCIS to begin accepting electronically filed applications and petitions as required by law. By accepting electronically filed applications and petitions, the USCIS expects to streamline its information collection process and to improve customer service.
  • Immigration Benefits Business Transformation, Increment I: Considers to release this month, December 2009. There may be a slight delay, though. The USCIS is beginning a phased multi-year business transformation initiative to restructure its business processes and related information technology systems. This will enable USCIS to migrate from a paper forms-based, non-integrated systems environment to an electronic customer-focused, centralized case management environment for benefit processing. The Department of Homeland Security (DHS) is amending its regulations to accommodate this transformation initiative. This initiative will allow USCIS to streamline benefit processing, eliminate the capture and processing of redundant data and automate and reduce the number of its forms.
• Please stay tuned.

12/05/2009: Visa Posts in the Process of Converting Web-Based NIV Application Form from Current EVAF to DS-160

• The State Department is in the process of changing online nonimmigrant visa application forms from the current Electronic Visa Application (EVAF) to DS-160. The new form DS-160 has already been used with great success at 24 posts so far and will be expanded in phases with the goal of complete global usage for all NIVS except K visas by April 30, 2010. The DS-160 replaces the Electronic Visa Application Form (EVAF). The State Department has thus issued cable to visa posts worldwide to alert their respective liaison officers of their planned DS-160 implementation dates. This conversion is undertaken in each visa post per the schedule which is listed below.
• The State Department is changing the online filing form because the web-based DS-160 application form, the first component or module of the Consular Electronic Application Center (CEAC), will provide users with the ability to review NIV application data before a visa applicant physically appears for an interview. The DS-160 application form combines all information previously collected on the DS-156, 157, and 158 for appropriate applicants, and the DS-3052. Applicants for "E" class treaty trader NIVs will complete the DS-160 and have to fill out a hard copy DS-156E until the DS-160E electronic form is fielded in the near future. Until further notice, K visa applicants should continue to use the DS-156 and DS-156K instead of the DS-160.
• TIMELINE: Their goal is to replace completely the EVAF application with the DS-160 no later than April 30, 2010. This will be done in two main phases. First phase posts are listed in paragraph five and must adopt the DS-160 prior to March 1, 2010, for all applicants, with the exception of K visas. All remaining posts not listed below should implement the DS-160 between March 1, and April 30, 2010 for all applicants, with the exception of K visas. Visa posts has been advised when they plan to implement the DS-160.
• The posts that currently use mandatorily are:
  • Augstralia (Melgourne, Perth, Sydney)
  • Bermuda (Hamilton)
  • Canada (Montreal, Vancouver)
  • Hong Kong
  • Ireland (Dublin)
  • Lyberia (Tripoli)
  • Mexico(CJ, Hermosillo, Matamoros, Monterrey, Norgales, Nuevo Laredo, Tijuana)
  • Montenegro (Podgorica)
  • Russia (Moscos, St. Petersberg, Vladivostok)
• Posts listed below have been identified as priority posts to implement the DS-160. These posts must use the DS-160 no later than March 1, 2010:
  • Algiers, Algeria
    Vienna, Austria
    Manama, Bahrain
    Minsk, Belarus
    Beijing, China
    Chengdu, China
    Guangzhou, China
    Shanghai, China
    Shenyang, China
    Havana, Cuba
    Djibouti, Djibouti
    Cairo, Egypt
    Addis Ababa, Ethiopia
    Paris, France
    Frankfurt, Germany
    Chennai, India
    Hyderabad, India
    Kolkata, India
    Mumbai, India
    Delhi, India
    Jakarta, Indonesia
    Surabaya, Indonesia
    Tel Aviv, Israel
    Jerusalem
    Amman, Jordan
    Nairobi, Kenya
    Kuwait City, Kuwait
    Kuala Lumpur, Malaysia
    Casablanca, Morocco
    Muscat, Oman
    Islamabad, Pakistan
    Karachi, Pakistan
    Dhahran, Saudi Arabia
    Jeddah, Saudi Arabia
    Riyadh, Saudi Arabia
    Singapore, Singapore
    Khartoum, Sudan
    Damascus, Syria
    Taiwan, Taiwan
    Kyiv, Ukraine
    Dubai, UAE
    Abu Dhabi, UAE
    London, United Kingdom
    Caracas, Venezuela
    Sana'a, Yemen
  • Posts not listed above must implement CEAC between March 1 and April 30, 2010. Any post which anticipates difficulty in meeting the proposed schedule should contact the appropriate liaison officer in CA/VO/F/P as soon as possible.
• Online State Department Information Resources for DS-160:
  • Q&A
  • DS-160 Informational Webpage
  • Consular Electronic Application Center

12/04/2009: OFLC Centralizes/Nationalizes Prevailing Wage Determination for All Permanent and Temporary Labor Certifications Effective 01/01/2010

• OFLC releases a notice in the federal register today that the Office of Foreign Labor Certification (OFLC) National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, DC, will receive and process prevailing wage determination (PWD) requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs.
• The change involves more than jurisdictional change. It also involves change in filing procedure:
  • Requestors must submit PWD requests, Form ETA 9141, (see also filing instructions), to the NPWHC by U.S. Mail or comparable physical delivery service at the following address:
    • U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center,
      Attn: PWD Request; 1341 G Street, NW., Suite 201, Washington, DC 20005-3142.
• The Department is in the process of developing an electronic means for the submission of PWD requests and will publish a notice in the Federal Register informing the public when such a process becomes available. Until the electronic filing is made available, the employers are likely to experience a tremendous delays in the prevailing wage determination.

12/04/2009: OMB Clears State Department Proposal to Adjust Schedule of Fees for Consular Services

• Yesterday, the OMB approved this proposal which will be published in the federal register sooner or later. The initial proposal was withdrawn and amended version has been cleared for publication. Please stay tuned.

12/04/2009: Federal Court Injunction Halts USCIS Implementation of New Transitional Worker Visa Program

• USCIS announces that a preliminary injunction issued by a federal court prohibits DHS from implementing the Transitional Worker Classification interim final rule and as a result, DHS will not implement the transitional worker rule at this time and USCIS will not accept any Petitions for a CNMI transitional worker (CW-1) Nonimmigrant, Form I-129CW until further notice. This injunction does not affect any aspect of the CNRA's application of Federal immigration laws other than the transitional worker nonimmigrant category. For the full text, please click here.

12/03/2009: Chicago National Processing Center Address Change Effective 12/15/2009 With Grace Period

• Effective 12/15/2005, the Chicago National Processing Center will change address for filing temporary labor certification applications. On that date, the Chicago NPC should be fully functional in the new location. For 3 weeks after that date, the Chicago NPC will receive via courier all written correspondence submitted to their former address. This is to ensure a smooth transition and allow all interested parties to commence using the new address. On January 6, 2010, the courier will cease to operate and all submissions to the former address of the Chicago NPC will be returned to the sender.
  Old Address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 844 North Rush Street, 12th Floor, Chicago, IL 60611; telephone: (312) 886-8000; facsimile: (312) 353-3352.
  New Address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 536 South Clark Street, Chicago, IL 60605-1509; telephone: (312) 886-8000; facsimile: (312) 353-3352.
• The following address is to be used for all invoices/fees submitted in connection with the H-2A and H-1C programs:
  U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, P.O. Box A3804, Chicago, IL 60690-A3804.
• This notice will be published in the federal register tomorrow. For the advance copy, please click here.

12/03/2009: OFLC Releases FAQ Relating to Employer's Procedure for Change of Address and Change of Legal Counsel Pending PERM Applications

12/03/2009: OFLC Releases FAQ on Best Practice for Filing Appeals of PERM Denials

11/29/2009: Sanders/Grassley "Employ America Act" Text

11/27/2009: Potential Telephone and Email Problems of Our Office During the Weekend

• Clients and readers, we may experience some telephone and email disruption during this weekend. Your patience will be much appreciated.

11/24/2009: USCIS Production Update Report of 10/05/2009

• This is the FY 2009 Third Quarter Report to the Congress and the new USCIS Director Majorkas' first report of the 'state of USCIS.' This report gives the details of where the USCIS is and stands in management and processing of immigration benefits applications. Good reading material for the Thanksgiving holiday weekend. Read on.

11/24/2009: Foreign Labor Certification (H-1B and PERM) FY 2009 3rd Quarter Performance Report

• Read on.

11/24/2009: Interesting ICE I-9 Sweep Tracking Site

• Read on.

11/24/2009: USCIS Formally Announces Extension of Four Sensetting Immigration Programs Until 09/30/2012 by FY 2010 DHS Appropriations Act Which Became Law on 10/28/2009

• As most of the readers are aware, the Congress passed and the President signed into law the following immigration programs which were scheduled to sunset at the end of October 2009 and which have been extended by this legislation until 09/30/2012. This announcement gives additional information as to how the agency has been implementing this extension programs. For the details, please click here.
  • E-Verify
  • Immigrant Investor (EB-5) Pilot Program
  • Special immigrant visa category for non-minister religious workers
  • IMG J-1 nonimmigrant exchange visitors national interest waiver immigration under the “Conrad 30” program.

11/24/2009: State Department Immigrant and Nonimmigrant Visa Classification Symbols

• The State Department uses certain visa symbols in processing and managing immigrant and nonimmigrant visa applications. The updated symbols will be published in the federal register tomorrow. For the advance copy, please click here.

11/24/2009: USCBP Updates List of the Ports-of-Entry Designated for Departure of Nonimmigrant Aliens Who Are Subject to Special Registration

• Upon departure from the United States, nonimmigrant aliens who are subject to the special registration requirements must report to an inspecting officer at and depart from an approved port-of-entry (POE). The USCBP updates and publishes such list of the ports-of-entry designated for departure of nonimmigrant aliens who are subject to special registration. The new list will be published in the federal register tomorrow. Here is the advance copy.

11/23/2009: H-1B and H-2B Cap Count Update as of 11/20/2009

• In one week from 11/13/2009 to 11/20/2009, the number moved up 1,300. Should this pace continue, the FY 2010 H-1B cap may reach by the end of November 2009 or at least within first week of December.
  • H-1B=56,900
  • H-2B=23,964

11/23/2009: DV-2011 Deadline - Noon, Eastern Standard Time (EST) (GMT-5), Monday, November 30, 2009

• State Department reminds and alerts the DV-2011 participants that even though the lottery started on October 2, 2009, it will end at noon, EST, November 30, 2009. Read on.

11/23/2009: USCIS Opens New Verification Operations Center in Buffalo, N.Y.

• Equipped with 130 people, the new Center will operate the E-Verify and SAVE programs. Read on.

11/20/2009: Senators Sanders/Grassley Introduce Bill to Require "No U.S. Worker Displacement Attestation" to Hire Foreign Worker

• Senator Bernard Sanders introduced yesterday S.2804 "Employ America Act" to require employers to certify that they have not and will not lay off a large number of employees before they are allowed to employ foreign workers in the United States. This bill is co-sponsored by Senator Chuck Grassley of Iowa.
• Please read the sponsor's press release.

11/19/2009: ICE Announces on 11/19/2009 New 1000 Worksite Audits of Employers

• This worksite audits are separate and different from the ongoing USCIS site visit program. ICE audit focus on I-9 compliance violation and enforcement.

11/19/2009: USCIS Decides to Hold Off Revision of Naturalization Application Form, N-400, Which Was Published in September 2009

• USCIS previously published in the Federal Register on September 3, 2009, at 74 FR 45648, announcing a revision to the form N-400 and instructions. However, USCIS has decided not to revise the form or instructions at this time. Should USCIS decide to revise the form and instructions in the near future it will once again publish a 60-day notice in the Federal Register and allow the public 60-days to submitcomments. Read on.

11/19/2009: State Department Seeks Emergency OMB Approval for New Medical Examination Report Forms in Consular Visa Proceedings

• Pursuant to the changes in the types of tests HHS determined and released earlier this month, the USCIS has already released new medical examination form, I-693 to take effective mandatority January 1, 2010. The State Department also revises the medical examination report forms in the consular proceedings for immigrants and refugees and seeks OMB emergency approval to take effect January 4, 2010. Read on.

11/18/2009: Effective 01/01/2010, Only New Medical Examination Form (I-693), 10/14/2009 Version, Acceptable

• For the release and announcement of the new form, please click here. For the Questions and Answers on the TB screening requirement, please click here.

11/18/2009: H-1B Cap Count Update as of 11/13/2009

• 55,600 (increased 900 in one week). Remaining balance is reduced to 2,600 as of 11/13/2009.

11/18/2009: Balance of H-1B Numbers Available for FY 2010?

• As of November 6, 2009, the H-1B cap count was 54,700. Then how many more numbers are available to reach the FY 2010 annual cap? At this time, the special 20,000 H-1B cap numbers for the U.S. master degree holders have been completely exhausted and all the master degree holder cases are taking out H-1B cap numbers from the regular annual cap pool of 65,000. However, the regular annual cap of 65,000 includes 6,800 H-1B1 numbers for Singapore and Chile nationals. Taking 6,800 out of 65,000, the total available number from the annual cap of 65,000 is generally 58,200. Since the cap count as of November 6, 2009 was 54,700, the USCIS had only balance of 3,500 cap numbers available before they reach the annual cap as of November 6, 2009. As we reported earlier, the recent USCIS decision to accept the H-1B cap petitions without approved labor condition applications is likely to accelerate exhaustion of the remaining 3,500 numbers and it may not be too long before the agency announces reach of the FY 2010 H-1B cap. Of course, the agency is likely to get additional numbers out of unused 6,800 numbers for Singapore and Chile before the end of FY 2010, but the employers should not count on these potential future add-on numbers at this point and should file their H-1B cap petitions as soon as possible.

11/17/2009: H-2B Cap Count Update=22,428 As of 11/13/2009

11/16/2009: USCIS Updates Processing Times 11/16/2009

• See home page.
• Apparently, thanks to the reduced case loads, the processing times for applications and petitions have been substantially reduced throughout the Service Centers. I-129 takes two months or less, and I-140 takes four months or less for all types.

11/15/2009: Join Rep. Luis Gutierrez for a National Teleconference for CIR on Wednesday, 11/18/2009

• AILA has reported that the Congressman will host the teleconference for Spanish speaking audience at 8:00 p.m., and English speaking audience at 9:00 p.m., EST for discussion on the next steps for comprehensive immigration reform. Participants must register online. For call details, please click here. For additional information on the call and the grass-root neighborhood house parties near you, please visit www.reformimmigrationforamerica.org.
• As the health care reform legislation is about to wind down, the immigration supporters should energize the movement and campaign at the grass-root level to motivate the legislators, White House, media, and community organizations. We urge the immigrants to actively participate in this conference.
  

11/14/2009: USCIS Seriously Weigh In Fee Increase and/or Layoffs?

• Economic downturn and reduced applications creating budget shortfall of over $165 millions are reportedly cutprits to these considerations.

11/13/2009: USCIS November 6 H-1B and H-2B Cap Counts as Reported 11/13/2009

• H-1B: 54,700
• H-2B: 21,327

11/13/2009: Fake Report on Lou Dobbs Deportation

• This report turns out to be a joke. Shame on them.

11/13/2009: Homeland Secretary Speech on Comprehensive Immigration Reform

• Read on.

11/13/2009: "Certain" F or M Foreign Students Enlisting in the U.S. Military Under Military Accessions Vital to the National Interest Program (MAVNI) Eligible for Naturalization (Citizenship) Application Without Period of Permanent Residence Requirement

• Currently F or M foreign students holding critical skills (physicians, nurses and certain experts in languages with associated cultural backgrounds) are eligible for application for naturalization without going through the permanent residence process. The program allows such nonimmigrant to enlist for at least four years of contractual Active duty as a language recruit, or a minimum of three years of Active duty or six years in the U.S. Army Reserve as a health care professional. The Military Occupational Specialties (MOS) positions available to recruits will be selected and will include only those positions that do not require a security clearance, unless and until a MAVNI recruit becomes a U.S. citizen and receives a clearance. Those who enlist are also subject to the standard requirement of eight years of service for all recruits. Persons who enlist under MAVNI will be fingerprinted and screened to ensure legal status in the United States. The nonimmigrant must also have been in valid status for at least two years, immediately prior to the enlistment date, but not necessarily in the same status category as the one held on the date of enlistment. The nonimmigrant must not have had any single absence from the United States of more than 90 days during this two year period. Enlistment can affect a nonimmigrant student’s SEVIS record. Nonimmigrant students who are unable to maintain their student status because of their enlistment should be aware that their SEVIS record will be terminated. Neither the enlistment nor the actual filing of the Form N-400, Application for Naturalization, will provide enlistees with any immigration status pending naturalization. However, it does allow the applicant to remain in the United States while the citizenship application is pending, as long as the applicant was in legal status at the time of filing.
• On November 12, 2009, the USICE issued a guidance for the DOS of schools for their handling of SEVP. Foreign students holding such critical skills who are interested in this program and the naturalization (citizenship) opportunity bypassing the green card requirement by enclisting in a U.S. military may read this guidance carefully.

11/13/2009: Readers' Potential Misunderstanding of USCIS EB-485 Inventory Library, Worth Re-reading of the Materials

• This data raised some controversy in the employment-based immigrant community as to its correctness. It appears that part of such controversy stemmed from misreading of the materials. This reporter has learnt that in order to understand the data, it takes time to follow the guidance which is elaborated in the accompanying Q&A of the data. For the reasons, we have decided to repost the data and encourage our readers to reread during the weekend to comprehend the picture of visa number retrogression better.
• EB-485 Invetory
• EB-485 Inventory Q&A

11/12/2009: USCIS Rule-Making Agenda With Potential Serious Impact: "To Be or Not To Be," That is the Question!

• There were two serious-impact rule-making plans under consideration by the USCIS: One was filing fee adjustment proposal which USCIS was considering to release in October 2009, and the other was the alien pre-registration proposal for I-485 in parallel with proposed termination of current concurrent I-140/I-485 filing system which the agency was considering release in December 2009. The USCIS officials have spilled the fee increase possibility and consideration in various occasions. However, October has come and gone with no such release. However, the fee increase proposal announcement may be a matter of time. Since it is a "proposed" rule, the actual fee change may not take effect at least for several months, probably through the Spring or Summer of 2010. More serious question remains with the idea of preregistration of I-485 applicants for preadjudication during the period of visa number retrogression and accompanying plan of termination of concurrent filing of I-140 and I-485. This latter rule-making may be closely tied with the graduaal launch of business transformation program of the agency. Since the latter rule-making will also go through the "proposed" rule stage before anything will be materialized adversely affecting the lives of immigrants, it will take a quite a time. This reporter posts this message for "heads up" for the immigrants and stakeholders. Watch the news carefully.

11/12/2009: PERM Processing Times Update

• The Office of Foreign Labor Certification has just released the latest PERM processing times report as of October 31, 2009 as follows:
  • Final Review Cases: January 2009
  • Audit Cases: November 2007
  • Standard Appeals: August 2007
  • Government Error Appeals: Current
• Hats off to Dr. Carlson for reporting monthly. The reports were released every two months.

11/12/2009: Potential Impact of USCIS Decision to Accept H-1B Petitions Pending LCA Certification

• Potentially, this decision is likely to affect the H-1B cap count that remains presumedly only less than 5,000 to reach the cap after setting aside special numbers for H-1B1 for Singapore and Chile. Employers, beware.

11/12/2009 05:00: USCIS Accepts H-1B Petitions With Uncertified Labor Condition Application Under Certain Conditions

• USCIS has decided that it will temporarily accept H-1B petitions filed without Labor Condition Applications (LCAs) that have been certified by the Department of Labor (DOL). USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010. However, USCIS will only accept such H-1B petitions if they are filed at least 7 calendar days after the LCAs were filed with DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA. The H-1B Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition. USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs. Read on.
• What a relief! AILA has been working hard to get this relief and the employers and immigrants should commend the AILA leadership for the job well done.

11/11/2009: Sunset of H-1C Visa Program for Foreign Nurses on 12/20/2009

• DOL Office of Foreign Labor Certification announces that absent further legislative action, Congress has not elected to reinstate the H-1C Program and will no longer accept H-1C Attestations on Form ETA 9081 for foreign nurse positions effective December 21, 2009.

11/10/2009: December 2009 Visa Bulletin

• EB-2 India: 01/22/2005
• EB-2 China: 04/01/2005
• EB-2 All Other Countries: C
• EB-3 All Countries: 06/01/2002, Except India of 05/01/2001
• EB-3EW All Counries: 06/01/2001, Except India of 05/01/2001

11/10/2009: PERM Performance Report of 2008 and 2009

• The performance report of DOL Office of Foreign Labor Certification for the 3rd Quarter of FY 2009 (April/2009-June/2009) which is reported by the AILA reflects the two interesting statistics:
  • Percentage of PERM applications resolved within 6 months:
    • During April 2008-June 2008: 94%
    • During January 2009-March 2009: 11%
    • During April 2009-June 2009: 17%
  • Schedule of Launch of the new integrity and enhanced PERM: Beginning of FY 2010
• This report confirms the speculations that the PERM processing times have been dropped drastically in FY 2009 and this is likely to continue in FY 2010. It also confirms that the new PERM program which was scheduled to launch in September 2009 is eventually launched sooner or later, probably in the beginning (?) of the new year.

11/09/2009: Senate Bill to Permit Permanent Residents to Immediate Family Members of Soldiers Served During Afghanistan and Iraq Conflicts

• Senator Robert Menendez of New Jersey introduces S.2757on 11/09/2009 to authorize the adjustment of status for immediate family members of persons who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts and for other purposes.

11/08/2009: Procedure for Correcting Visa Category Errors in Filing I-140 Petition

• From time to time, the employers or their represenatives commit an error in check marking visa categoring in drafting and filing I-140. Most typical situation involves check marking EB-3 category instead of EB-2 when the labor certification was filed for EB-2. Obviously, the USCIS will consider such errors if the petitioner proves that it was a typo or inadvertent error and such claim is supported by sufficient evidence. In such situation, typically the USCIS requires that the petitioner contacts the USCIS to seek a remedy and to request correction before the I-140 is approved. The other situation involves the Service Center's error in issuing Receipt Notice for I-140 petition. The same is true with the situation. The petitioner should act promptly to seek correction of the error.
• The USCIS HQ indicates that the report of error and request for correction should be made through NCSC by telephone. The NCSC wiill then forward such request to the Service Center where the petition is pending. In such case, the petitioner will receive no corrected new Receipt Notrice from the Service Center, should the Service Center decides to entertain such correction request. The adjudicator of the I-140 petition will just correct the petition in the adjudication process. In represented cases, sometimes, legal representatives seek AILA's assistance through the liaison contact, but the USCIS HQ instructs that the petitioners follow the foregoing procedure. Read on.

11/08/2009: Unsuccessful Fingerprint Recaptures Potentially Leading to Delay of I-485 Adjudications and Risk of Visa Number Retrogression

• We often encounter some I-485 applicants of both women and men whose fingerprints have been damaged or deficient and the ASC cannot capture the fingerprints. Under the current procedure, the ASC then schedules a follow-up fingerprint appointment. Should the ASC fail to recapture the required fingerprints in the second session, the USCIS must turn the I-485 cases to the local offices for interview and the involved I-485 applicants will be required to collect certain documents including police and criminal clearance from the local authorities and carry the documents to the interview. This procedure will cause delay in adjudication of their I-485 applications, causing the applicants to face potential danger of visa retrogression pending such process. Please beware! Read on.

11/08/2009: Pregnant Women with Medical TB Test Reslts and Potential Problem of Filing I-485 Facing Visa Number Retrogression

• Currently when Civil Surgeon learns in the medical examination of a pregnant woman that her skin test for TB is positive, the Civil Surgeon is unable to sign off this part of certification in her medical exam report for the pregnant woman who refuses the chest X-Ray for fear of potential impact on the fetus. This poses a serious problem in that such pregnant woman appears to be precluded from filing of I-485 applications as Civil Surgeons are no longer able to sign off on any part of the medical exam. It also appears that at this time there is no special relief available from the perspectives of the USCIS in handling such pregnant women's I-485 applications. Please beware! Read on.

11/07/2009: Update of TARP-Funded Employer H-1B Petition

• Ever since the so-called Sander/Grassley law passed which laid a block on such employer's filing of H-1B petitions, a substantial number of the TARP-funded employers have refunded the money to the federal government and the question has been raised as to whether these employers should remain subject to this law despite their return of money. It is our understanding that the decision needs a coordination among the involved federal agencies including Treasury, Labor, and DHS. USCIS has reported to the AILA that the USCIS is working with the DOL to release its decision. As for the time of decision, it must be made clear that the issue involves not policy but interpretation of the statutory provision, which the agencies should not be affected by any considerations other than interpretation of the statutory language by the legal forces within these agencies. Considering the fact that FY 2010 H-1B cap numbers are increasingly running out, any further delay of their decisions until close to the reach of the cap will do injustice to these employers and eligible foreign professional employees of these companies in that such act will "practically" and unduly block these employers continuously from employing H-1B employees close to the date of expiration of this two-year sunset statute because the cap number for FY 2011 will not be available until 10/01/2010. We hope to see the government decisions as soon as possible.

11/07/2009: PERM Permanent Labor Certification Applications Processing Update

• The Office of Foreign Labor Certification has been releasing its report of PERM processing times every two months. The last time it updated the processing times was September 30, 2009 when it reported the processing time of December 2008 priority date cases. Since then, the Atlanta National Processing Center has made some progress and has been issuing its decisions for the cases with the priority date of of January 2009. The agency is expected to update the processing times after the end of this month. Please stay tuned.

11/07/2009: USCIS Memorandum on Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions

• Form I-751 is filed by the couple of marriage for less than two years where the alien spouse is granted a "conditional permanent resident" status for two years in order to remove the condition and thereby the alien spouse becomes an unconditional permanent resident. The USCIS is adding additional guidance for the adjudicators in its field offices to adjudicating such applications by the aliens who were in removal proceedings or untimely filing of such applications. Read on.

11/07/2009: USCIS Launches Informational Video on the Systematic Alien Verification for Entitlements (SAVE) Program for Federal, State, and Local Agencies

• The SAVE program is an intergovernmental initiative that assists benefit-granting agencies in determining an applicant’s immigration status. The program allows the agencies at all levels to ensure that only entitled applicants receive federal, state or local public benefits and licenses. The program checks the applicant’s information against millions of federal database records. Currently, more than 300 agencies are enrolled in the SAVE program. Read on.

11/06/2009: Important Issues Discussed in USCIS-AILA Meeting on 10/27/2009 in the Forms of Questions and Answers

• There were a number of issues discussed at the meeting that touched on the following issues:
  • Introduction of Newly Appointed Leaders within USCIS Other Than Director
  • Various Issues Involving Quality of RFEs involved in L-1 and H-1B adjudications
  • Issue of propriety of Use of Unpublished AAO Decisions in Denials of Cases by the USCIS Field Officers
  • Rule of Counting of Alien's Overseas Time for Determination of One-Year Employment with the Foreign Parent or Subsidiary/Affiliate/Branch Company
  • Issues Involving Unannounced Site Visits for Employment-Based Nonimmigrant Petitions (R-1, H-1B, L-1, etc) and Right to Counsel
  • Propriety of Adjudicator's Automatic Termination of EAD Upon Denial of I-485 Applications
  • Issues Involving Quality of Certain Civil Surgeons Conducting Medical Examination for I-485 Applicants and Potential Remedies Available
  • AAO Appeal Processing Issues
• We commend the USCIS for making this minute available to the public which may otherwise be not accessible to the unrepresented immigrants and consumers of the immigration benefits services of the USCIS. With reference to this Q&A, this reporter wants to add that it appears that the USCIS has been making some stride in its efforts to improve the quality of adjudications in field offices. We commend the USCIS leadership, particularly USCIS Director, for the admirable initiatives for transparency and improvement of quality services and encourage the leadership to continue the efforts.
• The USCIS new leadership has been extending their efforts to aggressively expand the agency's outreach to the immigration stakeholders and immigrant communities to collect feed-backs and encourage the public to participate in the agency's process of policy making and practice. The success of this efforts should depend on mutual efforts between the agency and the stakeholders. In this regard, we strongly urge the immigration stakeholders and immigrant community, particularly unrepresented immigrants to take a full advantage of the precious opportunities offered by the new leadership to participate in the process and not to miss participation in the community relations meetings which are organized by its Office of Public Engagement, either in person or by telephone. There is also additional channel for addressing your voices - teleconferences organized by the CIS Office of Ombudsman. Unless your voices are heard, agencies cannot learn the areas of improvement for their services. We urge the stakeholders and consumers to actively participate and join in the agency's efforts in a way of saying "thank-you" for the new leadership's public relations efforts.

11/04/2009: H-1B and H-2B Cap Count Update as of 10/30/2009

• H-1B Cap Count: 53,800 (as of 10/30/2009): Moved up 1,000 in five (5) days.
  H-2B Cap Count: 21,154 (as of 10/30/2009)

11/03/2009: The H-1B Visa Lull Is Only Temporary

• Report indicates that the recent H-1B cap change may reflect increased demand for H-1B workers within the country as the economy undergoes the recovery process and increased number of H-1B petitions have probably been filed by the outsourcing businesses. However, there is a mystery involved with the latest USCIS H-1B cap count which showed approximately 10,000 increse in approximately month period of time. In fact, the USCIS statistics of the total number of petitions which they received for FY 2010 cap remains mystery since the agency has never released the statistics. Whatever the causes were and are, it is obvious that the H-1B cap count for each fiscal year may return to the past record as the economy gradually returns to normal and the employers should be prepared for the potential H-1B debacles ahead.

11/03/2009: Day of Medium-Term National Election Today and Impact on National Policy and Political Activities Under Seize Pending the Election

• National policy making process is deeply entrenched in the national political process. Supposedly Medium-Term National Election should not be taken as a key factor that keeps important policy process on hold and under seize. However, the Medium-Term Election in 2009 is considered different in that it is considered the test of nation's support for the new majority Democrat Congress and Omana leadership. Because of that, everything that can affect the votes has remained on hold, i.e. health care final votes, Sen. Schumer and Rep. Gutierrez's schedules to introduce CIR bills in the Congress, holding off until after the Medium-Term elections. There are only a few Senate and House seats that are up for election today.
• Accordingly, immigrant community's hope is high for the forthcoming CIR debates after today. However, the immigrant community may keep their level of expection under control in order not to experience an emotional crash coming year. November 2010 is a Mid-Term National Election Day and people should understand the gravity of impact of the election on the CIR coming year. In the House, all 435 seats will be up for election and in the Senate, 36 seats out of total 100 seats will be up for election. The House, that has historically been acted as a killer of CIR legislation, will be extremely vulnerable and enmeshed in the election political process coming year. For the reasons, this reporter has predicted that unless the CIR debates are quickly energized and CIR is passed before April 2010, there will be no chance for CIR dream being realized in 2010, no matter what Obama says and no matter what immigration advocates spins. Watch!

11/01/2009: Semantic Problem of Eligibility of EB-12 (EB-1B) Outstanding Researcher/Teacher Petition of Government Agencies in the USCIS Reading of the Relevant Section of INA

• We posted the new policy of USCIS on this issue earlier today. The basis of the USCIS interpretation of the Outstanding Researcher/Teacher Petition provision of the immigration statute is drawn from the "literal" or "plain language" reading of the word "private" employer in the statutory provision. However, such literal reading should be placed under a close microscope from the standpoint of so-called "legislative intent" of the Congress in enacting this law. Admittedly, should one read the word "private" employer literally, one has to agree to such reading of the statute. However, in the statutes and regulations, a large number of words in the black law books have been interpreted by the courts differently based on a number of theories, one of which includes "legislative intent." The USCIS was correct in distinguing a "University or Higher Education" employer from a "private" employer. However, it is not uncommon that when a statute or literatures use "private" entity or employer in the research community and research context, they often use the term "private" in the context of "non" university or higher education institution and to contrast with university or higher education institution. If the Congress intended such, clearly the USCIS interpretation should be considered wrong.
• We hope that immigration lawyer and scholar community conduct research on the "legislative intent" of the involved immigration statute to see whether they can a relief to the high-level researchers working for the government research entities from the shocks and confusion as well as their sense of unfair treatment of the government employees from the non-government employees. Should research of legislative intent confirm the USCIS statutory reading of this provision, the Congress should be called upon to address this issue and pass a legislation as soon as possible to correct the problem by amending this section of the immigration statute.

11/01/2009: Expiration of Certified Permanent Labor Certification After 180 Days of Certification and Clarification of the Expiration Date

• Under the rule of the U.S. Department of Labor for permanent labor certification, a certified permanent labor certification expires after passage of 180 days from the date of certification. Here a question arises as to what happens if the last day falls on Saturdays, Sundays, or Federal Legal Holidays. Governments and courts adopt different rules depending on the agencies. The USCIS clarifies that should the 180-day fall on a Saturday or a Sunday or a federal legal holiday, the date of the validity of such certified labor certification will be extended to the next business day. Good Lord! Click here for details.

11/01/2009: Employer Name and Address Required for Notice Posting for Schedule A Employment-Based Immigrant Petition

• The USCIS clarifies that the employment-based petition which is based on Schedule A is requiredd to disclose the name, address, and other details of the petitioning employer in the notice to comply with the DOL notice posting requirement before filing the labor certification precertified immigrant petitions for certain labor shortage occupations including nurses. Accordingly, a notice posted without the name of the employer will be considered deficient and such petitions are likely denied. Caution, caution! Click here for details.

11/01/2009: USCIS Policy Not Recognizing Government Agency as EB-12 Outstanding Teacher or Researcher Immigrant Petition

• USCIS adopts a policy that federal, state, and local government agencies are not eligible for EB-12 Outstanding Teacher or Researcher immigrant petition unless the agency is a university or higher learning institution. Accordingly, a government research organization will be unable to sponsor a labor certification waiver EB-12 Outstanding Researcher Immigrant Petition unless it is a university or higher learning institutiion itself. There are a large number of public research agencies at federal, state, and local levels that are not part of a public university or government higher learning institution. Under the USCIS policy, The government agencies will be ineligible to file EB-1 Outstanding Researcher Petition on behalf of their researchers. This new policy is premised on the immigration statute for Outstanding Researcher or Teacher that requires that the beneficiary of an E-12 petition must be seeking a position with a unversity, institution of higher education or a department, division, or institute of a "private employer," and government agencies do not qualify as "private" employers by any stretch of interpretation of the term of private employer.
• Unlike Outstanding Researcher or Teacher Petiton, however, the policy will allow the government agencies to file EB-1 Extraordinary Worker Immigrant Petition or EB-2 National Interest Waiver on behalf of their researchers. Click here for details.

10/31/2009: USCIS Reminder of Early Application of Travel Documents (Advance Parole, Reentry Permit, Refugee Travel Document, etc) During the Season

10/31/2009: "Public Charge" Fact Sheet of USCIS 10/20/2009

• Public charge constitutes grounds for removal (exclusion or deportation) from and inadmissibility to the United States. It involves receiving certain benefits by aliens which give a burden on U.S. citizen taxpayers. There are some bright-line public benefits such as welfare payment, etc., but there are also greyline areas of benefits which constitutes public charges, which an alien inadvertently seek such benefits. Accordingly, it is important for aliens to understand the parameters of public charges not to face unexpected charge by the U.S. government for deportation. Read on.

10/31/2009: USCIS Announcement of Extension of Grace Period of Old Form G-28 Beyond 10/30/2009 Pending Revision of the New Form

• Announcement: Although Form G-28 contains an ‘N’ designation indicating that previous versions will not be accepted, USCIS has decided to extend the grace period for accepting previous versions of Form G-28 while the agency further refines the form. USCIS expects to complete that process soon. In the interim, USCIS will not reject filings accompanied by older versions of the form until further notice. [Read Special Instructions of G-28 Form Site which was updated 10/29/2009]. Thank you, USCIS leadership!

10/30/2009: H-1B and H-2B Cap Count Update

• The numbers have moved quite a bit.
  • H-1B Cap Count: 52,800 (as of 10/25/2009)
  • H-2B Cap Count: 20,860 (as of 10/23/2009)
• The H-1B annual cap is 65,000, but because of special cap numbers which have to be assigned to the free-trade H-1B1 for Singapore and Chile, the practical annual cap is considered approximately 58,000. When the H-1B1 cap numbers are not fully consumed, the balance of the H-1B1 cap numbers is captured into the H-1B cap pool. In this regard, there remains less than 7,000 numbers for H-1B before the agency may consider announcement of the reach of cap. H-2 cap for half of a fiscal year is 33,000, but for the estimated cap per individuals is considered approximately 47,000 before the agency would announce the reach of the cap and there are still plenty of cap numbers available for the H-2B when it comes to the individual workers target count.

10/30/2009: Summary of USCIS 'Transformation' Roundtable Discussion with Customers of 09/23/2009

• The USCIS has been expanding its efforts to reach its customers for the purpose of public relations in many different formats. One of such efforts includes "Stakeholder Roundtable" which are open to the customers via attendance in person or telephone. Such round tables are followed up by the agency's posting of the customer feed-backs in such sessions on the USCIS website. This reporter was and is privileged to attend the sessions via telephone thanks to the USCIS' gracious extension of such privilege to this reporter. This reporter takes this opportunity to extend his appreciation for the agency's gracious permission to attend the meetings.
• One of the important sessions was 'Transformation' on 09/23/2009. Understanding the USCIS Transformation Program is extremely important for the immigration customers in that the immigrant and nonimmigrant applications and petitions will eventually be filed, processed, and managed "electronically" by the USCIS along the concept of "single account" for each customer including each petitioner, each beneficiary, each representative, etc. The USCIS has begun converting filing procedure from field offices to lockbox as a transition to the forthcoming Transformation Program. By the end of this year, the applications and petitions which are filed in papers with one of the Service Centers are scheduled to be eliminated, requiring the customers to file such cases with one of the four lockboxes. This includes employment-based petitions and applications. For the reasons, the immigration customers should be more attentive to the ongoing and forthcoming changes in the filing procedures. When it comes to filing procedures, the current procedure of filing applications and petitions is scheduled to phase out, lockboxes playing a role of window for initial filing and initial processing of applications and petitions per a gradual account concept. Actual "adjudication" will be conducted by the current field offices.
• We encourage the readers to read Summary of Transformation Roundtable to learn the feedbacks from the attendants.

10/30/2009: Old Version G-28 Form No Longer Acceptable and Consequences of Filing Cases With Old Version G-28

• USCIS will no longer accept the old form G-28 in represented cases. What is the consequence of filing cases with the old version G-28? AILA reports that the filings will not be rejected but the cases are receipted as unrepresented cases. It thus appears that in such cases the notice of receipt is likely delivered to the petitioner or applicant and not to the representatives. Remember that the 30-day grace period is not counted by post-mark nor overnight delivery pickups but by actual physical receipt of the filing by the field offices. Readers, please use the new form G-28!!

10/30/2009: DHS Appropriations Act Extending Sunsetting Immigration Programs and November 2009 Visa Bulletin

• In the November Visa Bulletin, certain immigration categories in EB-4 and EB-5 show "unavailable." Those who are savvy to the immigration visa issues know that despite the "Unavailable" in the Employment-Based Categories for EB-4 and EB-5 in the November Visa Bulletin, the visa numbers for these categories will automatically become available in November 2009. When a Visa Bulletin is released, people tend to read only the visa number tables and ignore the Visa Bulletin's additional statements in the Bulletin. Careful readers must have noticed the following statements of the U.S. Department of State in the November Visa Bulletin:
  • Employment Fourth Preference Certain Religious Workers: Pursuant to Section 133 of Division B of Public Law 111-68, the non-minister special immigrant program expires on October 30, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after October 30, 2009. Visas issued prior to this date may only be issued with a validity date of October 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight October 30, 2009. Employment Fifth Preference Pilot Categories (I5, R5): Pursuant to Section 130 of Division B of Public Law 111-68, extended this immigrant investor pilot program through October 30, 2009. The I5 and R5 visas may be issued until close of business on October 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2 or R5-3 visas may be issued after October 30, 2009.
  • The cut-off dates for the categories mentioned above have been listed as “Unavailable” for November. If there is legislative action extending one or both of these categories for FY-2010, those cut-off dates would become “Current” for November.
• We post this message because we have been receiving some emails from our readers who were confused with this issue. Our simple message on this question is: "Ignore 'Unavailable' in EB-4 and EB-5 categories in the November 2009 Visa Bulletin and take it as 'C'."

10/29/2009: Yesterday 's Busiest Congress Without Single Immigration-Related Bills

• It is astonishing that 603 legislative bills and resolutions were introduced in one single day yesterday in the Congress without single legislative bill involving immigration issues, reflecting the low Congress' interest in immigration issues. National immigration policy remains literally a back-burner!

10/28/2009: Sunsetting Immigration Programs Extended to 09/30/2012 Effective 10/28/2009

• President signed the FY 2010 DHS appropriations bill today including conference report and sunsetting immigration programs. Accordingly, nonminister religous worker immigration law, Conrad 30 State sponsored NIW waiver for International Medical Graduates J-1 Home Residency Requirement law, and EB-5 Regional Center Pilot Program for investment immigration law have been extended to September 30, 2012 effective today. For the details, please read the full text of Public Law 111-83.
• The law also extended another sunsetting E-Verify program until September 30, 2012. Some Congress members attempted to change the E-Verify program and EB-5 Regional Center program to "permanent" programs but such proposals have eventually been stricken in the final legislative process.
• The law also legislated into law the eligibility of the permanent resident application for the surviving spouses of the deceased U.S. citizens. Relief of such surviving spouses have been granted in a limited version by a Federal District Court in California and by Secretary of Homeland Security.

10/25/2009: FY 2010 H-1B and H-2B Cap Count Update Dormant for One Month

• It is unusual that INS or USCIS has failed for this long period of time not to report the employers, foreign workers, and consumers in general the cap count updates when the cap may reach sooner or later. We realize that the incoming new H-1B and H-2B petitions are very low in numbers. Additionally, owing to increased denials, withdrawals, and revocation of the cap H-1B and H-2B cases during this fiscal year, the cap cound may not move forward. However, from the perspectives of employers and foreign workers, they may want to have some idea as to when the cap may reach. The last time when cap count was reported was September 25, 2009. We urge the USCIS to shed some lights on the current status of the cap count as soon as possible.
• When it comes to H-1B cap count, there is another issue which the Treasury, Labor, and DHS have been delaying in making and releasing a decision. It is TARP-funded employers' eligibility for H-1B petitions when they refunded or returned the TARP money. As the country is witnessing an economic recovery process, albeit slow in unemployment rate in particular, growing number of the TARP-fund businesses are refunding the TARP money for good or bad reasons. This raises a question as to whether these employers should still be subject to the Sander-Grassley H-1B employment restriction law which the Congress passed early this year. This decision is likely to affect the cap count with slim remaining numbers in the vault. It is not necessarily the former TARP-fund employers that have a stake but other employers that need to plan employment of critically needed foreign professional workers and indecision of the government on this issue leaves these employers in the dark. We need transparency here.

10/24/2009: Pending President's Signature on DHS Appropriations Bill Extending Immigration Programs Until 09/30/2012

• There are a few things which the readers may want to know about the President's signature on legislative bills. Firstly, legislative bills that involve tax money and appropriations fall under the authority of the House in the Congress to initiate and present to the President for his signature under the U.S. Constitution. Accordingly, when it comes to bills relating to determination of tax money appropriations, the role of Senate is analogous to consent to the House bill in this regard. Once the House presents the Congress' appropriation bills to the President, under the Constitution, the President has 10 days either to sign or not to sign or veto. If the President does not sign a bill when the Congress is adjourned, it is considered a veto. This is called a pocket veto. President usually exercises this power during the period when the Congress is in recess under its annual official calendar during a Congressional session to make a bill to just lapse and rather than officially veto and thereby kill the bill. When the President fails to sign a bill within 10 days during the period when the Congress is in session, the consequence is opposite in that such bill automatically becomes a law without the President's signature. Currently the Congress is in legisltive session. Thirdly, the federal government's budget authority will run out at the end of the day of 10/31/2009 and unless the President either signs or veto the bill, the Congress must pass another stop-gap budget bill to prevent shut-down of the federal government on and after November 1, 2009.
• As far as the DHS appropriations bill is concerned, the Congress officially presented the bill to the President on October 22, 2009 for his signature. President's signature schedule varies depending on the importance and urgency of a bill. Extremely critical bills are signed as soon as the President receives the bills. Otherwise, it takes time to sign it within 10 days. President Obama's practice adds additional self-imposed rule of his signature on the bills. During his presidential campaign , he promised and committed not to sign a bill for five days to give the public and stakeholders a window of opportunity to voice their views and for transparency of the government process, "unless" this regular rule is waived for emergency or other critical nature of the law involved. Because of the Presidential campaign promise on this point, the President has tried to adhere to the rule, albeit some deviations from time to time. The Defense and Homeland Security budgets are considered critical bills under the present circumstances and the President is likely to sign these bills within the next week so that these bills do not face the issue of stop-gap appropriations legistive process beyond October 31, 2009. Cheer ups to the foreign workers awaiting the President's signature on this bill!

10/23/2009: Naturalization Processing Statistics as of August 2009

• Unlike the immigration benefits application processing situation, in the naturalization cases, the numbers have been reduced at the rate of 58% between August 2008 and August 2009 despite the continuing rise of the applications. USCIS has done a good job in this area of its business. For the details, please click here.

10/23/2009: Denial of Immigration Benefits Applications Increased 73% in August 2009 Over the Numbers in August 2008

• Record indicates that pending immigration benefit application numbers continuously decreased in August 2009 from 3,149,182 to 2,041,988, a 35% decrease as compared to the figures in August 2008, while denial of immigration benefits applications increased 73% in August this year as compared to the figures in August 2008, reflecting denial culture.
• As of August 2009, the following number of applications were pending for the types of cases:
  • I-130: 1,025,870
  • I-485: 471,222
  • I-90: 110,984 green card renewals/replacements
  • I-765 (EAD): 102,989
  • I-751: 82,847
  • I-129 EB Nonimmigrant Petitions: 48,168, including the new petitions of 23,252 which the agency received in one month in August 2009. The number includes all nonimmigrant petitions such as H-1B, other H visas, L visas, E visas, O visas, etc.
• Pending EAD numbers have noticeably increased. For further details, please click here.

10/22/2009: USCIS Invites to National Stakeholder Meeting Scheduled on Tuesday, 10/27/2009

• There are two ways to participate in the meeting: In person or by telephone. For the details, please click here.

10/22/2009: New I-601 Form Mandatory Effective 11/21/2009

• See the announcement of USCIS. The form site of USCIS has same problem which new form G-28 experienced. The form site indicates that the current form is not acceptable, when the news release states that the current form is acceptable until 11/20/2009. Weird. We suggest the filers to print out the announcement on very bright color paper and attach it to the current I-601 form if they will have to file the current form in order to avoid potential rejection by the confused field office contractors.

10/21/2009: Final Version of DHS Appropriatioons Bill, Cleared for White House

10/20/2009: Senate Passed DHS Appropriations Conference Report Today

• As we reported earlier, the Senate was scheduled to take up this bill, and as scheduled, the Senate today passed this bill. The FY 2010 DHS Appropriations Act together with the House-Senate Conference Report will be presented to the President for his signature into a law soon.

10/20/2009: Senate Floor to Take Up DHS Appropriations Conference Report This Morning

• Yesterday, Senate reached a unanimous-consent-time agreement to take up this report on the floor at approximately 11:30 a.m., on Tuesday, October 20, 2009 and Senate begin consideration of the conference report to accompany H.R. 2892, making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2010, with debate on the conference report limited to three hours and 15 minutes, with the time divided as follows: 1 hour under the control of the Majority Leader, or his designee; and two hours and 15 minutes under the control of the Republican Leader, or his designee; that if any points of order are raised, any votes on the motions to waive occur upon the use or yielding back of time identified above; provided further, that upon disposition of the points of order, and if the motions to waive are successful, Senate then vote immediately on adoption of the conference report, with two minutes of debate, equally divided and controlled, prior to any sequence of votes with respect to the conference report. Senate will vote today.
• Good news for those who are affected by the sunsetting immigration programs at the end of October 2009. Once the Senate passes this today, the President is likely to sign it before the end of the month so that the sunsetting immigration programs be extended until September 30, 2012.

10/19/2009: USCIS Processing Times as Posted 10/18/2009 and as of 08/31/2009

• Please see our home page.

10/19/2009: Advisory for Sunsetting Immigration Programs Beneficiary Foreign Workers

• Senate will return to the session today at 2:30 this afternoon, but will continue its left-over business of debating the Commerce, Justice, and Science appropriations bill and the DHS appropriations conference bill is not on the official calendar. But depending on the result of the Commerce, Justice, and Science appropriation bill resolution, a motion to take up DHS appropriations conference report can come up any time without being on the official Senate daily calendar.
• In the meantime, for the peace of mind as well as for the safeside, those who are eligible for the involved immigrant petitions or I-485 applications under these sunsetting programs may want to file it as soon as possible, even though we still believe that the DHS appropriations conference report will pass the Senate before the end of the month. Should the situation change, the USCIS is likely to issue a follow-up advisory for the sunsetting programs following their long traditions.

10/18/2009: Senate Homeland Security Committee Hearing on S.1102, Bill to Provide Benefits to Domestic Partners of Federal Employees

• The companion bills are pending both in the Senate and the House. The House bill, H.R. 2517, was introduced in May 2009 by Rep. Tammy Baldwin of Wisconsin and Senate was introduced by Sen. Joe Lieberman of CT. On 10/15/2009, the Senate Homeland Security Committee had a hearing the Senate bill. The bill is moving on. Following witnesses testified or made statements. For the full text of each testimony or statement, please click here.
  • The Honorable John Berry, Director of U.S. Office of Personnel Management
  • William H. Hendrix, III, Ph.D. , Global Leader; Gays, Lesbians, and Allies at Dow (GLAD), The Dow Chemical Company
  • The Honorable Tammy Baldwin, U.S. House of Representatives, Sponsor of the House companion bill
  • Senator Joseph I. Lieberman, Committee Chair
  • Senator Susan M. Collins, Committee Member
  • Senator Daniel K. Akaka, Committee Member
  • Senator Paul G. Kirk, Jr. , Committee Member

10/17/2009: DHS Appropriations Conference Report Legislation Schedule in the Senate

• This reporter was tied up with the local USCIS appearances and other matters and could not update this important news. As we reported on Wednesday, the Majority Leader of the Senate, Sen. Harry Reid, announced in Wednesday morning on the floor that the Senate would first take care of major pressing business and top priority bills and would start taking up conference reports of DHS and DOD Wednesday if time would permit. Unfortunately, the Senate could not take time for these conference reports on Wednesday and Thursday and recessed at the end of the day on Thursday. The Senate will return to the session on Monday and this reporter is convinced that the Senate will take care of this bill within next week. Please stay tuned to this website for the development of this legislation.

10/17/2009: Signs of USCIS Launching Improvement of Quality of Adjudication Process

• There is an unconfirmed source of information that the Service Centers have just launched a measure to improve quality of adjudication of applications and petitions by intensifying internal review process before RFEs are issued. Management of RFE in the adjudication process has poseed a big challenge to the agency in providing quality services and reduction of backlogs. As we have recommended in more than one occasion, it is very important that the agency keeps a balance between assurance of integrity in applications and petitions and assurance of qualifity of adjudication services in order to improve the backlogs and for a sense of fairness and justice. No more boilerplate RFEs! We commend the leaders of the USCIS for the initiatives.

10/15/2009: DHS Appropriations Conference Report Update

• Every good news for the sunsetting immigration programs stakeholders. The House passed the bill today and the Senate Majority Leaders is pushing to take up and pass this bill this evening. Should it fail today, the Senate may take it tomorrow and pass it. Right on, Congress!

10/15/2009: Forthcoming Some Changes with USCIS Services as Reflected in FY 2010 DHS Appropriations

• The FY 2010 DHS Appropriations legislation involves more than extension of sunsetting immigration programs. The USCIS services are operated by the fees collected from the customers. The overall total budget appropriated by the Congress supports Mr. Mayorkas' recent press release, $2,028,904,000.00. This total budget is not too apart from its FY 2009 budget. But when it comes to the details, there are a few things that deserve immigrant community and stakeholders' attention. The following represent a few illustrations:
  • In field adjudication services operations, local field offices budget will double of FY 2009, while the Service Centers' budget reveals a growth at a lower rate. This may reflect that the adjudications services may be more focused on the local field operations rather than Service Centers operation. We are not sure how this changes can be translated into the potential upcoming structural and procedural changes that are associated with the gradual launch of the business transformation program, which is the reengineering of the adjudication services. However, this may more reflect the USCIS anticipated for increased services needs at the local level which is associated with its plan in anticipation of passage of Comprehensive Immigration Reform legislation which will generate mountain of adjudication services relating to legalization of 12 million undocumented aliens.
  • Customer and information services budget will be cut close a half of FY 2009, reflecing the USCIS services mode change to electronic cyber communication rather than telephone or in-person services. One interesting component of this budget is elimination of National Customer Service Center budget item. We are uncertain whether this will reflect a similar change to the DOL Office of Foreign Labor Certification that is in the process of replacing private contractors by public officials. Until the current NCSC was organized, the customer and information services had been provided by field offices. Interesting to learn what this part of the budget implies in the USCIS customer and information services structure.
  • Along with the gradual launch of business transformation program and continuiting attention to achievement of integirity of the services detecting and preventing frauds, the budget for records and investigation is expected to continuously rise.
• The foregoing appropriation authorization by the Congress is fee-based budget for FY 2010. Despite the information that the USCIS witnessed a heavy shortfall in the FY 2009 budget, actual budget authorization for FY 2010 by the Congress does not reflect any drastic increase. We will have to wait and see how this will translate into the agency's anticipated fee increase proposal in the future.

10/15/2009: House Scheduled to Pass DHS Appropriations Conference Report and Bill Today

10/13/2009: FY 2010 DHS Appropriations Bill Legislation Update

• As we reported earlier, the House and Senate conferees reached an agreement compromising the differences between the House version and the Senate version of the DHS appropriations bill last week. These conferees completed , printed, and filed their Conference Report 111-298 yesterday to be presented to the House floor first and the Senate floor afterwards. Now the House is ready to agree to the conference report on the floor, and as we reported earlier, the House is scheduling to take up this by this Friday.
• Our site is tracking this legislative bill because certain immigram programs will sunset again on October 31, 2009 unless the DHS appropriations bill is enacted into law before they sunset. These immigration programs include nonminister religious worker immigration program, Conrad 30 foreign medical doctors National Interest Waiver of J-1 two-year home residency requirement based on their commitment to the services in certain medically underserved areas and communities for a period of time, and Employment-Based Immigrant Category 5 Regional Center Pilot Program for investment immigrants. The House-Senate Conference Report will extend these programs until September 30, 2012. The other immigration program that will also be extended includes E-verify program. The Rebpublican conferees insisted in the conference process to make this program permanent but failed. Accordingly, the current E-verify program will also be extended until September 30, 2012.
• Once the House passes this conference report this week, it is likely that the Senate will pass it before the end of the month so that it can be timely presented to the President for his signature into law, relieving the involved foreign workers and employers for these programs from the agonies associated with the sunsetting laws and the Congress' action to extend temporarily for a short period of time using the stop-gap government appropriations legislation process at the last minute. They have been experiencing breath-taking journey beginning September 2008. The government agencies that manage these programs, including DOS for Visa Bulletins, DHS/USCIS for immigration benefits applications processing, and all the U.S. visa posts throughout the world processing immigrant visas for these applicants, have also gone through ups and downs not knowing the fate of these programs until the last minute. All these government and immigration stakeholders and consumers will now be relieved from such agony at least for the next three years. Please stay tuned to this website for the final acts of the full House, the full Senate, and the President during the next two weeks.
• For the full text of the report, please click here. Those who have a problem of locating the relevant immigration programs in this report may write to ohlaw@immigration-law.com.

10/13/2009: Congressman Luis Gutierrez (IL) Proporals of his Comprehensive Immigration Reform

• Read on.

10/13/2009: CIR Lobby Day and Rally in Washington, D. C. Today

• National faith and lobby groups have organized a lobby day and rally for Comprehensive Immigration Reform between 10:00 a.m. and 4:00 p.m. today in the nation's capital. One hour before the rally close schedule, Congressman Luis Gutieerez of IL and other Hispanic legislators will release their proposal for CIR. The Congressman plans then to introduce his CIR bill at later part of this month in the House. The rally includes processions. Those who live in the areas may consider joining the rally. The lobby day and rally appears to be timed to the return of post-Columbus-Day Congress today. One hick-up of this schedule is that the Senate Finance Committee is scheduled to act on its Healthcare Reform bill today and the nation, public, and media will be more attentive to and focused on this news than CIR issues. Please stay tuned.

10/12/2009: What a Change of Political Environment - Grim Assessment of Comprehensive Immigration Reform

• According to the news report, the Chairman of House DHS Subcommittee viewed the future of the CIR in the future pessimistically: "Lawmakers, Price said, know that immigration won't be a top priority in coming months, when Congress is looking to pass bills on healthcare, climate change and financial regulations, and address the struggling economy. Price said he believed Congress had the political will to tackle immigration early in 2010 but that it would be hard to pass anything once campaigning for the mid-term elections begins next summer and the presidential race begins in 2011."
• Generally, it has been concensus that the stumbling block to the CIR has historically been posed by the House and not in the Senate. On the House side, the Speaker Pelosi has yet to release her stance on any possibility for the House to initiate the CIR legislation process before the Senate acts. She declared earlier this year that the House would not initiate the CIR move until the Senate would act. Currently, the two most serious blocks to the CIR lie with the two factors. The CIR is still not considered one of the top priorities, and should the CIR bill is stalled and dragged in the Senate early next year, because of the upcoming mid-term national election in November 2010, the bill is likely to follow the same path which it has historically faced until now - death in the House. Currently, the heat in immigration advocates are volatile for the intolorable level of frustration.
• We will see whether Rep. Gutierrez will be able to turn the political landscape around to the level of volcano by his CIR proposal tomorrow.

10/10/2009: FY 2010 DHS Appropriations Bill Conference Report House Floor Scheduling Update

• The House is scheduled to take up this conference report on Wednesday, 10/14/2009 at the earliest or by Friday 10/16/2009 at the latest. Please stay tuned to this website.

10/10/2009: Message of "Thanks" to Mr. Oppenheim of U.S. Department of Sate

• On behalf of immigrants, this reporter wishes to extend "thanks" to Mr. Oppenheim for releasing November 2009 Visa Bulletin yesterday which could otherwise have been delayed substantially due to the sunsetting EB-4 and EB-5 problems at the end of October or even sooner. As this reporter posted ealier, he had two options, either to release it swiftly with certain EB-4 and certain EB-5 "unaavailable" and add a note that EB-4 or EB-5 would become automatically and immediately "Current" upon enactment of the extension of the sunsetting laws or to wait until the pending DHS FY-2010 Appropriation Act enactment, which awaits the Congressional final action which will be simple formality and the President's signature of the bill into a law. Had he taken the second option, the millions and millions of immigrants and their immigration petitioners other than certain EB-4 and certain EB-5 beneficiaries would have gone through a tremendous pain without knowing the date of release of this Visa Bulletin. Hats off to you, Sir!

10/09/2009: November 2009 Visa Bulletin

• Employment-Based : Stand-still in most cases.
• EB-4 (Nonminister Religious Worker) and EB-5 (Reggional Center): The cut-off dates for the categories mentioned above have been listed as “Unavailable” for November. If there is legislative action extending one or both of these categories for FY-2010, those cut-off dates would become “Current” for November.
• Family-Based Categories: Made a fairly good stride.

10/09/2009: Stay Tuned for November 2009 Visa Bulletin

10/09/2009: Monday, 10/12/2009, is the Columbus Day, a Federal Holiday

• There was a proposal in the House to go recess next week. Please stay tuned.
• We have three more federal holidays this year not including the new years eve which is "practically" holiday: Wednesday, November 11 Veterans Day'; Thursday, November 26 Thanksgiving Day; Friday, December 25 Christmas Day.
• Enjoy them!

10/09/2009: FY 2010 Refugee Admissions Number Authorized by the President

• On next Tuesday, 10/13/2009, the annual refugee admission number for fiscal year 2010 will be published in the federal register. The numbers will look as follows:
  • Total : 80,000
  • East Asia: 17,000
    Europe and Central AsiaL 2,500
    Latin America/Caribbean.: 5,000
    Near East/South Asia.: 35,000
    Unallocated Reserve : 5,000
  • The 5,000 unallocated refugee numbers shall be allocated to regional ceilings, as needed. Upon providing notification to the Judiciary Committees of the Congress, you are hereby authorized to use unallocated admissions in regions where the need for additional admissions arises. Additionally, upon notification to the Judiciary Committees of the Congress, you are further authorized to transfer unused admissions allocated to a particular region to one or more other regions, if there is a need for greater admissions for the region or regions to which the admissions are being transferred.
• For the full text, please click here.

10/08/2009: Text of Witness Testimonies in Today's Senate Judiciary Immigration Subcommittee Hearing on "CIR and Faith-Based Perspectives"

• At this time, the topic of CIR is relatively out of steam. If people still want to know what these representatives of religious community had to say about the CIR, please read their testimonies:
  • His Eminence Theodore E. McCarrick: Cardinal Archbishop Emeritus, Diocese of Washington , Washington, DC
  • The Reverend Samuel Rodriguez, President, National Hispanic Christian Leadership Conference, Sacramento, CA
  • James Tolle, Senior Pastor, The Church on the Way, Van Nuys, CA
  • Michael Gerson, Senior Research Fellow, Institute for Global Engagement, Center on Faith and International Affairs, Washington, DC
  • Leith Anderson, Senior Pastor, Wooddale Church, Eden Prairie, MN
  • Senate Judiciary Chairman, Patrick Leahy
• On the House side, Rep. Luis Gutierrez of IL will release his CIR proposal outline next Tuesday, 10/13/2009. He introduced a CIR bill, Strive Act of 2007, in the House in March 2007 and one wonders how different his 2009 proposal will be. Please stay tuned to this website for the Gutierrez CIR proposal. Remember that he represents the Hispanic community in the House in the CIR movement and is close to President Obama and his inner cicle of power from Chicago. In the Senate side, Sen. Menendez of New Jersey plays an idential role.

10/08/2009: Have You Received IRS Scary Emails of Underreported and Underpaid Tax Threat?

• A large number of our visitors must have received this fake emails and the IRS has issued a warning not to open such email. IRS states that they never send out emails to the tax payers. Opening or response to these fake emails will lead to identity theft because they steal passwords and other secured information from your computer system. This is not related to immigration, but this reporter thought our readers deserved a protection from these criminals!

10/08/2009: Wonderful USCIS Job for Issuing Advance Paroles in Short Period of Time

• Our recent record reflects that the NSC and TSC are issuing Advance Paroles in much shorter time than its target processing times of three months. Since people are facing the biggest holidays and travel season of a year, this is indeed a good news for the immigrants. Hats off to the USCIS leadership and hard working men and women in the Service Centers!

10/08/2009: New Form G-28 and USCIS Form Site Problems

• Currently, the G-28 form site in the USCIS has two confusing informations to those who will have to file current (old?) G-28 form without reading the USCIS website notice which was released on 10/01/2009.
  • The first consuing language in the form site is the description of the purpose of the form G-28, which states that "To provide notice that an attorney or accredited representative of a religious, charitable, social service or similar organization will appear before U.S. Citizenship and Immigration Services on behalf of a person involved in a matter before USCIS." It somehow gives potential confusing information that the form is intended for non-profit organizations. This form is used not only by a legal representatives but also by other non-lawyer representatives of both non-profit and profit entity clients as well as individual clients.
  • The second confusing language in the form is that G-28 forms other than the new G-28 are not accepatable. This is not true at this time.
• There are some representatives of the entities or individuals who have no option but filing the current old form for a number of reasons. The clients may be not available for executing the new form G-28 for a host of different circumstances. In the large number of USCIS field offices, mail room and data entries are usually handled by private contractors. We trust that the USCIS has informed sufficiently these contract workers about the 30-day grace period for the current (old) form. However, those who may still have some concerns with the potential erroneous rejection of the old G-28 form before October 30, 2009 may print out the agency's notice of the new form on its News site and Update site on bright color paper and and attach it to the old form G-28 which they will file before October 30, 2009. We urge the USCIS to correct the foregoing problems on its G-28 form site as soon as possible. It should not take a lot of time or resources to take care of the problems.

10/08/2009: Pending FY 2010 DHS Appropriation Legislation and November 2009 Visa Bulletin Release Timing

• As we reported yesterday, the House-Senate Conference Committee on FY 2010 DHS Appropriations reached a compromise and is expected to release the conference report soon. The conference report will be first presented to the House floor for its agreement and afterwards presented to the Senate floor for its agreement. The bill will then be presented to the President for his signature. It is obvious at this time that this will not take place this week and the earliest time we can predict will be later part of next week.
• This may present a predicament for Mr. Oppenheim, State Department Visa Bureau, as to the timing of release of November 2009 Visa Bulletin because, without the FY 2010 DHS Appropriattion Act being enacted, three immigration programs will affect November Visa Bulletin, most importantly EB-4 and EB-5 visa number availability. One option will be to release the VB early making EB-4 and EB-5 "unavailable" in the main visa number table for November 2009 and add a note which is similar to that we see in the October Visa Bulletin. Other option will be to wait for the release of the November Visa Bulletin until the FY 2010 DHS Appropriations legislation process is completed and signed by the President to release the November 2009 VB with EB-4 and EB-5 "Current."
• Neither of these two options will affect the beneficiaries of the involved immigration programs because they know by now that no matter what their visa programs are 100% assured of extension beyond October 31, 2009. However, the rest of the immigrants who are anxiously waiting for the November Visa Bulletin are likely to go through the pain of checking the status of November VB release religiously for a period of time without knowing the exact timing of release of the VB. We hope their endurance and pains be paid off with good visa number movement in the November VB.

10/07/2009: House-Senate FY 2010 DHS Appropriations Conference Summary

• The Conference Committee reached compromise. Compromised conference report provides three year authorization extensions for the religious worker (R visa), rural-serving doctors (Conrad 30-J visa), and investor (EB-5 visa) programs, upto September 30, 2012.
• Congratulations to the stakeholders and foreign workers for these programs!

10/07/2009: FY 2010 DHS Appropriations Bill Conferees Met Yesterday

• Good news for sunsetting immigration program stakeholders. The House-Senate Conferees had a meeting yesterday at 1:00 p.m. No details are available at this time, but the House-Senate joint committee is supposed to reach a compromise and produce a conference report, which will then be presented to the House and Senate floors. At last, it is moving ahead. Please stay tuned to this website for the development.

10/07/2009: PERM Processing Status Update as of 09/22/2009

• AILA reports DOL-Stakeholder minutes of 09/22/2009. According to this report, the current status of PERM applications are as follows:
  • Total Pending I Including Pending Appeals: 65,800
  • Audit Cases: 24,600 (37% of its workload)
  • Final Review Cases (Not Just Clean-Cut Cases but All the Initial Review Stage Cases): 37,500 (57$ of its workload).
  • Supervised Recruitment Cases: 130
  • Request for Review and Request for Reconsideration Cases: 3,000 (9% of its workloads)
• Caveat: The Final Review statistics can be misleading since it includes all the pending cases which have yet to be determined for either audit or denial or approval. The statistics in this report fails to show the statistics of pending clean-cut cases as separate from all the audits, denials, and withdrawal cases. Accordingly, the per centage of audit and denial cases can be much higher than what it shows in this report and the approval rate can be much lower than its report in Final Review Cases. The audit and denial rate statistics have yet to be released.

10/07/2009: USICE Releases on 10/06/2009 Detention Reform: "Immigration Detention Overview and Recommendations"

• This 36 web-page documents reviews the current detention and detention facility data and recommendation for reform. This is a very good material for those in immigration enforcement practice. There is also report that the reform includes using old hotels and nursing home facilities as part of the reform.

10/07/2009: Filing Location Changes Update for Orphan and Adoptee Petitions

• I-600 and I-600A: USCIS today announced a new address for prospective adoptive parents to submit Form I 600, Petition to Classify Orphan as an Immediate Relative, and Form I 600A, Application for Advance Processing of Orphan Petition. While the change takes affect today, applicants have a 30-day transistion period before USCIS will return incorrectly filed petitions. Applicants were previously required to file at a local USCIS field office. The Direct Mail Program allows USCIS to process applications more efficiently by eliminating duplicative work, and maximizing staff productivity. Please read the announcement for the new location.
• I-800 and I-800A: USCIS announced today that filing location of forms relating to the adoption of a foreign child under the Hague Adoption Convention has changed. Beginning today, U.S. citizens seeking to adopt a foreign child under the Hague Adoption Convention must submit Forms I-800, Petition to Classify Convention Adoptee as an Immediate Relative, and I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, and all related supplements, forms, and fees to the USCIS lockbox facility located in Lewisville, Texas for initial processing, Please read the announcement for the new location.

10/07/2009: USCIS Clarifies Requirements for Agents Filing as Petitioners for O and P Visa Petitions

• The Fact Sheet indicates that a petition filed by an agent is subject to several conditions. A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:
  • The supporting documentation includes a complete itinerary of the event or events.
  • The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.
  • The contract between the employers and the beneficiary is submitted.
  • The agent explains the terms and conditions of the employment and provides any required documentation.
• For other conditions and details, please read the full text of the Fact Sheet dated 10/06/2009

10/06/2009: USCIS Should Correct Serious Flaw With New Form G-28 for Employment-Based Petition Proceedings

• The USCIS announced that the USCIS would launch new form G-28 and the current form would become invalid after 10/31/2009. However, the form site has already removed the current form and launched the new form with the statement that old form was not acceptable. This inconsistency between the official announcement and form site instruction currently confuses consumers tremendously.
• The more serious flaw is detected in the column for the consent of clients for the representation. This form is no good for the employment-based nonimmigrant and immigrant "petition" proceeding because there is no column for the names of corporate or orgational entities that consent to the representation. In proceedings other than employment-based immigration benefit petition proceeding, the petitioners are individuals and the new form will serve the purpose, but in the employment-based proceedings, the petitioners are not individuals and the new form does not allow the petitioners to fill out their corporate or organization names in the new form. The USCIS is advised to correct these flaws as soon as possible.

10/05/2009: EB-4 and EB-5 Visa Availability in October 2009 and Continuing Appropriations Resolution Extending These Programs Til 10/31/2009

• In October 2009 Visa Bulletin, the immigrant visa table for certain EB-4 religious worker immigrants and EB-5 Regional Center investor immigrants show "Unavailable." However, careful readers of the Visa Bulletin must have noticed the accompanying note which states that the cut-off dates for the categories mentioned above have been listed as “Unavailable” for October. If there is legislative action extending one or both of these categories for FY-2010, those cut-off dates would immediately become “Current” for October.
• Well, there was a legislative action in September 2009 extending these immigration laws at least upto October 31, 2009 "pending" the Congressional action on the FY 2010 DHS Appropriation Act bill. It is thus obvious that the visa numbers are currently available for these immigrants as of now and both visa posts and USCIS should not refuse to either accept or process the immigrant petitions and 485 applications or immigrant visas to these immigrants. It would have been nice, had the agencies released the information upon the Congress' passage of the continuing appropriations resolution on September 30, 2009.
• One small caveat for these immigrants: If the Congress drops these immigration program extensions in passing the FY 2010 DHS Appropriations bill, the immigrant visa numbers will become immediately unavailable again at the time when the President signs such bill. Accordingly, extension of these immigration programs until 10/31/2009 is conditioned upon either Congress action not dropping these extension programs in the DHS Approprations bill or failing to pass such DHS appropriations bill before November 1, 2009. In other words, if the Congress passes the FY 2010 DHS Appropriations bill before October 30, 2009 with or without the immigration program extension provisions, this part of continuing appropriations resolutions will cease to exist upon the President's signature on the bill, even before October 31, 2009. Accordingly, extension until 10/31/2009 is "conditional." The prospects for keeping these provisions in the compromise process are very promising.
• The FY 2010 DHS Appropriations bill is in "House-Senate conference" stage and sooner or later the Congress will pass the final House-Senate compromise DHS appropriation bill, probably in next one week or two weeks. This compromise process is currently held up by the "super hot-botton" healthcare reform legislative activities. Please stay tuned.

10/04/2009: State Department Final Rule: Mandatory USCIS Approved R-1 Nonimmigrant Petition Requirement for R Visa Application

• Effective tomorrow, the visa posts will not issue R religious worker nonimmigrant visas unless the visa posts confirms USCIS approval R-1 petition. The rule which will be released tomorrow will read as follows:
  • §41.58 Aliens in religious occupations.
    (a) Requirements for “R” classification. An alien shall be classifiable under the provisions of INA 101(a)(15)(R) if:
    
    • (1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and
    • (2) With respect to the principal alien, the consular officer has received official evidence of the approval by USCIS of a petition to accord such classification or the extension by USCIS of the period of authorized stay in such classification; or
    • (3) The alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
      
  • (b) Petition approval. The approval of a petition by USCIS does not establish that the alien is eligible to receive a nonimmigrant visa.
  • (c) Validity of visa. The period of validity of a visa issued on the basis of paragraph (a) to this section must not precede or exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.
  • (d) Aliens not entitled to classification under INA 101(a)(15)(R). The consular officer must suspend action on the alien's application and submit a report to the approving USCIS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(R) is not entitled to the classification as approved.
• For the full text, please click here.

10/03/2009: Foreign Labor Certification Applications Processsing Times as Reflected in DOL FY 2010 Budget Justification Document

• The following is the DOL's own statement on processing time goals of past and next two years:
  • Performance goals (in the past) established by the Department use indicators related to the visa programs it
    administers:
    
    • Percent of H-1B applications processed within seven days of the filing date for which no
      prevailing wage issues are identified;
    • Percent of employer applications for permanent labor certification, under the streamlined system, that are resolved within six months of filing;
    • Percent of H-2A applications with no pending state actions processed within fifteen days of receipt and thirty days from the date of need; and
    • Percent of the H-2B applications process within sixty days of receipt.
      
      
  • New Performance goal for FY 2010:
    Performance for all four application programs is expected to remain the same or slightly increase over the next two years. FLC also plans to revise the PERM measure and implement a new program integrity measure. The current PERM measure, employer applications resolved within six months, will be extended to nine (9) months. The original measure was developed prior to implementation of the program. The enhancement of integrity actions during FY 2008 and early 2009 demonstrate that a nine (9) month measure will more accurately reflect actual program performance. The new integrity compliance rate will be measured as the percent of resolved applications that have been selected for integrity review and found in compliance. ETA is currently developing baseline targets for an enhanced PERM performance measure and a new PERM integrity measure. These measures are scheduled for approval and implementation at the beginning of FY 2010.
• Remember that the budget justification statement was prepared quite long time ago to support its official FY 2010 DOL appropriation proposal for the White House and Congress. Remember also that they are projecting the processing times for PERM applications to 9 months not only in FY 2010 but also in FY 2011.
• The employers and foreign workers know that the H-1B LCA applications have already been taking minimum 7 days since OFLC launched so-called ICERT Portal System a few months back. The PERM program has yet to mandate ICERT Portal System filing, but as the budget justification officially admitted, the PERM applications have been taking 9 months or longer for quite a while, allegedly, all "thanks to" the integrity mission.
• The ICERT portal program is conceptually similar to the USCIS business transformation program, and it appears that these two federal departments are likely to witness continuing backlogs in processing of immigration benefits applications until they achieve two goals. One is completion of electronic processing systems along the line of account systems. The second is improvement of field operation and processing systems. In the USCIS, the current field office operations have produced substantial backlogs, due in part to inefficiency. In the OFLC, as it is admitted by the budget justification, its field operation has suffered from some inefficiency and ineffectiveness due in part to insufficiently trained resources in processing of "legal" immigration benefits application programs. The issue goes beyond the dealys which are associated with the integrity mission. We just hope that the agencies excert their efforts to improve the management systems as soon as possible. The oversight authorities should also pay an equal attention to the agencies' management issues along with the agencies tasks for achievement of integrity in their processing systems.

10/03/2009: USCIS Filing Fee Increase is a Matter of Time

• Very recently, the new USCIS Director mentioned in a press conference that because of the anticipated CIR and fee income short fall of over $100 million, the USCIS was considering the filing fee increases. However, the fee increase adjustment was considered by the USCIS long before Mr. Mayorkas joined the USCIS in August 2009. The USCIS released in Spring 2009 the list of proposed regulations the USCIS was considering. Release of the semi-annual rule making agenda does not bind the agencies, but the agencies have been enacting most of the rules in their agenda per the semi-annual agenda. According to the Spring 2009 agenda, the USCIS was considering release of the proposed fee increase rule in October 2009 with the comment period ending in December 2009. Obviously, it appears that the release date has been somewhat pushed off, but release of the fee increase may be considered a matter of time. The question remains how much the agency will raise in the filing fees.
• Consideration of the proposed fee was explained as follows in the Spring 2009 agenda: This rule will adjust the fee schedule for U.S. Citizenship and Immigration Services (USCIS) immigration and naturalization benefit applications and petitions, including nonimmigrant applications and visa petitions. These fees fund the cost of processing applications and petitions for immigration benefits and services, and USCIS’ associated operating costs. USCIS is revising these fees because the current fee schedule does not adequately recover the full costs of services provided by USCIS. Without an adjustment of the fee schedule, USCIS cannot provide adequate capacity to process all applications and petitions in a timely and efficient manner. The fee review is undertaken pursuant to the requirements of the Chief Financial Officers Act of 1990 (CFO Act), 31 U.S.C. 901-03. The CFO Act requires each agency’s Chief Financial Officer (CFO) to “review, on a biennial basis, the fees, royalties, rents, and other charges imposed by the agency for services and things of value it provides, and make recommendations on revising those charges to reflect costs incurred by it in providing those services and things of value.” Id. at 902(a)(8). This rule will reflect recommendations made by the DHS CFO and USCIS CFO, as required under the CFO Act.

10/02/2009: Current Attorney Appearance Form G-28 Turn Invalid After 10/30/2009

• USCIS releases new G-28 with the announcement that the current G-28 form will become invalid and not acceptable.
  • Announcement
  • New G-28 Form

10/02/2009: Senate Judiciary Immigration Subcommitte Reschedules Hearings of "Comprehensive Immigration Reform, Focusing on Faith-Based Perspectives" 10/08/2009

• Representatives from various religious denominations are expected to testify mostly in support of CIR. Please stay tuned.

10/02/2009: Bill to Eliminate Diversity Immigration Visa and Allocate the Numbers to Employment-Based Immigration Quota

• Yesterday, Representative Darrell Issa of California introduced H.R.3687 to eliminate the diversity immigrant program and to re-allocate those visas to certain employment-based immigrants who obtain an advanced degree in the United States.

10/01/2009: H-1B Visa Struggle - FY 2009 Top Ten H-1B Visa Stories

• ComputerWorld complied top ten H-1B stories in FY 2009. It is indeed too pain ful to go through the list. Read on.

10/01/2009: DHS Appropriations Act Legislation Update: Conferees Appointed and Conference in Process

• Today, the House agreed to conference requested by the Senate and the House Speaker Pelosi appointed the following conferees: Price (NC), Serrano, Rodriguez, Ruppersberger, Mollohan, Lowey, Roybal-Allard, Farr, Rothman (NJ), Obey, Rogers (KY), Carter, Culberson, Kirk, Calvert, and Lewis (CA). Once the House-Senate conferees reach compromise and produce a conference report, it will go back to each House for the agreement. The bill with the conference report will then be presented to the President for signature. Encouranging news for nonminister religious workers, foreign medical doctors, and EB-5 Regional Center pilot investment program investors. Once this bill passes, it will take effect on the date the President signs and not on 10/31/2009 to further extend these three program until 09/30/2012 and does not have to wait until 10/31/2009. Please stay tuned.

10/01/2009: Continuing Resolution Update: Senate Passed and President Signed Before Midnight Yesterday

• The Senate took a little bit more time to agree to the Conference Report, but agreed to the CR and the Congress swiftly presented it to the President, who then signed it into law before midnight yesterday. The sunsetting immigration programs have thus been extended at least until October 31, 2009.

10/01/2009: ETA and ESA Extends H-2A Proporsed Rule Comment Period top 10/20/2009

• The comment period expired on 09/04/2009. This period is extended to 10/20/2009. Read on.

09/30/2009: Senator Chuck Grassley of Iowa Demands Reinforcementof H-1B Fraud Detection and Investigation

• Read on. The H-1B petition has been experiencing mountain of RFEs without such political pressure. It is anticipated that such political pressure will negatively affect the H-1B petition process even further.

09/30/2009: Senate to Pass Conference Report on Continuing Resolution This Morning

• The Senate floor is scheduled to begin consideration of the conference report to accompany H.R.2918, the Legislative Branch Appropriations bill after they begin a period of morning business at 10:00 a.m.this morning. As we reported earlier, the conference report includes Continuing Resolution to continuously fund the federal government beyong September 30 and through October 31, 2009 and to extend the sunsetting immigration programs upto October 31, 2009 pending the FY 2010 DHS Appropriation Act legislation.
• The Congress is indeed a way behind in legislating the federal deparment appropriations for FY 2010 and the Senate's plate are full of dealing with the House passed appropriation bills. Besides, there are about six departmental appropriation bills awaiting the conference between the House and the Senate, but they completed only one confeence, which is the H.R. 2918 for the Legislative Branch. Even this conference report, the Senate had to wait until the last minute when the fiscal year curtain will drop. It is a relief that at least the sunsetting immigration programs will be extended upto October 31, 2009 thanks to the anticipated Senate's final action and President's anticipated signature within today, but the sunsetting immigration programs will have to face further delays to learn their fate beyond October 31, 2009 on the Hill. Out of the five bills that awat the conference, it appears that the DHS appropriattion is not on the top agenda, even though it may definitely be passed before October 31, 2009. The sunsetting immigration programs include E-verify program, nonminister religious worker immigration program, Conrad 30 national interest waiver of J-1 residency requirement for the foreign doctors, and EB-5 Regional Center Pilot program for investor immigrants.

09/29/2009: State Department Releases DV-2011 Immigration Lottery Instructions

• No countries have been added or removed from the list of eligible countries. The list of eligible countries remains the same as for DV-2010.
  Read also Press Release

09/29/2009: AILA New Executive Director - Crystal Williams

• The Executive Director position has remained vacant for almost three months. AILA has announced that Crystal Willitams, current Deputy Director of Communications, will take over the AILA leadership. Crystal Williams is not only a top-notch immigration attorney but also a good leader who is the nation's top expert in immigration laws, history, policies, and issues. Above all, she has a good lead and contact with the immigration stakeholder agencies. For the reasons, she has been leading and active in agency liaison activities.
• We urge our readers to join this reporter to welcome her to the AILA leadership position.

09/27/2009: Sunsetting Immigration Programs to be Extended Through 10/31/2009 Contingent Upon Passage of DHS FY 2010 Appropriation Act

• The sunsetting immigration programs have been riding a roller coaster and tossed around among different legislative bills. A bill extending the programs was first introduced in the House by a legislator. However, the House failed to act on the bill. Facing the problem, the Chairman of Senate Judiciary Committee, Patrick Leahy of Vermont attached the bill to the DHS FY 2010 Appropriation bill in the form of amendment to the DHS Appropriation bill. So, the fate of extension of sunsetting immigration programs was tossed to the DHS Appropriation bill. Since the DHS Appropriation was thus amended by the Senate, the Senate had to request the House to consent to conference to compromise the differences between the original House version of the bill and the amended Senate version of the bill. This time, the DHS bill got stuck at the House since the House failed to appoint the conferees in time when the sunsetting immigration programs were approaching September 30, 2009. Facing the problem, this time the House attached the immigration programs to the FY 2010 stop-gap funding bill, named Continuing Resolution to save these immigration programs from the sunset. Since the stop-gap funding will be 100% guaranteed for passage before October 1, 2009 to avoid the shut down of federal government effective October 1, 2009, the immigration programs have been saved for now, at least until October 31, 2009. Since the Continuing Resolution was a temporary saviour, the fate of these immigration programs is tossed back to the DHS FY 2010 Appropriation Act that needs conference between the House and the Senate. What's next then? If the DHS Appropriation bill passes the Congress before 10/31/2009, the immigration programs will be extended until 09/30/2012. If the Congress passes the DHS Appropriation bill dropping the extension of the immigration programs during the conference process, the immigration programs will indeed sunset, even before October 31, 2009. If the Congress fails to pass the DHS Appropriation bill before October 31, 2009, the Congress will have to pass another Continuing Resolution to prevent the shut-down of the government agency, and by the force of the extended Continuing Resolution, the immigration programs will be temporarily saved again, pending the passage of the DHS Appropriation bill. Oh, My Goodness! Ain't that crazy? Dizzy enough? You bet!

09/27/2009: House-Passed Continuing Resolution (Stop-Gap Funding) Includes Extension of Non-Religious Worker, Conrad 30 NIW, and E-Verify Programs

• The House passed the Senate-House Conference Report of the Stop-Gap Funding Continuing Resolution as part of the Legislative Branch Appropriation bill. The Senate is expected to pass the Conference Report and the bill on Tuesday, September 29, 2009. The President is then expected to sign the bill before the mid-night of Wednesday, September 30, 2009. The Continuing Resolution is Division B of the Legislative Branch Appropriation bill.
• Division B provides continuing appropriations for all agencies and activities that would be covered by the regular fiscal year 2010 appropriations bills, until enactment of the applicable regular appropriations bill, or until October 31, 2009, whichever occurs first.
• The following immigration programs are extended under Sections 128, 133, and 134 for a period which is set forth in the Section 106 of Division B, Continuing Resolution.
  • Sec. 106 provides that unless otherwise provided for in this joint resolution or in the applicable appropriations Act for fiscal year 2010, appropriations and funds made available and authority granted pursuant to this joint resolution shall be available until whichever of the following first occurs: (1) the enactment into law of an appropriation for any project or activity provided for in this joint resolution; (2) the enactment into law of the applicable appropriations Act for fiscal year 2010 without any provision for such project or activity; or (3) October 31, 2009.
  • The list of the sunsetting immigration programs that are extended under the Section 106 include:
    • E-Verify Program: Sec. 128 of Continuing Resolution provides that Section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) shall be applied by substituting the date specified in section 106(3) of this joint resolution for `the 11-year period beginning on the first day the pilot program is in effect.
    • Nonminister Religious Worker Special Immigration Program: Sec. 133 of Continuing Resolution provides that Subclauses (II) and (III) of section 101(a)(27)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(C)(ii)) shall each be applied by substituting the date specified in section 106(3) of this joint resolution for `September 30, 2009.
    • Conrad 30 National Interest Waiver Program for Foreign Medical Doctors: Sec. 134 of Continuing Resolution provides that Section 220(c) of the Immigration and Nationality Technical Corrections Act of 1994 (8 U.S.C. 1182 note) shall be applied by substituting the date specified in section 106(3) of this joint resolution for `September 30, 2009'.
• Nonminister religious workers and Conrad 30 NIW IMG doctors are thus relieved from the sunset of their programs beyond September 30, 2009 since the DHS FY 2010 Appropriation Act of 2010 is likely enacted by next one or two weeks through conference, extending the programs until September 30, 2012, even though we cannot 100% brush aside the chance that one of these programs can be removed in the compromise process in the conference committee, but thus far, extension of these immigration programs is very promising. For the full text of the Legislative Branch Appropriation Act of 2010 that includes Continuing Resolution, please click here. Congratulations!

09/26/2009: Cheer Up, the Honorable Zoe Lofgren, Chair of House Judiciary Immigration Subcommittee

• The immigrants owe tons of thanks to Rep. Zoe Lofgren for her support for immigration legislation in the House as the Chair of the Judiciary Immigration Subcommittee. Rep. Lofgren was particularly active in supporting employment-based immigration proposals in the past year.
• Since then, the political environment has dramatically changed and we are living in a world of "immigration scare" from the standpoint of politicians. Obviously, the House Judiciary Immigration Subcommittee lives in such a world too and has remained in very low key in this session of the 111th Congress. Immigrants know that Rep. Lofgren's heart still is there with the immigrants. Hopefully, the forcecoming introduction of CIR bill by Rep. Gutierrez in October may spice up the Subcommittee on the immigration debates. We just hope that the Immigration Subcommittee returns to immigration legislation agenda as soon as possible taking up some immigration bills for debates and actions. We take this opportunity to inspire the Chair to return to her old glory on the Hill in the immigration legislation. We look forward to her continuing leadership in the immigration legislation.

09/26/2009: What Further Changes Expected to Redesigned USCIS Website Coming Months?

• The following changes in the upcoming months:
  • More instructional and informational content via multimedia
  • Simplified internet addresses for the most used topic areas
  • Continual improvement of Spanish-language website
  • The ability to sign up for news feeds regarding specific topics of interest
  • Continued transparency of USCIS operations by making publicly available data accessible through the website
  • Improved ability to navigate to and search for forms
  • The use of online surveys, focus groups, and other feedback mechanisms to solicit input regarding current site performance, content, and features
• The USCIS is interested in your feedback about USCIS.gov. Please take a moment to tell them what you think about the site by emailing them at uscis.webmaster@dhs.gov. For the fact sheet, please click here.

09/26/2009: Key Features of USCIS Redesigned Website - Fact Sheet

• The USCIS summarizes key features of the new site as compared to the old site.

09/26/2009: POSTPONED--Senate Judiciary Immigration Subcommittee Hearing on "Comprehensive Immigration Reform: Faith-Based Perspectives" Scheduled 09/29/2009

• Senate Judiciary Immigration Subcommittee is struggling with the Comprehensive Immigration Reform legislation. A hearing on CIR and Agricultural Suffering was one time scheduled and postponed recently. Then another CIR hearing related to the issue of faith-based community was scheduled on 09/29/2009 with the lining up of witnesses to testify, but this hearing has also been postponed again. Please see the notice.

09/26/2009: Conference for DHS Appropriation Bill May Take Place First Week of October

• The FY 2010 DHS Appropriation Bill that contains extension of the sunsetting immigration programs can take place either late next week or following week. Please stay tuned.

09/25/2009: House Passes Continuing Resolution (Stop-Gap Funding) Including Non-Religious Worker, Conrad 30 NIW, and E-Verify Program Extensions

• The House passed today the Stop-Gap Funding Continuing Resolution as part of the Legislative Branch Appropriation bill which it passed today. The Senate is expected to pass this bill when it turn to the session next week The Continuing Resolution is Division B of the Legislative Branch Appropriation bill.
• Division B provides continuing appropriations for all agencies and activities that would be covered by the regular fiscal year 2010 appropriations bills, until enactment of the applicable regular appropriations bill, or until October 31, 2009, whichever occurs first.
• The following immigration programs are extended under Sections 128, 133, and 134 for a period which is set forth in the Section 106 of Division B, Continuing Resolution.
  • Sec. 106 provides that unless otherwise provided for in this joint resolution or in the applicable appropriations Act for fiscal year 2010, appropriations and funds made available and authority granted pursuant to this joint resolution shall be available until whichever of the following first occurs: (1) the enactment into law of an appropriation for any project or activity provided for in this joint resolution; (2) the enactment into law of the applicable appropriations Act for fiscal year 2010 without any provision for such project or activity; or (3) October 31, 2009.
  • The list of the sunsetting immigration programs that are extended under the Section 106 include:
    • E-Verify Program: Sec. 128 of Continuing Resolution provides that Section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) shall be applied by substituting the date specified in section 106(3) of this joint resolution for `the 11-year period beginning on the first day the pilot program is in effect.
    • Nonminister Religious Worker Special Immigration Program: Sec. 133 of Continuing Resolution provides that Subclauses (II) and (III) of section 101(a)(27)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(C)(ii)) shall each be applied by substituting the date specified in section 106(3) of this joint resolution for `September 30, 2009.
    • Conrad 30 National Interest Waiver Program for Foreign Medical Doctors: Sec. 134 of Continuing Resolution provides that Section 220(c) of the Immigration and Nationality Technical Corrections Act of 1994 (8 U.S.C. 1182 note) shall be applied by substituting the date specified in section 106(3) of this joint resolution for `September 30, 2009'.
• Nonminister religious workers and Conrad 30 NIW IGS are thus relieved from the sunset of their programs beyond September 30, 2009 since the DHS FY 2010 Appropriation Act of 2010 is likely enacted by next one or two weeks, extending the program for the next several years. For the full text of the Legislative Branch Appropriation Act of 2010 that includes Continuing Resolution, please click here.

09/25/2009: Very Productive USCIS Transformation Program Discussion Session This Morning

• USCIS Transformation Program Office offered this session from 09:00 a.m. CST, this morning in person and via telephone to present to and collect views from the stakeholders. This reporter could not afford attending the session in person but had a priviledge to attend it telephonically. This reporter found the session extremely informative and helpful for the stakeholders. This reporter also believes that the session was extremely successful in that the agency could hear very helpful views and inputs from the stakeholders. This reporter wishes to extend congratulations to the USCIS for opening a new chapter for open and responsive government process and hopes the agency to continue suich process in the future. The full launch of the Business Transformation Program will indeed bring about an extremely high level of efficiency in immigration services. Thank you for the wonderful opportunity, the leaders of the Transformation Program Office!
• We encourage the USCIS to post a summary of the transformation program in the DHS Leadership Journal.

09/24/2009: USCIS Introduces New Features in USCIS Redesigned Website

• USCIS introduces and answers questions on the new features on its redesigned website. Please read the following fact sheets and Q&A:
  • Q&A Redesign.
  • Redesign Highlights.
  • Fact Sheet: E-Notification Capability
  • Fact Sheet: National Dashboard
  • Fact Sheet: My Case Status

09/24/2009: Forthcoming I-485 and Related Applications (EAD, AP) Filing Procedure Change by End of 2009

• Along with the gradual launch of business transformation program, the USCIS is scheduled to change filing procedures of I-485, I-131 (advance parole), and I-765 (ead) from current procedure of filing with the Service Centers to the lock boxes. Currenly, the USCIS accept certain petitions and applications at one of the three USCIS Lockbox facilities in Chicago, Phoenix, and Lewisville, Texas. It is unknown which lockbox the agency will designate for the I-485, EAD, and AP applications. People should check the forthcoming filing procedure change announcement of agency. For other details, please click here.

09/24/2009: H-1B and H-2B Cap Count Updated 09/24/2009 - Still Plenty!

H-1B Cap Count	H-2B Cap Count
As of 09/18/2009	As of 09/11/2009
46,000	18,134

09/24/2009: USCIS Considers Filing Fee Increase?

• No one should be surprised by the Los Angeles Times report that the USCIS is "considering" but not yet decided fee increases. As we reported earlier, the State Department is already seeking OMB approval for its consular and embassy services fee increase. Report says that the USCIS recorded a short fall of $118 million this fiscal year. One of the key reasons for the fund problem is cited reduced number of new case filings. Since the USCIS relies on the fee-income for its finance, it presents a problem. Another reason which is not discussed in the report may include its need for money to support ongoing reengineering project named business transformation program. This program is primarily funded by the premium processing service fee fund. Obviously, the PPS fund is suffering as well, particularly considering a drastic decrease of new employment-based cases. Another reason the report cited is need to funds to deal with potential increase in workload which are likely generated by the Comprehensive Immigration Reform, should the CIR be successfully enacted next year. However, this reason for fee increase may be considered too premature, considering the fact that the CIR may not be accomplished even in 2010. The most probable year for a successful CIR legislation is currently considered year 2011. Let's see what happens.

09/24/2009: Anticipated Slow-Down of Processing Time for First Quarter of FY 2010 (10/01/2009-12/31/2009)

• Before and after enactment of USCIS rule increasing filing fees in July 2007, the USCIS developed so-called "Target and Estimate Processing Time" for each type of immigration benefits applications. It appears that the agency was more or less successful in reaching the target processing times at the end of September 2009 even though we noticed two problems. One is EB-485 applications and the other is the definition of backlog that excluded RFEs and NOIDs which increased substantially in 2009. As we reported earlier, the problems are likely to be resolved along the way in coming fiscal year because of the USCIS plan to improve the adjudication process in the area of RFEs.
• Aside from such issues, when the agencies approach the first quarter of a fiscal year, we have witnessed a slow-down of the processing as affected by the two factors. The first factor is the internal file audits that freeze movement of some files during the period of audits. The annual file audits are usually scheduled around this time. The second factor is the biggest national holidays during the period when the agency witnesses reduced availability of resources to process and adjudicate petitions and applications. At this time, there is no known "Target Processing Time" for FY 2010 released by the USCIS. Accordingly, those who need new status or extension of such immigration benefits may want to file their applications giving an additional lead time to obtain the approvals. Such applications can include I-131 Advance Parole and I-765 EAD for I-485 applicants. Since some of them may want to travel back home during the season, they should file the applications ahead of time. For programs that are eligible for premium processing services, people may not experience problems. Unfortunately, the premium processing services are not available for certain proceedings. For instance, such services are not available for EAD extrensions or Advance Parole applications.

09/24/2009: Continuing Resolution Update

• This stop-gap funding legislation is held up and experiencing delays at the level of the House committee related to lobjams involving some attachments to the bill, not necessarily immigration program extension attachments. Sources indicate that this resolution may be taken up on the House floor today, but we will have to wait and see. The extension of sunsetting immigration programs still depends on the stop-gap funding bill legislation in that conference agreement on the part of the House for the four appropriation bills, including DHS appropriation bill, which the Senate passed with amendments and requested the House for conference has been facing huddles and it is still open question whether these bills can be resolved through the conference process by September 30, 2009. As we reported earlier, extension of Conrad 30 NIW program for foreign medical graduates, extension of nonminister religious worker immigration program, and extension of E-Verify program are attached to the DHS appropriation bill that needs conference compromise process. Please stay tuned to this website for the development of this part of legislative process.

09/24/2009: Summary of House Bill "Senior Citizen Act of 2009" H.R.3604

• As we reported earlier, this bill was just introduced on 09/17/2009 in the House and it will take a while for this bill to complete the legislative process. This bill will, however, affect millions of alien senior citizens in the country who are handicapped to participate in the country's election and political process because of their language barrier even after residing in the United States as lawful permanent resident status for more than five years. The country's baby-boomer generation is moving into the age group for the mainstream Americans, but the number of senior citizen age group permanent residents have been growing rapidly as well. In all fairness, this invisible group of permanent resident senior citizens deserves a voice in the coutnry's political process. We urge AARP to support this bill since passage of this bill will also benefit the organization by increased recruitment of its membership and its political power in the American politics. Upto now, the organization has neglected the immigrants, including senior citizen immigrants, in recruitment and in services.
• This bill will remove the hurdles for the alien senior citizens' road to the citizenship by allowing senior citizen aliens who have been a lawful permanent resident for five years or longer and are 65 years or older to take English test in their mother languages and by waiving the test of knowledge of the government of the United States. Once this bill passes the Congress and the President signs it, it will take effect on the date of the President's signature and will apply to applications for naturalization pending on or after the date of enactment.
• Passage of this bill may affect somewhat the dynamics of the 2010 mid-term national election and it is anticipated that the bill may have to go through a difficult political process. Please stay tuned.

09/23/2009: Rep. Luis Gutierrez of Illinois to Introduce His Version of CIR in October

• Congressman Gutierrez has been under tremendous pressure from his ethnic group, Hispanics, and frustration from the President and Sen. Schummer's decision to push off the CIR to next year. In fact, beginning March 2009, he moved around the country organizing and participating in town hall meetings to collect the opinions from the grass roots and mobilize the Hispanitcs in support of CIR. However, nomination and confirmation process of U.S. Supreme Court Associate Justice substantially affected his move more or less negatively. In a way, confirmation of Justice Soto Mayor is taken as a reward for Hispanic support by the Democrats, compromising the President's commitment to the CIR during the Presidential campaign. Additionally, the President and the Democrats had to struggled with other top priorities including economic recovery, healthcare reform, financial reform, green-house and energy reform, etc. Under the circumstances, Congressman Gutierrez has probably learnt that all his efforts might turn fruitless unless he would act regardless of the current political landscape that takes "immigration" as inflammatory.
• He now announces that no matter what, he will release his principles of CIR on October 13, and soon thereafter introduce his CIR bill in the House. He is an important member of the House Judiciary Immigration Subcommittee. It will be interesting to watch how much his legislative move will mobilize the pro-CIR forces, particularly Hispanics and independents. Currently, the heat surrounding healthcare reform is expected to stretch out through the Thanksgiving. It is going to be very challenging move, but we will have to wait and see. Please stay tuned.

09/23/2009: USCIS Q&A and Statistics on Pending EB-485 Inventory

• USCIS redesigned site provides very valuable information and statistics on pending Employment-Based Applications in the form of pending numbers by year and country as of 2009. It is a huge file and data which are good reading materials for the EB immigrants during the weekend. Here we go.
  • Questions & Answers: Pending Employment-Based Form I-485 Inventory
  • I-485 Employment-Based Inventory Statistics (by country and by year)

09/23/2009: OMB Approves CBP's Proposed Expansion of Global Entry Program Designation

• On 09/22/2009, the OMB cleared this proposed rule. The CBP already operates several regulatory and non-regulatory international registered traveler programs, also known as trusted traveler programs. In order to comply with the Intelligence Reform Terrorism Prevention Act of 2004 (IRPTA), CBP is proposing to amend its regulations to establish another international registered traveler program called Global Entry. The Global Entry program would expedite the movement of low-risk, frequent international air travelers by providing an expedited inspection process for pre-approved, pre-screened travelers. These travelers would proceed directly to automated Global Entry kiosks upon their arrival in the United States. This Global Entry Program, along with the other programs that have already been established, are consistent with CBP's strategic goal of facilitating legitimate trade and travel while securing the homeland. A pilot of Global Entry has been operating since June 6, 2008. Stay tuned for release of this rule in the federal register.

09/23/2009: Official PERM Labor Certification Application Processing Times as of 09/30/2009

• U.S. Department of Labor, Office of Foreign Labor Certification has just released the current processing time of permanent labor certification applications as of the end of this month. The date represents the date the applications were first filed, which is also called priority date.
  • Final Reviews (Clean Cut Cases): December 2008
  • Audit Cases: October 2007
  • Standard Appeal Cases: August 2007
  • Gov't Error Appeal Cases: Current
• The last four-month processing times confirm that even though its FY 2010 (10/01/2009-09/30/2011) budget proposal estimated that the PERM processing times would be nine (9) months, actually the nine-month processing time started in the second-half of FY 2009. Accordingly, the employers hiring permanent foreign workers must understand that at least for the next one year, processing times of PERM applications will not improve and should learn to live with it and plan accordingly in their recruitment and hiring practices. Foreign workers should also take the delayed processing times of permanent labor certification application in their journeys in nonimmigrant status, on top of the State Department's predicted visa number problems coming year.

09/23/2009: Alan Bersin - New USCBP Commissioner Nominee

• President intends to nominate Mr. Alan Bersin as the Commissioner of U.S. Customs and Border Protection of DHS. For his background and DHS Secretary's welcome statement, please click here.

09/22/2009: Mr. Alejandro Mayorkas, USCIS Director, Introduces Himself and "Exciting Changes at USCIS" in Leadership Journal

• We are happy to report that Mr. Mayorkas has just initiated cyber communication for immigration stakeholders and public. In doing so, he more or less reiterates his confirmation hearing testimony relating to his plan and agenda for the USCIS. Additionally, he introduces the changes that are taking place in USCIS including just launched redesigned USCIS website. Please visit the Leadership Journal and read and welcome him to the immigration agency.
• Readers, please keep sending your suggestions, opinions, and recommendations to the new USCIS Director by posting your comments to his message in this Leadership Journal blog. You should select "Anomymous" to get posted.

09/22/2009: House to Take Up Continuing Resolution for Stop-Gap Funding of Federal Departments Through End of October 2009

• Sources indicate that the House leadership is scheduled to introduce the continuing resolution this week to fund the federal departments for the first one month of FY 2010 pending the departmental appropriation bills. It appears that the House is considering to include some attachments to the continuing resolution for certain sunsetting federal programs. However, it is uncertain whether the attachments will include sunsetting immigration programs, even though it is likely that extension of E-Verify program may be pushed by the Obama Administration and supported by the Republican leadership. Please stay tuned.

09/22/2009: Sanate Judiciary Immigration Subcommittee Schedules a Hearing on "CIR: Faith-Based Perspectives" on 09/29/2009

09/21/2009, 06:00 p.m. Redesigned USCIS Website Up and Running!!

09/21/2009: Will H1N1 Flu Outbreak Affect Some Legislative Activities?

• This Congress is very full of heavy-weight and loaded legislative agenda, including healthcare reform, financial reform, appropriation bills, continuing resolution, etc. when they have limited time to act on the legislative bills. However, the news that H1N1 flu is increasingly wide spread and pandemic make the Congress nervous. Report indicates that the Senate will engage in pandemic flu exercise this week using masks, etc. Currently, the sunsetting immigration program extensions more or less depend on enactment of continuing resolution unless a miracle happens that the House appoints the conferees and the conference is completed quickly and both Houses pass the compromised DHS Appropriation bill. The chance for the latter is indeed slim at this point. The Congress may pass the continuing resolution soon after they return tomorrow considering the fact that they have only about one working week left before September sunsets. Without doubt, they may attach E-Verify program extension bill to the continuing resolution bill since the DHS has so much stake at the program. Conrad 30 and Non-Minister Religious Worker programs may or may not be attached, even though the bet leans towards the passage of extension of these programs as well. Nervous time, indeed!

09/21/2009: USCIS Website Redesign Overview

• The color is no longer blue but green. For the flavor of the new wesite redesign sample, please check processing time page of the USCIS website.
• USCIS explanation of redesign.

09/21/2009: Last Day of Current USCIS Website

• Today is the last day people can access to the current website of the USCIS. Those who want to preserve some key web documents from the site should copy and print out whatever data they consider important for their cases and law practice. Just keeping link will not serve the purpose since most of link is likely to be removed from our experience. After the USCIS revamped its websitre a few years back, a host of information and data have no longer been accessible. The USCIS is scheduled to launch a redesigned website at the end of today.

09/21/2009: Advance Copy of State Department Exchange Visitor Program Reform

• The State Department will publish this proposed rule with the 60-day comment period to reform Exchange Visitor Program which has been so controversial. This reform proposes to tighten certification of the program sponsors and homesay program decisions, including site visits. Read on.

09/20/2009: Senate Judiciary Immigration Subcommittee Postpones CIR and Agricultural Impact Hearing Scheduled 09/22/2009

• The hearing on "Comprehensive Immigration Reform: How the Current Immigration Law Negatively Impacts America's Agricultural Industry and Food Security" scheduled before the Subcommittee on Immigration, Refugees and Border Security of the Senate Committee on the Judiciary, for Tuesday, September 22, 2009 at 10:00 a.m. has been postponed. See notice.

09/18/2009: By 2016, Most of the Mammothe DHS Departments (Former 22 Federal Departments) Will be Housed in One New DHS Government Center Building in D.C.

• There was a ground breaking ceremony for the new DHS building project in D.C. As the readers know it, the Department of Homeland Security is organizational consolidation of former 22 federal departments until Clinton Administration. It means that these components and divisions of the DHS are physically spread out in different locations, creating some difficulties in coordination among all of these components as one federal department in management and policies. The construction is scheduled to be completed by year 2016 and most of these components will then move into one physical compound. That will make the DHS leadership job somewhat convenient and easier.

09/18/2009: USCIS E-Filing System Down Tonight

• The e-Filing System will be unavailable on today, Friday, 9/18/2009 beginning at 10:00 p.m. EST until tomorrow morning, Saturday, 9/19/2009, 9:00 a.m. EST. Assumedly, they are getting ready for the launch of redesigned USCIS website on Tuesday, 09/22/2009.

09/18/2009: Bill to Exempt English, History, and Government Knowledge Test Requirement for Certain Elderly People's Naturalization Introduced in the House

• Rep. Jerrold Nadler of New York introduced in the House yesterday H.R.3604 to exempt certain elderly persons from demonstrating an understanding of the English language, history, principles, and form of government of the United States as a requirement for naturalization, and to permit certain other elderly persons to take the history and government examination in a language of their choice.
• For the outline, read Rep. Nadler's press release.

09/18/2009: Office of Public Engagement of USCIS Invites Stakeholders/Public to Session to Share Views for Improvement of Management of Medical Certification for Disability Exceptions in Naturalization Process

• This is one of the first new initiatives of the new office within the USCIS inviting immigration stakeholders and public to share opinions on improvement of this part of naturalization management. Just like the Business Transformation Program Session, this session will be made available for both attendance in person or by telephone, on Thursday, October 8, 2009 at 3:00pm. For the details, please read the announcement. Again, we welcome the new initiative. Hats-Off to Mr. Mayorkas!

09/17/2009: USCIS Director, Mr. Mayorkas, Creates Office of Public Engagement Within USCIS to Undertake "Responsive Government" Process

• Mr. Mayorkas created this office and appointed its Director to take charge of the agency's interative process with the immigration stakeholders and public. Wonderful initiative, Mr. Mayorkas!

09/17/2009: USCIS Office of Transformation Invites People to Session to Hear Views on Creation & Management of Online Account System for Processing Applications

• The session can be participated in Washington, D.C. in person or by telephone. The session is scheduled on Friday, September 25, 2009 at 10:00am. For the details, please click here.
• It appears that this is one of the initiatives of the new USCIS Director to open doors to hear from and share with the people. Hats off to Mr. Mayorkas!
  

09/17/2009: As DHS FY 2010 Appropriation Bill Passage Before 10/01/2009 Turns Slimmer, Continuing Resolution is Last Hope for Sunsetting Immigration Program Extension

• Report indicates that the House Majority Leader Hoyer intended to take care of four appropriation bills which were awaiting conference mid-September, but other bills delayed this schedule and the chance for these bills being enacted before the end of the month is getting slimmer and slimmer. The House has already adjourned today for the week and the House floor is scheduled to take up a number of other bills next week. Consequently it is almost certain that the Congress may have to pass another Continuing Resolution to fund the federal government probably through the Thanksgiving. This leads to a conclusion that unless the sunsetting immigration programs which are currently attachted to the DHS Appropriation Bill are successfully attached to the upcoming Continuing Funding Resolution, these programs will indeed sunset at the end of this month. There is some indication that these sunsetting immigration programs may be attached to the Continuing Resolution, but we will have to wait and see.
• As for the Senate taking up CIR this fall, there is a report that Sen. Schumer has given up this plan and decided to push off to probably early next year. However, because of the mid-term national election November next year, the President's decision and Senator Schumer's decision to push off the CIR to next year may turn the chance for CIR next year less likely and pundits are already talking about the prediction of 2011 as more likely opportunity for the CIR to make it. As we reported earlier, current environment which is extremely politically charged has turned the term "immigration" into inflammary and a political taboo to bring it up. The country is undergoing one of the most difficult challenge when it comes to the immigration reform.

09/17/2009: OFLC Issues H-1B LCA FAQ (09/09/2009)

• The DOL Office of Foreign Labor Certification has just issued LCA Frequently Asked Questions and Answers. Nowadays, filing of H-1B is a challenging task because of massive denial of LCA on Federal Employer Identification Number, causing weeks and even months. Employers and legal representatives should read the FAQ. We just want to cite one interesting Q&A on impact of PERM filing on H-1B LCA filing process. Here it is.
  • Question: I filed an application for an LCA and it was denied based on an invalid FEIN, but in the past I received an approved PERM labor certification using the same FEIN. Will this continue to happen?
  • Answer: No. All prior FEIN verifications completed during the PERM employer existence verification process are now incorporated into the iCERT database, New FEIN verifications from the PERM system are inserted into the iCERT
    system on a daily basis, although it is advised that employers seeking to use a newly verified FEIN from a filed PERM application in connection with an LCA wait at least 2 days prior to filing the LCA to ensure the information has been
    coordinated between databases
• Amen!

09/17/2009: Greetings O/B/O Consumers: Hello, Mr. Mayorkas, Welcome Aboard!

• On behalf of our readers and consumers of your agency, USCIS, we would like to extend our wholehearted welcome to the USCIS. We are anxious to hear your initiatives and agenda to lead the lives of millions and millions of immigrants, their family members, and their employers.
• The former USCIS Directors communicated to the consumers through its Monthly Newletters for a few years, but the USCIS ceased the publication of its Monthly Newletters. Currently, the only online channel the USCIS Director can address to and reach directly the immigration consumers is the DHS Leadership Journal. We miss the Monthly Newsletters of the USCIS. It is not so much an issue of transparency. Rather it is an issue of the emotional distance the consumers can feel from the leadership. Opening dialogues with intermediary stakeholders will be without doubt very important, but the grass-root consumers may also desire the voice, albeit printed, directly from the leadership. The Monthly Newsletter servced such purpose one time.

09/17/2009: USCIS Issues Interim EAD for TPS Beneficiary El Salvador Nationals

• USCIS announces that interim Employment Authorization Documents (EADs) will be issued to Salvadoran Temporary Protected Status (TPS) beneficiaries who have not yet received a final action on their re-registration applications and whose re-registration applications have been pending for more than 90 days.
• Initially, the expiration date for Salvadoran EADs was March 9, 2009. USCIS automatically extended this EAD validity period to September 9, 2009. Issuance of the interim EADs will allow TPS beneficiaries to continue working while USCIS completes the processing of their re-registration applications. For other details, please click here.

09/17/2009: New USCIS Director Explains Redesigned USCIS Website

• USCIS is scheduled to roll out the redesigned website in the next five days. In an informal news conference, the new USCIS Director explained the broad purposes of the launch of the redesigned website. Read on.

09/16/2009: State Department Changes Definition of Expedited Passport Processing

• State Department will publish tomorrow a final rule to change the definition of expedited passport processing from three business days, beginning when the application arrives at a passport agency or when the request for expedited processing is approved, to the number of business days published on the Department’s website at www.travel.state.gov. Hmm.............................

09/16/2009: Senate Judiciary Immigration Subcommittee Schedules a Hearing on Suffering Farm Industry and Need for CIR

• On September 22, 2009 at 10:00 a.m., the Senate Judiciary Immigration Subcommittee will have a hearning on “Comprehensive Immigration Reform: How the Current Immigration Law Negatively Impacts America's Agricultural Industry and Food Security.” Please stay tuned.

09/15/2009: USCIS Updates Monthly Processing Time Report on 09/14/2009

• See our homepage.

09/15/2009: Expiring Immigration Programs and Potential Option for Legislation as Part of Continuing Resolution to Fund Federal Government Pending FY 2010 Appropriation Legislation

• The House is continuously experiencing delays in taking up the FY 2010 DHS Appropriation Act conference process, keeping the stakeholder agencies and involved customers of the expiriring immigrations programs on the edge. Accordingly, it thus appears that the Congress and the stakerholder agencies and consumers are switching gears and working on an alternative option to pass the immigration program extension legislation as an attachment to the continuing resolution which the Congress will definitely have to pass before October 1, 2009 to prevent a complete shut-d6wn of the federal government. However, it is uncertain whether the continuing resolution will cover all three expiring immigration programs or only one or two. Report indicates that the USCIS appears to be working with the Congress to push for extension of E-verify program as an attachment to the continuing resolution pending the FY 2010 DHS Appropriation legislation such that the ongoing e-verify program, particularly federal contractor mandatory e-verify program, be not distrupted. Read on.

09/14/2009: FY 2010 Appropriation Bills and Potential Extension of Nonminister Religious Worker Program, Conrad 30 IMG NIW Program, and E-Verify Program Before 09/30/2009

• As we reported earlier, the Congress is expected to pass Continuing Resolution before 09/30/2009 to prevent shut-down of most of the federal departments on October 1, 2009. The House passed all the major department appropriation bills, but the Senate has been experiencing delays in acting on these bills. There are three levels of appropriation bills. The first are those the Senate may not even be able to pick up before the end of this fiscal year. The second are those which may be picked up before 09/30/2009 but may not be able to complete the conference process before 09/30/2009. The third are four department bills which both the House and the Senate passed but in different versions, which are awaiting the conference between the House and the Senate. The bills in the third group are awating the House action appointing its conference delegates so that the conference processes can move along. The DHS appropriation bill is one of these four bills. Accorting to the report, the House leaders are planning to take up these bills appointing the House conference delegates such that the conferences can be copleted and the bills can be passed by the Congress before September 30, 2009. Please stay tuned to this website for the House action on the DHS appropriation bill this week.

09/11/2009: Proposed Rule on E-2 Nonimmigrant Status for Aliens in the Commonwealth of the Northern Mariana Islands with Long-Term Investor Status

• DHS is proposing this regulation governing E-2 nonimmigrant treaty investors to establish procedures for classifying long-term investors in the Commonwealth of the Northern Mariana Islands (CNMI) as E-2 nonimmigrants. This proposed rule implements the CNMI nonimmigrant investor visa provisions of the Consolidated Natural Resources Act of 2008 extending the immigration laws of the United States to the CNMI. This rule will be published in the federal register on Monday, 09/14/2009. Reader can review advance copy of this rule.

09/11/2009: USCIS Invites National Stakeholders for Briefing Session on 09/18/2009 on Redesigned USCIS Website

• USCIS is scheduled to roll out the newly designed website on 09/22/2009. USCIS thus schedules a briefing session for the stakeholders in D.C. on September 18, 2009. Those who are interested in the meeting should read the open invitation.

09/11/2009: Today Marks 9/11 That Has Turned History and Life Around

• At the moment, this reporter was walking into the elevator in the office building and a psychiatrist in the building was shievering and telling this reporter what was happening in New York City. This reporter rushed to the food court to watch and witness the incident through the television monitor there. The first memory that instantly flashed in the head was the night I arriaved after midnight from Minneapolis at the Intercontinental Hotel located at top of one of the tragetic twin towers to attend a court hearing in 1987. I left the hotel after four hours of rest for a court hearing which was attended by approximately 100 lawyers. The case involved one of the largest international anti-trust litigations. I also thought about the foreign professionals of finance and IT specialty who had been visiting this site and called this reporter to ask questions. I did not know how many of them had perished into ash at the time. It is an event which is so painful to walk back in memory lane. Since then, life has completely changed here and all over the world.

09/11/2009: Senate Judiciary Committee Assigns Immigration Subcommittee Members

• Yesterday, the Senate Judiciary Committee assigned the following Senators to its Immigration Subcommittee which will have a critical role in immigration legislation for the rest of this session of the Senate:
  • Sen Schumer (Chair),
  • Sen. Leahy,
  • Sen. Feinistein,
  • Sen. Durbin,
  • Sen. Whitehouse,
  • Sen. Cornyn,
  • Sen. Grassley,
  • Sen. Kyl, and
  • Sen. Sessions.
• Rainy and stormy road ahead for the employment-based immigration legislation.

0/10/2009: Opponents of E-Verify Program Failed in the U.S. Court of Appeals in the Fourth Circuit

• We reported yesterday that the U.S. Chamber of Commerce and other parties filed an emergency motion before the Court to enjoin the DHS from the enforcing the E-verify program and the court was supposed to hand down its decision on the 8th. AILA has reported that the Court denied the motion and the E-verify program opponents failed in the court fight. Consequently, the DHS action to enforce e-verify mandatory requirement for federal contractors remain in full force at least under the end of this month, pending the Congress action on the DHS FY 2010 Apppropriation Act. Please stay tuned.

09/09/2009: October 2009 Visa Bulletin

• As anticipated, the EB visa movement is disappointing.
• Special Noties on EB-4 and EB-5 Visa Category Expiration:
  • Employment Fourth Preference Certain Religious Workers: Pursuant to Section 1 of Public Law 111-9, the non-minister special immigrant program expires on September 30, 2009.No SR-1, SR-2, or SR-3 visas may be issued overseas on or after September 30, 2009. Visas issued prior to this date will only be issued with a validity date of September 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight September 30, 2009.
  • Employment Fifth Preference Pilot Categories(I5, R5): Section 101 of Division J of the Omnibus Appropriations Act, 2009, extended this immigrant investor pilot program through September 30, 2009. The I5 and R5 visas may be issued until close of business on September 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2 or R5-3 visas may be issued after September 30, 2009.
  • The cut-off dates for the categories mentioned above have been listed as “Unavailable” for October. If there is legislative action extending one or both of these categories for FY-2010, those cut-off dates would immediately become “Current” for October.
• In Family-Based immigration categories, FB-1 and FB-2A have progressed well, particularly for Mexico.

09/09/2009: Fate of Mandatory E-Verify Program in Courts and in Congress

• Yesterday, the federal contractor/subcontractor mandatory e-verify requirement took effect and the DHS enforces the program. Report indicates that the anti e-verify program groups spearheaded by the U.S. Chamber of Commerce rushed to the U.S. Court of Appeals in the Fourth Disrict in Richmond, Virginia for an emergency order of injunction. The court decision has yet to be announced.
• The e-verify program is also facing challenge legislatively in the Congress. The current e-verify program is scheduled to sunset at the end of this month unless the law is extended. The Senate version of DHS Appropriation Act of 2010 provides extension of the program, but because of the difference of the bill between the House and the Senate, the Houses must agree to conference to compromise the differences. We reported yesterday that the Congress may act on the Senate's conference request in the coming week, but it is not a firmly done deal yet.
• Pending decision of the court and the Congress, the federal contractors and subcontractors should make it sure that they comply with the e-verify requirement.

09/09/2009: DV-2011 Immigration Lottery Schedule

• The State Department announces that the online entry registration for DV-2011 will begin October 2, 2009 and will be open through November 30, 2009. For additional details, please stay tuned to this website.

09/08/2009: Senate-House Conference Likely In a Week for DHS Appropriation Bill Compromise

• Congressional sources indicate that Democrats are aiming for mid-September conferences for the four appropriations bills including Department of Homeland Security Appropriation Bill. Most of other federal department appropriation bills are reportedly unable to pass the Congress before 09/30/2009 and the Congress is likely to pass a continuing resolution to temporarily fund other departments beyond 09/30/2009. This gives a hope for the non-religious workers and foreign medical doctors potentially to see their current programs extended for the next three years before they expire on October 1, 2009. Please stay tuned to this website for the progress of DHS appropriation legislation conference.

09/08/2009: Post Summer Recess Congress and Principal Immigration Legislation in September 2009

• The Congress is coming back today after a month-long summer recess. While they were gone, the President made public his immigration reform agenda pushing it off to 2010 because of the healthcare reform debacle in the nation. Before the Congress left for the summer recess, they announced as a headline news that both the Senate and House would initiate the immigration legislation process as soon as they return to the Hill. Well, no matter whether keep these agenda or not, the Congressional agenda is off the steam now. Accordingly, the immediate attention in the Congress for the month of September 2009 will remain with the Department of Homeland Security FY 2010 Appropriation bill which includes certain immigration programs which are destined to sunet at the end of this month unless the House agrees to the Senate-House conference and the conference meeting is scheduled as soon as possible. As the readers may recall, the Senate passed the legislation amending the House version of the DHS Appropriation bill and requested the House to agree to the conference. Unfortuantely, the House left the Hill for the summer recess without announcing its consent. All eyes are currently on the House Speaker Pelosi for the question of how soon she will announce the House consent and appoint the House delegates to the conference for this legislative bill. At stake are Non-Minister Religious Worker Special Immigration Law, and Conrad-30 National Interest Waiver Program for Foreign Medical Doctors' Immigration. Initially EB-5 Regional Center Pilot Investor Immigrant Program extension was part of the Senate bill, but the final draft of the Senate version somehow misses this immigration program unless this reporter missed something. The foregoing two programs will sunset at the end of this month unless the Congress passes the DHS Appropriation bill.
• There are a host of other minor immigration bills in the Hill, that may or may not be acted on eventually, but because of the political environment for the rest of the calendar year, these bills may remain in the back-burner. Besides, unlike the sunsetting immigration programs, the Congress and the White House may not see urgency to pick up these bills. Please stay tuned.

09/08/2009: State Department Proposes to Adjust Schedule of Fees for Consular Services, DOS and Overseas Embassies and Consulates

• This fee rate adjustment proposal is under review by the White House.

09/08/2009: Immigration Benefits "Denial Rate" in 07/2009 Increased Whoppy 129% Over 07/2008

• Statistics reveals that the USCIS immigration benefits denial rate of the total adjudication as of end of July 2009 marks 129% increase over the same month one year ago, 07/2008. When it comes to the annual avarage denial rate during the period between July 2008 and July 2009 also reflect 45% increase. These two statistics reflect that the denials increased as the months moved ahead in 2009. As for the Employment-Based Nonimmigrant Petitions (I-129) including H-1B, there were 65,136 petitions pending at the end of July 2009 and the agency received 23,821 petitions within July 2009. For other details on immigration benefits information, read on. The immigration benets statistics are contrasted to the naturalization (citizenship) processing statistics which showed a dramatic increase in approval rate. For the N-400 statistics, please click here.

09/05/2009: One Potential Positive and Negative News for Employers Concerning Employment-Based Petition Adjudication Process Coming Fiscal Year 2011

• Fiscal Year 2009 was a tortuous year for the employers filing various immigrant and nonimmigrant petitions for foreign workers facing massive RFEs which involved boiler plate requests for documents. These RFEs demanded mountain of information and documents relating to the employers' business and operation repeatedly demanding almost identical documents when the same employers filed new idential types of cases. For this reason, we demanded that the USCIS should do something about to achieve a balance between focusing on "integrity" in adjudications and focusing on "efficiency and effectiveness" in adjudication process for public interest by improving the adjudication process. No one can blame adjudicators performing their duties to detect and prevent frauds in the adjudication process for various employment-based petitions, but the goal must be achieved without unnecessarily sacrifying the public interest by wasting reources in the adjudication process through repeated request for the practically identical types of evidence and documents even after same or similar cases had been positively adjudicated involving similar facts and evidence. The employers, whether large or small, and whether well established legitimative businesses or new suspicious job shop businesses, have received such RFEs almost in every time the same employers filed an identical cases. This was particularly noticeable in IT consulting employers.
• We are very happy to report that, according to the AILA, the USCIS is considering new initiative by the end of 2010 to give officers access to commercial/independent corporate information on companies and have their system indicate if a company has been previously reviewed and “approved.” The Service Centers will retain in their system corporate information about any company that has filed a prior petition and retrive and use it, allowing adjudicators to shift the focus of adjudication from the corporate information to the beneficiary foreign worker's qualifications, and thereby it minimizes the need to continuously request corporate information over and over. Good news indeed, even though it may not be in place until the end of 2010. It is thus likely that the employers may continue to receive such RFEs for another year . One positive news is that the RFEs have been reduced, according to Mr. Michael Aytes, Acting Deputy Director. We understand that implementation of the new initiatives may require a lot of technical and administrative changes to allow the adjudicators to access and retrieve each employer inforamtion in adjudicating new cases. Eventually, the ultimate resolution of the problem should wait until the "business transformation program" is in full operation. Obviously, such reengineering will take time. We just hope that the USCIS exerts its efforts to reduce the number of RFEs and avoid issuing repeated RFEs, relieving the employers from the hardships they have gone through.

09/05/2009: FY 2010 H-1B Cap Count Mystery

• We reported on 09/03/2009 the FY 2010 H-1B cap case processing statistics. It appears that our report was correct that the figures represented FY 2010 H-1B cap cases which had been processed by the Vermont Service Center alone. It thus appears that total FY 2010 H-1B cases that have been received are much larger than the cap count which was released by the USCIS headquarters yesterday, showing practical freeze around 45,000 for quite long time. Our speculation is that the total cases which they have received should exceed 80,000 combining the figures of both CSC and VSC. One thing certain is that the Headquarter cap count includes only approved H-1B petitions because otherwise, they would not have taken out the cap numbers from the annual cap limit totals.
• According to the VSC statistics, we can fairly accurately draw the following assumptions:
  • The rate of new incoming and new filing cases has been very low.
  • The number of RFEs out of the cases which have yet to be completed reflecs not a large number.
  • Accordingly, most of the unresolved cases cases may be related to the following reasons: (1) Petitioners could have checked a wrong answer for Part C of the H-1B Data Collection Supplement form and the cases must have been "rejected." (2) The agency could have detected some numbers of filing of multiple petitions by an employer for the same beneficiary which have resulted in the denial or revocation. (3) There must be some cases which the agency approved but revoked "for good cause." (4) The employers could have withdrawn the petitions before or after issuance of RFEs. (5) Petitions are denied before or after RFEs.
• Overall, the current H-1B cap count and Service Center report support the earlier news report which posted some time back that the cap count might reflect high rate of denials, revocations, and withdrawals because of the emphasis of "integrity" (fraud detection and prevention) in the adjudication process, probably at the rate of over 40%. This rate is striking considering the fact that the legacy INS and current USCIS had assumed before this year from 10% to 15% additional numbers in determining the reach of the annual cap numbers which would fail to make it in the final decisions. The current cap count is a good news for the new filers, but reflects the aches and pains the employers have gone through massive RFEs, massive denials and rejections, and massive withdrawals by the employers facing the agency's demand for business secret information.

09/04/2009: USCIS Updates H-1B and H-2B Cap Counts

H-1B (Cap: 58,0000)	H-2B (Cap: 33,000)
45,100 (as of 08/24/2009)	15,164 (as of 08/21/2009)

09/03/2009: USCIS Releases Memorandum to Loosen Up Interpretation of "Successor-in-Interest" for M&A I-140 Employer Determination

• The corporate employers are going through corporate restructures quite often through merger or acquisition or transfer of assets during or after the labor certification process. The involved foreign workers from time to time experiences an emotional crash not knowing whether the green card process can survive because of the change in company structure. The successor-in-interest entity type of corporate restructure is considered a change which will not affect both in the labor certification process and the I-140 and I-485 processes. Unfortunately, the requirement of successor-in-interest entities has been narrowly interpreted by the INS, USCIS, and AAO when it comes to determination of the employer in I-140 petition adjudication after the labor certification is approved. Today, the USCIS released a memorandum dated 08/06/2009 in order to give a guide to the field adjudicators for the new interpretation of the term successor-in-interest, loosening up the parameters of the term. Those who are or have witnessed such changes with the labor certification employers or I-140 petition employers should definitely read this memorandum to find out what to do.
• Hats off to Mr. Donald Neufeld, Acting Associate Director of Domestic Operations, USCIS, for the new guidance!

09/03/2009: DOL Proposes to Revise and Abandon Currently Strictly Attestation-Based H-2A Filing System and Adopt Semi-Supervised Recruitment Process

• DOL's effort to reengineer the H-2A program has undergone a lot of roller coasters which this reporter will not reinterate. Currently, DOL is implementing 12/08/2008 reengineered rule which is based on attestation rather than labor certification process. The proposed rule will turn the process and system more or less back to certification process. The proposed rule will be published tomorrow in the federal register and the agricultural employers and their legal representatives review carefull the advance copy of the proposed rule.

09/03/2009: Statistics of USCIS Preadjudication of EB-485 Applications and Prospects for FY 2010 Employment-Based Immigrant Visa Numbers

• According to the AILA, the USCIS has completed "preadjudication of 180,000 I-485 applications!" Assumedly, most of these cases will wait for the new FY 2010 employment-based visa number allocations from the U.S. Department of State. What does it mean? The preadjudicated cases have already exhausted the total annual EB visa numbers of 140,000 for FY 2010 even before the new fiscal year is opened. We do not have the exact EB visa numbers which will be consumed by the visa posts through the consular immigrant visa processsing, but the statistics may imply a grim and dark future ahead for the EB visa number progression, particularly late starters of employment-based immigration journeys.
• One other negative news. We thought that preadjudication meant to be "completion of adjudications" and the only step that would need for approval of EB-485 applications would be visa numbers and they would just have to press the red color rubber stamp of approvals on the I-485 forms. In Japanese, it is called in the state of "YOY-TONG!" It means that the runners are just ready for starting to run upon "Bang" sound. Here, ready to run in the immigrant adjudication context would mean "approval." Well, the USCIS says "Don't jump too fast" and "It Ain't Going to Happen That Way in all Cases." The USCIS says it would be true that the EB-485 preadjudicated waiters might not have to go through repeated refinger-printing and biometrics and medicals, but in view of lapse of time, some of the cases would have to go through name check updates or rescheduling or "RFEs" to update the records. Do you get that, the familiar sound of monstrous term "RFE?" There may turn out to be some lucky guys and gals who will receive approvals without such additional name checks, rescheduling, or RFEs, and subsequent delays, but unfortunately there are likely other poor guys and gals who would have to face such additional processess and delays. Well, life is going through ups-and-downs, isn't it!? There will be lots of tears and smiles in FY 2010.

09/03/2009: Mysterious FY 2010 H-1B Cap Count

• As we reported earlier, the last time the USCIS updated the cap count was 08/14/2009 and the number was approximately 45,000. However, according to the statistics which were reported to the immigration stakeholders on 08/20/2009 by the Vermont Service Center as reported by the AILA, the Vermont Service Center alone has "completed" 34,800, and is waiting for responses to 4,000 RFEs, and there are 5,000 cases pending. Besides, according to the report, the Service Center has been receiving new cases at the rate of 1,200 and 1,600 cap cases per month. Obviously, the current new cap filing numbers are very low. It is the mystery involved with the total number of cases one Service Center alone has received. Assuming that "completed" cases include not only approved cases but also denied, rejected, withdrawn, and revoked cases, it still means that the total number of cases which the Service Center has received exceeds 42,000 or 43,000 cap cases. Remember that the H-1B cap cases are filed and processed by two Service Centers, California Service Center and Vermont Service Center. We do not have the numbers for California Service Center. Again assuming hypothetically that the CSC number may be similar or somewhat higher, the total number the USCIS has received could have exceeded 80,000, unless the Vermont Service Center meant to report the total statistics of both Service Centers. Hmm.................Transparency.

09/02/2009: State Department Proposes a Rule Tightening Up of Secondary School Exchange Visitor Program Host Families

• The State Department has just released a proposed rule to tighen up the program. The State Department seeks alternative and more specific means of screening potential families to host exchange visitors participating in the Secondary School Student category of the Exchange Visitor Program. Current regulations allow sponsors the flexibility to exercise their independent judgment when evaluating the financial resources, moral character, and composition of potential host families, as well as the suitability of potential home environments. The State Department believes, however, that the lack of specificity or industry standards may have contributed to the recent degradation of the appropriateness of selected families, thereby putting at risk the health, safety, and welfare of this most vulnerable group of exchange visitors. The incidents of abuse of the host family programs have been widely reported and publicized by the media. For the proposed rule, please click here.

09/02/2009: Federal Contractors/Subcontractors Required Mandatory E-Verify Enrollment Effective 09/08/2009

• This rule was enacted quite some time back and its implementation has been pushed off. However, effective September 8, 2009, the USCIS will implement and enforce this rule. Under the rule, companies awarded a contract with the E-Verify clause after Sept. 8 will be required to enroll in E-Verify within 30 days of the contract award date. E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States. For the details, please read the rule which is posted in our homepage, and the USCIS reminder dated 09/01/2009.

09/01/2009: DOL Releases August 2009 Update of iCERT LCA Filing Guide for H-1B

• Currently, DOL requires the H-1B employers to file labor condition applications for H-1B using iCERT Portal System. Such filing requires at least seven days at this time to obtain the decision. However, seven-day processing does not mean that the applications have been "certified" in seven days. The reality is that a large number of applications have been denied on technical violations. The most pervasive ground for denials has been the employer's Federal Employer Identification Number (FEIN) not matching with the employer names. Such denial was not caused by "wrong" FEIN but rather by flaws in employer's name not matching with the record of IRS that granted the FEIN. Considering the fact that until now, most of the employers have been using company names loosely including trade names, a huge number of LCAs have been denied. Once the LCA is denied, the employers have been required to submit FEIN verification evidence via email, fax, or mail and until the FEIN issues are verified and resolved by Chicago National Processing Center, repeated new filings have faced multiple denials. Lately the CNPC verification process backlogs have improved, but a number of employers one time experienced delays in obtaining verification from CNPC for days and weeks. The problem did not end there. The employers who received the verification notice from the CNPC were required to file compleely anew rather than approving the denied LCAs. When such employers filed new LCAs after obtaining the FEIN verification notice, the employers had to go through another cycle of seven-day processing time, not to mention potential delays in certification of such newly filed LCAs. These denials thus have presented almost unbelieveable hardships over the employers, particularly in two situations. One is the employer who needed to file H-1B petition within a given time to avoid the alien beneficiary falling out of status. One may call it a last-minute filing case. The second situation is the cases which are subject to the H-1B annual cap. Even though the FY 2010 cap has yet to reach, there is no information available about how many numbers are available at this time since the USCIS ceased to update the cap count since 08/14/2009, assumedly pending release of its redesigned website.
• In order to deal with the problem, the AILA requested the USCIS to take H-1B petitions "poending" LCA certification rather than "certified" LCA. The USCIS has yet to make its decision known, driving the aforementioned employers and alien beneficiaries crazy. On the OFLC front, it released the update of iCERT LCA Filing Guide on 08/29/2009 assumedly to alleviate problems associated with the iCERT LCA filing process. The newest iCERT LCA Filing Guide reflects some added feaures in guidance, but unfortunately it fails to deal with the FEIN-related filing problem. For the foregoing reasons, the H-1B employers and foreign workers are undergoing a tremendous hardship at this time. For instance, there are a large number of H-1B workers who need to port pending H-1B pending and otherwise will fall out of status. For these workers, H-1B portability under AC 21 law has served as a saviour. However, the problems and delays in certification of LCAs which are currently precondition for H-1B filing are presenting incredible hurdle for these foreign workers and employers. We hope that the USCIS and DOL work out solutions to give relief to these H-1B workers as soon as possible. Pending the resolution of the problem on the part of the government, however, the employers and the H-1B workers should initiate the H-1B process sufficiently ahead of time not to face any crisis.

09/01/2009: Government Goes After One IT Firm for $5.0 Million and 18-Count Indictment for H-1B Fraud

• Report indicates that one New Jersey based IT consulting was indicted on 18 counts for H-1B visa fraud and the government also seeks about $5.0 million from the firm. Read on.

08/23/2009: Alert for Permanent Residents Traveling Overseas for Prolonged Period of Time Using Re-Entry Permit

• The USCIS is tightening up the Re-entry Permit issuance policy. In the past, the USCIS issued the Reentry Permit almost automatically for two years allowing such permanent residents for continous absence from the U.S. upto two years. However, according to the AILA, the permanent residents who stayed ouside of the U.S. in aggregate of four years out of the five years will be issued only one-year valid Reentry Permit with some exceptions. It means that those who have been extending Reentry Permits two-year at a time may get only one-year at a time after certain period of time and may face increased scrutiny for repeated applications for reentry permits. Beware!
• The permanent residents in the two-year conditional permanent resident status may be issued reentry permits but for a period upto two years depending on when they apply. In other words, the reentry permit will be issued to the eligible conditional permanent resident for a balance period for the two-year conditional status.

08/23/2009: ICERT Portal System Down on 08/25/2009 for System Maintenance

• OFLC announces that the ICERT portal system will be unavailable on Tuesday, 08/25/2009, for regular system maintenance. Currently, ICERT portal system is used by labor condition application for H-1B, ETA 9035, and not by PERM applications, ETA 9089. Accordingly, the H-1B employers will not be able to file LCA next Tuesday. Apparently, the system maintenance is scheduled to fix some problem in 9035 filing system. Until now, the employers have been struggling to deal with massive denials of LCAs on Federal Employer ID issues which can cause even several weeks of delay in obtaining LCA approval. Employers filing new H-1B or extension should keep such delays in mind. Last minute filing of H-1B petition is no longer available because of LCA delays. Even those LCAs which are not denied currently take one week! Obtaining LCA certification online in less than five seconds has literally turned into a long-gone past history. Employers should plan a way ahead of time to file any new or extension H-1B petitions.

08/23/2009: TARP Funded Employers That Refunded Loans - Freed From Two-Year H-1B New Hire Moratorium?

• AILA has been exploring answers to this question. There are four government offices involved to decide this issue: Federal Reserve, Treasury Department, DOL, and DHS/USCIS. At least one of the four government offices, Federal Reserve , has already answered the question. It said such employers should no longer be subject to the moratorium law. However, other three agencies have yet to release their answers. However, it appears that they may announce a similar answer and it may be just a matter of time. Once the USCIS and DOL release their answers, the current status of FY 2010 H-1B cap count is likely to change substantially considering the fact that probably the current FY 2010 H-1B cap count has been caused not only by denials, withdrawals, revocations, and downtun economy, but also by the H-1B new hire moratorium law for the TARP funded employers. The Federal Reserve Q&A indicates that the span of the definition of TARP-funded employers is much broader than the one which has been assumed by stakeholders. Please stay tuned to this website for the development of this news.

08/23/2009: OFLC Schedules H-2B Briefings in Boston and Chicago for Stakeholders

• For the federal register notice, please click here.
• For Briefing Schedules, please click here.

08/23/2009: Breaking News Site to Resume Report Shortly

• For a last few days, Matthew Oh, the reporter of this site, was not available to report immigration breaking news. Matthew Oh will resume updating this site shortly. Please stay tuned.

08/18/2009: USICE Proposes to Rescind No-Match Rule as Employment Enforcement Tool

• USICE publish a rule tomorrow proposing to rescind the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in EVerify. See advance copy.

08/18/2009: Immigration Enforcement Environment and Divulge of Case Numbers in Open Cyber Discussion Forums

• World is moving into cyber space community and people tend to communicate and associate with other people in various open forums, including online immigration boards. People should exercise discretion in divulging case identifying information in such open forums including case numbers, employer names, job locations, legal names of the individuals, etc. Such cyber forums can be accessed by enforcement agencies as a tool for investigation. User names and passwords may not give 100% security in some situations.

08/18/2009: U.S. Intensifies Audits of Employers

• Wall Street Journal reports that the USICE, the immigration enforcement arm of the DHS will intensify audits of U.S. employers hiring foreign workers frequently for violation. This move is separate from currently ongoing pervasive site visits of H-1B foreign workers of the U.S. employers for onsite investigations by the investigators hired by the agency. These policies of USCIS and USICE audits are implemented as part of the Obama Administration and DHS Secretary's recent announcement that the government would change the direction and focus of illegal employment enforcement from going after the illegal aliens to the employers hiring aliens in violation of the laws. Report indicates that the site visits and audits have been visibly increasing and the number of sie visits and audits are likely to rise more than five digits of employers small and large in size. Some employers are targeted but some employers are selected randomly. It appears that the actions do not end at the site visits and audits. As indicated by the latest report of the H-1B cap counts of the USCIS, increasing number of employment-based nonimmigrant cases, particularly H-1B cases, have been denied or withdrawan.
• Employers hiring foreign workers should conduct internal audits for compliance of immigration rules and keep good record of documentation. Unconfirmed sources indicate that even such a reputable employer as one of the largest law firms hiring thoursands of lawyers throughout the world has been hit by the site visit and investigation for immigration enforcement.

08/17/2009: USCIS Updates H-1B Cap Count on 08/17/2009

• As of 08/14/2009, approximately 45,000. Employers, still plenty of H-1B numbers available for FY 2010!

08/17/2009: USCIS Reminder of H-2B Cap Handling

• USCIS is currently accepting petitions for the 2nd half of fiscal year 2009 AND the 1st half of fiscal year 2010. On August 6, 2009 USCIS announced that it has reopened the H-2B filing period for fiscal year 2009. Such petitions must be filed and adjudicated by September 30, 2009, the end of the 2009 fiscal year.

08/17/2009: PERM Labor Certification Processing Times as of July 31, 2009 - STANDSTILL!!

• No change between 06/30/2009 and 07/31/2009.

Final Review	November 2008 Receipt Cases
Audit	October 2007 Receipt Cases
Standard Appeal	July 2007 Receipt Cases
Gov't Error Appeal	C

08/16/2009: E-Verify and SAVE Users, System Will be Down Today

• The USCIS has issued alert that the E-Verify and SAVE systems will be unavailable due to systems maintenance on Sunday August 16, 2009, from 10 AM to 6 PM ET. For E-Verify, SAVE, and Form I-9 general customer support, the uers are asked to call 888-464-4218. Those with SAVE G-845 status questions should call 877-469-2563

08/16/2009: USCIS Business Transformation Program and Website Redesign

• The USCIS has three broad missions to accomplish in managing immigration benefit programs. One is homeland security, second is assurance of integrity, and third is effectiveness and efficiency in services. The task to achieve these three missions in parallel is indeed overwhelming in that focusing on homeland security and integrity can compromise the level of effectiveness and efficiency in its services, meanwhile focusing on effectiveness and efficiency of services can compromise its mission to ensure homeland security and integrity (fraud detection and prevension) in immigration benefit services and management. The mechanism which the agency invented was "Business Transformation Program" which would guarantee these two apparently conflicting missions by electronization of immigration benefit application filing, processing, and adjudication based on "account" system. The first mission can be achieved by tracking of activities of each customer (employer, representative, alien employee) through account system for each customer. This will be made possible by the electronization of the whole process including filing, processing, and adjudication. The account system and electronization will also help tremendously effectiveness and efficiency of services by removing paper filing and paper adjudication as well as allowing the information stored in the account automatically retrieved and populated in every application or petition filed by the customer. The Business Transformation Program indeed has been perceived as a critical reengineering of the immigration benefit management and services for the reasons in that it will be the only option to achieve apparently conflicting two missions simultaneously.
• Recently, the DHS Inspector General released a report that the USCIS had been witnessing delays in this critically important reengineering mission making its performance of the foregoing two missions difficult. Reportedly, Mr. Michael Aytes, Acting Deputy Director of USCIS, disagreed and fought back the criticism with a statement that the work of business transformation project had been moving along fine. However, from the customer perspectives, they tended to agree with the IG's assessment in part because the USCIS had never disclosed the details and progress of the business transformation project. Obviously, the agency might have some reasons for not making progress of the reengineering work available to the public and its customers. Truth of the matter is that the USCIS has indeed been pushing on the reengineering mission by restructung the filing and adjudicating processes, revising and enacting immigraation forms, and designing processing and adjudication processes step by step including registration systems in preparation for the launch of the reengineered immigration benefit processing and management system in the future. The tasks involved a mammoth and ghorillah-scale of plan and implementation. Soon, we, the customers, will see another product of this business transformation project of the USCIS. It is a redesigned USCIS website. The USCIS is scheduled to launch a newly designed website beginning from September 22, 2009 which focuses on "customer-based" and "account" system concept of the business transformation project incorporating in part requirement of registration to access some of the important immigration management information and initiate interactive process between the information provider and account-holder customer seeking information. Consequently, the redesigned USCIS website will open a complete new chapter which will be different from the agency's tranditional mode of information being made available adding interactive process with the customers on individual basis, using modern technologies such as texting and emailing, for the alleged purpose of improvement in the agency's transparency.
• The government agencies that provide services have idential missions to achieve and are currently going through the reengineering processes which are similar to the USCIS business transformation program. For instance, the DOL has been reengineering the foreign labor certification services on a similar concept of account system and electronization through lCERT Portal System for foreign labor certification applications. Currently, the DOL is in the initial phase of this transformation, and in transition, it has been going through aches and pains in terms of processing delays. However, once the transformation is firmly set up, the DOL is also expected to achieve the dual mission successfully. Please stay tuned.

08/15/2009: Important USCIS Announcement for Religious Worker I-485 Filing: Filing Accepted Until 08/31/2009

• USCIS announces on 08/14/2009 that religious workers' concurrent I-130 and I-485 applications for both minister and nonminister cases will be accepted until August 31, 2009. In fact, for that matter, the agency will receive such petitions and 485 applications only until August 31, 2009 and any thing that arrives at the Service Center on or after September 1, 2009 will be rejected. Additionally, the unlawful presence protection under the court decision will be available inasmuch as the cases filed by August 31, 2009. It is thus critically important that the eligible religious worker in both minister and nonminister categories should file the applications "before" September 1, 2009!!

08/14/2009: Will USCIS Discontinue Concurrent I-140/485 Filing Procedure, Replaced by Preregistration and Two-Tier Filing System?

• The USCIS has been considering termination of the current I-140 and I-485 concurrent filing system for quite a while. In the current semi-annual rule making agenda, the USCIS was considering a proposal to terminate the current concurrent filing sytem and instead permit pre-filing of I-485 applications upon approval of I-140 petitions for preadjudication of the I-485 applications pending immigrant visa number availability. This proposed rule would amend the USCIS regulations governing how the USCIS would accept and process I-485 application. This proposed rule would discontinue the concurrent filing process for employment-based adjustment of status applicants. Instead, it would require that an alien worker be the beneficiary of an approved immigrant petition prior to filing an adjustment of status application. Further, this proposed rule would remove an alien’s reliance on the Visa Bulletin to determine visa availability and therefore eligibility to file for I-485. Instead, the rule will propose that USCIS utilize a registration process for intending adjustment of status applicants by requiring an applicant to file a registration packet after the granting of an immigrant petition and prior to visa availability, based on the use of “qualifying dates” established by DOS. This proposed rule is intended to streamline adjustment application processing by utilizing a two-step process in which registration packets can be pre-screened for documentary evidence, security checks can be initiated and completed, and pending visa demand can be adequately conveyed to DOS. The DOS will then adjust its Visa Bulletin accordingly and applicants may then proceed forward with filing their I-485s based on visa availability as reflected in the monthly Visa Bulletin. This process will result in a steady workflow, will mitigate visa retrogression, and make applications generally decision- ready shortly after time of visa availability. This proposed rule will also allow USCIS to correct a discrepant regulatory reference that defined an employment-based priority date based on a Department of Labor-issued labor certification incorrectly.
• This proposed rule was in their consideration to initiate in December 2009. The semi-annual plan does not mean that the agencies will definitely enact any planned rules per the semi-annual agenda, but most of the rules in the semi-annual agenda have been enacted, albeit variance in actual timing of enactment. As readers are aware, the USCIS has been pressured and pushing on transformation program and is currently actively considering adopting "pre-registration" process for annual numerical limit non-immigrant cases such as H-1B, H-2B, etc. and immigrant cases such as preference I-485 applications for the purpose of preadjudications. No one will be surprised that the FY 2011 H-1B cap will require preregistration unlike the current filing procedure. In immigrant proceedings, this proposed rule which may be enacted will require preregistration before filing I-485 application along with the abandonment of the current concurrent filing procedure. We are watching very closely the USCIS move on this rule-making strategy. Please stay tuned to this web site for potential development of this important change in the immigration proceedings before or after the end of this year. We post this message to alert the future I-485 applicants to prepare themselves against the potential forthcoming procedural changes.

08/14/2009: USCIS Processing Times as of 06/30/2009 and Released on 08/13/2009

	NSC	TSC
I-485	09/15/2007	08/30/2007
I-140	4 mos	EB1: 12/08/2008 EB2: 4 mos NIW: 11/03/2008 EB3(all): 04/07/2008

08/14/2009: USCIS Issues New Memorandum for Clarifying Guidance on the Implementation of the Court's Order in Ruiz-Diaz v. United States for Nonminister Religous Worker Concurrent I-360/I-485 Filing Issues and Procedures

• Apparently, this new memorandum dated 08/05/2009 is issued to clarify some issue in its initial memorandum on the concurrent filing of I-360/I-485. Religious entities filing I-360 petition concurrently with the beneficiary's I-485 application should review this new memorandum to learn changes from the initial memorandum. Recently, the special immigration for nonimmigrant religious workers have been witnessing a lot of ups and downs.
• Both the House and the Senate acted on extension of EB-4 nonminister religious worker special immigration program, but could not complete it before they went into the summer recess. The Senate passed three-year extension bill as part of the DHS 2010 Appropriation Bill and sought the conference process with the House, appointing the memmbers of the Senate conferees, but the House failed to agree to the request and appoint its conferees before the summer recess. Aside from the Senate bill, there was a House bill pending proposing the same, but it failed to get mark-ups in the House committees before the summer recess. It is likely that the House and the Senate will complete the legislation process to extend this program before the sunset of the program on October 1, 2009, but let's wait and see. Rep. Zoe Lofgren in the House will not let it dumped.

08/13/2009: Global Entry Expansion to 13 Additional Airports "Effective" 08/24/2009

• For the list of 13 airports, please revisit our posting of 08/07/2009. This program is applicable only to the U.S. citizens, permanent residents, and certain nationals of Netherland. For other specifics, please click here.

08/13/2009: August 2009 Visa Bulletin is Alive Without Revision

• The Department of State reposted August 2009 Visa Bulletin on its Visa Bulletin site without revision. Since there has been no release of revised version of the August Visa Bulletin, legally the August Visa Bulletin should stand as originally released and remain in effect for the purpose of new filing of concurrent I-360 and I-485 filings for nonminister religious worker special immigration. We had a concern that Mr. Oppenheim of the Visa Bureau of the Department of State might release revised August Visa Bulletin revising EB-4 visa cutoff date for August 2009, but at least for now, it has not happened. Accordingly, the USCIS should keep taking in I-360/I-485 concurrent filings during August 2009 and should take the note in the September 2009 Visa Bulletin as an advice that the EB-4 visa number has been exhausted for the remainder of FY 2009 and they cannot allocate new EB-4 visa numbers effective immediately only for the purpose of the USCIS' "adjudication" of pending I-485 applications which were legged on the I-360 petitions. In other words, during the month of August 2009, the nonminister religious workers should be able to keep filing concurrent I-360 petitions and I-485 applicatiopns per the federal district court decision in the Ruiz class action, but since the visa number for FY 2009 has been exhausted for EB-4, the DOS will not be able to allocate the EB-4 visa numbers and the USCIS will not be able to approve any EB-4 based I-485 applications effective immediately unless the visa number has aleady been ordered and allocated by the DOS before August 11, 2009. Should the USCIS act otherwise, there is likely a repetition of another Visa Bulletin related lawsuits by the religious community against the USCIS for rejecting the concurrent filing during the remaining period of August 2009. The current situation is even slightly different from the July 2007 Visa Bulletin fiasco in that in July 2007, the DOS officially released reivsed Visa Bulletin for July 2007, while in the current situation, the Visa Bulletin Volume IX, Number 11 has never been revised by the Visa Bureau.

08/12/2009: Mr. Alejandro Mayorkas Sworn in as USCIS Director Today

08/11/2009: Why Does DOS No Longer Post August 2009 Visa Bulletin?

• DOS usually releases the next month Visa Bulletin on or after 7th or thereafter each month and keeps the "current" month Visa Bulletin in the Visa Bulletin Archive site so that the customers as well as government agencies can keep accessing the current month Visa Bulletin. Today, when the DOS released the September Visa Bulletin, which is Volum IX, Number 12, they removed the August Visa Bulletin, which is Volume IX, Number 11 from their site and in the Archive, the latest Visa Bulletin posted is Volume IX, Number 10, which is the Visa Bulletin for July 2009. We hope that they are not attempting to revise and repost the August Visa Bulletin with any revision, which happpened in the 2007 July Visa Bulletin fiasco. Hope it is just an oversight. Readers should keep eye on the August 2009 Visa Bulletin on the DOS site which may be reposted or not posted.

08/11/2009: Another Potential Visa Bulletin Fiasco Problem for EB-4 Religious Workers Concurrent I-360/I-485 Filling

• Currently, by a court order, the USCIS has been receiving concurrent filing of I-360/I-485 in August 2009. However, the Department of State has taken a step today in September 2009 Visa Bulletin release that no EB-4 visa number would be available effective immediately (08/11/2009) for the visa posts and the USCIS to order the EB-4 visa number numbers even in August 2009. In the meantime, the Department of State removed August 2009 Visa Bulletin from its Visa Bulletin notice site. That is exactly what initially happened in June 2007 when they released July 2007 Visa Bulletin where the visa number was made available for all countries and later retroactively revised the notice on July 2, 2007. This raised a serious question legality of such action leading to class action lawsuits. However, rather than questioning legality of the DOS action, the USCIS took an action to resolve the complicated issue of the USCIS' legal obligation relating to the DOS action. The USCIS action was to distinguish the visa number availability for the purpose of "adjudication" of I-485 application from its authority and duty under the immigration statute to "accept" the new I-485 applications during the period of original Visa Bulletin even though they were not authorized to adjudicate any I-485 application for the July 2007 priority date cases in July 2007. Such action of the USCIS at the time relieved both agencies (DOS and USCIS) from potential avalanches of lawsuits by the victims of the agencies actions, not to mention the pending class action lawsuits.
• It appears that the USCIS is facing eactly same difficult decision to make "today," for the EB-4 concurrent I-360/I-485 filing cases which they will receive from today until the end of August 2009. If they reject such filing, both DOS and USCIS can be sued by the nonminiter religious workers and their religious organization employers based on the class action lawsuits which these agencies experienced in 2007! Religious workers, please stay tuned!!!!!!!!!!!!!!!!!!!

08/11/2009: September 2009 Visa Bulletin

• Good news for China and India EB-2: 01/08/2005 Cut-Off Date.
• Bad News for EB-3: Unavailable for every country.
• Bad News for EB-4 Religious Workers: Unavailable: Heavy applicant demand for numbers in the Employment Fourth, and Employment Fourth Certain Religious Worker, categories has resulted in their becoming “Unavailable” for September. This “Unavailable” status will take effect immediately for August because the annual limit for those categories has been reached. Therefore, no further requests for numbers in those categories can be processed during FY-2009. (Oh My God!!!!!!!.) The EB-4 preference can be expected to return to a “Current” status for October, the first month of the new fiscal year. The Employment Fourth Certain Religious Workers category is currently scheduled to expire on September 30, 2009, and future availability will depend on legislative action.

08/11/2009: Congressional Research Service Releases Updated Study (July 2009) of U.S. Immigration Policy on Permanent Admissions

• This study regularly goes over the development of admissions of immigrants and permanent residents and the issues faced by the country for immigration policy. One cannot read this report without noticing the ethnic mix and changes that compose largest portion of immigrants past decade or over the period of time, which obviously caughted the eyes of different political forces and interest groups that formulate the nation's long-term immigration policy and direction. Read on.

08/11/2009: President Obama Reportedly Reiterated in Mexico Yesterday That CIR Would Have to Wait Until Next Year

• The President was visiting Mexico yesterday for the North American Summit Meeting in Mexico. The Associated Press reports that President Obama reiterated yesterday in Mexico our previous report that immigration overhaul will have to wait. President Barack Obama reportly said immigration reform was important but said other priorities such as his health care overhaul and financial regulation were going to come first. Read on.

08/11/2009: USCIS Updates on 08/10/2009 H-1B and H-2B Cap Count as of 08/07/2009

• H-1B remains the same at 44,900 and H-2B count has moved to 8,794, meaning the employers that need H-1B and H-2B foreign workers have a plenty of cap numbers to file and obtain the FY 2010 H-1B petitions and H-2B petitions.

08/11/2009: USCIS Employment-Related Notification Requirements for R-1 Petitioners of Religious Workers

• Read on.

08/10/2009: USCIS Guidance and Steps for Case Status Inquiries with the Service Center

• Read on.

08/09/2009: President and Democrat Congress CIR Realistic Agenda

• According to the report, the President backed down from CIR 2009 agenda to CIR 2010 agenda. Reportedly, the President admitted for the first time that CIR would be accomplished in "early" 2010. At the same time, Senator Chuck Schumer, Chairman of the Senate Judiciary Immigration Subcommittee, reportedly confirmed his agenda to introduced the CIR bill in the Senate around the Labor Day when the Congress returns to the Hill after the August Summer Recess. Senate Majority Leader, Harry Reid's promise to take up the CIR in the late fall of 2009 remains unchanged. As far as the House side is concerned, its position also remains unchanged in that the House Speaker Pelosi will not take up CIR unless the Senate takes care of it first. It thus appears that as it stands now, the real agenda of the Democratic leadership including the President and the Congressional leaders is to initiate the legislative process after the Labor Day recess with a target to complete the process by early new year. It makes more sense and realistic considering what has been happeneing and will happen in the Beltway for the rest of the year as related to the political heat in the country relating to the health care reform and economic stimulus agenda.
• We hope this agenda and plan work, albeit there is a strong suspicion for its success due to the growing split in the Democratic Congress and the impact of the forthcoming mid-term national election in November 2010 on the legislators' actions. The CIR has been priority #3 for the new Democratic leadership, but the turn of the event involving the first two priorities sheds cloud and shadow over the CIR agenda. It means that the immigration advocates must work harder to keep the current Democratic CIR agenda alive and accomplished at least by early 2010. The legislators are back home now and this is a golden opportunity for the advocates to work with the legislators to earn their commitment to the CIR.

08/08/2009: Suggestions for Sources of Information and Areas of Reviews for the New USCIS Director

• Mr. Mayorkas, the record of your testimony before the full Senate Judiciary Committee and its Immigration Subcommittee reflects that your first task as the new Director of USCIS will be to review the current programs of the USCIS to carry out your priorities which you laid out in the testimonies. We are confident that the existing leadership of the USCIS in the Headquarters and field offices as well as stakeholder entities will be able to assist you to complete the mission successfully. However, we just want to add three suggestions from our perspectives. One is the resourceful data and information which the Office of CIS Ombudsman has accumululated over the years, particularly those which the Ombudsman has collected through the teleconferences with the USCIS customers for the past one year. We are confident that the information and data in the Ombudsman's Office will be very helpful to learn voices of the customers relating to the areas of improvements they want to seek in the management of the USCIS. These voices should be balanced with the data and opinion of the current USCIS leadership in reviewing the areas that need improvement. Secondly, we welcome your commitment to continuing reenforcement of fraud detection and prevention in order to assure integrity of the immigration benefits management. We also welcome your commitment to support e-verify program pursuant to the identical commitment of the DHS Secretary, White House, and the Congress, again to achieve integrity in the immigration benefits programs. However, we want to suggest that this commitment to the integrity should be well balanced with your commitment to improvement for the fair, efficient, and effective process of adjudication to assure due process and public interest and to assure no potential capricious or abuse of discretion and power in the adjudication and management process. Thirdly, with reference to the comprehensive immigration reform (CIR), we want you to review the USCIS policy in two critical areas. Currently, the legislative process for CIR faces a serious hurdle politically with no prospect for achievement within this year. Under the circumstances, the seriously broken immigration system will continuously deprive the nation of opportunity to take advantage of the contributions by the immigrants to the nation's economy and enrichment of the nation's culture as well as to relieve the immigrants, their family members, employers and businesses from the hardship and ongoing injustice in enforcement of the laws at the national and local levels. We want you to review to see whether there are any areas of improvements and changes which can be fixed administratively without legislation and within the current legislative authority. Sometimes, administrative fixes can be as effective as legislative fixes, as illustrated by the 29-month OPT rule for STEM students which the USCIS adopted last year. As for the direction of CIR, we want also to see that the USCIS supports balance between immigration benefit program reform and reform in immigration enforcement and border security programs. Additionally, in the immigration benefit program reform, we want to see that the USCIS supports balance between family unification program/relief of undocumented alien program and the employment-based immigration program for the types of foreign workers that the country needs to sustain the country's leadership in the world.
• We look forward to your leadership.

08/08/2009: Who is Alejandro Mayorkas?

• His CV:
  • Mayorkas is currently a partner at O'Melveny and Myers, and previously served as the United States Attorney for the Central District of California. As a litigation partner at O'Melveny, Mr. Mayorkas represented Fortune 100 and other companies in their highest profile and most complex and sensitive matters throughout the country and the world. He advises boards of directors and top executives, tries cases, leads internal investigations, and litigates bet-the-company matters in a wide array of industries, including telecommunications, health care, consumer safety, sports and entertainment, aerospace, media, and real estate. At 39 he was the youngest U.S. Attorney in the nation and the first in the Central District of California to be appointed from within the Office. Mayorkas led an office of 240 Assistant U.S. Attorneys in the prosecution of cases in varied areas of law enforcement, including cases of public corruption, investment fraud, civil rights violations, high-tech and computer-related crime, organized crime, environmental crime, and international money laundering. He created a Civil Rights Section to prosecute acts of intolerance and discrimination, and developed multiple programs to fight violent crime. Mayorkas served as Assistant U.S. Attorney for the Central District office from 1989-1998. He holds a Juris.Doctor degree from Loyola Law School in 1985 and a Bachelor of Arts degree from the University of California, Berkeley in 1981. The National Law Journal recently named Mr. Mayorkas one of the "50 Most Influential Minority Lawyers in America."
• Personal Part:
  • "As one who was granted citizenship through the beneficence of our government and by virtue of my family's journey to this country, I understand deeply the gravity as well as the nobility of the mission to administer our immigration laws efficiently and with fairness, honesty, and integrity. The most important responsibility of USCIS is its authority to bestow citizenship. As a naturalized citizen, I have a deep understanding and appreciation of this mission. My parents, sister, and I were once refugees. In 1960, we fled Cuba. My father lost the country of his birth, and my mother, for the second time in her young life, was forced to flee a country she considered home. But our flight to security gave us the gift of this wonderful new homeland. I know how very fortunate I am."
• His Priorities as the New Director of USCIS:
  • First, clarity of mission is critical in enhancing the public profile of the Agency and instilling public confidence in the secure, fair, and effective administration of our nation's immigration laws. I am committed to ensuring USCIS delivers high-quality customer service to those who are eligible to receive benefits. Protecting our national security and public safety is a critical component of the USCIS mission, not an after-thought. This means we must continue to strive to improve the Agency's fraud prevention and detection operations, increase collaboration with US Immigration & Customs Enforcement (ICE) and other law enforcement agencies to respond to fraud, and improve the efficiency and accuracy of the E-Verify system.
  • Second, I believe it is critical to enhance transparency and improve the flow of information from the Agency to Congress and the appropriate stakeholders to ensure those concerned about particular issues understand USCIS actions and are able to enact effective immigration regulations and laws. I hope to build an effective relationship with this Committee, both members and your staffs, and to understand your priorities. I know this confirmation process is just the start. I also hope that, if I am confirmed and after I have completed an Agency review, you will be willing to hear from me about the needs of USCIS.
  • Third, we must always look to the future. It is critical to position USCIS to meet current and future immigration demands. To this end, we must ensure the successful progress and implementation of Business Transformation, increase the efficiency of domestic and international operations, and improve detection and prevention of system abuse.
  • Fourth, developing a motivated workforce is important to ensure high-quality service and retaining such a workforce is always a challenge. If I am confirmed, I commit to doing my very best to review the needs of the USCIS workforce and to implement programs and policies that serve to motivate and retain employees.
• Welcome Aboard, Mr. Mayorkas!

08/07/2009: Senate Confirmed Today New USCIS Director

• Senate Confirmed the new USCIS Director Alejandro Mayorkas on August 7, 2009 to lead the U.S. Citizenship and Immigration Services.
• See the nomination hearing records in the Senate:
  • Questions for the Record: Chairman Patrick Leahy
  • Questions for the Record: Senator Chuck Grassley
  • Letters Received in Connection with the Nomination
    • June 22, 2009 - Michele M. Leonhart, Acting Administrator, Drug Enforcement Administration
    • June 22, 2009 - Federal Law Enforcement Officers Association
    • June 19, 2009 - National Fraternal Order of Police
    • June 17, 2009 - Leroy D. Baca, Sheriff, County of Los Angeles
    • June 15, 2009 - James V. DeSarno, Jr., Assistant Director, FBI (Ret.)
    • June 10, 2009 - George Gascon, Chief of Police, Mesa, Arizona
    • June 10, 2009 - Robert Bonner, Gibson, Dunn & Crutcher LLP
    • June 9, 2009 - Sergio G. Diaz, Deputy Chief, Commanding Officer, Operations-Central Bureau, Los Angeles Police Department
    • June 5, 2009 - Ronald L. Iden, Senior Vice President, Chief Security Officer, The Walt Disney Company; former Special Agent in Charge of Los Angeles FBI's Counterterrorism and Counterintelligence Programs
    • June 4, 2009 - Steve Cooley, Los Angeles County District Attorney
• Please get to know the new Director through the foregoing hearing record.

08/07/2009: USCBP to Expand Global Entry Pilot Program to Additional Airports

• USCBP will announce tomorrow that the Global Entry Pilot Program will be expanded to the following airpots, but the specific date will be set for each airport in its website.
  • NewarkLiberty International Airport, Newark, New Jersey (EWR);
  • San Francisco International Airport, San Francisco, California (SFO);
  • Orlando International Airport, Orlando,Florida (ORD);
  • Detroit Metropolitan Wayne County Airport, Romulus, Michigan (DET);
  • Dallas Fort Worth International Airport, Dallas, Texas (DFW);
  • Honolulu International Airport, Honolulu, Hawaii (HNL);
  • Boston - Logan International Airport,Boston, Massachusetts (BOS);
  • Las Vegas - McCarran International Airport, Las Vegas, Nevada (LAS);
  • Sanford - Orlando International Airport, Sanford, Florida (SSB);
  • Seattle-Tacoma International Airport-SEATAC, Seattle, Washington (STT);
  • Philadelphia International Airport, Philadelphia, Pennsylvania (PHL);
  • San Juan – Luis Munos Marin International Airport, San Juan, Puerto Rico (SAJ) and
  • Ft. Lauderdale Hollywood International Airport, Fort Lauderdale, Florida (FLL).
• For details, please click here.

08/06/2009: USCIS Releases Memorandum to Update AFM on Conditional Permanent Residents (CPR) and Naturalization Requirements

• In order to remove the conditions on their LPR status, CPRs must jointly file with their petitioning spouse a Form I-751, Petition to Remove Conditions on Residence, during the 90-day period immediately preceding the second anniversary of their admission as CPRs, or as otherwise provided in section 216, to establish that the marriage was not entered into for purposes of evading U.S. immigration laws.3 Failure to establish the bona fides of the marriage, or failure to timely file the petition or otherwise comply with section 216, results in the termination of the alien’s LPR status. Although section 319(b) ensures that eligible spouses of qualifying U.S. citizen employees are not precluded from eligibility for naturalization because of their residence abroad, section 319(b) otherwise requires “compliance with all the requirements of the naturalization laws.” This includes the requirement that naturalization applicants demonstrate they have been lawfully admitted for permanent residence “in accordance with all applicable provisions” of the Act as stipulated in section 318 of the Act. CPRs admitted pursuant to section 216 of the Act who apply for naturalization under section 319(b) must, therefore, comply with the requirements of section 216. Section 216(e) of the Act, which provides that for purposes of naturalization an alien in conditional status “shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence,” does not relieve a conditional permanent resident applying for naturalization from the requirements of section 216. Section 216(e) merely ensures that the time spent in the United States as a conditional resident may, after the conditions have been removed, be considered for purposes of establishing the residence and physical presence requirements of the naturalization laws, such as those required by sections 316(a) and 319(a) of the Act. Therefore, CPRs admitted pursuant to section 216 who seek naturalization under section 319(b) must comply with the requirements of section 216, though such CPRs who naturalize under section 319(b) prior to the 90-day Form I-751 filing period are not required to file Form I-751 for those purposes because they would not be within the designated filing period. However, such applicants must nevertheless establish that the qualifying marriage (1) was entered into in accordance with the laws of the place where the marriage occurred, (2) has not been judicially annulled or terminated, (3) was not entered into for the purpose of procuring an alien's admission as an immigrant, and (4) that no fee or other consideration was given (other than attorney's fees) for filing the immigrant or fiancé(e) visa petition that forms the basis for their admission to the United States.
• For the full text of the memorandum which is important for certain CPRs applying for naturalization, please the entire text.

08/06/2009: USCIS "REOPENS" FY 2009 H-2B Filing Period

• USCIS has just announced that although on Jan. 7, 2009, USCIS announced it accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000, the Department of State reports it unexpectedly received far fewer requests for H-2B visas and as a result, has issued only 40,640 H-2B visas in fiscal year 2009 to date. This means that there are approximately 25,000 visas that may go unused, as they have not been granted to any H-2B temporary foreign workers. Due to the unexpectedly low visa issuance rate, USCIS is reopening the filing period, as a courtesy to the public, to allow employers to file petitions for qualified H-2B temporary foreign nonagricultural workers. Since the employment starting date must be before October 1, 2009 and the petitions must be adjudicated within the fiscal year, the employers should file in rush to beat the clock. For the details, please read the annoucement and Q&A
• Announcement
• Q&A

08/06/2009: Senate Floor Passes Confirmation of Sotomayor Associate Justice Nomination by 68/31

• Other notminations, hopefully including new USCIS Director, are scheduled to pass by unanimous consent either this evening and tomorrow.

08/05/2009: Choked Employment-Based Immigration System and Mystery Involving System Focusing on Reinforcement of Enforcement and Integrity

• Currently, the employment-based immigration system is choked by two main factors, among others. One is the retogressed visa numbers, and the other is visa and immigration stakeholder agencies (USCIS, DOL, and DOS) focus on reinforcement of immigration enforcement and integrity of immigration benefits management. With reference to visa quota system and visa number retrogression, there is nothing anyone can do about it unless the Congress passes Comprehensive Immigration Reform leigslation. However, even for the issue of choked immigration visa numbers, the pains which are associated with the visa numbers can be somewhat alleviated by positive administrative fixes such as the 29-month STEM OPT rule, 3-year TN visa, etc. in the past. Currently, it appears that no one is reviewing the labor certification, visa, and immigration related statutues and rules closely to see what administrative fixes should be looked into by the involved agencies. We urge the AILA and other stakeholder immigration organizations to launch such study and work with the agencies to implement such fixes.
• When it comes to the second factor of agencies focusing on immigration enforcement and integrity of the process and associated delays in nonimmigrant and immigrant applications, there is indeed a fundamental question relating to such policy. However, before we look into the question, let's look at the current processing delays which are associatged with such policy:
  • H-1B: Because of the massive RFEs and denials, withdrawals, revocations, and other adverse actions, despite the agency report of processing times in two to three months, the reality is that it takes months and months.
  • AAO Appeals: Increased number of denials or revocations naturally leads to increased number of appeals to AAO of the USCIS. Additionally, the AAO appears to have a problem of resources to face such challenges in the workloads. Combination of such factors has lead to tremendous delays in processing of appeal cases. H-1B takes 16 months and some EB-2 and EB-3 taking more than two years. Additionally, the agencies that denied the petitions or applications spent months of time in some cases before either they decide to reopen or reconsider or forward to the AAO. Combination of these factors amounts to much longer time when an employer seeks a relief through an appeal. Such delays have led some practitioners to say that seeking redress through an appeal in the immigration process is a fool.
  • Labor Condition Application of DOL for H-1B Petitions: In the past, it took only two seconds to obtain certification online. Now, it practically takes minimum of seven days in the best cases. Because of the technicality and complexity in the filing rules under the new system, a host of cases have been rejected and denied.
  • PERM Labor Certification Application: Some time after the DOL launched the electronic filing system under the name of PERM, the appliciation was certified even in two days and most of the cases were certified in less than one or two months. Beginning this year, the processing time in most cases is six (6) months in clean-cut cases. Its current processing time is November 2008 filing cases. But the current delays may be considered a piece of a cake considering the fact that its policy is to extend the processing times from the current six months to nine months. Upcoming potential flood of supervised recruitment decisions may haunt the U.S. employers that need to keep foreign workers permanently. Even the current nine-month processing time implies that the employer had to start the process 12 months timeframe since the required recruitment and filing takes almost three months.
  • DOS Visa Bulletin: Too dizzy to even talk about it.
• Other than the Visa Bulletin issue, all of the foregoing delays are caused by the agencies' policy focusing on reinforcement of immigration enforcement and integrity. Underlying these policies involve the administration's policy change to control illegal employment and illegal aliens and to detect and prevent immigration frauds from catching the aliens to the employers that hire aliens. These agencies are mandated by the statutes and regulations to carry out such duties. No one can blame the agencies for their performance of the duties. The mystery is though the issue of political liabilities of the Congress and the agencies in that these were their mandates and sacret duties under the law, and the fact that they now come forward and reinforce their duties implies that apparently they failed to perform the statutory mandates in the past and someone should be liable for negligence of the statutory mandates. What about the Congress? Under the Consitutiton, they have oversight authority and neglected the constitutional mandates. Problem is no one cares about asking liabilities. What kind of political liability should be attached to the three-piece suit Congress men and women who sat idle in the Hill and just watched the flood of undocumented aliens crossing the borders without raising even a word in normal days and months until they want to bring it up for their political cause and gains for the party politics and election cycle? Something to think about for the roots of the problem. The lauder they talk about "enforcement" and "integity," the deeper they are likely to admit their guilt for the wounds of their past failures and negligence before the tax payers and their constituents.

08/05/2009: Sotomayor and New USCIS Director Nominations Likely Confirmed Tomorrow, Thursday

• The Senate confirmation of Sotomayor for the post of associate justice of the U.S. Supreme Court has been debated on the Senate floor and the Senate Democrats are pushing to pass it by late this evening or at least by tomorrow morning. This confirmation will be followed by other important confirmation of nominations including the new USCIS Director tomorrow. The Senate is shceduled to go into the summer recess as scheduled at the end of this week. It is unclear the new Director will be able to bring with him any changes in management of immigration business under the environment that focuses on immigration enforcement and integrity in management rather than efficiency in management. Please stay tuned.

08/01/2009: House Bill to Amend Chinese Student Protection Act Eliminating Offset in Per County Numerical Level

• Rep. David Wu from Oregon introduced an interesting bill, H.R.3532 on 07/31/2009 to amend the Chinese Student Protection Act of 1992 to eliminate the offset in per country numerical level required under that Act.

08/01/2009: The House in Summer Recess Until September 8, 2009

• The House passed H.Con.Res 172, Concurrent resolution on 07/30/2009, which the Senate concurred, that when the House adjourns on the legislative day of Friday, July 31, 2009, Saturday, August 1, 2009, or Sunday, August 2, 2009, it will stand adjourned until 2 p.m. on Tuesday, September 8, 2009, or until the time of any reassembly pursuant to section 2 of this concurrent resolution, whichever occurs first; and that when the Senate recesses or adjourns on any day from Thursday, August 6, 2009, through Tuesday, August 11, 2009, it will stand recessed or adjourned until noon on Tuesday, September 8, 2009, or such other time on that day as may be specified in the motion to recess or adjourn, or until the time of any reassembly pursuant to section 2 of this concurrent resolution, whichever occurs first.
• Simple language: The House stays adjourned from Augsut 1, 2009 and the Senate stays adjourned from August 7, 2009, until September 8, 2009. Ladies and Gentlemen, these honorable legislators will be all over in your neighborhood and community for the next one month.

08/01/2009: USCIS Redesigned Website Launch 09/22/2009 and Current Ongoing Face Makeups

• People will remember our previous report that President Obama announced earlier that the USCIS website would be changed in 90 days from the date of announcement to make the site more consumer friendly, informative, transparent, and efficient. In order to implement this plan, the USCIS website is currently undergoing redesign process and face makeup changes. Understandably, during the process, the website may experience with some errors or oversights. We urge our readers to bear with the agency and support the agency's effort to complete the redesign process successfully with minimum of pains until September 22, 2009. As a matter of fact, when it comes to redesign of the government websites, our readers must have noticed that it is not limited to the USCIS. The DHS and the Foreign Labor Certification website of DOL are also undergoing this process. Recently, the White House recruited new Chief Technology Officer and under the leadership of this top IT Chief of the Obama Admninistration, the federal department IT leaders are operated and coordinated very closely, the White House IT Chief visiting and assisting each of these federal departments with the new initiative and mission. Accordingly, it is anticipated that the federal government websites will be reshaped and managed under the White House cyber-space new initiatives, bringing into the websites new technologies including interfacing with texting, ipot communications, mobile imaging, channeling populate, YouTube, Twitter, and other video-focused cyber technologies.
• Well, we are now living in a world of cyber-space where communication channel is changing not even hour-by-hour but second-by-second in flash. The world is undergoing a process of transformation from the age when the power of "mass communication and media" dominated our lives in four corners to the new age of "global cyber network" of components of human society in diverse fashions which will redefine all aspects of human lives including power structures, cultures, values, etc. etc. In a sense, the world is undergoing a process of fragmentation and disintegration of the traditional society and no one can exactly predict where this process will lead us to. Only our next generations will be able to tell.

08/01/2009: USCIS E-Filing System Outage Tomorrow, 08/02/2009

• The USCIS e-Filing System will be temporarily unavailable on Sunday, August 2, from 7:00 AM ET until 1:00 PM ET for necessary maintenance.

07/31/2009: Biometrics Equipped E-Verify System?

• Report indicates that Senator Chuck Schumer, Chairman of Senate Judiciary Immigration Subcommittee is pushing this concept as part of his Comprehensive Immigration Reform bill. Wow, what a bold move! This in itself can kill the CIR. Hope the report is wrong. There must be something more to the report. We hope the Senator clarifies the truth to this report as soon as possible. E-Verify applies not only to "aliens" but also U.S. citizens who apply for a job. Fingerprint is considered one of the most sacred part of an individual's privacy and identity for the citizens in this country unless someone commits a crime or agrees voluntarily to compromise one's own constitutional right to privacy. We wonder how many U.S. citizens would accept such bold concept to compromise their constitutional right of privacy to that level? U.S. citizen readers, how many of you would want to give biometrics to take a job? We don't get it! To get a job, citizens must give their fingerprints?!?! Sounds like a joke.

07/31/2009: OFLC Updates on 07/31/2009 the PERM Processing Times as of 06/30/2009 - No Progress! Ouch!

• Final Reviews: November 2008 Priority Date Cases
• Audts: October 2007 Priority Date Cases
• Standard Appeals: July 2007 Priority Date Cases
• Government Error Appeals: Current

07/31/2009: Recent Incidents of Erroneous Arrest of U.S. Citizens and Alleged Mistreatment of Immigration Detainees Trigger Legislative Reaction in the Senate

• Recent reports of the subject incidents have stirred a substantial incineration of emotions among immigration advocates and certain immigrant communities against the DHS and Obama Administration. Yesterday, Senator Robert Menendez from New Jersey introduced the following two bills in the Senate:
  • S.1549 to protect United States citizens from unlawful arrest and detention.
  • S.1550 to ensure that individuals detained by the DHS are treated humanely, provided adequate medical care, and granted certain specified rights.
• Immigration advocates have recently shown a growing impatience with CIR, facing DHS step-up of immigration enforcement actions.

07/31/2009: Background of Adjustment of Processing Times for H-1B LCA and PERM Application in FY 2010 Budget

• After we posted the PERM processing time readjustment plan in FY 2010, we have received a number of quiries from the readers for the background of the decision. Accordingly, we have decided to quote the relevant portion of the budget proposal below:
• "Two programs that contribute significantly to the overall performance goal to “Address worker shortages through the Foreign Labor Certification Program” are PERM and H-1B. Both these programs have been subject to a DOL Program assessment. In response to assessment findings, ETA is taking several steps to improve the integrity of the PERM program. These steps include revising the application to promote clarity and ease of use by employers, and modifying current electronic filing system to incorporate the changes to the application form. ETA is also enhancing audit activities and implementing new oversight. ETA is also taking several steps to improve the H-1B program in response to assessment findings. ETA has obtained approval from the Office of Management and Budget for an enhanced application form and is working to revise the current electronic filing system to incorporate the necessary changes and implement mandatory registration and several validation edits. Performance for all four application programs is expected to remain the same or slightly increase over the next two years. FLC also plans to revise the PERM measure and implement a new program integrity measure. The current PERM measure, employer applications resolved within six months, will be extended to nine months. The original measure was developed prior to implementation of the program. The enhancement of integrity actions during FY 2008 and early 2009 demonstrate that a nine month measure will more accurately reflect actual program performance. The new integrity compliance rate will be measured as the percent of resolved applications that have been selected for integrity review and found in compliance. ETA is currently developing baseline targets for an enhanced PERM performance measure and a new PERM integrity measure. These measures are scheduled for approval and implementation at the beginning of FY 2010."
• "Beginning in FY 2010, FLC’s goal is to reduce its reliance on contract staff in favor of a larger core of experienced Federal staff. ETA believes a larger core of Federal employees will be less costly and provide greater long-term stability. In FY 2009, after receiving an increase in appropriations, ETA quickly moved to hire, train, and strategically place additional Federal staff to eliminate bottlenecks, fill in organizational gaps, and help build longer-term human capital. As the number of FLC Federal staff increases over time, ETA will concurrently reduce contractor numbers. ETA believes this transition will ultimately result in greater consistency and quality of individual adjudications."

07/30/2009: Senate Floor Will Not Vote on Confirmation of Nominees, Sotomayor and Majorkas Until Next Tuesday or Mid Next Week

• Senate floor is not scheduled to vote on these nominations until next Tuesday or immediately after Tuesday. Senate will then go into the summer recess at the end of next Friday. Under the schedule, the new Director of USCIS may be sworn into a new Director within next week.

07/30/2009: USCIS Transformation Program Implementation Timeframe

• The Inspector General of DHS has just released its report on USCIS Progress in Modernizing Information Technology. This report reviews the progress of USCIS Transformation Program. According to the report, the USCIS has made a substantial progress for this program and as of March 2008, the USCIS was intended to implement the Transformation Program in six-year time frame through FY 2013. The four phases of implementation plan was as follows:
  • Phase I (FY 2009): Citizenship Program(naturalization, military naturalization, and international adoptions)
  • Phase II (FY 2010-FY 2011): Immigration Program (permanent residence)
  • Phase III (FY 2012): Humanitarian Program (refugee, asylum, parole, TPS)
  • Phase IV (FY 2013): Non-Immigrant Program (non-immigrant workers).
• Obviously there is some delays in the Phase I implementation. But this four-phase implementation plan gives overall picture and perspectives as to when the petitions and applications of different types will be filed and processed preceded by the online registration of the petitioners, legal representatives, and alien beneficiaries in the form of "account" system. It is interesting to note that the agency will initiate the immigrant program ahead of the nonimmigrant program and transformation of nonimmigrant filing and processing service into online system is far off. For the full report, please click here.

07/30/2009: Foreign Labor Certification Program Performance and Goal for FY 2010 (10/01/2009-09/30/2010)

• The U.S. Department of Labor has been releasing quarterly performance reports for the foreign labor certification programs which reflect the "results" of the performance for each quarter and do not give perspectives for its policy goals for the future performance in details. The best sources for this information is FY 2010 budget proposal which the House has just passed this week. In order to understand the current processing changes and backlogs and its target for FY 2010, we would like to post excerps from the new year budget proposal fairly in details to give our readers some level perspectives for the future of the labor certification program and processing time. Right off the bet, we want to remind the readers that the current processing time goal for the PERM applications is "6-month" and completion of applications within the processing times at about 92%. Unfortunately, lately the processing of PERM applications have been longer than six (6) months. Guess what! The OFLC will adjust processing time goal from six-(6) months for FY 2009 to nine (9) months for FY 2010. As we all know it, in FY 2010, OFLC will launch iCERT PERM filing and processing system. Along with this change, OFLC will reduce and replace "contract workers" by government officials in FY 2010 in order to give stability in the forreign labor certification program management and operation. Currently, they have been utilizing heavily non-government private contract workers. It is uncertain how much this change will affect the quality of the work products of processing and adjudication of foreign labor certification applications. We will have to wait and see.
• For the reader's information, the processing time goals for various foreign labor certification programs in FY 2009 were as follows:
  • H-1B LCA: Seven(7) days of the filing date for which no prevailing wage issues are identified;
  • PERM Applications: Six (6) months of filing
  • H-2A Temporary applications: For no pending state actions, within fifteen (15) days of receipt and thirty (30) days from the date of need
  • H-2B Temporary applications: sixty (60) days of receipt.
• We will report other details later. Please stay tuned.

07/30/2009: USCIS Releases on 07/28/2009 FY 2010 H-1B Cap Count as of 07/24/2009

• Standstill at 44,900 and no move since July 10, 2009. H-1B employers, you have plenty of cap numbers available to file new H-1B cases! Not too bad, ain't it?

07/30/2009: USCIS Releases on 07/28/2009 FY 2010 First Half H-2B Cap Count as of 07/17/2009

• Very slow. As of 07/17/2009, they have received only 4,377. Good!

07/29/2009: CIR Rountable on Employment-Based Immigration by Senate Judiciary Immigration Subcommittee?

• The Senate Immigration Subcommittee was scheduled to hold a hearing on 08/06/2009 on "Comprehensive Immigration Reform Roundtable: Employment-Based Immigration to Propel America's Economy While Protecting America's Workforce." The hearing could have been a very interesting momentum to highlight the importance of employment-based immigration reform within the context of Comprehensive Immigration Reform. To the great disappointment to the employment-based immigrant community, however, the Subcommittee announced today that it was cancelling the hearing without any new date for the hearing. It means that there would be no such hearing until after the end of summer recess, if at all. Gee................!

07/29/2009: USCIS Announcement and Q&A of TPS Extension for Somalians

07/29/2009: USCIS Rule for Commonwealth of the Northern Mariana Islands Transitional Workers Classification

• Yesterday, the USCIS submitted this Interim Final Rule for its clearance and approval. The DHS wants to create the new Commonwealth of the Northern Mariana Islands (CNMI) Only Transition Worker classification accordance with the Consolidated Natural Resources Act (CNRA) of 2008. This act establishes a transition period before the Immigration and Nationality Act is fully applicable to the CNMI. A CNMI-only transitional worker is an alien worker who is ineligible for another classification under the Immigration and Nationality Act and who performs services or labor for an employer in the CNMI. The new CNMI-only CW classification will be in effect for the duration of the transition period. This rule will also establish employment authorization incident to this status.

07/29/2009: Full Judiciary Committee of the House to Mark Up H.R.3290 Bill for Relief of Surviving Family Members of 9/11 Alien Victims

• As we predicted, this bill is moving very fast. One day after the bill was introduced on the floor, the House Judiciary Immigration Committee passed and recommended to the full Judiciary Committee. Now full Judiciary is scheduled to mark up this bill today. For this bill to pass the Congress timely for the upcoming anniversary of 9/11, this bill has to be taken up and passed in the House this week, hopefully by unaimous consent or unanimous voice vote. Please stay tuned.

07/29/2009: Non-Minister Religious Worker and Conrad 30 Programs Face Another Sunset on 09/30/2009 and Exension Bills in Limbo

• There are two bills to extend these programs, one in the House and the other in the Senate. The House bill has never shown any progress in scheduling, but the Senate bill moved ahead fairly quickly as an amendment to the DHS 2010 Appropriation bill. The Senate passed these two immigration program extensions and requested the House for conference to resolve differences since the Senate amended the House bill for DHS 2010 Appropriations. Accordingly, the future of these immigration program extensions depends on the resolution of the differences between the original House bill and the Senae amendments to the House bill. Senate has already appointed its delegates to the conference but the House has not been acting on the conference request. Since there are only two working days remaining for the week, resolution of the bill within this week is bleak. Besides, there is an indication that unlike the Senate, the House may leave earlier than the original summer recess date of August 8, 2009. They may not even come back next week, even though it is not fixed, according to the Senate majority leader. Come September, the Congress will be hustling to pick up hot bills as soon as they return after the Labor Day holiday. They will have to pick up health care reform bill and for political pressure may introduce a comprehensive immigration reform bill, no matter whether it has any chance to pass the Congress within this year. In the midst of the tight schedules, the bill to extend sunsetting immigration programs will have to be picked up and resolved before September 30, 2009!
• For the foregoing reasons, the USCIS has started taking a step to pull out all of the pending non-minister religious worker program and EB-5 regional center program related immigration applications in order to adjudicate these applications as many as possible before the laws sunset on September 30, 2009. EB-5 program permanent extension faces another challenge because the final Senate version of FY 2010 DHS Appropriation Bill misses this provision in the packet. There is a good chance that the Congress will do something about it before September 30, 2009, but the immigrants and their employers involved in these immigration programs may have to experience another roller coaster and thriller emotionally. Unreal!

07/28/2009: Hillarious Victory for 29-Month OPTs in the Court Challenge by Anti-Immigration Groups

• The 29-month OPT rule which was enacted by the DHS as one of the forms of "administrative fixes" of broken immigration system was sued by a group of anti-immigration forces in the federal district court in New Jersey. The federal district court dismissed the challenge on a procedrual deficiency in legal standing of the plaintiffs and consequently without even reaching the merits of case. The anti-immigrant groups were persistent and appealed the decision of the district court demanding to permently enjoin the 29-Month OPT Rule. This litigation has dragged on for a year and pending the litigation, the previous, current, and future STEM OPTs and other regular OPTs have witnessed uneasiness since their whole careers were at stake.
• Good news. The U.S. Court of Appeals upheld the District Court decision, keeping the 29-Month OPT Rule alive and well. Read on.

07/28/2009: State Department Cable to Visa Posts for Revised Skilled List for J-1 Visa Program

• The revised 2009 J-1 visa Exchange Visitor Skills List was published in the Federal Register (Volume 74, Number 82) on April 30, 2009 and the new Skills List took effect on June 28, 2009. State Department has sent out this cable to the visa posts to give guidance on use of the revised skills list. Read on.

07/28/2009: State Department Cable on Further Guidance and Talking Points on Ending the E-Passport Exemption for Emergency and Temporary Passports for Visa Waiver Program Travelers

• This cable is coordinated with DHS that has already announced the end of the validity of non-electronic emergency and temporary passports for travel under the Visa Waiver Program (VWP). The State Department is releasing this guidance for the visa posts from their own end. Read on.

07/28/2009: DS-160 NIV Online Application Form and Current State of Usage of Online Form in Visa Posts

• According to the State Department, currently, twelve posts (including some Mexican and Canadian posts, Dublin, Hamilton, Hong Kong, and Tripoli) are requiring use of the DS-160 by their applicants. These posts' applicant volume makes up about a tenth of the worldwide NIV applicant workload. The State Department will be expanding DS-160 use to two additional posts in Mexico, as well as Mission Australia, this summer. The form is currently available in English and Spanish, but translations into Arabic, Japanese, Chinese, Russian, Serbian, and French are being developed. The State Department hopes to have it available to all posts (and in the above languages) by the end of Calendar Year 2009. It is the State Department's priority to automate the visa process as much as possible. One major initiative is the DS- 160, a fully web-based NIV application form. The 160 incorporates all of the current NIV forms (DS-156, 157, 158, 156K, 3032, and parts of the E visa application) into one interactive format. It also allows applicants to upload a photo. The 160 is accessible to post and Washington through the Consular Consolidated Database (CCD). The form is hosted on the Consular Electronic Application Center (CEAC), which will also eventually host online IV and passport applications, online fee payment, possible queuing systems and an online appointment system. For other details, please click here.

07/28/2009: State Department Updated Visa Medical Examination Forms and Visa Post Instructions to Use the Updated Forms Immediately

• State Department has issued an instruction to the visa posts to begin using the updated visa medical examination forms of DS-2053, DS-3024, DS-3026, and DS-3025 immediately, and discontinue use of any older version of these forms. The Consular Section must ensure that copies of the updated forms are provided to all panel physicians. Medical exams which have been completed using the older version of the forms do not have to be repeated. The new DS-3054 and DS-3030 reflect the changes and updates to the Centers for Disease Control and Prevention (CDC) Technical Instructions (TIs). CDC is currently in the process of rolling out the 2007 Tuberculosis (TB) TIs to all posts. For the full details, please read the full text.

07/28/2009: Both Sotomayor and New USCIS Director Nominations Ok'd by Senate Judiciary

• The executive meeting took only two hours to approve the nomination. It is likely that the nominations will be confirmed before the Congress go into summer recess after next week, most likely within this week or next week at the latest. Please stay tuned.

07/25/2009: Senate Full Committee to Determine Nomination of New USCIS Director Next Tuesday, 07/28/2009

• The Senate Full Committee on the Judiciary is scheduled to consider the nomination of Mr. Alejandro N. Mayorkas, of California, to be Director of the United States Citizenship and Immigration Services (USCIS) in its business meeting. The Full Committee will also consider the nonimation of the new Supreme Court Associate Justice in the same meeting. The new USCIS Director's confirmation has experienced some delays because of the flood of executive notimations for the new Administration, particularly the military posts, diplomatic posts. Once the Full Committee clears the nomition, it will go to the Senate full floor for confirmation. It is unclear whether Mr. Mayorkas will be nomiated before August 8, 2009 when the Congress is scheduled to go into the summer recess for a month. Please stay tuned.

07/25/2009: Press Release of H.R.3290 Bill Sponsor for Relief of Surviving Family Members of 9/11 Alien Victims

• As stated in this press release, the potential beneficiaries of this legislation appears to be "very small" in numbers because of a number of conditions attached to the scope of eligible beneficiaries. In one aspect, the potential beneficiaries are expansive than the current law in that children covers not only children under 21 years of age but also adult children inasmuch as they were unmarried. On the other hand, the bill appears to be intended to give reliefs primarily for the undocumented alien victims and their family members who came out of closet after the 9/11 attacks, albeit only for the purpose of receiving the post 9/11 victim relief funds. We do not know whether how many of these undocumented family members came out of closet for fear of potential immigration enforcements. Besides, the benefit is limited to the surviving spouse and surviving children, sons, and daughters of the victim aliens before the terrist attacks.
• Since it appears that the bi-partisan bill is targeting at enacting this legislation at least by the upcoming 9/11 anniversary and there may be a lot of legislators in the both Houses from both sides of isle who will support the bill, this bill may pass very swiftly. Accordingly, those who may be eligible for this bill may contact Rep. Maoney's office to learn additional details. The contact phone number is found in the press release.

07/25/2009: "E-Verify: Challenges and Opportunities" House Subcommittee Hearing of 07/23/2009 and Written Testimonies of the Witnesses

• Angelo I. Amador (U.S. Chamber of Commerce)
  David Rust (Social Security Administration)
  Gerri Ratliff (USCIS)
  Jena Baker McNeill (Heritage Foundation)

07/24/2009: House Judiciary Immigration Subcommittee Approved Yesterday H.R.3290 Gviving Green Cards to Spouses/Children of 9/11 Victims Who Died

• This is a bill which was introduced on the House floor on 07/22/2009 to grant certain spouses and children of the victims of 9/11 attack who were killed lawful permanent resident status. This bill was swiftly passed by the House Judiciary Immigration Subcommittee and recommended the full Judiciary to pass it.

07/24/2009: Reminder of Foreign Labor Certification Filing System Outage for Maintenance During the Weekend

• We reported and alerted that iCERT portal system would be down from 07/24/2009, Friday, 8:00 p.m. (est) to 07/27/2009, Monday, 6:00 a.m. (est). Currently iCERT portal is used for the temporary labor certifications and labor condition application for H-1B, H-2A, H-2B, E-3, H-1B1 for Singapore and Chile. The permanent labor certification application is still filed through the current online filing system. The employers should be aware that the filing system will be down not only for iCERT but also PERM online filing system during the weekend. Those who face the deadline for PERM during the weekend should file it before 8:00 p.m. (est) this evening.

07/24/2009: Somalian TPS Designation Extension for 18 Months (09/18/2009-03/17/2011) and EAD Automatic Extension Till 03/17/2010

• USCIS will announce on Monday, 07/27/2009, that it extends the designation of Somalia for TPS for 18 months, from its current expiration date of September 17, 2009 through March 17, 2011. This Notice also sets forth procedures necessary for nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) with TPS to re-register with USCIS. Re-registration is limited to persons who have previously registered for TPS under the designation of Somalia and whose applications have been granted by or remain pending with USCIS. Certain nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) who have not previously applied to USCIS for TPS may be eligible to apply under the late initial registration provisions. Given the timeframes involved with processing TPS re-registration applications, the DHS recognizes the possibility that all reregistrants may not receive new EADs until after their current EADs expire on September 17, 2009. Accordingly, this Notice automatically extends the validity of EADs issued under the TPS designation of Somalia for 6 months, through March 17, 2010, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended. The 60-day re-registration period begins on 07/27/2009, Monday, and will remain in effectfor 60 days from next Monday. For the advance copy of this notice, please click here.

07/24/2009: Mr. President, Let's Talk Honest and Start Working on Alternative Options to Fix Broken Immigration System

• Now since you have lowered your health care reform agenda to the "end of 2009," you know that your hands will be full and totally tighted up with this hottest-botton issue until the end of the year and honestly there is also slim chance and expectation on the part of the nation and your Administration that achievement of compehensive immigration reform wiithin this year will be almost close to impossible, no matter whether the Senate introduces a bill after the Labor Day holiday in September. We have no intention to discourage your continuing efforts and dedication to push for the CIR within this year, but as was true with the health care reform endeavor, you should be more realistic with the timetable of the CIR in order not to disappoint your constituents leading them to question the strength of your political leadership. "Honesty" should be a guiding light and policy in such difficult time as the current situation that is tangled with extremely politically volatile and charged fundamental ideological issue on the nation's direction for the future.
• The foregoing assessment should lead you and us to a conclusion that there is absolutely no reason to sit idle on fixing the terribly ailing immigration system pending the political resolution of the CIR in uncertain future time. There is absolutely no reasons why the Congress and your Administration should not start working on the ailing issues one at a time without abandoning the long-term endeavor towards the comprehensive immigration reform. In the Congress, there have already been introduced a number of such piecemeal immigration bills including DREAM Act, AgJOBs, Recapture of Wasted and Unsed Immigration Numbers, Nursing Emergency Relief, Family Unification Relief, etc, etc. These issues come under the broad umbrella of comprehensive reform. We do not see why the isssues cannot be resolved piece by piece within the overall framework and direction of CIR when the reality may dictate that the CIR may not be achievable in the near future. We cited a few piecemeal legislative bills above. However, when it comes to the task of fixing broken system, there are a number of broken system which can be fixed on a piece by piece manner at the administrative level. We realize that in fact, your Administration has already initiated such administrative fixes in the areas which are limited to employment enforcement and border security. However, thus far, no efforts have been made on the part of your Administation to fix borken system with the immigration benefits programs within the authority under the existing statutes. This includes the Department of State, Department of Homeland Security, Department of Labor, and Deparmtment of Justice, that manage the nation's nonimmigrant and immigrant visas and management programs. There are a host of programs that can be fixed without too much pain and without touching the nerves of mainstream of America. For instance, we have kept pounding the U.S. Department of State to reinstate the visa revalidation services with their deaf ears. Suspension of the visa revalidation services is at this time absolutely not supported and justified by the current system that has witnessed a substantial change in security protection involving the aliens within the United States. Towards the end of Bush Administration, the government started launching programs of administrative fixes within a very limited scope. Such endeavor to fix the broken immigration system at the administrave level has almost ceased after your Administration took the government in January 2009. As stated earlier, the administrative fix is currently limited to the enforcement. We ask Mr. President and leaders of the federal departments that manage visa and immigration benefit programs for foreigners to step up your efforts to study, review, and present the areas of their management system which ?you" can fix within your authority. The immigrant community may want to know what areas of fixes will be involved and expected to be achieved at each department. This effort should be pushed ahead "in parallel with" the legislative fixes until the time is ripe for the reform of the immigration system on a comprehensive scale and scope. We all know the saying and the wisdom underlying the saying that "start" means reaching a half of miles of the destimation and crawling of turtle is more powrful than a sleeping tiger when it comes to reaching the destiny.

07/23/2009: House Bill Introduced Yesterday to Give Green Card Opportunity to Spouse/Children of Those Who Died in the September 11 Terrorist Attacks

• Rep. Carolyn Maloney of New York introduced in the House yesterday H.R.3290 to provide the spouses and children of aliens who perished in the September 11 terrorist attacks an opportunity to adjust their status to that of an alien lawfully admitted for permanent residence. This bill is co-sponsored by 10 other Representatives.

07/23/2009: Interesting Statistics of EB-5 Regional Center Investment Program as Reported by USCIS in Yesterday's Senate Judiciary Hearing

• The head of EB-5 investment program in the USCIS testified yesterday before the Senate Judiciary Committee on the state of EB-5 investment immigration program. We find the following statistics as revealed through the testimony particularly interesting to note:
  • There were only 23 Regional Centers throughout the country a year ago, but now there are 60 approved and active Regional Centers present in 24 different U.S. States inclusive of the District of Columbia. The pace of growth of this program is indeed somewhat remarkable. We say it is remarkable considering the fact that the future of the program has been uncertain as it was a pilot program creating a risk for the investors and it in turn acted as a constraint for the growth of the program. Now, the Senate just passed a bill in the form of amendment to the House bill of DHS 2010 appropriation bill proposing the Regional Center program "permanent," which waits for the House-Senate conference process. One can imagine the potential impact of this legislation. It will create an incentive to the increased number of foreign investors to invest in this country and we can foresee mushrooming of the investor immigration program.
  • The positive impact of the new legislation is too obvious, and the program indeed play an important role as an economic stimulus. According to the testimony, at least estimate $1,012,500,000 (based on $500,000 per alien investor) has been invested into the U.S. economy through the EB-5 Immigrant Investor Program since October 1, 2006 and the program have created an aggregate of 20,250 jobs for U.S. worker thanks to the approval of the investor immigration petitions.
  • As a result of these changes, processing times have improved significantly. A year ago it took an average of 14 months to process a regional center proposal. That now takes 4 months. Similarly, the average processing time for individual investor petitions has dropped from 7 months to 4, and the processing time to remove the conditions on status has dropped from over a year and a half to 6 months.
  • In FY 2007, USCIS approved a total of 473 investor immigrant petition (I-526) and 111 conditional status removal petitions (I-829); In FY 2008 , USCIS approved 640 of I-526 and 159 of I-829; and in FY 2009, as of now, 912 of I-526 and 206 of I-829 petitions.
  • The processing times for these petitions have also improved significantly. A year ago it took 14 months to process a regional center proposal. Now it takes only 4 months. Similarly, the average processing time for individual investor petitions has dropped from 7 months to 4, and the processing time to remove the conditions on status has dropped from over a year and a half to 6 months.
• No wonder why some political leaders are excited about the legislation as a means to attract foreign investment to their states. It will be interesting to watch the conference process for the DHS Appropriation bill. The Senate has already appointed its delegates, but the House has yet to appoint its delegates for the conference committee for this legislation. Please stay tuned.

07/22/2009: Today, DHS Redesigned Its Website and also Launched YouTube Channel

• Today, DHS launched the following two cyber programs:
  • DHS YouTube Channel
  • Redesigned DHS Website
• Well, this is indeed cyber age!

07/22/2009: OMB Clears USCIS TPS Extension Designation and Automatic EAD Extension for Somalians

• On 07/15/2009, USCIS requested OMB approval for this regulation. OMB has taken only six days to clear the rule for release in the federal register. Accordingly, it is expected that the USCIS will publish this notice in the federal register soon. Please stay tuned.

07/22/2009: Causes for FY 2010 H-1B Cap Number Standing-Still

• There are two theories for the cause of the H-1B cap number not being exhausted. One theory is the impact of economic down-turn, and the other theory is number of employer withdrawals of the petititons, denial or revocation of the petitions by the agency. Without doubt, both factors have been affecting the cap situation. However, report indicates that "a USCIS spokesman, in an e-mail, said the reason for the decline is that the number of denials, withdrawals of applications and revocations are "quite simply" exceeding the number of new filings." This phenoma is caused by the agency's massive RFEs demanding mountains of documents which are in a lot of cases unavailable for a number of reasons. The industry which has been most affected is ITconsulting services, no matter how large or small they are. For these employers, nightmares are expanded to extension cases, not to mention new cases, producing RFEs and denials. The difficulty of these employers do not stop there. Their international travels are faced by the increased challenges at the consulates and at the port of reentry. As we reported yesterday, this is an extremely challenging time for foreign professional workers and the businesses that need services of these foreign workers. We do not know when this is going to stop and how the environment can change. It will be interesting to see what long term impact it will have on the future of this country, should this continue under the environment when there is no change in the country's education system that can meet the international competitive challenges.

07/22/2009: Texts of Written Testimonies of Witnesses of Today's Senate Judiciary Hearing on EB-5 Regional Center Program

• For the texts of these testimonies, please revisit our posting of 07/21//2009 and click links.

07/21/2009: Senate Judiciary Immigration Subcommittee Hearing Today: "What Changes Should be Made to Our Current Employment Verification System?”

• Please read written testimonies of witnesses who testied before the Subcommittee to learn where they stand on this issue:

Rep. Luis Gutierrez of Illinois
Michael Aytes, Acting Director of USCIS
James Ziglar, Senior Fellow of Migration Policy Institute
Lynden Melmed, Former Chief Counsel for USCIS

07/21/2009: State Department Expands Definition of "Immediate Family" as Applied to "A" and "G" Diplomatic Visa Eligibility

• The State Department will publish a rule in the federal register tomorrow which expands the definition of immediate family under the INA section on A visas and G visas to include non-blood related members of households who the principal alien considers a member of the family. Specifically, the new definition of "immediate family" will also include individuals who:
  • (i) Are not members of some other household;
    (ii) Will reside regularly in the household of the principal alien;
    (iii) Are recognized as immediate family members of the principal alien by the sending Government as demonstrated by eligibility for rights and benefits, such as the issuance of a diplomatic or official passport, or travel or other allowances; and
    (iv) Are individually authorized by the Department.
    
• Please see the advance copy of this interesting rule.

07/21/2009: USCIS Q&A on Resumption of R-1 Religious Worker Petition (I-129R) Premium Processing Services

07/21/2009: State Department Cable Changing FAM Provision on "T" Visa Application

• 9 FAM 41.84 N1 BACKGROUND
  • Section 107 of Public Law 106-386, the Victims of Trafficking and Violence Protection Act (VTVPA) created a new nonimmigrant category (T) for aliens who are victims of a "severe form of trafficking in persons." The term has the meaning given in Section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102). Note that only the Department of Homeland Security (DHS) can place an alien, principals as well as derivatives, in this category. Consequently, a consular officer must not accept an application for a nonimmigrant visa (NIV) in the T category unless the officer has received from the Department notification that DHS has approved that alien for T status. (See 9FAM 41.84 PN1 and PN2.) The category is limited to 5,000 principal aliens per year. The law was amended by the Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA), Public Law 108-193, which provided age-out protection (see 9 FAM 41.84 N5.3) and public charge exemption (see 9 FAM 41.84 N5.4), and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public Law 110-457.
• 9 FAM 41.84 N4 DERIVATIVES OF T VISA HOLDERS: CONSULAR OFFICER RESPONSIBILITY
  • a. In order to avoid extreme hardship, eligible immediate family members of a T-1 principal alien may receive derivative T-2 (spouse) or T-3 (child) status, and, in some circumstances, T-4 (parent) or T-5 (sibling) status, to accompany or follow to join the principal alien. Children born after their parent filed an application for T-1 status may be eligible for derivative status if the parent T-1 nonimmigrant proves that he or she became the parent of the child after the application was filed. Siblings must be unmarried and under the age of 18 on the date on which the principal alien applies for T-1 status. A parent or sibling of a T-1 principal may qualify in one of two ways: based either on the principal alien's age under 21 when filing the application for T-1 status [redacted], or -- regardless of the principal alien's age -- on a determination by the Secretary of Homeland Security that the parent or sibling faces a present danger of retaliation as a result of the alien's escape from the severe form of trafficking or cooperation with law enforcement [redacted]. Note that numerical limitations do not apply to immediate family members.
• Those who handle T visa applicants should make a note of this FAM change.

07/21/2009: Senate Judiciary Full Committe Schedules Hearing on EB-5 Invesor Immigrant Program on 07/22/2009

• The Senate Committee on the Judiciary will hold a hearing entitled "Promoting Job Creation and Foreign Investment in the United States: An Assessment of the EB-5 Regional Center Program" on Wednesday, July 22, 2009 at 10:00 a.m. The list of witnesses to testify for this hearing includes:
  • Sen. Ptrick Leahy, Chairman
  • Robert F. Kruszka, Deputy Chief of Service Center Operations, USCIS
  • Stephen Yale-Loehr, Adjunct Professor, Cornell University Law School, Executive Director, Invest In the USA
  • Bill Stenger, President of Jay Peak Resort
  • Michael T. Dougherty ,Former USCIS Ombudsman
  • Ron Drinkard, Director of Alabama Center for Foreign Investment, Montgomery, AL
• We will post their written testimonies as soon as they become available.

07/21/2009: Challenging Time for Employment-Based Nonimmigrant and Immigrant Proceedings

• USCIS processing time report indicates that EB I-129 nonimmigrant processing time is two months and certain I-140 processing times have been reduced to as short as four months. However, it is well known that the number of RFEs and denials have increased substantially and obviously the monthly reports may just reflect the processing times for unchallenged cases. The USCIS has not released details of current state of issuance of RFEs and denials. However, the processing time report of AAO of the USCIS indirectly reflects scale of denials that have ended up with the appeals of the denials. The July 1, 2009 AAO processing time report indicates that the AAO processing of appeals is experiencing increased backlogs. The worst backlogs are clearly noticeable particularly in major areas of employment-based nonimmigrant and immigrant petitions. For instance, the processing times for AAO appeals are: H-1B=16 months, EB-2 I-140=26 months(!), EB-3 I-140=22 months(!), and EW I-140=18 months. Besides, in the past, in many types of appeals of applications and petitions, AAO did not experience any backlogs, but the picture has changed now.
• Such backlog raises issues at two levels. The first issue is need for improvement in adjudication of these cases at the field offices. Increase in the number of appeals may not necessarily reflect that the petitioners filed deniable cases in all cases. Unless these cases had a merit, the petitioners would not have appealed the denials. The USCIS leadership should review the current ailing problem in this area. The second issue is the resources in AAO. Again we do not have any raw data to assess the details of resources of AAO. However, the increasing backlogs should have caught the attention of the USCIS leadership to resolve the problem. One wonders how much this problem has been addressed in FY 2009 and FY 2010 budget appropriation process by the USCIS and DHS leadership.

07/21/2009: USCIS Resumes I-129R Premier Processing Services for Religious Worker Petitioners That Successfully Passed Site Investigations, Effective 07/20/2009

• This announcement was released through the AILA. Unless the religious entities were successful in the site investigations, they should not file the premium processing request. This service is available only for nonimmigrant proceedings.
• See Official Announcement

07/21/2009: Health Care Specialty Occupation H-1B Petitioners Whose Petition Were Denied on Master's Degree Requirement Issue Should Contact USCIS for MTR

• If the Form I-129 was denied solely on the basis that the beneficiary did not possess a Master’s or higher degree in the field, the petition may be reopened on service motion and will be adjudicated in accordance with the May 20, 2009 memorandum on “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation” which provides clarification on the standards for H-1B health care specialty occupations. USCIS is requesting that employers whose petitions were denied on the above basis send an email to the Service Center that issued the denial of Form I-129 to request review of the denial. An affirmative request for review from the petitioner or its representative is required to expedite this process. In light of recently-issued guidance, USCIS is providing a special accommodation to the public by initiating Service Motions to Reopen (upon receiving an email request) in lieu of requiring petitioners to file an appeal. Therefore, USCIS is not requiring petitioners to submit an appeal fee or any other fee in this instance. Remember that USCIS will only review denials of petitions for which it has received a written request for review from the petitioning employer or its representatives. So, it is imperative that such petitioners should contact the USCIS as soon as possible. For the announcement, please click here.

07/20/2009: Dragging Health Care Reform Legislation and Glimmer of Hope for Comprehensive Immigration Reform in 2009

• Immigration advocates and supporters have been closely watching the ongoing health care reform legislation debates in the Congress with a hope that the issue be resolved before the Congress' take a summer recess in about two weeks. Considering the fact that this legislation is the nation's Uno Numero issue for the nation, resolution of this issue is considered a precondition for CIR legislation. Unless the health care legislation is out of the way, all other politically-charged and volatile issues have remained "secondary" business for the nation's political leaders. As it turns out that the health care legislation is almost certainly pushed off in the Congress after the summer recess, the hope for CIR in 2009 is turning glimmer and glimmer. Immigration advocates can spin wheels in whatever way they want in order to please the hopelessly frustrated immigrants and related stakerholders, but one cannot ignore the "reality." Democratic leaders appear to use Labor Day in early September as a momentum to initiate the CIR legislative process, but as was usual, such CIR agenda move falls into a dead valley as the country moves into the nation's longest holidays of Thanksgiving, Christmas, and New Year. There are "Blue Dog" moderate Democrats who may swing the pendulum in the direction against the progressive Democratic majority unless a sufficient time is given to the Democratic leaders to work out compromise. For this, time was running out, is running out, and will run out very fast. One can only hope for development of "unusual" event that can turn around the pendulum in other direction for CIR. Playing politics with the 2010 Census is not such event and will be considered a shortsighted and suicidal move.

07/20/2009: USCIS Issues Guidance for Handling of I-751 Petitions Filed by Conditional Permanent Resident(CPR) Pending Divorce or Annulment Proceeding in Family Courts

• Under the new guidance, such alien spouse can file I-751 (removal of two-year conditional permanent status) withoiut the U.S. citizen spouse joining in the petition and without a request for waiver of joint petition if such court proceeding is pending. Under the guidance, the adjudicators are required not to deny such petition. Rather the adjudicators are required to issue RFE with a period of 87 days for response. If the court enters a divorce judgement and decree within the period and CPR submits such decree with a request for waiver of joint petition, the adjudicators are required to complete and approve the petition for removal of conditional permanent resident status inasmuch as all other requirements are satisified including "marriage in good faith." Accordingly, under the new guidance, such CPR does not have to file a new I-751 after court issues a final divorce decree unlike the present policy and practice of the USCIS.
• Should the court fail to issue a final divorce degree within 87 days and CPR is unable to submit such decree within 87 days in response to the RFE, the adjudicators of I-751 are instructed to deny such petition and issue Notice To Appear (NTA) to initiate revemal (deportation) proceeding before an immigration court in the jurisdictions. However, should the CPR obtains a final divorce degree during the immigration court proceeding, the CPR can move for a waiver of joint petition and grant of the removal of conditional status.
• The new guidance will give a tremendous relief to the CPRs who face a marital difficulty and a divorce proceeding close to the second anniversary of a conditional permanent resident status, which had been unavailable until the new guidance and policy are adopted. For the details, please read the memorandum.

07/20/2009: Reminder of H-2B Petition Change on Employment Start Date in I-129 Form

• Under the new rule, effective fiscal year 2010, H-2B petitioners may not request an employment start date on Form I-129 that is different than the date of employment need listed on the accompanying approved temporary labor certification. The only exception to this applies when an amended H-2B petition, accompanied by a copy of the previously approved temporary labor certification and a copy of the initial petition approval notice, is filed at a later date to substitute workers. For employment beginning October 1, 2009 (the start of fiscal year 2010), petitions filed with a start date different from the date listed on the temporary labor certification that do not meet this exception will be denied by USCIS without prior issuance of a request for evidence. Because of the rule change, for Fiscal Year 2010 the earliest dates USCIS can accept petitions requesting H-2B classification for each of the two halves of the year are June 3, 2009 (for employment beginning on October 1, 2009) and December 2, 2009 (for employment beginning on April 1, 2010). For the first quarter, the new H-2B cap petition filings are currently very slow, in part due to the slow economy.

07/20/2009: Time-Sensitive Nature of H-2A Agricultural Worker I-129 Petitions and USCIS HQ Instructions for Timely & Expeditious Processing

• On June 24, 2009, the USCIS released a memorandum for guidance for field office adjudicators on H-2A and H-2B petition processing and adjudication. According to the memoranum, H-2A petitions are required to be processed without delays per the following timeframe:
• (1) Personnel in the Service Center mail room are instructed to generate fee receipts, enter data, and route H-2A petitions for immediate distribution;
  (2) H-2A petitions are distributed to adjudication officers no later than the third day after receipt;
  (3) Adjudications officers are reminded to adjudicate unnamed beneficiaries’ H-2A petitions on the day the cases are assigned to them; and
  (4) Once an H-2A approval notice is generated and printed, it should be sent to petitioners within 24 hours of the decision.
• Wow, it sounds like a dream for other types of petitions. H-2A and H-2B are also prioritized at the level of DOL's temporary labor certification application processing. Considering the nightmares the H-1B employers are going through relating to the RFEs, one wonders how many RFEs are issued to such H-2A petitions in these specially treated nonimmigrant proceedings. Hmmm...............................

07/19/2009: USCIS I-140 Filing Tips For Petition That Requires a DOL-Approved Labor Certification

• USCIS reviews Form I-140 petition filings in visa categories that require DOL-approved labor certification to verify that the petition is supported by a valid labor certification. In order to be valid at the time of filing of the Form I-140 petition, the labor certification must be submitted with the Form I-140 during the 180-day validity period annotated at the bottom of every page of the labor certification by DOL. Petitions that are not supported by a valid labor certification will be rejected.
• According to the USCIS Q&A of June 25, 2009 on filing tips for I-140 petitions, the petitioners should follow the USCIS tips to help ensure that the Form I-140 petition that requires a DOL-approved labor certification is accepted for processing:
  (1) Package your Form I-140 with the Form G-28, if any, on top, followed by the form itself. Place the original labor certification directly under the I-140 petition, followed by the other supporting documentation.
  (2) In instances where the ending date of the labor certification validity period expires on a Saturday, Sunday or legal holiday, petitions will be accepted with the labor certification on the next business day. Petitions filed with expired labor certifications filed after the next business day will be rejected.
  (3) DOL-approved labor certifications that are filed electronically with DOL must be signed by the employer, the agent/representative, and the alien beneficiary prior to submission with the I-140 petition. Form I-140 petitions will be rejected if filed with unsigned labor certifications. If an I-140 is inadvertently accepted with an unsigned labor certification, the petitioner will be issued a RFE requesting the required signatures.
  (4) Place a brightly colored piece of paper directly under the Form I-140 petition requesting in large bold font a duplicate labor certification if petitioner needs one.
  (5) If the petition that is being filed is an amended petition and the original labor certification has already been submitted with another Form I-140 petition, place a brightly colored piece of paper directly under the petition that indicates in large bold font that the petition is an amended petition and that the labor certification has already been submitted. Also provide the receipt number of the previously filed petition, if available. If the alien beneficiary may be entitled to an earlier priority date based on a previously approved Form I-140 petition, the petitioner shoud provide a statement to that affect, along with a copy of the Form I-797 approval notice for the previous I-140 petition. (See 8 C.F.R. 204.5(e))

07/19/2009: USCIS Tips to Request Correction of Incorrectly Selected Visa Category in Part 2 of Form I-140 by Clerical Error or to Correct Agency's Error in Approval Notice for Visa Category

• In filing I-140 petition, from time to time, the petitioning employer or its legal representative inadvertently checks a wrong box. For instance, for the EB-2 case, EB-3 box is checked. Another example is a situation where the employer checks EB-1 box when the labor certification application has been certified for EB-2 or EB-3. In the first case, unless the petitioner takes an action, USCIS will approve the petition in EB-3 category. In the second situation. unless the petitioner takes an action, the USCIS will deny the petition.
• According to the USCIS Q&A of June 25, 2009, when USCIS creates the electronic record for the Form I-140 petition, it will issue and mail a Form I-797 Receipt Notice to the petitioner or the Form G-28 representative. The receipt notice will indicate the visa category that the petitioner requested on Part 2 of their Form I-140. If the petitioner belatedly detects it is not correct (i.e., in cases where either the petitioner or USCIS has made a clerical error), then the petitioner should immediately request a change in visa classification through the USCIS National Customer Service Center [1-800-375-5283],prior to the adjudication of the petition. However, although the petitioner may request a change of classification "prior to adjudication" to correct a clerical error in Part 2 of the form, the determination regarding whether to change the visa preference classification will be made by USCIS, based on the totality of the record. Denial of the I-140 based upon ineligibility for the visa preference category will result in denial of the Form I-485, if it was filed concurrently with the I-140. Requests for a change in visa preference category cannot be granted in petitions that have already been adjudicated. A post-adjudication alteration of the requested visa classification constitutes a material change in the petition is prohibited.
• When the petitioner makes a clerical error, people should remember two things: (1) The petitioner must act quickly before the USCIS decides the petition. (2) The petitioner must prove that it was an error caused by a clerical error. In the two earlier illustrations, the second situation will be in a much better shape since it may be common sense that the petitioner may not file a petition for the classification which the petitioner is not eligible. The first situation is more challenging in that the petition is eligible for both EB-2 and EB-3 but the petitioner could have requested EB-3 either because of misunderstanding on the laws and the rules or because of some reasons which were unique to the specific case. Misunderstanding of the laws or rules is no excuse for the agency's exercise of discretion. The petitioner's decision to request EB-3 instead of EB-2 for some unique reasons also may not constitute a good basis for the agency to exercise the discretion. There is another option. The petition may be able to file a new petition after the petition is denied. when the I-140 petition is concurrently filed with the I-485 application and visa number is retrogressed, this may not be a viable option. Besides the petitioner must overcome the agency's challenge to such refiling based on the theory that the underlying certified labor certification has expired. Considering the USCIS memorandum on this issue, such challenge may be overcome, but the petitioner will still have to struggle with the ignorant adjudicator. All in all, the best policy is not to make a mistake in completing I-140 petition!

07/18/2009: List of TARP Funded Entities and H-1B 2-Year Moratorium

• The list of TARP funded companies is somewhat overwhelming. Currently TARP-funded employers are prohibited from hiring new foreign workers in H-1B.

07/18/2009: Haitian TPS Resolution Introduced in the House

• Rep. Alcee Hastings of Florida introduced in the House yesterday H.CON.RES.165 to express support for temporary protected status (TPS) for Haitian nationals currently residing in the United States with 19 cosponsors.

07/17/2009: iCERT Portal System Outage Alert

• Due to regular system maintenance, the iCERT online system will be unavailable from 8PM EDT on Friday, July 24, 2009 to 6AM EDT on Monday, July 27, 2009.

07/17/2009: USCIS Corrects Processing Time Report on 07/16/2009

• Apparently there were some typos on the initial July 15, 2009 release. For instance, the EB-485 processing times for Nebraska Service Center should have been not four months but Septeberm 8, 2007 cutoff date. This report is the processing time as of May 31, 2009 and the agency still has time to meet the planned target of four months by the end of September 2009.

07/17/2009: State Department Proposes to Tighten Exchange Visitor Program Sponsors/Participants Eligibility Requirements and Site Visit

• The abuse of the sponsors and participants of the exchange visitor program is currently in hot spot, allegedly due to lapse in supervision, oversight, and loose standards for determination of sponsors and home stay program participants. However, this problem had persisted even before it turned into a hot spot in the media lately. In order to deal with the problem, the State Department indeed initiated the rule making process and published the proposed rule last year to tighten the process of determination of sponsors and participants in the exchange visitor program and authorizing the State Department to make site visits before and after the determination of the sponsors and participants. However, this rule making process was suspended under the executive order of the President Obama.
• Now, this rule making process is pulled back into the process and the proposed rule has been under review of OMB since June 19, 2009. Those who want to learn about the text of this proposed rule may revisit our report last year.

07/17/2009: USCIS Petition/Application "General Filing Guide"

• The USCIS has put together general information which can be used as checklists, step-by-step documentation and filing process, and other helpful and handy information, particularly for unrepresented filers. Following this guide may reduce the risk of rejection and RFE associated with documentation of filings. We have posted the link to this guide at our homepage for our reader's easy access to this guide. Voila!

07/17/2009: USCIS Updates the Congress on 06/10/2009 USCIS FY 2009 1st Quarter Production (Immigration Benefits Applications Processing) Results

• Currently the USCIS is mandated by the Congress to report quarterly its backlog reduction efforts and results. This is the latest report to the Congress. The key summary portion of the report states that:
  • Production in the first quarter of FY 2009 was 17% below the same quarter in FY 2008. Compared to the 4th quarter of FY 2008, completions decreased 12%; and total pending slightly increased by less than 1%.
    • Due to a rebalancing of production efforts and the associated shift of officer hours towards all applications and petitions with processing backlogs, naturalization completions declined 43% from the prior quarter. However, naturalization completions were still nearly double the number of new naturalization applications received this quarter.
    • The backlog calculations are now based on end of FY 2009 processing goals. The total net backlog dropped 9%; however, the total gross backlog increased slightly by 1,500 cases over the quarter. This was largely due to lower receipts – and when lower receipts are compared to the total inventory of cases it makes calculated processing times appear longer.
• Production overall was 21% of the FY 2009 year target.

07/16/2009: Sources of Immigrant Orphans by Countries in FY 1999-2008

07/16/2009: Immediate Relative Visas Issued by Applicant’s Area of Birth for FY 1999-2008

07/16/2009: Special Immigrant Visas Issued in FY 2008

07/16/2009: Immediate Relatives Visas Issued in FY 2008

07/16/2009: Preference Visas Issued in FY 2008

07/16/2009: Immigrant Visas Issued and Adjustments of Status Subject to Numerical Limitations in FY 2008

07/16/2009: Summary of Visas Issued by Issuing Office in FY 2008

07/16/2009: Immigrant Visas Issued by Foreign State of Chargeability or Place of Birth in FY 2008

07/16/2009: Immigrant Visas Issued by Class of Immigrants (FY 2004 Through FY 2008)

07/16/2009: Immigrant and Nonimmigrant Visas Issued at Foreign Service Posts (FY 2004 Through FY 2008)

07/16/2009: USCIS Releases Questions and Answers on Filing T, U, and VAWA Petitions with USCIS Dated 07/08/2009

07/16/2009: USCIS National Stakeholder Meeting (06/30/2009) Questions & Answers

• Other than DV issues, this minute discloses that the FBI name checks are generally completed in 30 days in 98% and only 20% of name checks are completed in upto 90 days.

07/16/2009: DV Visa Usage and Adjustment of Status Statistics by Country and by Year (FY 1999 - FY 2008)

• This table shows the usage of DV numbers per country, continent, and per year. In other words, the total usage figures reflect selected winnders who failed to use and who wasted the numbers. The table indicates that some numbers have been unused and thus wasted. It also shows that vast majority of lottery winners apply for immigrant visa through consular process overseas. For instance, in FY 2008, only 1,440 winners applied for I-485 within the U.S. and 41,761 winners applied for the immigrant visas outside of the U.S.
• According to the USCIS, its individual offices keep track of the diversity adjustment cases received from the NBC, primarily by use of spread sheets. USCIS notes that the Lockbox, NBC and local field offices do everything possible to adjust
  these cases within the fiscal year. The Lockbox segregates out Diversity cases and expedites shipment to the NBC. The NBC, in turn, expedites the processing and routes the file(s) to the responsible field office as quickly as possible. Near the end of a fiscal year, the NBC will take extraordinary measures (for example, scanning files, overnight shipments) to get files into the hands of a field office for adjudication. Despite such extraordinary measures, you should note that by law, USCIS cannot adjust the status of any person until all background and security checks have been completed and the DV adjustment applicant has met his or her burden of establishing statutory eligibility to adjust status. There may be cases, therefore, where USCIS cannot approve an adjustment application prior to the end of the fiscal year. For this reason, USCIS encourages persons seeking to adjust status on the basis of selection in the DV lottery file their completed adjustment applications as soon as they become eligible to do so based on the State Department’s monthly Visa Bulletin. For the details, please see the National Stakeholder Meeting Minutes of June 2009.

07/16/2009: USCIS Neufeld Memorandum of 07/14/2009 for Procedures for Applying the Period of Authorized Stay for P-1S Nonimmigrant Individual Athletes’ Essential Support Personnel

• This memorandum extends the March 6, 2009 guidance to P-1 essential support personnel (“P-1S personnel”) of P-1 individual athletes. Specifically, this memorandum clarifies that P-1S essential support personnel of individual athletes:
  •Are not subject to a lifetime admission limit of 10 years in the United States;
  •May reapply for a new P-1S initial period of admission, based on an approved petition, after they have been in the United States for a 10 year period; and
  •Must depart the United States after 10 years in order to be eligible for a new initial period of admission of up to 1 year.
• Please read the full text.

07/16/2009: USCIS Proposes TPS Designation Extension and Automatic EAD Renewal for Somalians

• Yesterday, July 15, 2009, the USCIS submitted to the OMB for approval of the Somalian TPS extension and automaic EAD renewal program. Once the proposal is approved, it will be published in the federal register. Please stay tuned.

07/16/2009: Oversight Issue of Government Investment for Labort Certification and Immigration Backlog Reduction and Recurring Backlogs and Waste of Funds

• In recent immigration history, the Congress and the government have repeated recurring failures(?) in the reform of immigration system at the two levels: One was to overhaul the broken immigration system at the legislative level in the form of comprehensive immigration reform (CIR) and the other was to overhaul the immigration management system at the administrative level towards achievement of reduction of ailing backlogs in processing and adjudication of applications in the DHS (immigration applications) and the DOL (foreign labor certification applications). The repeated failures in CIR are notorious and we do not have to waste our space to go into the issue.
• Less noticed is the issue of public interest at the administrative level in so-called backlog reduction investment and its potential waste of funds for recurring cycle between reductions and backlogs. When it comes to the issue of waste of funds, it does not matter whether the fund was derived from government general fund (tax) resources or user-fee generated fund resources. Waste is a waste, no matter where the money comes from. It was admirable and commendable that the DOL developed the so-called "5-year strategic plan" to reduce the labor certification backlogs and the DHS launched "5-year $500 million immigration benefits backlog reduction program" under the Bush Administration. Before these plans were developed and implemented, the backlogs in labor certification and immigration applications at these government departments were indeed horrible leading to the passage of ACWIA law and AC 21 law at the legislative level to relieve the immigrants and their related parties from the pains and sufferings from the mounting backlogs and processing delays. The labor certification backlog excedded 360,000 and literally went nowhere. The immigratiopn backlog which was partly caused by the CIA clearance backlogs was also horrible. The backlog reduction in the labor certification was launched in the form of electronic filing, adjudication, and management of applications beginning from 2005 in the name of "PERM" system. The DOL invested heavily from the general fund to develop and launch the new program. The program was once successful in reducing the labor certification backlogs even to the level of processing or adjudicating applications not years but as short as two days! On the DHS court, it released a report at the end of the 5-year reduction period that the backlog had been removed, more or less, even though the Congressional Research Services contested the DHS report in that behind the reported reduction were a large number of cases that were waiting for security clearances and RFEs, etc., which nubmers had not been counted in the calculaltion of the backlogs. However, the backlog had been reduced thanks in part to the $500,000,000 investment money, even though most of the fund had been derived from the pockets of the employers and aliens in the form of filing fees, particularly premium processing fees, unlike the labor certification reengineering which relied on the tax money.
• Now, the question remains where these alleged successes of huge investment have led the consumers and government to by now. For the foreign labor certification program, processing times exceed again six months in "clean-cut" cases. Worse yet, one cannot discount the additional period of time the employers are required to spend for recruitment for filing of the applications. Additionally, there are a large number of so-called "audit" cases, and the processing time of these cases can be figured out only by God. The story does not end there. The DOL warned that the so-called "supervised recrutiement" cases would mount ahead gradually. Again, when it comes to the processing times of supervised recruitment cases, only God can tell. The agency report indicates that only 20% of supervised recruitment cases were approved. One does not have to be a rocket scientist to guess the level of current and forecasted future delays and backlogs in permanent labor certification program. Ironically, the number of applications have been gradually dropped as affected by the downturn economy and when it comes to the delays and backlogs, the numerical "number" should not be a factor for the delays unlike situation before the reengineering. The delays are reportedly related to "integrity" work. There we go again. Backlogs have always been caused mostly by three factors: number of applications, security, and integrity. The first factor does not count for the current backlogs and delays. When it comes to security and integrity factors, they were not developed over a night. These factors have existed all along, both before and after backlog reduction programs. The investment should have considered these factors sufficiently when any reduction programs were develolped. As for the DHS, we commend that the agency has worked hard to achieve its so-called "target processing time" for FY 2009. The just released monthly processing time reports and additional reports released by the USCIS indicated that in "number-wise," the agency has achieved a remarkable reduction in backlogs and processing times. We commend the leadership of the USCIS and the DHS Secretary for the achievement. Granted that, there is still a lingering question which was raised earlier by the Congressional Research Services relating to the mystery behind the numbers. Obviously, these numbers do not include ongoing mountains of RFEs, NOIDs, security backlog, referral to local interviews, and investigations for suspected frauds, etc.etc. Additionally, no one knows at this time what will come next after the completion of reduction program at the end of FY 2009. Launch of the Tranformation Program will help in sustaining the backlog elimination and reduction of processing times, but according to the reports, the Program may not be completed for a number of years.
• The oversight authorities of these agencies and the agencies themselves should indeed review and work out a solution to prevent the recurring backlogs for the purpose of prevention of waste of money towards the achievement of public interest as well as for the purpose of prevention of sufferings from the backlogs for the consumers and stakeholders. The forthcoming proposals of these agencies to charge new fees or increase in fees will need close review of such proposals from the perspecives of issues which are raised herein.

07/16/2009: DHS Secretary Congressional Testimony 07/15/09 - Support for PASS ID in Place of Current REAL ID for Identity Security

• Secretary Napolitano has been pushing PASS ID legislative bill, S. 1261, for identity security to replace the current REAL ID system. Allegedly PASS ID is less invasive with the privacy over REAL ID. Her mission appears to be to retain identity security tool for the homeland security purposes but to adjust the level of invasion of privacy involved in such tool. Read on.

07/15/2009: "U.S. Steps up H-1B, Green Card Assault with Paper Chase"

• This is the title of ComputerWorld news report of 07/15/2009. Professional foreign workers might have heard of recent avalanche of RFEs by the immigration-related agencies but the real pain has been deeply felt by the employers and their legal representatives. This news report is posted here because the journal was successful in drawing the pictures in more easily understandable terms. This reporter particularly likes the term of "paper chase."

07/15/2009: Today, USCIS Releases Processing Times as of 05/31/2009

• NSC I-140 and EB-485 processing Times are four (4) months, but there is a backlog of I-140 and EB-485 processing times with TSC. See our homepage for the link.
• There was a NSC report in the AILA conference that because of the goals of the tasks achieved, some of the adjudicators in the I-140 and EB-485 production units had been sent to other Service Centers, particularly TSC to support them and to help them to reduce the backlogs.

07/15/2009: FY 2010 First Half H-2B Cap Count Update=3,100 as of 07/10/2009 as Released on 07/15/2009

07/14/2009: USCIS Guidance on the Applicability of the Child Status Protection Act (CSPA)

• CSPA provides relief for aging out children of U.S. citizens and permanent residents, but the rules are very complicated and confusing. On June 15, 2009, USCIS issued this guidance in the form of Q&A for these parents and aging out children.
• As part of the President Obama's initiative to change the USCIS website more user friendly, informative, transparent, accessible, and efficient, the USCIS has recently been changing and adding or removing information and data on its website and is likely to continue the endeavor for the next sixty days or so. However, readers of the new information offered by the USCIS should be aware of potential problems and issues associated with summary of complicated legal matters in a too broad brush, creating incorrect data and information when it comes to a case-specific situation. It appears that the AILA is aware of the problem and closely watching this development and trying to alert the agency of some issues and pitfalls which the AILA has detected. We commend the AILA for the initiaves. At the same time, readers are reminded that they should not take such information and data as authoritative laws. When it comes to their individual fact situation, they should always seek legal counsel to see any variance will be applicable to their individual case-specific situation.

07/14/2009: List of Senate Delegates to Conference Committee for DHS Appropriation 2010 Legislation, H.R. 2892

• As reported, the House passed H.R.2892, DHS FY 2010 Approbriation bill, which the Senate amended and sent to the House on 07/09/2009. In [assomg the amendments, the Senate insisted on its amendment, asked for a conference to resolve the differences. The Senate then appointed yesterday the following 15 Senators as the conferees for conference committee: Byrd; Inouye; Leahy; Mikulski; Murray; Landrieu; Lautenberg; Tester; Specter; Voinovich; Cochran; Gregg; Shelby; Brownback; Murkowski.
• The immigrant community is at stake with the DHS bill because of the immigration bills that were added and passed by the Senate to the bill, something bad and something good. Out of the list, one can easily notice that Senator Leahy who sponsored the immigration programs (EB-5 Regional Center, Conrad 30 NIW for IMGs, and Nonminister Religious Worker Special Immigration) extensions on the Democrat side and Senator Brownback who supports foreign medical gruduate programs on the Republican side. Visibly missing is Republican Senator Jeff Sessions of Alabama who introduced toxic immigration bills relating to the permanent E-verify program and immigration enforcement. There was a report that there would be a big fight in the conference process between the two Houses in the area of Senate amendments of immigration programs to the House version of the bill. Please stay tuned.

07/13/2009: H-1B Cap Count as of 07/10/2009

• Can you believe it, the number dropped 100 from 45,000 as of 07/03/2009 to 44,900 as of 07/10/2009, one week! There must have been a lot of denials, withdrawals, or revocations.

07/13/2009: USICE No-Match Rule Officially Back in OMB for Rescission

• USICE officially initiated the rule-making process to officially rescind the rule of Safe-Harbor Procedures for Employers Who Receive a No-Match Letter by submitting it to the OMB on 07/10/2009 for its approval for publication in the federal register. Instead, it is aggressively pushing E-Verify program.

07/12/2009: USCIS Fact Sheet and Summary of Steps and Resources for Application of Allied Health Care Worker Certification

• This "How to..." fact sheet gives a very good and short summary of steps and resources for procedure to apply for health care certification which are required in both immigrant and nonimmigrant proceedings for these foreign allied health care workers.

07/12/2009: Information for Immigrant Visa Applicants Whose I-130 or I-140 Petitions Returned by Consular Offices to USCIS

• There are family-based immigration applicants or employment-based applicants who apply for green card not through I-485 proceedings in the U.S. but through immigrant visa application at the visa posts outside of the U.S. for a number of reasons including ineligibility for I-485 applications within the U.S. even if their I-130 family petitions or I-140 employment-based petitions have been approved and visa numbers are available. Those who apply for the immigrant visa at the visa posts from time to time learn learn that the consular officers, aftrer the interview, rather than issuing immigrant visas, decide to return the approved I-130 or I-140 petitions to the USCIS typically requesting to determine as to whether the approved petitions should be reopened and revoked. When this happens, the immigrant visa applicants experience emotional turmoil for the two reasons. One is their uncertain future for immigration journey. The other, which is more devastating and painful, is lack of information as to why returned, what happens with the case, where the case is, and what transpires within and between the agencies, etc.
• The USCIS has released a fact sheet to answer most of these questions to relieve the applicants from the extreme level of agony. Please read the USCIS Fact Sheet.

07/11/2009: Advisory on USCIS Change of Practice in Denial of Concurrently Filed I-140 Petition and I-485 Application

• Until this change, the USCIS practice has varied as to the impact of pending I-485 application when the agency denied the underlying I-140 petition. In some cases, I-140 denial did not ensue immediate denial of the pending I-485 application and termination of EAD and Advance Parole at least for a period of time,particularly during the 30-day (33-day if mail decision) period of appeal lapsed. It has been known that the TSC took such practice. However, in some cases, the agency simulataneously denied I-1485 application at the time I-140 was denied. AILA has reported that the USCIS HQ has decided to adopt a practice of denial of I-485 applications at the time the agency denies the underlying I-140 petition. Accordingly, unlike the previous experience of their colleagues, they are likely to receive the decision of I-485 applications in the mail from hereon if they learn that the employer's I-140 petition is denied. This will have some serious consequences on the involved foreign workers and their family members who have abandoned a nonimmigrant stattayed and worked on EAD. For the reasons, it may be prudent for the foreign workers and their family members who filed concurrent I-140/I-485/I-765/I-131 not to abandon a nonimmigrant status by working on EAD at least until the underlying I-140 petition is approved in order not to face a devastating consequence of potential adverse action by the agency for their continued stay in the country. Had the agency continued suspension of premium processing services for I-140 petitions, it could have given these applicants some hardships, but now things have changed since the premium processing services have resumed and most of them can obtain the decision of the pening I-140 petitions fairly quickly unless they filed NIW or multinational corporate executive/manager petitions.

07/11/2009: Senate Passed DHS Appropriation Bill, H.R. 2892, With Amendments for Certain Immigration Legislation

• As we reported earlier, Senate amended and passed the House's H.R. 2892, DHS Appropriatrion Bill for FY 2010. These amendments included positive as well as negative immigration legislations as we reported during the last few days. Some of these amendments may be survived or killed in the next conference process. Please stay tuned.

07/10/2009: FY 2010 Diversity Visa Lottery Results

• See August Visa Bulletin

07/10/2009: August 2009 Visa Bulletin

• EB-2 for China and India: Progressed to 10/01/2003!
• EB-2 for rest of the world=Current
• EB-3 and EW=Unavailable for all countries.
• EB-1=Current for all countries.

07/10/2009: Senate Passes a Bill to Authorize Employers to Voluntarily Verify Immigration Status of "Existing" Employees as Part of DHS Appropriation Bill

• Senate passes by voice vote yesterday Senator Chuck Grassley of Iowa bill, S.AMDT.1415 to H.R.2892 to authorize employers to voluntarily verify the immigration status of existing employees. Republicans are continuously bitting the grounds for immigration enforcement with the help of some conservative Democratic Senators in the Senate and taking advantage of the Obama's strategy to pump up immigration enforcement as a gesture for comprehensive immigration reform move.

07/10/2009: Senate Passes Extension of Religious Worker, Conrad 30 Immigration, Orphan Immigration Programs by Unanimous Consent Yesterday as Part of DHS Appropriation Bill

• Senate floor passed yesterday by unanimous consent Senator Orrin Hatch's S.AMDT.1428 to H.R.2892 to extend the religious workers and Conrad-30 visa programs, to protect orphans and widows with pending or approved visa petitions, and for other purposes. This amendment was revised before passing. For the full text, please stay tuned. This bill was co-sponsored by: Sen Bennett, Robert F. [UT], Sen Cornyn, John [TX], Sen Gillibrand, Kirsten E. [NY],Sen Kennedy, Edward M. [MA], Sen Menendez, Robert [NJ, Sen Nelson, Bill [FL], Sen Reid, Harry [NV], and Sen Schumer, Charles E. [NY]. Once the final DHS Appropriation Bill pass the Senate, the bill will go to the conference committee to resolve the differences between the House bill and the Senate bill. Accordingly, until the whole process is completed, extension of these programs will remain up in the air.

07/10/2009: Do You Want Twittering With Matthew Oh?

• Come to http://twitter.com/matthewoh and follow me. Twitters should bear with me since I have just started it and am not too good in interacting with the twitters quickly yet since I am a slow learner? Maybe somebody volunteers to teach me to get there quickly. But I will get there.

07/10/2009: Important Advisory for Filing Immigration Papers for Children

• AILA has reported that the USCIS requires immigration forms for children of 14 years of age or older must be signed by the children themselves and not by parents or guardians. Any applications filed for such group of children missing children's own signature will be "rejected" by the USCIS. However, applications for children under 14 years of age may be signed by a guardian or a parent on behalf of the children. Adhering to this advisory could be critically important when any nonimmigrant application is filed including children at the last minute or immigrant application is filed facing immigrant visa number retrogression ahead since "rejection" of filing implies that no such applications have been accepted and considered filed and such children can be separated from the parents in the immigrant or nonimmigrant proceedings. IMPORTANT, IMPORTANT!

07/10/2009: Nonimmigrant and Immigrant Petition "Debarment" Organization List

• USCIS published a list of entities that are debarred from approval of immigrant or nonimmigrant petitions based on the DOL notification of debarment decisions.
• Debarment Organization List I & List II

07/09/2009: "Unlawful Status" for I-485 Applicant Failing to Maintain Nonimmigrant Status in the USCIS Consolidated Memorandum on "Unlawful Presence" Pushes Immigrants to Confusion and Edge

• Some employment-based immigrants have read "out of the context" the part of the USCIS recently released consolidated memorandum on unlawful presence that defines I-485 waiters not maintaining a nonimmigrant status as "unlawful status" and who are subject to removal proceeding, pushing themselves into confusion and fears. In fact, this part of the consolidated memorandum is nothing new in that all along it has been the law that the I-485 applicants who fail to maintain a nonimmigrant status and stay and work on EAD are not nonimmigrants and "not in status." Since an alien in "not in status" (unlawful status) can be subject to removal proceedings, there is nothing wrong with that part of the consolidated memorandum. However, these readers missed another part of the consolidated memorandum that states that because of prosecutorial discretion and related rules, such I-485 applicants are considered "in authorized to stay" (lawful stay). The language "in authorized to stay" not only means that the unlawful presence that triggers bar to admission is "tolled" but also means that such aliens will not be prosecuted for the unlawful status inasmuch as they are in a valid I-485 proceeding. Flip side of the coin of this law is that since such alien is not "in status," once I-485 application is denied, they lose the basis of the "in authorized to stay," and the government can initiate the removal proceedings unless the aliens depart from the country voluntarily. For the reasons, some I-485 applicants have strived to maintain a H or L visa status adamantly against the potential denial of I-485 applications, but it is completely different issue from current misunderstanding within the employment-based immigrant community that the government can start removal proceedings simply because their status is unlawful and they can be subjected to a forced removal from the country simply because they decided not to extend their nonimmigrant status pending I-485 applications. People should stop panicking on this issue. Those I-485 waiters who stay and work on EAD rather than H-1B or L-1 visa status should make it sure that they religiously extend their EAD and Advance Parole not to violate the conditions and eligibility for I-485 applications!

07/09/2009: Senate Yesterday Agreed to Make EB-5 Regional Center Program "Permanent" as Part of FY 2010 DHS Appropriation Legislation

• Senate agreed to Senator Patrick Leahy's S.AMDT.1407 to H.R.2892 to permanently reauthorize the EB-5 Regional Center Program by voice vote yesterday. This program is currently to sunset at the end of September 2009. Good news indeed. Accordingly, once the DHS FY 2010 Appropriation bill is enacted, the current EB-5 "Pilot" Regional Center Program will change to EB-5 Regional Center Program.

07/09/2009: Extension of Religious Worker and Conrad 30 Immigration Programs Introduced in the Senate Yesterday as Part of FY 2010 DHS Appropriation Legislation

• Senator Orrin Hatch of Utah introduced yesterday S.AMDT.1428 to H.R.2892 to extend the religious workers and Conrad-30 visa programs, to protect orphans and widows with pending or approved visa petitions, and for other purposes. This bill has yet to be acted upon on the floor of the Senate. Please stay tuned for other details.

07/09/2009: Senate Yesterday Agreed to Make E-Verify Program "Permanent" as Part of FY 2010 DHS Appropriation Legislation

• Senate agreed to Senator Jeff Sessions' S.AMDT.1371 to H.R.2892 to make the pilot program for employment eligibility confirmation for aliens permanent and to improve verification of immigration status of employees by voice vote yesterday.
• At the Administration level, DHS Secretary Napolitano released an announcement to enact regulation mandatory E-verify requirement for contractors/subcontractors to the federal contracts and to revoke so-called Social Security Match-Program regulation which has been on hold by a federal district court judge. E-Verify Program has also been supported by Senator Churck Schumer, Chairman of Senate Judiciary Committee Immigration Subcommittee as part of his agenda for CIR. The Democratic Congress and the Obama Administration have been supporting the E-Verify program as an incentive for conservative lagislators to support the CIR legislation agenda.

07/08/2009: Task Force of Counsel on Foreign Relations Recommends Comprehensive Immigration Reform

• Yesterday, we erroneously reported this as the Republican-led task force recommendation. We stand corrected. It is the Task Force of the Counsel on Foreign Relations that released its recommendation for the CIR. Read on.

07/08/2009: Potential Good News for Greed Card (Plastic Card) Production Waiters

• USCIS announced at the AILA National Conference in Las Vegas in the first week of June 2009 that green card production would witness delays pending update of the production equipment for about two months. This news was followed by the USCIS website official notice that the card production would experience up to eight-week delays pending update of the production equipment. Guess what! This website notice has been removed as of now, implying that probably they have completed the equipment update and there would no longer be delays for eight weeks. It may take a little bit of time for those cases that have been decided and waiting for the card production because of the backlog, but the newly approved cases may not experience delays as the card production is handled automatically by the digital transmission upon approval by the adjudicating officials. Please stay tuned to this website for the agency's potential release of the update news on this.
• USCIS local offices have thus ceased providing ADIT (temporary evidence of resident) stamps as a general practice.

07/08/2009: H-2B First Half Cap Count as of 07/03/2009=1,900

07/08/2009: H-1B Cap Count as of 07/03/2009=45,000

07/06/2009: Complexity of CIR Issues

• People tend to just scratch the surface of major issues in discussing the CIR. However, when it comes to the details, CIR touches various touchy and complex issues which are indeed unique to this country and which usually do not surface in open discussions. Here is just one of those. Read on.

07/05/2009: Sworn-In of New Senator Al Franken (MN) This Week and Promising Chance for Passage of CIR in the Senate, But...............

• As we reported earlier, the Minnesota Supreme Court was scheduled to confirm election of Mr. Al Franken over the former Senator Norm Coleman for the U.S. Senate seat from the State of Minnesota in June 2009. Surely enough, the State Supreme Court confirmed Mr. Franken election, which was quickly followed by the Minnesota Governor's signature and the Minnesota State Secretary's signature on the certificate. Mr. Al Franken is likely sworn in as early as Tuesday, July 7, 2009. His election is important for the immigration reform legislation in the Senate for the two reasons: Firstly, number-wise, Democrats have 60 seats and at least theoretically, the Democrats can block or break Republicans' filibusters against the CIR legislation. Even though the number does not guarantee that all the Democrats will agree to the Democratic bill, at least it gives enhanced opportunity to work out differences within the party and the number 60 for Democrats has changed somewhat the political landscape within the Senate. Secondly, Mr. Al Franken is nominated as a member of the Senate Judiciary Committee which is the key body in the Senate that determines initial negotiation and compromise into a CIR bill, not to mention timing of the process including mark-up of the bill. It thus appears that once the CIR bill is taken up by Senator Reid after the summer break, it is likely that the CIR may move fairly quickly in the Senate.
• However, nothing has changed when it comes to the political landscape in the House. The record will reflect that the Senate passed CIR bill more than one time, which have been killed by the House. The key for the success for the CIR remains with the House. The members of the House will be more vulnerable as it comes to close to the 2010 mid-term election in November 2010. For the reasons, immigration advocates have been pushing the White House and the Senate to act as quickly as possible such that the House picks up and acts on the Senate bill within this year. Unfortunately, the hands of the President and the Congress have been full with the health care reform bill and energy bill and could not spare any time for immigration legislation. When the Congress returns tomorrow, the Congress and the President will remain totally tied up with these two legislative agenda, probably for the rest of July and the chance for the Senate taking up the immigration reform bill before the summer recess may not be too promising.
• It all may depend on the immigration advocates and the immigrant community. They should really fire up fiercely immediately realizing that this year is the only time when they can hope for the CIR. Once they fail this year, they may not be able to see another chance to see the immigration system reformed for a while. Time is of essence and running out very quickly. The immigrant community should resolve the differences among different groups and unite for the important common cause of the immigration reform. Don't give the anti-immigration forces to take advantage of such differences in the immigrant groups through time-earned strategy of "divide and conquer" campaigns. Remember that from here on, there is absolutely no chance for any piecemeal immigration reform bills to pass the Congress. Remember also that the CIR is a political process that absolutely requires negotiations and compromises. No one should fall into a trap of shell, being blind and narrow-minded. This is the United States of America where the system moves and is shaken through a "process" and not through a decision of handful leaders or groups that seize the power as witnessed in some other countries in the world.

07/05/2009: FY 2010 First Half [10/01/2009-03/31/2010] H-2B Cap Count = 1,800

• In H-2B cases, the total annual cap of 66,000 is allocated into 33,000 for the first half of the fiscal year and 33,000 for the second half of the fiscal year. For the fiscal year 2010, the first half of the fiscal year covers October 1, 2009 through March 31, 2010 and the total number is limited to 33,000 for the period. Under the H-2B rule, the temporary labor certification application which is the precondition for the H-2B petition cannot be filed no earlier than four months from the proposed start date of the employment and the employers are also required recruitment before filing the temporary labor certification application. For the reasons, the filing of first half H-2B nonimmigrant petition is not available until June or July of the preceding fiscal year. According to the USCIS, as of June 26, 2009, they have received total of 1,800 including approval of 600 petitions and 1,200 pending. H-2B cap is usually filled up very quickly, albeit not as quickly as H-1B annual cap.

07/03/2009: USCIS Updates Immigration Information for Members of the U.S. Armed Forces and their Families 07/02/2009

07/02/2009: 29-Month STEM OPT Rule Litigation Update

• This case is on appeal and report indicates that the government that defends the 29-month OPT rule faced tough questions from the judges at a hearing. This litigation has been dragged on because the anti-immigration groups have persistently fought against the rule. There are a huge number of foreign students whose future can be seriously affected if this rule is turned down by the court. Please stay tuned.

07/02/2009: General Rule of Federal Holidays for Public Employees

• When the official federal holiday falls on Saturday, the Friday preceding to the Saturday is considered a holiday for the purpose of pay for the federal employees. When the official federal holiday falls on Sunday, the Monday that follows the official holiday on Sunday is considered a holiday for the same purposes. Visa posts are closed on July 3rd because the Fourth of July falls on Saturday. The USCIS has yet to announce closure of offices tomorrow. Unless the USCIS officially announces closure, people should keep all the appointments and other schedules with the agency tomorrow. Please stay tuned to this website.

07/02/2009: USCIS Explanation for Recent Biometric Appointment Cancellation Notices and Rescheduling

• Application Support Center Appointment Rescheduling - July 6 - 10, 2009 : System errors caused a number of Application Support Centers to be overscheduled during the week of July 6-10, 2009. As a result, some applicants may receive cancellation notices for appointments originally scheduled during this timeframe. If you do not receive a cancellation notice, please appear at your ASC appointment as scheduled. If you do receive a cancellation notice, you will soon receive an ASC appointment notice for a new date and time, typically for an appointment within the next two to four weeks. See announcement.

07/01/2009: Naturalization Application Receipts and Backlogs as of End of May 2009

07/01/2009: Immigration Benefits Applications Receipts and Backlogs as of End of May 2009

07/01/2009: DOL H-2A Agricultural Worker Temporary Labor Certification Final Rule Rides Roller Coaster

• DOL announces on June 29, 2009 that on June 29, the U.S. District Court for the Middle District of North Carolina issued a preliminary injunction against the Department's Final Suspension of the December 2008 Final H-2A Rule. As a result of this court action, and unless and until additional court action takes place, the Suspension is no longer in effect and the December 2008 Final Rule remains in effect. Read on.

07/01/2009: ICE Steps Up I-9 Audits

07/01/2009: DOL Notice on Disabling of Previous Online LCA Filing System

• Effective July 1, 2009, the Office of Foreign Labor Certification (OFLC) will no longer allow external users to create new accounts and/or create new Labor Condition Applications (LCAs) via the LCA Online System. All users will be required to file the ETA Form 9035E through the OFLC iCERT Visa Portal System at http://icert.doleta.gov and should register for an account in that system. However, external users with existing LCA Online System accounts may continue to access those accounts in order to complete and submit any draft or incomplete LCAs begun prior to July 1, 2009 and/or withdraw any previously certified LCAs. Read on.

07/01/2009: DOL PERM and H-1B Quarterly Performance Report Ending March 31, 2009

• This report indicates that only 11% of applications received were completed within six months from the date of receipt (priority date) during the first three months of 2009. The report also indicates that such delays was caused by the mission to achieve "integrity" of the applications. WOW! Read on.

06/30/2009: Today, CIS Ombudsman Submits to Congress "2009 Annual Report"

• The 2009 Annual Report includes:
  • A review of USCIS Transformation
  • The most pervasive and serious problems USCIS customers experience such as Requests for Evidence, customer service, and FBI name checks
  • Eight Annual Report recommendations that cover file transfers and tracking, DNA testing, and more
  • Eight formal recommendations that cover motions to reopen, EB-5 investor visas, T and U visas, EADs; and more
  • Ombudsman facilitation of interagency meetings
• Readers are reminded again that USCIS and CIS are two different components of the DHS and CIS Ombudsman is independent from the USCIS and under the command of the DHS Secretary. The CIS Ombudsman represents a window for the USCIS customers feed-back and complaints for its management and services and recommendation of improvements in USCIS management and services. See DHS organization chart.

06/30/2009: Important Reminder for e-Passport Requirement for Visa Waiver Program Travelers Effective Tomorrow For Visa Waiver Entry to the U.S. or For Transit

• Those VWP travelers who are scheduled or intend to enter the U.S. port of entry without a visa tomorrow should remember that effective tomorrow, July 1, 2009, they must carry with them e-passports including those who intend to use emergency or temporary passports. This includes VWP applicants who present emergency or temporary passports to transit the United States. An e-Passport contains an integrated chip that stores biographic data, a digitized photograph, and other information about the true bearer and indicated by this symbol on its cover. This is a reminder because we posted this important message earlier: Read on.

06/30/2009: OFLC Releases FAQs on Implementation of Final H-2B Regulations for Temporary Labor Certifications in the Entertainment Industry

• The FAQs give answers to questions relating to the new procedure under the H-2B Final Rule that took effect this year, particularly for the entertainment industry.

06/29/2009: The First Day of Resumption of I-140 Premium Processing Services

• Today marks the first day of the USCIS resumption of I-140 petition premium processing service. Hope the employers and the involved foreign workers enjoy the new beginning in their immigration journey. Availability of premium processing services will be critically important particularly when the USCIS halts current I-140/I-485 concurrent filing procedure in the future, even though the specific schedule has yet to be announced.

06/29/2009: USCIS Operating Performance April 2009

• The USCIS has released update of operating performance report of April 2009. The last report included the statistics for March 2009.

06/29/2009: H-1B Cap Count as of 06/26/2009 (Friday)=44,800

06/28/2009: DV-2010 Lottery Online Individual Entrant's Status Check Available Beginning from 07/01/2009

• The State Department indicates that starting July 1, 2009, the FY 2010 DV lottery entrants will be able to check the status of their entry through theE-DV website at http://www.dvlottery.state.gov. Entrants will need to use their own confirmation page information from the time of their entry (October 2, 2008, to December 1, 2008), to check the status to find out if their Diversity Visa Lottery entry was or was not selected. The overall results of FY 2010 DV lobbery results have yet to be published.

06/27/2009: House and Senate Passed a Resolution for "Conditional" Recess Through 07/06/2009

• The Fourth of July marks the nation's "the" most celebrated official holiday to refresh a sense of the pride and dignity as an Independent Nation and a world leader. Legislators will have to return to their home towns to share the celebration with their constituents. That is what the Congress decided by passing a resolution to go into the Independence Day recess, conditioned upon the authorities of House Speaker and Senate President to call back the members of the both Houses anytime during the recess, should the circumstances warrant such call.

06/27/2009: Important Reminder for H-1B Petition Filers - Disabling of Current LCA Online Filing System Takes Effect Next Wednesday, 07/01/2009

• Beginning from July 1, 2009, the employers will not be able to file the Labor Condition Application for H-1B using the current online filing system. The last date available for LCA online filing using the current system will be next Tuesday, 06/30/2009. Those employers who have yet to register with the new iCert portal system should register as soon as possible. Unlike the current system, the registration is not necessarily completed in a matter of seconds in lots of cases and help-line for iCERT system has experienced in responding to the queries in the past causing delays in registration. Employers who need to file the H-1B petitions in the next one month or so should file the LCA before next Wednesday and at the same time, make it sure to start registering with the iCERT portal system as soon as possible. Please visit our home page for the link to the iCERT portal. Important, important!

06/27/2009: USCIS Updates Information and Guidance for I-140 Premium Prcoessing Services Request Filing Effective Monday, 06/29/2009

• As announced, the USCIS will start accepting I-907 Premium Processing Service Requests, beginning from Monday, for I-140 petitions for all categories except EB-1C Multinational Corporate Executive/Manager and EB-2 National Interest Waiver categories. The Premium Processing Services will be available not only for the new I-140 filings but also the pending I-140 cases. When PPS request is filed for the pending cases, the petitioners may make it sure to enclose a copy of the Receipt Notice of pending I-140 petitions to assist the agency. Additionally, the filing will be rejected if it fits one of the following conditions.
• Conditions for I-140 Petition Premium Processing Request Filing "Rejection":
  • Filing with an incorrect jurisdiction: Incorrectly submitted concurrently with a Form I-140 petition at a USCIS office without geographic jurisdiction over the Form I-140 petition;
  • Filing unavailable category I-140 petition: As of 06/29/2009, EB-1C and NIW I-140 petitions will remain unavailable for the PPS, as stated above.
  • A second filing of I-140 petition while an initial I-140 remains pending;
  • I-140 petition with Labor certification substitution requests;
  • Filing of I-140 without the original, requesting duplicate Labor certification. The situation may also involve I-140 amendment petitions without the original labor certification to recapture earlier priority dates from prior I-140 petitions because the original certified labor certification will not be readily available for adjudication within 15 calendar days. The latter practice has been adhered to particularly by the Texas Service Center.
  • A Form I-140 petition in which a final decision has been made. Too obvious reason.
• It is a best practice to write a separate check for I-907 filing fees such that rejection of I-907 for whatever reasons will not result in rejection of entire filing including I-140 petition. It is not stated in the foregoing guidance, but PPS request signed by an alien beneficiary or a legal counsel without the petitioning employer's consent will also be rejected. Only the petitioning employer or its legal counsel with the employer's authorization can file the PPS request. Voila! Enjoy PPS!

06/26/2009: USCIS Updates Guidance on Employment Eligibility Verification Form I-9

• USCIS announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.
  

06/26/2009: USCIS Memorandum of 06/25/2009: Implementation of the District Court’s Order in Ruiz-Diaz v. United States, No. C07-1881RSL (W.D. Wash. June 11, 2009)

• This memorandum is issued to implement so-called I-360/I-485 concurrent filing order of the U.S. District Court in Seattle in a class action by the religious worker special immigrants. This memorandum is very important and we will post most of the text to alert the eligible religious workers to act promptly:
  • Field Guidance: Effective immediately, USCIS personnel are directed to comply with the following instructions summarized below.
    
    • A. Eligible Applicants
      (1) Principal Aliens: The district court’s order pertains to applicants who previously filed for adjustment of status, whether or not submitted concurrent with, or subsequent to, the proper filing of a Form I-360 for classification as a religious worker. Because the district court invalidated the concurrent filing regulations as applied to religious workers, individuals who sought to concurrently file Forms I-360 and I-485 on or after July 31, 2002,2 are permitted to re-file their Forms I-3603, I-485, and I-765 with the California Service Center. To give effect to the district court’s order pertaining to retroactive employment authorization, USCIS will not count the period of unauthorized employment from the date of the original submission of the Form I-360 or November 21, 2007, whichever is earlier, once the applicant files the previously rejected Forms I-485 and I-765 with the Form I-360. USCIS can only issue prospective employment authorization cards (EAD) upon receipt of a properly completed Form I-765.4
      (2) Spouses and Children: Similarly, the district court’s order also permits spouses and children who are the beneficiaries of properly filed Forms I-360 by religious workers to be accorded the same status and order of consideration as the principal, unless the spouse and child are already entitled to another immigrant status and immediate issuance of a visa under section 203(a), (b), or (c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(a), (b), or (c). Like the principal, spouses and children are also subject to the same requirements for adjustment eligibility, including admissibility.
    • B. Provisions Regarding Unlawful Presence and Unauthorized Work: Pursuant to the district court’s order, three categories of individuals will receive protection from the accrual of unlawful presence and from unauthorized work during periods in which an individual was not permitted to concurrently file a religious worker Form I-360-based application for adjustment of status:
      (1) any alien who concurrently filed a Form I-360 with a Form I-485 and/or Form I-765 and whose I-360 and I-485 applications were rejected pursuant to 8 C.F.R. § 245.2(a)(2)(i)(B) and who properly re-files5 the I-360 and I-485 applications with appropriate fees and supporting documentation will have any period of unlawful presence and unauthorized employment that began accruing after either filing of the Form I-360 or November, 21, 2007, whichever is earlier, tolled until September 9, 2009, (i.e., 90 days from the date of the district court’s order);
      (2) any alien who has a Form I-360 religious worker petition pending with USCIS as of June 11, 2009, will have any period of unlawful presence and unauthorized employment that began accruing after properly filing of the Form I-360 with appropriate fees and supporting documentation, tolled until September 9, 2009;
      (3) any alien who files a new Form I-360 religious worker petition with USCIS on or after June 11, 2009, will have any period of unlawful presence and unauthorized employment that began accruing after properly filing of the Form I-360 with appropriate fees and supporting documentation, tolled until September 9, 2009.
      Persons falling in categories 1 and 2 are immediately eligible to file a Form I-485, as well as Form I-765 applications. All persons who properly file their I-485 and I-765 on or after June 11, 2009 and have their applications receipted in by USCIS prior to September 9, 2009, also will have any period of unlawful presence or unauthorized employment tolled until USCIS issues a final administrative decision.
      USCIS adjudicators should still consider any periods of unlawful presence and unauthorized work that accrued or occurred prior to the filing of the Form I-360 or prior to November 21, 2007, whichever is earlier, when determining an alien’s eligibility for adjustment of status. Adjudicators should also consider any periods of unlawful presence that accrue after approval of a pending Form I-360, if the alien fails to file a Form I-485 by September 9, 2009.
      Any alien that believes that he/she is covered by the provisions of the court’s order may refile a Form I-360 with the I-485 and I-765 applications, with appropriate fees, prior to September 9, 2009. Affected individuals should also submit a copy of the original USCIS denial or rejection notice indicating that the case was denied or rejected solely based on the concurrent filing regulation at 8 C.F.R. § 245.2(a)(2)(i)(B).
    • C. New Filings:
      The district court’s order requires USCIS to accept concurrently and properly filed religious worker petitions (Forms I-360), requests for employment authorization (Forms I-765), and adjustment applications (Forms I-485). However, USCIS is not prohibited from rejecting improperly filed applications that do not comply with the regulations at 8 CFR 103.2, 245.2(a)(3), and 274a.13 or Instructions for the Forms I-360, I-485, or I-765. Applicants must also comply with all requests for additional evidence, for appearance at interviews, and for biometrics and background or security checks pursuant to standard instructions and operating procedures for adjustment applications and requests for employment authorization.
      • Petitioners filing new applications, re-filing applications, or who have pending Form I-360 religious worker petitions must mail their applications to:
        California Service Center
        P.O. Box 10485
        Laguna Niguel, CA 92677-1048, Petitioners should annotate on the front of the envelope in clear large print “I-360/I-485 – RUIZ-DIAZ LITIGATION” so that the application may be routed to the proper Service Center adjudications unit.
        
      • Petitioners who have an approved Form I-360 religious worker petition and live in Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin or Wyoming, should file the I-485 and I-765 with the Nebraska Service Center.
        Nebraska Service Center P.O. Box 87485 Lincoln, NE 68501-7485
        
      • Petitioners who have an approved Form I-360 religious worker petition and live in any other state, U.S. territory, or Washington, D.C., should file the I-485 and I-765 with the Texas Service Center.
        Texas Service Center P.O. Box 851804 Mesquite, TX 75185-1804
        
    • D. Aliens in Removal Proceedings:
      The district court’s order only affects cases that are currently pending before USCIS or that will be filed with USCIS pursuant to the order. As a general matter, USCIS lacks jurisdiction over aliens who are in removal proceedings. For aliens in removal proceedings or subject to a final order of removal, U.S. Immigration and Customs Enforcement (ICE) may issue separate guidance in the future.Memorandum to all HQ and Field Leadership
• Please read the full text and follow the guidance in the memorandum.
• Also read:
  • Ruiz-Diaz Notice to Pending I-360s
  • Notice of Court's Order Regarding Beneficiaries of Pending Petitions for Special Immigrant Religious Worker Visa (Form I-360)
  • Order Directing Entry of Judgement

06/26/2009: Text of Testimony of Mr. Alejandro Mayorkas, New USCIS Director Nominee, Before Judiciary Committee on 06/24/2009

• The personal part of Mr. Mayorkas: "As one who was granted citizenship through the beneficence of our government and by virtue of my family's journey to this country, I understand deeply the gravity as well as the nobility of the mission to administer our immigration laws efficiently and with fairness, honesty, and integrity. The most important responsibility of USCIS is its authority to bestow citizenship. As a naturalized citizen, I have a deep understanding and appreciation of this mission. My parents, sister, and I were once refugees. In 1960, we fled Cuba. My father lost the country of his birth, and my mother, for the second time in her young life, was forced to flee a country she considered home. But our flight to security gave us the gift of this wonderful new homeland. I know how very fortunate I am."
• Mr. Mayorkas' priorities as the new Director of USCIS:
  • First, clarity of mission is critical in enhancing the public profile of the Agency and instilling public confidence in the secure, fair, and effective administration of our nation's immigration laws. I am committed to ensuring USCIS delivers high-quality customer service to those who are eligible to receive benefits. Protecting our national security and public safety is a critical component of the USCIS mission, not an after-thought. This means we must continue to strive to improve the Agency's fraud prevention and detection operations, increase collaboration with US Immigration & Customs Enforcement (ICE) and other law enforcement agencies to respond to fraud, and improve the efficiency and accuracy of the E-Verify system.
  • Second, I believe it is critical to enhance transparency and improve the flow of information from the Agency to Congress and the appropriate stakeholders to ensure those concerned about particular issues understand USCIS actions and are able to enact effective immigration regulations and laws. I hope to build an effective relationship with this Committee, both members and your staffs, and to understand your priorities. I know this confirmation process is just the start. I also hope that, if I am confirmed and after I have completed an Agency review, you will be willing to hear from me about the needs of USCIS.
  • Third, we must always look to the future. It is critical to position USCIS to meet current and future immigration demands. To this end, we must ensure the successful progress and implementation of Business Transformation, increase the efficiency of domestic and international operations, and improve detection and prevention of system abuse.
  • Fourth, developing a motivated workforce is important to ensure high-quality service and retaining such a workforce is always a challenge. If I am confirmed, I commit to doing my very best to review the needs of the USCIS workforce and to implement programs and policies that serve to motivate and retain employees.
• Please get to know him.

06/26/2009: Senator Chuck Schumer's Seven Priuciples of Immigration Reform

• Senator Schumer, Chairman of Senate Judiciary Immigration Subcommittee announced seven(7) principles that he said would form the basis for the legislation he intends to introduce by the fall:
  1. Illegal immigration is wrong, and a primary goal of comprehensive immigration reform must be to dramatically curtail future illegal immigration.
  2. Operational control of our borders--through significant additional increases in infrastructure, technology, and border personnel--must be achieved within a year of enactment of legislation.
  3. A biometric-based employer verification system—with tough enforcement and auditing—is necessary to significantly diminish the job magnet that attracts illegal aliens to the United States and to provide certainty and simplicity for employers.
  4. All illegal aliens present in the United States on the date of enactment of our bill must quickly register their presence with the United States Government—and submit to a rigorous process of converting to legal status and earning a path to citizenship—or face imminent deportation.
  5. Family reunification is a cornerstone value of our immigration system. By dramatically reducing illegal immigration, we can create more room for both family immigration and employment-based immigration.
  6. We must encourage the world’s best and brightest individuals to come to the United States and create the new technologies and businesses that will employ countless American workers, but must discourage businesses from using our immigration laws as a means to obtain temporary and less-expensive foreign labor to replace capable American workers; and finally
  7. We must create a system that converts the current flow of unskilled illegal immigrants into the United States into a more manageable and controlled flow of legal immigrants who can be absorbed by our economy.
• For the news release, please click here.

06/26/2009: President's Announcement of New Collaborative Initiatives Between the White House IT Staff and the USCIS for Launch of New USCIS Services for Transparency and Efficiency

• In releasing a statement on the yesterday's CIR meeting result, the President released the following information:
  • Today I'm pleased to announce a new collaboration between my Chief Information Officer, my Chief Performance Officer, my Chief Technologies Officer and the U.S. Citizenship and Immigration Services Office to make the agency much more efficient, much more transparent, much more user-friendly than it has been in the past.
  • In the next 90 days, USCIS will launch a vastly improved Web site that will, for the first time ever, allow applicants to get updates on their status of their applications via e-mail and text message and online. And anybody who's dealt with families who are trying to deal with -- navigate the immigration system, this is going to save them huge amounts of time standing in line, waiting around, making phone calls, being put on hold. It's an example of some things that we can do administratively even as we're working through difficult issues surrounding comprehensive immigration.
  • And the idea is very simple here: We're going to leverage cutting-edge technology to reduce the unnecessary paperwork, backlogs, and the lack of transparency that's caused so many people so much heartache.
• For the announcement, please click here.

06/26/2009: Senator Jeff Sessions Assessment of CIR White House Summit Yesterday

• Senator Jeff Sessions from Alabama has been a staunch road block to the comprehensive immigration reform legislation representing ultra right wing conservative view and position in the Senate for the past two years. Accordingly, his assessment of yesterday's White House CIR Summit which he attended gives a sketch of the views and positions of the conservatives which were probably addressed at the Summit. According to the report, Senator Sessions assesses the Summit as follows:
  • The CIR leadership should come from the White House and not the Congress. Unless the President articulates the CIR proposal, the Congress would not act.
  • The stumbling block that Senator Sessions see in this endeavor is that the President's plate is too full with so many different critical national issues and in his assessment, the President will not be able to push his strong leadership in the direction of CIR this year.
  • Senator Sessions sees three broad factions which are addressed by the three broad political groups on CIR issues:
    • Legalization of undocumented aliens which the Democrats focus on and which the conservatives will continue to oppose.
    • Guest worker programs (employment-based immigration) which both the Democrats and the Republicans agree to. In the conservative forces' view, the stumbling block for the CIR legislation towards this direction is labor unions and unless the President is successful in persuading the unions to compromise, the CIR will fail. This position has also been strongly addressed by the moderate Republican Senator John McCain.
    • Border security, immigration law enforcement, and control of unauthorized employment through reinforcement of employer sanctions which will be the focus of the conservative Republicans. Democrats have been opposing such proposal, but lately Senator Chuck Schumer of New York backed off from the traditional Democratic position on this issue and agreed to accommodate such demand by accepting e-verify program.
• As this reporter addressed it yesterday, people may not be able to expect too much from the Summit other than to identify "differences" among the members of the Summit. It thus appears that there has been no change with reference to the differences in views on the CIR between the liberal Democrats and the conservative Republicans that have posed a stumbling block for a successful CIR legislation for the past several years. The key appears to be that someone or some groups in the political factions should come forward to moderate the process of negotiation and compromise of the differences, but at this point, we do not see such process in place yet. There is no indication that the yesterday's summit was successful in reaching an agreement to any mechanism to initiate the process other than the President's idea that he will let the DHS Secretary Napolitano to assist him to work with various groups to address different CIR issues. It is unknown whether the President was able to form a bi-partisan task force that encompass the White House, the Congress, and the Administration, something similar to the one which the former President Bush formed for the 2008 CIR legislative process, which ended up with the ditch in the House. Please stay tuned.

06/25/2009: Remarks by the President After Meeting With Members of Congress to Discuss Immigration

06/25/2009: "Soccer Ball" Named CIR and Disappointing News on CIR Summit in the White House

• Disappointing news are all over in the media after the summit was over this afternoon. Reportedly, the President even brought up the target date of CIR this year or "early next year." The problem with this schedule is that everyone knows that year 2010 is the election year and history tells that the election years are the worst year to consider CIR. We reminded readers of this reporter's analysis on this issue during the last few days.
• What are the "real" sources of problem? Current environment including the economic recession and terrible unemployment rate is inducing the political leaders to act "low key" for fear of being labeled as "alien" amnesty advocates. At the same time, they cannot afford losing the Hispanic constituency and they have been acting "pushed" by the political motives rather than "spearheading" the reform. For the reasons, CIR has lately turned into a soccer ball which every political leader wants to kick around to place blame of failure on someone other than himself or herself. News is abound now that the House leaders do not want to act unless the Senate moves and pass a bill first. Republican leaders claim that it is the President who should come forward with a specific bill and they will not act first without the President showing "real" leadership in the CIR. The White House is down playing the chance of CIR in 2009 advancing a theory that there are not enough number of supporters of CIR in the Congress, but advances a position that the legislators in the Congress must first come up with a bill. The Senate majority leader keeps spinning that the CIR is "do-able" in 2009, but is not willing to take it up until "fall" because of the two higher priorities in health care reform and energy reform. Politics abound.
• When it comes to the blame for "inaction," every single of them should share a slice of the "sour" pie. Before they kick a soccer ball around to blame everyone other than himself or herself, they should prove themselves to the public and the system that they can "initiate" themselves by proposing and introducing CIR bill. Current problem is that no one wants to "initiate" any specific proposal or legislative bill! When it comes to the word "initiate," each of them points a finger at others. This reporter wants to ask the President whether he brought a proposal to the summit. This reporter wants to ask the legislative members of the summit whether each of them brought any proposal or a draft of a legislative bill. The details of the today's summit discussion has yet to be disclosed, but the indication is "probably not." Next week, we celebrate the Fourth of July which will quickly move into the Congress' August summer recess. This year's CIR game shows a phenomena which is distinctively different from previous two or three years. In previous years, the legislators were eager to be prominent in CIR and active in initiating and introducing their CIR proposals and bills. Not this year!? Hmm..........................................................................................................................!

06/25/2009: Senate Judiciary Concluded New USCIS Director Nomination Hearing

• Yesterday, the Senate Judiciary postponed this hearing conditioned upon the full Senate floor situation. The Senate floor was able to pass the Motion to Cloture for the nomination of Harold Koh by obtaining more than 63 votes on the floor and the members of Judiciary was thus apparently available to pick up and take care of the Judiciary Committee business. Accordingly, the Committee concluded a hearing to examine the nomination of Mr. Alejandro N. Mayorkas, of California, to be Director of the United States Citizenship and Immigration Services after the nominee testified and answered questions in his own behalf. This nomination is expected to the full Senate floor sooner or later for the confirmation. Mr. Hrold Koh is expected to be confirmed this morning on the full Senate floor.

06/25/2009: White House Immigration Summit Meeting Today

• Today, the President will meet at 2:00 p.m. EST with 20 bi-partisan legislative leaders to discuss the immigration reform. The legislators include include, among others, "Who"s Who" immigration reform legislators from both parties and both Houses, including Sen. John McCain, R-Ariz., Sen. Chuck Schumer, D-N.Y., Sen. Robert Menendez, D-N.J., and Sen. Mel Martinez, R-Fla., Sen. John Cornyn, R-TX, on the Senate side, and Rep. Zoe Lofgren, D-CA, Rep. Loretta Sanchez, D-CA, Rep. Howard Berman, D-CA, Rep. Luis Gutierrez, D-Ill., Rep. Lincoln Diaz-Balart, R-Fla., and Rep. Lamar Smith, R-Texas. The summit meeting is likely to achieve at least one thing: "differences" between the Democrats and the Republicans. Since no legislators have released their proposals, the differences have yet to be clarified by these legislators and the White House.

06/24/2009: Senate Judidicary Hearing for New USCIS Director Nomination Confirmation "Postponed"

• The Senate Judiciary was scheduled to have a nomination confirmation hearing today, but since the Senators are likely totally tied up with Senate floor action today relating to a hotly contested legislative bill , the nomination hearing has been conditionally postponed in anticipation that the Committee would not be able to meet the quorum to conduct such hearing. One of the hottest Senate floor action today is nomination of Harold Hongju Koh, of Connecticut, to be Legal Adviser of the Department of State. This nomination can be jeopardized unless the Senate floor assues at least 60 votes ot muscle out Motion to Cloture so that the floor can block filibusters and pass confirmation. Apparently, there is a concern with availability of 60 votes in favor of the notion at this point. Pleasse stay tuned.

06/24/2009: H-1B Cap Count Update as of 06/19/2009=44,500

• Why not moving? The responsible official explains that it is partly related to its way of counting this year taking out the number of cases which the agency may deny or revoke or employers may withdraw. It is uncertain how many of FY 2010 H-1B cap numbers have been saved as affected by the agency's action of denial, revocation or withdrawal, but the number could be somewhat substantial.
• However, do not bet on the current frozen numbers. People should remember that before the FY 2010 H-1B cap filing started on April 1, 2009, the Congress passed H-1B special legislation putting a two-year moratorium during when the so-called TARP funded employers would be practically prohibited from hirning new H-1B employees. The total number that are affected by this action have yet to be identified. However, accorting to the FY 2008 list of entire H-1B employers and the H-1B numbers filed by these employers in the order of the volumes, the numbers that had been filed by the TARP funded H-1B employers were quite substantial. Additionally, there are unconfirmed sources of information that the TARP funded companies have also been indirectly forced by the fed not to circumvent the new H-1B law by practically hiring new H-1B employees in the name of consultants through consulting companies. Now, this may change since a number of large TARP funded companies have been paying back the money to the fed in order to stay out of the fed "ownership?" or "control." The question remains whether these former TARP funded employers are freed from the new H-1B hirming freeze law since they are no longer TARP funded employers as defined in the statute. According to the USCIS sources, the USCIS is currently working with DOL and Treasury Department to determine this issue. Should they arrive at a conclusion that they will no longer be subject to the new H-1B moratorium statute, people can easily figure out the number of new H-1B filings these companies may file either directly or indirectly. This can change the picture of FY 2010 H-1B cap count updates down the road. Beware!

06/23/2009: USCIS Announces That FBI Name Check Backlog Has Been Eliminated

06/22/2009: USCIS Reinstates Premium Processsing Services for I-140 Petitions Effective 06/29/2009

• USCIS will receive I-140 premium processing request applications for the following categories effective June 29, 2009:
  • EB-1A: Extraordinary Worker Petitions
  • EB-1B: Outstanding Research/Teacher Petitions
  • EB-21: Advanced Degree and Exceptional Worker Petitions
  • EB-31A: Professional Worker Petitions
  • EB-31B: Skilled Worker Petitions
  • EB-3EW: Unskilled Worker Petition
• The following categories remain unavalable:
  • EB-1C: Multinational Corporation Executive/Manager Petitions
  • EB-2NIW: National Interest Waiver based EB-2 Petitions.
• I-140 filers have been long waiting for the reinstatement of Premium Processing Services because of the following benefits, among others:
  • AC 21 porting of approved I-140 petition to new employment after 180 days of I-485 filing
  • Three-year increment extension of H-1B status indefinitely pending visa number availability
  • Two-year extension of EAD pending visa number availability
  • Retention of priority date allowing recapture of the retained priority date afterwards to new I-140 petitions in identical or different EB classifications and with same or different employer sponsored I-140 petitions
• Considering the anticipated visa number retrogressions for a prolonged period of time almost in all categories in the future, particurlarly when the relief through the CIR legislation becomes more and more uncertain in the near future, the USCIS reinstatement decision can be taken as a very important administrative fix at the level of administration to give relief, albeit partial and limited, for the employment-based immigration foreign workers and the employers in the U.S. including high tech industry and research and academic institutions. From the perspectives of the USCIS, the agency will likely raise a huge sources of additional funding which should help it to push ahead ongoing initiatives with the additional resources to improve efficiency of the management, backlog reduction, etc. without compromising the parallel task of achieving integrity of the immigration benefitis application processing and adjudicating system. Mutual interest, we may say!

06/22/2009: Senate Judiciary Hearing on EB-5 Regional Center Program

• The Senate Judiciary was scheduled to have a hearing on 06/24/2009 on "Promoting Job Creation and Foreign Investment in the United States: An Assessment of the EB-5 Regional Center Program" but this hearing has been postoned. The full committee will however hear the new USCIS Director nomiee confirmation agenda as scheduled on 06/24/2009. For the rescheduling of EB-5 program hearing, please stay tuned to this website.

06/22/2009: Wexler's Nursing Relief Bill Reportedly Faces Unexpected Hurdle

• Report indicates that the President Obama has a skeptism over the bill that foreign nurses should be imported to relieve the country from the current problem of shortage of nurses. Uh, uh........ Read on. By now, people know that philosophically he is a strong supporter of unionization of work forces and labor unions. Nurse immigration issue is another addition to the problem which employment-based immigration faces and will probably continue to face on top of restrictions to H and L visa programs. Hope the report is wrong!

06/21/2009: CIR and What's Ahead

• On Friday, Obama Press Secretary Robert Gibbs officially announced that the President was scheduled to call a small group of Congressional leaders and political leaders to the White House to open a dialogue on CIR next Thursday, 06/25/2009. Troublesome was another statement that recognizes the facts by the Press Secretary at the same press conference that the Congress did not have enough numbers to pass a CIR legislation. As we reported earlier, for a CIR to pass the Congress, it should pass both the Senate and the House. However, it is the House that lacks enough numbers at this time to pass a CIR legislation this year. There are a plenty of House legislators who represent districts that are politically not affected by the Hispanic population and their political pressures. These legislators usually form a group of Democratic represenstives who are either conservative and middle of the road in the political ideology. The situation tends to be different when it comes to the Senate that is consisted of legislators based on their statewide consistuencies as opposed to the House representatives that represent small neighborhood and district constituencies. The Senators' decisions are thus derived more from broader national political or statewide political issues and interests of the whole party. For this reasons, for the past several years, the Senate initiated and was able to pass CIR bills which have ended up in the ditch when it moved to the House floor. The background behind the Press Secretary's announcement downplaying the potential success of CIR within this year is their motivation to control unrealistic rise of expectation in the CIR supporting community on the President's initiatives that can also end up in another ditch with potential negative political fall-outs to his political leadership. The current politcal landscape and environment then raise two questions. The first question is whether the President and the Democratic Congress will have enough energy and zeal to successfuly change the existing political landscape, particularly in the House of Representatives, within such a limited time within this year. The Congress will soon go into the Summer recess and the remaining legislative days in the Congressional calendar for 2009 are very limited. The second question is why then Senate Majority leader, Sen. Harry Reid, has been spinning in media on his agenda to take up a CIR bill this fall with the full realization of political reality that can be ditched again in the House. It appears that part of such spinning is related to his own political future. His seat in the Senate will be up for reelection in the national mid-term election in 2010 and he needs a strong support from the Hispanic constituency in the State of Nevada. The Hispanic population has been rapidly growing durng the past several years in the State of Nevada. His push for a CIR will achieve his political calculation, no matter whether the bill will pass or fail in the Senate. Again, the chance for a CIR passing the Senate in 2009 is indeed very good as the chance for Senate Democrats pulling together 60 votes may turn realistic, particularly as affected by the final result of the current Senate election dispute in the State of Minnesota. In the very near future, the Minnesota Supreme Court is likely to hand down a decision sustaining the election of Mr. Al Franken, a progressive Democrat, as the next Senator, over the conservative former(?) Senator Norm Coleman. For the discussion per se, let's assume that the CIR fails to pass either in the Senate or in the House. The Senator Harry Reid will still get all the credits in his Hispanic constituency in the State of Nevada for his initiatives in the Senate to legislate a CIR!
• All in all, year 2009 will turn out to be the only year that can pass a CIR because this is a so-called leap-year when there is no national reelection and the House members will be less affected by their activities this year. The key is whether the President Obama will have enough energy, steam, and polical motive to make a full-court pressing and arm-twisting of the conservative Democratic members in the House within a "very" short period of time, within this Summer or early fall at the latest. Currently, his and Democrats' top two reform agenda stay with the nation's health care and energy reforms. Until we see such full dedication and commitment of the President to the CIR within a given time, one should not raise the level of his/her hope or expectation too high as it will indeed bring out really devastating frustration and hopelessness in 2010 in that considering the November 2010 mid-year election, the chance for CIR next year will turn out to be very slim because of the rerunnng Democrats in the election from small districts that are not affected by the Hispanic political pressures. Until we see such solid momentum and heat of passion on the part of the President leading to quick actions in the near future, all the media campaign and spinning of news by the White House and the Senator Reid may have to be taken with caution and discount.

06/20/2009: Senate Judiciary Schedules New USCIS Director Nominee, Alejandro Mayorkas, Confirmation Hearing on 06/24/2009, Wednesday

• Senate Judiciary Committee schedules to hold hearing to examine the nomination of Mr. Alejandro N. Mayorkas, of California, to be Director of the USCIS/DHS on June 24, 2009, Wednesday, at 10:00 a.m. The USCIS Director position has been vacant and Mr. Michael Aytes has been filling the vacancy in the USCIS leadership as the Acting Deputy Director of the USCIS. It is thus likely that beginning from July 2009, the USCIS may have a new leader in place. Obviously, the new leader may bring some changes in direction of management and immigration policies along the way, but it is unclear how soon and to what level such changes will take place.
• On the occasion of upcoming change in the USCIS leadership, immigration stakeholders and immigrant community should recognize and salute the job well done for immigration benefit program management during the leadership vacancy by Mr. Michael Aytes, Acting Deputy Director, and Mr. Donald Neufeld, Associate Director of Domestic Operations. Both of these leaders are career immigration officials for over 25 years with profound expertise and knowledge in immigration.

06/20/2009: Nonimmigrant Visa Revalidation for Visiting Canada, Mexico, and Caribbean Islands

• Summer travel season is approaching soon and a number of nonimmigrants are likely to visit Canada, Mexico, and Caribbeans Islands for a short vacation or pleasure. We posted earlier the visa revalidation rules for the nonimmigrants whose visas in the passport have been expired but who have a valid passport and a valid nonimmigrant I-94. As summer vacation season approaches, we would like to post the visa revalidation rule once again to remind the nonimmigrants that there are different types of revalidation rules for different types of nonimmigrants. Automatic visa revalidation applies to expired nonimmigrant visas of aliens who have been out of the U.S. for 30 days or less in border countries (Canada and Mexico). According to the visa revalidation fact sheet of U.S. Customs and Border Protection agency, the following rules are in place:
  • Must have a valid passport.
  • F- 1 and J-1 Students: Can visit and return from Canada or Mexico or adjacent islands other than Cuba within 30 days with the expired visas but with a valid I-94.
  • M-1 Students: Can visit and return only from Canada or Mexico, but not adjacent islands.
  • Other Nonimmigrants: Can visit and return only from Canada or Mexico.
• The foregoing visa revalidation is not available in the following two situations:
  • Nationals of Iran, Syria, Sudan, and Cuba
  • Nonimmigrants who applied for a visa during such visit at the American Consulate in the visiting countries or visa was denied by the American Consulate in the visiting countries during the visit.
• For the full details, please read CBP Automatic Revalidation Fact Sheet.

06/19/2009: Advisory for Visa Waiver Program Travelers Without Visas

• Effective July 1, 2009, all VWP travelers including those with emergency or temporary passports should carry with them e-passport. Otherwise, they will be detained for processing or denied admission to the U.S. In certain cirucmstancs, they will exercise discretion and VWP travelers should read the USCBP website notice carefully before they depart from their countries.

06/19/2009: USCIS 06/17/2009 Memorandum Revises Adjudicators Field Manual on Processing and Adjudication of I-140 Petitions for Foreign Physicians

• This memorandum is issued by Mr. Donald Neufeld, Acting Associate Director of Domestic Operations, USCIS to give a guidance as to how to determine if a foreign Medical Degree (MD) is the equivalent of a U.S. MD degree, and thus an advanced degree, for EB2 purposes. This memorandum also addresses how to determine whether an alien physician has met the education, training and experience requirements of the labor certification and licensure in the area of intended employment, and it clarifies that all EB2 and EB3 alien physicians must overcome the “unqualified physician” inadmissible alien provisions of INA §212(a)(5)(B) at the time of the permanent job offer.

06/19/2009: DHS Inspector General Report of 06/11/2009 on Special Immigrant Nonminister Religious Worker Program Management Findings and Recommendations to USCIS

• This report reviews the IG's investigation results and findings on the I-360 program for nonminister religous workers, and IG's recommendations to Mr. Michael Aytes, Acting Deputy Director of USCIS list of recommendations. The report also includes Mr. Aytes responses to the recommendations. Those who are involved in the program should read this report.

06/19/2009: Advisory for H-1B and PERM Filing Planners

• Time really flies. July is already almost at our door step. July will bring a couple of changes in the foreign labor certification programs. First, the current online Labor Condition application filing (ETA 9035E) is scheduled to be disabled at the end of day of June 30, 2009. Accordingly, beginning from July 1, 2009, employers who file LCA for H-1B petition must use iCERT portal system. Filing of LCA using iCERT may cause some delays for a number of reasons. Firstly, there are a number of employers who have yet to familiarize themselves with the new system and thus far some employers have already been experiencing delays even at the stage of employer and lawyer registrations which is the first step for using the new system. Secondly, should the employer uses authoritative private wage survey instead of DOL wage data library for the prevailing wage determination, they will almost automatically experience delays in obtaining the decision for one week or even longer depending on the private wage sources. Currently, there are still enough FY 2010 H-1B cap numbers, but that can change. Since the FY 2010 H-1B cap cases must be filed before it reaches the cap, these delays may result in critical consequences for some employers down the road. Employers will witness another changes coming July. The DOL will release new wage data. No one knows how the current economic recession will affect the new wage figures. However, considering the fact that hike of the inflation rate may push up the prevailing wage figures, one may as well assume that the new wages will go up. Once the new figures are released, the employers are required to use the new wage data. Increase in the prevailing wage will affect some employers that can afford only limited amount of wages for H-1B foreign workers under the current economic environment. The wage change will also affect PERM application. Unlike H-1B cases, in the PERM applications, most of the employers are required to use the DOL wage data rather than a private survey in order not to experience delays or other consequences. This impact will become more visible once the prevailing wage determination is centralized. Currently, the prevailing wage determination is made by the State Workforce Agencies for PERM proceedings and only the wage determination for H-2 temporary labor certification application is made by the Chicao National Processing Center of DOL instead of SWAs at the state level. This will change down the road. DOL intends to centralize the prevailing wage determination for PERM at the Chicao NPC sometime early FY 2010. What happens if the employers obtain the prevailing wage determination from the SWAs now? They will give 90-day valid prevailing wage determination for PERM which may remain valid for filing of PERM even after the end of June 2009. One drawback is that the employers must ensure that the recruitment activities are launched within the validity period (90 days) of states' prevailing wage determination and PERM application must be filed without too much delays.
• For the foregoing reasons, the employers may obtain the prevailing wage determination as well as the LCA for H-1B before the end of this month, which is only about 12 calendar days or seven working days away.

06/19/2009: Bill Introduced to Waive New Requirements for VWP Program for Two Years

• Representative Mike Quigley from Illinois introduced in the House H.R.2954 to authorize DHS Secretary to waive certain requirements under the Visa Waiver Program for an additional 2 years.

06/18/2009: USCIS Neufeld Memorandum on Immigration Benefits of Widows and Children of Deceased U.S. Citizens

• We reported on June 9, 2009 that DHS Secretary Napolitano announced temporary deferred action reflief of such widows and children. This DHS Secretary's announcement is followed by the official release of memoraum on this decision by Mr. Donald Neufeld, Acting Associate Director for Domestic Operations of USCIS on June 15, 2009 to give a guidance to the field offices and adjudicators on such applications. Albeit temporary relief, this is an important relief for the widows and children of deceased U.S. citizen. Read on.

06/18/2009: The Board of Immigration Appeals Handed Down an Important Decision on Aged-Out Benefits Under CSPA

• On June 16, 2009, the BIA ruled that the automatic conversion and priority date retention provisions of the Child Status Protection Act do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a Family-Based 4th preference visa petition, and on whose behalf a Family-Based 2nd petition is later filed by a different petitioner. It means that if a CSPA aged-out benefit is attached as the derivative beneficiary of 4th preference immigrant petition, such aged-out benefit is not automatically transferred to another 2nd preference immigrant petition if such 2nd preference petition is filed on his/her behalf afterwards. Those affected by this decision is encouraged to read the full text of the decision. See Matter of Wang, 25 I&N Dec. 28 (BIA 2009), Interim Decision #3646 (BIA June 16, 2009)

06/18/2009: USCIS Memorandum of 06/17/2009 on EB-5 Alien Entrepreneurs - Job Creation and Full-Time Positions

• This memorandum is released to clarify that each petitioner must submit a business plan, along with their Form I-526, Immigrant Petition by Alien Entrepreneur, which provides an accounting of the required number of qualifying jobs that will be created within the two-year period of conditional residency. and that there may be some flexibility with respect to the timing of job creation at the Form I-829, Petition by Entrepreneur to Remove Conditions, stage. This memorandum also clarifies the meaning of full-time position as it relates to job creation.
• Readers may read the foregoing Neufeld Memorandum in connection with the USCIS Acting Deputy Director Michael Aytes' written response to the Ombudsman's recommendation of 06/12/2009 on the EB-5 program management improvements.

06/17/2009: "Comprehensive" Immigration Reform

• As affected by the President's total focus on health care reform agenda, the immigration reform initiatives have been delayed and part of the immigrant community are experiencing impatience as we approach the Congress' summer recess down the road. However, the immigrant community has more or less lost sight of the key issues in the comprehensive immigration reform. It is not the "procedure" but the "substance" that will eventually determine the success or failure of the CIR. As the Rep. Zoe Lofgren opined lately in the press conference, the success of CIR will depend on a few key factors as judged from the repeated failure for the Congress to pass CIR legislation in the past. Firstly, at this time, the immigrant community, religious supporters, and the labor unions are totally focused on the long-delayed relief for undocumented aliens. Without doubt, this should be the "most" important part of the CIR. However, legislative process involves both the Senate and the House. When it comes to the Senate, each state sends two legislators and in that regard, each state has an "equal" voice and shake, no matter how small or how large, while when it comes to the House, the states are not equal and each state does not have an equal voice. In number wise, larger states like California, Florida, New York, Texas, etc. have dominating voices and power on the House side as they send a majority of legislators to the House. As we all know it, California sends the largest legislators to the House and CIR will have not chance to make it unless the CIR move accomodates the California's interest, which is the need for high-tech foreign workers and employment-based immigration reform. For the reasons, Rep. Lofgren opined that the House would probably not touch CIR unless the Senate first passes a bill. Such bill should accomodate the needs of largest states including the State of California. Accordingly, unless the CIR is debated in "comprehensive" and "balanced" issues, it will be doomed to fail again. Unlike other nations, the legislative process is much more complicated and complex in the United States than one often preceives. Secondly, should the CIR be dominated by any "poison pills" that touch nerve, sensive and painful wounds of the nation, again such pill can kill the CIR. For instance, no one will deny that last year, the soc-called "point system" reform of the legal immigration system rocked and killed the CIR. It was not much the relief of undocumented aliens that decisively killed the bill. The point system concept killed the bill because it touched the most sensive issue of ethnic balancing and control of immigration scheme in the long run that underlied the reform proposal. It was concocted by the ultra conservative right wing think-tankers and legislators. Should this surface again as one of the main features of the CIR, the whole CIR is doomed to collapse and fail again. The community should be watchful of potential resurface of this poison pill from the right. The President's promise to call legislative and political leaders for discussion is just a beginning and a tip of iceberg. More important is the substance rather than timing or procedure that should push and direct the CIR move to a right direction for success. Thus far, the CIR advocates and different communities have failed to form a coalition at the community level to open a dialogue and debate. Should the CIR fail this year again, the communities should take a part of the blame for the outcome.

06/16/2009: "PASS ID" Act, S. 1261, Introduced in the Senate With Strong Backing by the DHS

• Senator Daniel Akaka of Hawaii yesterday introduced this bill proposing repeal REAL ID, replaced by PASS ID devise. This bill is intended to alleviate the issues of invasion of privacy under the current REAL ID law but to achieve the purpose of the homeland security. This bill is strongly supported by the Senior Democratic Senators and the DHS Secrretary Napolitano.
• For the details, please read the summary of the bill prepared by the bill sponsor.

06/15/2009: DHS Expands Cyber-Space Campaign to Reach its Consumers and the Public

• The strength of Obama Presidential campaign, current Obama White House and Administration is to reach the public, particularly the new generation public by the cyber-space medium including internet, text messaging, inter-active sites of twitter, face-book, etc, etc. So far, it has turned out to be very effective both in and out of the coutnry. Internationally, his recent extensive visits in the Europe and Middle East and the aftermath of Iranian presidential election and the American freedom message to the younger generation all over the world "vividly" testify the power of electronic medium nowadays to reach the people.
• The White House has been actively using the electronic medium from "day one" to reach the public. The DHS has also followed the suite at a limited level. Now, the DHS Secretary Napolitano is expanding her policy to reach the public by a new electronic medium, named The Blog@Homeland Security, http://www.dhs.gov/theblog. Well, this is a blogging age for sure. People may address whatever issues and problems using the blog.

06/15/2009: H-1B Cap Count: Still 44,400 as of 06/12/2009

• The number has been either moving backward or standing still. It appears that part of the reasons appears to be that some of the petitions have been denied, revoked, or withdrawn. We are curious as to how many pettions they have physically received and how many cases they have denied or revoked or withdrawn to keep the cap count standstill. They have been issuing "tons" of RFEs for H-1B petition, a substantial number of which are boiler plate type of RFEs, and probably there have been a large number of denials either after receiving such RFEs or without issuing RFEs. The employers are also experiening a lot of RFEs or denials of H-1B "extension" cases.

06/15/2009: USCIS Updates on 06/15/2009 the Processing Times as of 04/30/2009

• Please see our home page.

06/13/2009: White House Reportedly Further Delays Obama's Scheduled CIR Leadership Meeting

• The meeting was initially scheduled at June 8, 2009, but because of the President overseas trips, it was delayed to June 17, 2009. Now, report indicates that this meeting scheduled has been nixed and no specific date has been disclosed other than within June. The President is currently struggling with the healthcare reform program. Immigration advocates including Hispanics are growingly impatient with the President's indetermination.

06/12/2009: USCIS Memorandum of 06/01/2009 on Standards for Determination of U.S. Interest for H-2A and H-2B Workers of Countries Not Listed in the Regulation

• Currently, H-2A or H-2B temporary worker visas are not available unless their nationalist is listed in the relations, but the regulations permit the agency to approve such cases for those who are nationals of countries listed in the regulation "in the discretion" of the agency and when the facts establish that such approval satifies the "U.S. interest." The new H-2A and H-2B regulations list the following four factors for consideration:
  • Evidence that the beneficiary has been admitted to the United States previously in H-2A or H-2B status and complied with the terms of his/her status;
  • Evidence that a worker with the required skills is not available from a country on the list of eligible countries;
  • Potential for abuse, fraud, or other harm to the integrity of the H-2A or H-2B program through the potential admission of these worker(s) that a petitioner plans to hire; and
  • Other factors that would serve the U.S. interest, if any.
• The memorandum is to give a guidance for adjudicating these issues. The guidance provides that each request for a U.S. interest exception is fact-dependent, and therefore must be considered on a case-by-case basis. Although USCIS will consider any evidence submitted to address each factor, USCIS has determined that it is not necessary for a petitioner to satisfy each and every factor. Instead, a determination will be made based on the totality of circumstances. For factor no. 3, USCIS will take into consideration, among other things, whether the alien is from a country that cooperates with the repatriation of its nationals. For factor no. 4, circumstances that are given weight, but are not binding, include evidence substantiating the degree of harm that a particular U.S. employer, U.S. industry, and/or U.S. government entity might suffer without the services of H-2A or H-2B workers from non-eligible countries. H-2A or H-2B petitions without sufficient evidence to establish such facts will be issued RFEs. Adjudicators are then advised to carefully review any evidence submitted with a petition (or submitted in response to a request for evidence) that addresses the four factors of the U.S. interest requirement. Although the Adjudicator should consider all four factors, the case should be reviewed based upon the totality of the circumstances and not based upon failure to satisfy all four of the factors listed above. Additionally, due to the potentially novel and sensitive nature of the U.S. interest determination, consultation with Headquarters is encouraged in unique or complex cases.

06/12/2009: USCIS Announces InfoPass Scheduler Outages This Evening

• USCIS announces that the InfoPass Appointment Scheduling System will be out of service for maintenance from 6:00 PM ET Friday June 12 to 1:00 AM ET Saturday June 13.

06/12/2009: Sen. Robert Menendez Introduces S. 1247 Bill for Immigration Relief for Widows of U.S. Citizens

• Yesterday, Senator Menendez from New Jersey introduced another family unity legistive bill in the Senate to legislate the immigration benefits of widows of U.S. citizens. This bill is distinguished from the previous family unity bill, S. 1085 which is a comprehensive immigration reform bill. Yesterday's widow immigration legislative proposal is co-sponsored by the Senate Judiciary Chairman Patrick Leahy and Sen. Gillbrand from New York. In introducing this legislative bill, Senator Menendez issued a press release yesterday praising DHS Secretary Napolitano's action to give temporary administrative relief of immigration benefits for widows of U.S. citizens and the purpose of S.1247 bill to legislate such relief at the legislative releaf. For the press release of Senator Menendez, please click here.
• Lately, there have been positive activities for immigration benefits for the widows at the levels of judiciary, legislation, and administration. Readers may go back to our earlier reports on this site to review the activities. In the West Coast, a federal judge issued an order in support of such relief, the benefits of which are somewhat limited, in the House, a legistive bills was introduced earlier in this 111th Congress for such relief expanding the definition of "widow" for the relief, now Senator Menendez bill for the idential legislation, and Secretary Napolitano's action at the administrative level for temporary relief which was released on 06/09/2009.

06/11/2009: Federal Judge in Ruiz-Diaz v. USA Issues Final Order Today (06/11/2009) Ordering USCIS to Accept Concurrent Filing of I-360/I-485 for Religious Workers

• As we reported earlier, the federal district judge in Seattle, Washington issued a conditional order in support of I-360/I-485 concurrent filings in March 2009 and stayed the order pending the DHS's filing of supplemental brief by April 2009. Today, the judge issued a final decision in this litigation invalidating the USCIS interpretation of the immigration statute excluding religious workers from the benefit of concurrent filing of special immigrant petition (I-360) with the I-485 unlike the cases that permit concurrent filing in I-140 petition and I-485 application when the visa number is available. The judge ordered the USCIS to accept such concurrent filing in the religious worker special immigration cases and to publicize this order in the litigation settlement site of the USCIS website. Along with the order, the judge also ordered to stay removal proceedings and toll running of unlawful presence where the beneficiaries fell out of status because they were not allowed to file I-485 applications concurrently. For those who filed I-485 applications pending I-360 petitions in resistance to the USCIS opposition, the judge ordered to adjudicate such I-485 applications now.
• This is "literally" a revolutionary turn of event in the immigration history. We salute the legal counsels, including Robert Gibbs, Esquire in Seattle, for the remarkable job they have achieved for the religious community and their foreign workers.
• The question remains how the immigration law community should deal with the two portential developments relating to this legal triumph in the class action. One is whether or not the government will appeal the decision to the circuit court of appeals. The other is potential termination of the concurrent filing rule. The USCIS policy to halt the current concurrent filing still remains in the USCIS rule-making agenda. The proposed rule may be released before the end of the year. The immigration law community should reinforce their advocacy efforts to deal with these forthcoming developments.

06/10/2009: State Department Visa Bureau Chief Mr. Oppenheim Visa Predictions For the Future

• AILA has reported Mr. Oppenheim's prediction as follows:
  • EB2 India.Prediction for August or September 2009: Unavailable.
  • EB2 China Prediction for August or September 2009: Unavailable
  • EB2 India Prediction After September 2009: Waiting time can be years or even decades without legislative relief
  • EB2 China Prediction After September 2009: Waiting time can be many years without legislative relief
  • EB3 India Prediction for August and September 2009: Unavailable
  • EB3 China Prediction for August and Septermber 2009: Unavailable
  • EB3 Mexico Prediction for August and September 2009: Unavailable
  • EB3 India Cut-Off Date Prediction for October 1, 2009: 11/01/2001
  • EB3 China Cut-Off Date Prediction for October 1, 2009: 03/01/2003
  • EB3 Mexico Cut-Off Date Prediction for October 1, 2009: 03/01/2003
  • EB3 Worldwide Prediction in August and September 2009: Unavailable
  • EB3 Worldwide Prediction for October 1, 2009: 03/01/2003. There will be extended delays thereafter.
• The prediction is much grimmer than this reporter reported yesterday. India EB-2 waiting times can be even "decades?" I need a breathing air, it is choking and choking!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! But it is a prediction, and a prediction is a prediction. Prediction is paraphrased by "May be......" So, in reading the foregoing prediction, readers should add "may." Now, I get the breathing air.

06/10/2009: H.R.2681 Bill in the House to Provide for Naturalization for Certain High School Graduates

• An interesting bill was introduced in the House on June 3, 2009 by Rep. Joe Baca of California that proposes certain young permanent resident aliens be eligible for waiver from certain requirements for natualization application. The aliens who will be eligible for such waiver under this proposed bill include:
  • He/she is under 25 years of age on the date when he/she submits an N-400 application for naturalization under section 334 who graduated from public or private schools in the U.S. as proven by the school transcripts and high school diploma as follows:
    • (A) The alien completed grades 6 through 12 in the United States and was graduated with a high school diploma.
    • (B) The alien completed a curriculum that reflects knowledge of United States history, Government, and civics.
  • N-400 filing fee is reduced to 50% for such naturalization applicants.
• In a way, the intent of the bill is understandable in that the U.S. high schools offer civic courses and the sponsor probably assumes that they should posssess such knowledge and be eligible for the citizenship with such requirements. However, it is likely that such presumption may be challenged by legislators based on the statistics that more than 50% of native born U.S. citizens might fail in tests for the naturalization application. Interesting to hear the debates in the committees and on the floor, should the bill be successful in advancing to the floor.

06/09/2009: DHS Secretary Napolitano's Huge Gift for Widows of U.S. Citizens Today, Albeit Administrative Relief

• DHS Secretary Janet Napolitano today granted deferred action for two years to widows and widowers of U.S. citizens—as well as their unmarried children under 18 years old—who reside in the United States and who were married for less than two years prior to their spouse’s death. Secretary Napolitano also directed USCIS to suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage. Additionally, ICE will defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children. USCIS will also consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law. DHS will soon issue guidance instructing the public on how to apply for this relief. These directives apply regardless of whether the citizen filed a petition for the alien spouse before death. Deferred action is generally an act of prosecutorial discretion to suspend removal proceedings against a particular individual or group of individuals for a specific timeframe; it cannot resolve an individual’s underlying immigration status. Individuals granted deferred action may apply for work authorization if they can demonstrate economic necessity. While Secretary Napolitano’s directive provides a short-term arrangement for widow(er)s of deceased U.S. citizens, legislation is required to amend the definition of “immediate relatives” in the Immigration and Nationality Act to permit surviving spouses to remain indefinitely after the U.S. citizen spouse dies, enabling them to seek permanent resident status. For the full text, please click here.
• As we reported earlier, in a federal distict court litigation in the West Coast on this issue, the court ordered a similar but much limited relief order that applies only to those who are residents in Circuit 3 an 6 jurisdictions despite the nationwide class action lawsuit. In order to give a full relief, a Congressman introduced a legislative bill last month to give the same relief which the Secretary Napolitano is granting in the form of deferred action. As the Secretary states above, the law must be amended to redefine the "immediate relatives," and the pending bill is intended to achieve the full relief which the Secretary has alluded to. Big Hats Off to Honorable Janet Napolitano for the admirable humanitarian decision. For the development of pending judicial relief litigation and the legislative relief bill, please stay tuned to this web site.

06/09/2009: H-1B Cap Count Update: 44,400 As of June 5, 2009

• It moved backward from 45,800 as of May 29, 2009. Probably they detected some problem filings. Hmm..........., HMMMM..................... It Ain't Interesting?

06/09/2009: Grim Outlook for FY 2010 Employment-Based Visa Numbers

• Under the current immigration law, the annual numerical limit for the employment-based immigrant visa numbers is set at 140,000. Recently, there was a report that one of the I-485 jurisdiction Service Centers reported that it had "preadjudicated" 80,000 employment-based applications. Now, unconfirmed sources indicate that the USCIS has "preadjudicated" as high as 120,000 employment-based I-485 applications. Considering the fact that some of annual numbers will also be consumed by the immigrant visa applications at the visa posts outside of the U.S., it practically implies that most of the FY 2010 employment-based cap numbers have already been practically consumed. It means that those EB I-485 waiters with earlier priority dates may start receiving green card approvals beginning from October 1, 2009 but those I-485 waiters with lower priority dates may lose any hope for approval of their I-485 applications more than 14 months or longer. This will also adversely affect the visa number movement for employment-based categories during FY 2010 (October 2009-September 2010).
• Immigrants live in a mixed and confused state of hope for the chances of Comprehensive Immigration Reform legislation within 2009 on the news that President Obama will meet with the legislative leaders next week to discuss the CIR and the Senate Majority Leader Harry Reid spilled information that the CIR was his legislative priority agenda number 3 and wanted to pass the CIR within this year. However, just released unemployment statistics and the disastrous impact of creation of employment by the economic stimulus packet during the last few months raised questions of practicality and feasibility of such move. From the perspectives of the employment-based immigration, the businesses hoped to see a legislation to recapture unused and wasted visa numbers which exceeded 200,000 but the chance of such legislation has also been doomed under the current political environment and continuing economic crisis. The situation makes people feel impotent and depressed for not being able to see any hope and light at the end of tunnel. The news of revolt of Democrats in the New York Senate against their own party yesterday throws a chilling bucket of cold water for the future of the political landscape of this country when people wanted to see a new era of hope ahead. Just hope that things get better.

06/09/2009: Official July 2009 Visa Bulletin

• Family-Based:
  • Row China India Mexico Philippines
    1st 15NOV02 15NOV02 15NOV02 01JAN91 01SEP93
    2A 22DEC04 22DEC04 22DEC04 22JUN02 22DEC04
    2B 15APR01 15APR01 15APR01 01MAY92 01APR98
    3rd 22OCT00 22OCT00 22OCT00 01JUL91 01JUL91
    4th 22OCT98 22OCT98 22OCT98 15JUN95 08AUG86
• Employment-Based: China EB-2 Retrogressed
  • 1st C C C C C
    2nd C 01JAN00 01JAN00 C C
    3rd U U U U U
    Other Workers U U U U U
    4th C C C C C
    Certain Religious Workers C C C C C
    5th C C C C C
    Targeted Employ-ment Areas/
    Regional Centers C C C C C

06/09/2009: Shocking PERM Program Performance Result for FY 2009 First Quarter Ending 12/31/2009 Released by DOL

• The DOL report indicates that the percent of employer permanent labor certification applications resolved within six (6) months of filing was only 37% during the first quarter of FY 2009! This performance result is contrasted to the same for the previous year (2007) achieving 94% within six months. Additionally, the report indicates that the target of FY 2009 (10/01/2008-09/30/2009) to resolve the PERM cases within six months of filing is set at average 64% only. The diagnosis of the causes of delays and predictions for the future are stated that PERM program performance significantly decreased due to the impact of increased integrity activities and processing adjustments for downturns in the economy in conjunction with large employer layoffs. With current resources and application filing patterns processing delays would continue to occur absent marked changes in both the economy and greatly increased resources. From the report, readers can figure out the level of intensity of scrutiny and microscope investigation of applications the agency has been engaging in processing the PERM applications. Heydays are gone for the PERM applications.

06/07/2009: Immigration Benefits Filing System Transition: Bi-Specialization System - Lockbox Centralized System - Electronic Filing Transformation Centralized System

• USCIS released a federal register notice on 06/05/2009 that effective July 5, 2009, it will remove filing locations and processing jurisdictions information from the USCIS regulation and alerted the immigration stakeholders and customers to follow the information in the immigration forms, instruction sheets, USCIS website, and 800 NCSC to find out the information on the filing locations and processing jurisdictions for different types of applications and petitions. The USCIS is taking the action to transit from the current fixed bi-specialization filing and processing jursdictions to the centralized filing jurisdiction through expansion of lockbox and eventual launch of electronic filing system under the transformation program in the future. As we reported earlier, the USCIS's transformation program has witnessed a substantial delay. The latest information which is released through the rule-making process dated June 5, 2009 indicates that the transformation program will not be in place until between January 17, 2013 and January 22, 2014. Accordingly, the USCIS has been accelerating launch of lockbox filing system to fill the gap between the current problematic paper-filing bi-specialization program and the future transformation program that centralizes filing system through the electronic filing system. Removal of filing location and processing jurisdiction requirements from the current USCIS regulation is intended to support such transition towards the centralization of immigration benefits management. Accordingly, pending such transition, the customers are likely to witness and experience a lot of confusions in filing procedures and the information on the agency's processing and adjudication of their applications and petitions. Centralization may also bring about the processing and adjudication system being further shielded from the customers' direct contact and the role of NCSC is likely to be elevated as de facto information officer function. The USCIS' transition to the transformation program and the DOL's transition to iCert program are critically important from the perspectives of national policy makers to achieve the dual goals which have presented a confict to a great extent. One goal is to achieve national homeland security and integrity of immigration management system, and the other goal is to achieve efficiency of such management to remove and prevent the backlogs. Current managmeent system is witnessing conflicts between two goals in that focus of national security and integrity of the system tend to cause processing delays and backlogs, negatively affecting the efficiency of the immigration management system. Meanwhile, focusing on efficiency may lead to the lapse in national security and assurance of integrity of the immigration management system. The ongoing reform of these two agencies is intended to resolve such conflicts and achieve both national security/integrity goal and managment efficiency goal through electronization process and "account" system that will allow security and integrity tasks efficiently and effectively achieved. Immigration management system will literally move into a new chapter in the country's immigration history. In the interim, the immigration system will move fairly quickly into lockbox filing system after they complete their current processing reduction task and goal by the end of September 2009. Please stay tuned.

06/06/2009: iCERT System of Foreign Labor Certification Programs and Agency's Statement of Justification for FY 2010 Budget

• The foreign labor certification programs will soon open a new chapter with the launch of electronic portal operation of iCERT system. The FY 2010 budget justification gives a glimpse of the policy goal underlying launch of this program. Close reading of this statement will give the readers a sense of direction this system will move ahead, including fee system.
• Here is the statement: "The Office of Foreign Labor Certification (OFLC) provides national leadership and policy guidance to carry out theresponsibilities of the Secretary of Labor under the Immigration and Nationality Act, concerning foreign workers seeking admission to the United States for employment. OFLC provides labor certifications to employers seeking to bring foreign workers into the United States. Certification may be obtained in cases where it can be demonstrated that there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing wage paid for the occupation in the area of intended employment. This initiative addresses the automation and technical support needed for various FLC programs that comply with different regulatory requirements and are subjected to possible changes with relatively short notice. This investment supports DOL's strategic goal 2, A Competitive Workforce. The system supports four different programs areas: H-1B (Non-immigrants in Specialty Occupations), H-2A (Temporary Agricultural Employment and Services of aTemporary or Seasonal Nature), PERM (Permanent Immigration) and H-2B (Temporary Non-Agricultural Employment).The investment will be in Operations & Maintenance in FY10 and Mixed Life Cycle in FY 09. This will help DOL to develop the "front-end common portal" of an IT system to support H-2A and H-2B regulatory reforms. The wage system will be designed as a universal system to serve all OFLC programs (allowing use of fee revenue). ETA collaborates with the Departments of Homeland Security and State (DOS) on ways to reduce fraud in these programs. An ETA-DHS subgroup meets monthly to confer and strategize about fraud investigations in progress. FLC will collaborate with the Department of Treasury to implement the fee module using PAY.GOV. The Department currently maintains four case management systems that are all utilized by the same staff at the ETA National Processing Centers. This has resulted in substantial administrative inefficiencies and a lack of communication among the systems to combat fraud and abuse. A seamless system will improve efficiency in case processing, provide greater flexibility in reducing workload, improve departmental response to Congressional and Customer inquires and substantially reduce administrative waste and inefficiencies. Applicants/immigration lawyers will be able to reduce time by reusing common data that is applicable across all system."
• The statement also assessed the foreign labor certification program's processing goal substantially achieveed in FY 2009. The average processing time for permanent labor certification program was six months for the fiscal year of 2009 and the current state of processing time of PERM applications fairly acculately reflects this statement. The statement was presented in April 2009. We post this information to give some perspectives to the businesses, employers, and foreign workers for their planning and management of foreign labor certification applications for foreign workers. The perspectives should highlight primarily three components: Fees and online payment system, interagency and microscope operation of program for achievement of integrity, and processing times. For leadership, Dr. William Carlson is current Chief of Foreign Labor Certification Program, Ms. Renata Adjibodou is the Chief of Atlanta National Processing Center for PERM Program, and Ms. Charlene Giles is the Chief of Chicago National Processing Center for Temporary Foreign Labor Certification Application Program.

06/05/2009: Update of House Bill Extending Sunsetting Trio Immigration Programs

• At the order of the House Speaker, the bill has been referred to the three different committees, Judiciary, Education & Labor, and Ways and Means. Each committee has its own schedules. A wrinke to this bill is E-Verify program extension proposal. This proposal has been very controversial and in order to pass the bill, some twisting of arms may be required along the way. Please stay tuned to this web site for the progress of this legislation activities.

06/05/2009: Reuniting Family Act Bill Introduced in the House on 06/04/2009

• Rep. Michael Honda of California introduced in the House on 06/04/2009 H.R.2709, Reuniting Family Act bill, cosponsored by 55 other Congressmen and women.

06/04/2009: President Obama's Congressional leaders CIR Meeting Rescheduled to 06/16/2009

• Report indicates that the President's CIR summit meeting has been rescheduled to June 16, 2009 because of his international traveling schedule. It was initially scheduled at June 8, 2009.

06/04/2009: Important Alert: Advance Copy of USCIS Interim Rule Removing from its Current Regulations Filing Locations/Jurisdictions and Filing Procedures

• The USCIS will publish this Interim Rule in the federal register tomorrow, 06/05/2009. This interim rule will remove from the regulations all instructions regarding the filing locations for petitions and applications. These regulatory provisions are unnecessary and restrict USCIS’ ability to vary petition and application filing locations as necessary to address fluctuations in the volume of applications, shifting workload needs, and benefits processing modifications. Removing these regulatory provisions will allow USCIS to better utilize its resources and serve its customers. Filing locations and procedures will still be available on USCIS forms and the USCIS Web site. Customers may also call the USCIS ‘800-number’ customer service line for information on where to submit their documents, or simply call the agency listing in the government resources pages of their local telephone directory. This change does not affect any evidentiary requirement or substantive eligibility requirement for a particular benefit. This interim rule also removes current geographic jurisdictional service boundaries. This change will allow USCIS the flexibility to manage workloads and facilitate interaction with, and services to, the public. For those few applications and petitions that are currently filed at USCIS local offices, customers will be able to file these specific forms at the office closest to them. Regarding services that require an alien to make an appearance at a USCIS office, by removing the geographic parameters on the office with jurisdiction for adjudicating specific immigration or naturalization benefits, USCIS will have the flexibility to offer interviews and other services at different offices in the area based on the ability to schedule appointments most effectively. See 8 CFR 103.2(b)(9). The rule adds a definition of the term “Form” to 8 CFR part 1. USCIS has addedthis definition to clarify that references to the term “form” and to form numbers throughout USCIS regulations are now intended to encompass both the traditional paperform and all approved electronic equivalents used for on-line filing with USCIS or other similar purposes.
• This Interim rule will take effect 30 days from 06/05/2009. The change is intended to meet their transition from paper filing to increased electronic filing in the future. Overall, the rule is intended to help the public determine where to file forms with USCIS, create a more efficient and streamlined process for future changes to filing instructions, and allow the component to better manage its workload through, among other things, affording greater flexibility to accept and process applications and petitions in an electronic environment.
• How people will be affected? Effective July 5, 2009, the paper USCIS regulations will be outdated and should not be relied on to determine filing jurisdictions and procedures. For safeside, these paper regulations may be tossed away. From July 5, 2009, people should strictly follow the instructions and information on the "up-to-date" immigration forms and instructions and the USCIS website postings. This change will help the consumers who have been so confused with the filing locations and procedures lately because of the USCIS' frequent announcement and implementation of filing location and procedure changes on the USCIS websites and the immigration forms. When the immigration petitions or applications are filed electronically, the filers have experienced more confusions when they receive the receipt notices because they receive the receipt notices from the immigration offices outside the jurisdiction of their residences or the type of cases. For instance, currently when people file I-140 petition electronically, all these I-140 petitions are processed and adjudicated by the Texas Service Center even if they live or work in the Nebraska Service Center jurisdictions. With the upcoming change, it may be prudent for the filers to check the filing locations through the forms and USCIS website every time they file a case not to experience a nightmarish rejection of the filings.

06/04/2009: H.R.2679 Proposes to Extend Nonreligious Worker Immigration, Conrad 30 NIW Waiver for IMGs, EB-5 Regional Pilot Investment Immigration for Five Years

• In March 2009, the Congress passed legislation to extend the then sunsetting immigration programs until September 30, 2009. Just introduced Rep. Goffords bill proposes to extend these forthcoming sunsetting programs for five years from September 30, 2009 to September 30, 2014. This bill also proposes to extend the same for the E-Verify program.
• The House Judiciary Immigration Subcommittee has swiftly taken up this bill and schedules to have the mark-up hearing today for this bill. Good Deal, Indeed!!

06/04/2009: Rep. Michael Honda of California Scheduled to Introduce "Reuniting Families Act" in the House This Week

• On May 20, 2009, the Family Unity Immigration Reform bill, S.1085, was introduced by Sen. Robert Menendez in the Senate. Today, Chairman of the Asian Pacific American Caucus, Rep. Michael Honda, will hold a press conference to present key components of a comprehensive immigration package, in preparation for President Obama's reform agenda. Joining the Congressman will be other Members of Congress and supporting advocacy organizations. This will be his vesion of a comprehensive immigration reform legislation.
• Report indicates that this bill will focus on the following components:
  • Recapture unused family-based and employment-based visas previously allocated by Congress which remain unused.
  • Allow a green card holder to reunite with their spouses and minor children: The bill classifies the children and spouses of lawful permanent residents as "immediate relatives." This would allow lawful permanent residence spouses and children to immediately qualify for a visa.
  • Increase the per country limits of family and employment-based visas from 7% to 10%: Right now, each country only has a 7% share of the total cap of visas that Congress allocates each year. Increasing each country's percentage of visas would eliminate the absurdly long wait times for individuals to immigrant from certain countries like the Philippines, China, and India.
  • Allow orphans, widows and widowers to immigrate despite death of a petitioner.
  • Promote family unity by allowing more people to use the system: The bill gives the Attorney General greater flexibility to address numerous hardships, including family separation, caused by a provision that bars individuals who had been unlawfully present in the United States from utilizing our legal immigration system.
  • Recognize the sacrifices that certain World War II Filipino veterans made for this country, by exempting their children from the numerical caps on visas.
  • End discrimination in immigration law, allowing same-sex partners to reunite.
• This week, immigration advocacy groups are gathered in Washington, D.C. to work with the legislators and push CIR in preparation for President Obama's scheduled meeting with the legislative leaders on Monday, June 8, 2009 to initiate his CIR move. Please stay tuned.

06/04/2009: Bill to Extend Certain Immigration Programs Introduced in the House 06/03/2009

• Rep. Gabrielle of Giffords of Arizona introduces on 06/03/2009 H.R.2679 to extend certain immigration programs, and for other purposes. Please stay tuned for the details.

06/03/2009: House Judiciary Immigration Subcommittee Mark-Up of Hearing on Bill to Extend Certain Immigration Programs on 06/04/2009

• The Immigration Subcommittee schedules a mark-up hearing and debate for extension of certain immigration programs. For the details, please stay tuned.

06/03/2009: Implementation of Mandatory E-Verify Requirement for Federal Contractors/Subcontractors Delayed Until Sept. 8, 2009

• Read on.

06/03/2009: USCIS Begins Transfer of Historical A-Files to National Archives for Permanent Retention

• Read on.

06/03/2009: Compean Vacated By A.G. Today

• Today, the Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed the Board of Immigration Appeals and the Immigration Judges to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel. See Matter of Compean, et al, 25 I&N Dec. 1 (A.G. 2009), Interim Decision 3643 (A.G. June 3, 2009)

06/03/2009: USCIS Amend 17-Month STEM OPT Extension Regulation to Correct Errors and Omissions

• See the amended part of regulation.

06/03/2009: Increasingly Hostile Environment in the U. S. Against H-1B Foreign Workers

• H-1B foreign worker visa program has been facing hostility all over lately. Introduction of H-1B restriction bill in the Congress is just one environment that has been widely publicized. However, at the administrative level, the H-1B visa program has been going through a number of problems without much publicity. For Fiscal Year 2010 H-1B program, unlike previous years, there is a short of H-1B petitions to fill the annual cap this year two months after the agency first started taking in the petitions beginning from April 1, 2009. On the surface, the workloads of the new H-1B petitions have been substantially reduced for the agency, but in reality, the employers that filed the new H-1B petitions have been facing tons of boiler plate Request for Evidence demanding tons of documents over and over causing tremendous delays in adjudication of the petitions. The hostile environment does not end with the new H-1B petitions. Report indicates that the H-1B workers are increasingly stranded abroad not being able to obtain the visa stamp abroad pending so-called protracted security checks and consequently not being able to return to the U.S. to resume employment. Should this environment continue, the business environment for the U.S. businesses will continuously deteriorate and the businesses will continuously suffer unless they take out their businesses and jobs abroad to meet the needed workforces in order to stay in business in increasingly competitive global economy. Nothing will be able to stop the offshore outsourcing of the U.S. businesses. This is something the Obama Administration should think about very quick before too late.

06/03/2009: USCIS Naturalization Applications Statistics at the End of April 2009

• Naturalization receipts in April 2009 increased 30 percent when compared to April 2008, while approvals/oaths decreased by 26 percent and denials decreased 13 percent. For the full report, click here.

06/03/2009: USCIS Applications and Petitions Statistics at the End of April 2009

• Applications and petitions for immigration benefits in April 2009 decreased 2 percent compared to the number received in April 2008. April 2009 approvals increased by 28 percent, denials increased by 48 percent, and pending decreased less than 15% compared to April 2008. For the full report, click here.

06/02/2009: Advance Copy of USCBP Federal Register Notice of US-VISIT "Exit" Biometric Collection Programs at International Airports in Atlanta & Detroit Effective 05/28/2009

• This notice notifies that the TSA has started collecting biometric data for the aliens who depart from the Atlanta and Detroit international airports since May 28, 2009. This biometric collection is undertaken by TSA officials at the point of departure in these airports as a pilot program for 35 days. They intend to expand the pilot program to certain other airports in the future.

06/02/2009: H-1B Cap Count Update as of 05/29/2009=45,800

• USCIS reports that as of May 29, 2009, approximately 45,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. Considering the fact that its cap count as of 05/22/2009 was approximately 45,700, they received only 100 cap cases during one week!? Hmm.......................... Interesting.
• Employers, beware that even if the annual regular cap is 65,000, they usually announced in the past that cap had reached when they had received about 58,000 because of the special cap numbers (6,800) assigned to the free trade agreements for Singapore and Chile. Besides, since the U.S. Master degree cap of 20,000 has been exhausted, all the U.S. master degree H-1B cap cases are counted under the regular 65,000 cap. Still, we do have a plenty number for new cap filings.

06/02/2009: OFLC Alerts ICERT System Down This Weekend [06/05 5:00 pm - 06/08 7:00 am]

• Due to regular system maintenance, the iCERT online system will be unavailable from 5PM EDT on Friday, June 5, 2009 to 7AM EDT on Monday, June 8, 2009. Accordingly, those who have started filing LCA and managing LCA tracking using ICERT Portal should use current LCA online filing filing during the weekend. It apears the ICERT portal needs maintenance to fix the current problems of filing of LCA using ICERT and for transition to exclusive LCA ICERT filing requirement and disabiling of current LCA filing system as of July 1, 2009. Please beware!

06/02/2009: USICE Updates List of SEVP Approved Schools as of 06/01/2009

06/01/2009: USCIS Compehensive Report of its Operating Performance of March 2009

• USCIS removed during the weekend its previous processing target and performance information from its site on the field offices monthly processing time site. Instead, it has published Operating Performance report which describes in details its operation performance during the period of FY 2007, FY 2008, and the second quarter of FY 2009 as well as the processing target for each type of applications and petitions and current performance. It is a very comprehensive report of its operation performance and adjudications of applications and petitions. This report also includes its ongoing preadjudication of cases. Readers cannot miss this report. It is a nine-page document and people should read it.

06/01/2009: CBP Acting Commissioner Statement on WHTI Land/Sea Border Implementation Effective 06/01/2009

• The Acting Commissioner lays out the outline of the implementation of this initiatives beginning from day in the DHS Leadership Journal. Read on.

05/31/2009: SOC Classification Changes Effective 01/01/2010, and Potential Affects on Job Zones and Prevailing Wages

• OMB published 2010 SOC classifications which will have a substantial impact on O*Net System and foreign labor certification /H-1B practices for the employers. New SOC/OES wage data is annually published in July and considering the fact that the new classfification will take effect only at the end of 2009, the 2009-2010 O*Net and wage data may or may not be affected. Another policy point for the DOL foreign labor certification as related to the change in SOC occuplational classification involves the launch of new PERM ETA 9089 application on September 1, 2009 and likely need for their readjustment of the job zones and prevailing wage issues as affected by the occupational classification changes. The employers and employment-based immigration practioners should watch carefully upcoming changes in not only the new PERM application form in September 2009 but also occupational changes.
• The 2010 SOC classification system will have total of 840 detailed occupations. The 2010 SOC will realize a net gain of 19 detailed occupations, 12 broad occupations, and 1 minor group. The number of major groups is unchanged. The 2010 SOC system contains 840 detailed occupations, aggregated into 461 broad occupations. In turn, the SOC combines these 461 broad occupations into 97 minor groups and 23 major groups. More than 400 of the 840 detailed occupations in the 2010 SOC structure remained the same as in 2000, and over 300 others required only editing changes. Therefore, no substantive changes occurred in occupational coverage for about 4 out of 5 detailed occupations in the 2010 SOC.
• The following are sample changes effective 01/01/2010:

Current	2010
15-1031 Computer SW Eng, Appl	15-1132 SW Developers, Appl
15-1032 Computer SW Eng, Sys SW	15-1133 SW Developers, Sys SW
15-1041 Computer Support Specialists	15-1151 Comp User Support Specailists
15-1081 Network Sys/Data Comm Analy	15-1122 Info Security analysts 15-1134 Web Developers 15-1142 Network/CompSys Admin 15-1143 Computer Network Arch 15-1152 Computer Network Supp Special
19-3021 Mkt Research Analysts	13-1161 Mkt Res Anal & Marketing Spec
29-1111 RN Nurses	29-1141 RN, except 29-1151-1171 29-1151 Nurse Anesthetists 29-1161 Nurse Midwives 29-1171 Nurse Practitioners
Many other changes

• AILA National Annual Conference may explore this issue in DOL sessions.

 

05/30/2009: USCIS Acting Deputy Director Responds to CIS Ombudsman Recommendations on T and U Visa Proceedings

05/30/2009: Effective Monday, 06/01/2009, Canadian and U.S. Travelers at Sea or Land Need Passport or Other Specified Documents

• The Western Hemisphere Travel Initiative (WHTI) requires U.S. and Canadian travelers to present a passport or other document that denotes identity and citizenship when entering the U.S. WHTI will go into effect June 1, 2009 for land and sea travel into the U.S. WHTI already went into effect for air travelers on January 23, 2007. For the details, please visit the CBP website.

05/30/2009: USCIS Reminds I-485 Applicants, Asylum, Legalization, and TPS Beneficiaries to Obtain Advance Parole Before Traveling Abroad

• As travel season starts, the USCIS releases this advisory to caution the involved aliens of importance and potential serious consequences of traveling without such advance parole. Please note one important caution in this notice. If the people are subject to either three-year bar or ten-year bar from reentry due to their unlawful presence in the U.S. for more than six months or more than one year, even if they carry Advance Parole, they will not be readmitted to the country. The USCIS usually does not issue Advance Parole to such people, but should they inadvertently issue such documents to those who are subject to such bar, they will still be subject to the bar from reentry and will not be able to come back to the U.S. even if they carry the Advance Parole.
• Another precaution involves inadvertent admission of I-485 applicants to the U.S. by the CBP officials at the port of entry without advance parole and in nonimmigrant status other than a valid H-1B or L-1 visa status. Such admission will result in denial of I-485 applications afterwards based on the rule that such admission constitutes an abandonment of permanent resident application. I-485 applicants should never travel and return to the U.S. without one of the two: (1) Valid H-1B/H-4 or L-1/L-2 or (2) valid Advance Parole. They should never return and be readmitted to the U.S. on other nonimmigrant visas such as F, M, B, C, D, E, P, or other nonimmigrant visas. Reentry is one thing and abandonment of I-485 is another. Permission to return and reenter at the port of entry does not mean their green card application will not be disrupted in the latter situation.
  

05/29/2009: USCIS Alerts Permanent Resident Card Production Delays for Upto Eight Weeks Pending Upgrading of Card Production Equipment

• Are you waiting for the plastic cards? This will be painful news for you. Upto eight weeks mean two months. The USCIS thus advises that you will need to take your passport to your appointment. If you do not have a passport, you must bring a passport style photo and government issued photo identification to receive temporary evidence of permanent residence. If the application is approved subsequent to your interview or by a Service Center or the National Benefit Center, the applicant should bring the above documents to an INFOPASS appointment to be issued temporary evidence of permanent residence in the form of an I-551 stamp. Ouch!
• The delay is one time event pending the equipment upgrading. Once the job is done, it is likely to return to previous practice of receiving the plastic card in the mail in about 10 days after approval. Such swift production of the plastic cards had been made possible thanks to the digitalization of the process between the adjudicator's input of approval into the system by computer and the card production machine in remote location. Before the digitalization, those who received approval notices had to wait from three months to even one year to receive the plastic card, and pending issuance of the plastic cards, all of them had to visit the local USCIS offices to obtain a temporary evidence of permanent resident stamp (ADIT Stamp) in the passport to travel outside of the United States and to continue employment.
• Caveat: The approval notice is not a document that permits the permanent resident to travel and return or to work. Only the plastic card or ADIT stamp in the passport works as the evidence of permanent resident for the purpose of international travel or work. DON'T LEAVE THE COUNTRY WITHOUT ONE OF THESE.

05/29/2009: TSC is Reportedly in Line with NSC in Processing Time Reduction and Backlog Reduction

• The May 19, 2009 AILA-TSC Liaison minute reflects that TSC is in a simlar pace with the NSC when it comes to its proceeding time reduction efforts. There was a report that part of the I-140 cases were transfered to the NSC, but TSC reports that the transfer was limited to EB-1 and EB-2 NIW cases and number was only 1,000. As for the I-140 processing, it reports that they will achieve the USCIS target processing time of 4-month by the end of June 2009 just like the NSC. TSC has been processing of I-140 petitions and concurrent I-140/I-485 cases at an average of 3000 to 4000 a month. They have completed adjudication of almost all of the I-140 petitions which were filed during the FY 2007 Visa Bulletin fiasco (July and August 2007). As for the EB-485 applications, they have preadjudicated 85,000 cases which await the visa number availability beginning from the next fiscal year.
• Over all, the report was positive, particularly in two points. One is the anticipated achievement of 4-month processing time goals for I-140 petitions within a month from now. The second is that since the EB-485 cases involving fairly early priority dates have been preadjudicated, once the visa numbers progress forward beginning from the new fiscal year, October 2009, a large number of EB-485 waiters are likely to receive approvals of their long-awaited I-485 applications. Hats off to NSC and TSC!!
• Lately, I-485 waiters have been receiving RFEs or interview scheduling in a fairly large number. From these reports, we can draw a speculation that these cases have fairly early priority dates and are now undergoing such preadjudications in anticipation for the upcoming visa number availability in early part of FY 2010. They may receive approvals of their cases fairly early in the new fiscal year. With such a good news, please enjoy the SUMMER!

05/29/2009: DHS Collects Exit Biometrics at Airports in Atlanta and Detroit for 35 Days for Outbounding Aliens Including Permanent Residents

• Report indicates that beginning from 05/28/2009 the CBP started collecting biometrics at these two airports from aliens departing from the U.S. on air. The testing will compare the process of collecting fingerprints at checkpoints operated by the TSA to having CBP collect fingerprints at gates. This appears to be pilot program that will last for 30 days. The DHS reportedly did not seek any funding in its fiscal 2010 budget request to move forward with an air exit system. But reportedly one aide said the test results will be known by the time the House and Senate begin to reconcile their fiscal 2010 Homeland Security spending bills, and adding money for an air exit system will likely be part of conference negotiations. Alien travelers departing from these airports for international trip should be aware of the new procedure in place. The DHS has been collecting biometrics in the international airports from arriving aliens including permanent residents for a while by now.

05/29/2009: Reminder of Two Nurse Relief Bills in the House

• People are reminded that currently there are two nurse relief bills in the House. One is Rep. Shadegg bill and the other is Rep. Wexler bill. Shadegg bill seeks the relief for nonimmigrant visas and the Wexler bill seeks permanent resident relief option. It may be ideal if these two bills are consolidated into one final bill. We will repost our prior posts on these two bills to assist the advocates for the nurse relief legislation:

"02/15/2009: Full Text of Nursing Relief Act of 2009 Introduced by Rep. Shadegg

• This bill proposes to creat a new nonimmigrant visa classification of "W" with similar benefits that are attached to the current H-1B visa. This new visa will have an annual cap of 50,000 and if the petitions in a given year exceeds the cap number, the next year annual cap will increase at 120%. Accompanying spouse and children are not subject to the annual cap of 50,000 and only the principal will be counted for the number of 50,000 annual cap. The benefits include:
  • Qualified RN will be admitted on W visa without Social Security Number.
  • W-visa holders will enjoy dual intent just as H-1B aliens.
  • Initial petition be filed for three years with extension upto six-year limit in total (just like H-1B).
  • W-visa holders may port to a new employer pending a new W-visa petition filed by the new employer (W-visa portabiliity).
  • Those who filed I-140 petition or I-485 application and pass 365 days, pending the adjudication of the petition or application, W-visa status will be indefinitely extended in one-year increment.
  • The extension will be available notwithstanding the immigrant visa number retrogression.
  • Accompanying spouse will be given authorization for employment (similar to L-2 spouse of L-1 Intracompany transferee aliens).
• Similar to the H-1B petition proceedings, W-visa petitioning employer must file attestation similar to the H-1B labor condition application attestations with the U.S. Department of Labor. The employer will be required to pay minimum of prevailing wage or actual wage whichever is higher in the area of intended employment before filing such application with the U.S. Department of Labor.
  • For the details, please read carefully full text."

"05/26/2009: Summary of Nursing Shortage Relief Provision of Wexler's "Emergency Nursing Supply Relief Act," H.R. 2536

• Numerical limitation will not apply to (1) the beneficiaries of I-140 immigrant petitions which are filed under Schedule A, Group I any time prior to September 30, 2012 and which are or have been approved and (2) their family members accompanying or following to join, provided that the total immigrant visa number should not exceed 20,000 per one fiscal year plus any available visa numbers under this new law which are not used during the preceding fiscal year. The annual cap will apply only to the principal aliens and not to the accompanying or following-to-join family members.
• The DHS should expeditiously review and act on such I-140 petitions within 30 days from the date of filing of such petitions.
• The sponsoring employer must pay $1,500 fee per each professional nurse sponsored upon approval of such nurse's I-485 application or immigrant visa application. No such fee will be imposed on the dependent family members accompanying or foloowing to join such professional nurses.
• The $1,500 fee will be waived with the following two employers:
  • (i) Health care facility that is located in a county or parish that received individual and public assistance pursuant to Major Disaster Declaration number 1603 or 1607; or
  • (ii) Health care facility that has been designated as a Health Professional Shortage Area facility by the HHS as defined in section 332 of the Public Health Service Act (42 U.S.C. 254e)."

05/29/2009: OFLC Releases Frequently Asked Questions on the Occasion of Suspension of Amended H-2A Rule in Federal Register Today

• Since the suspension is not effective until June 29, 2009, the OFLC releases practice points for H-2A employers and representatives, who should read carefully this FAQ. For the announcement, please click here.

05/29/2009: DHS Secretary Napolitano Announces 2nd Phase of Efficiency Review Reached Milestone and Enters 3rd Phase of Efficiency Review

• For the different phases of efficiency review, please review this announcement.

05/29/2009: DOL Suspends 9-Months H-2A Rule as Amended on 01/17/2009 and Reinstates the H-2A Which Was in Effect Before Amendment

• DOL has published this morning H-2A final rule suspending the H-2A Final Rule which was published on December 18, 2008 and took effect as of January 17, 2009. This amended H-2A rule was so-called last minute and overnite eanctment of the rule before the departure of the Bush Aministration on January 19, 2009. After nine months of suspension, the Obama Administration will either lift the suspension or make another rule-making. The Bush Administration H-2A amended rule has already been administratively suspended pending this final rule making announcement. For the details of today's federal register announcement, please click here.
  

05/29/2009: Senate Judiciary Committee Hearing on 06/03/2009 Sen. Leahy Bill S. 424 to Grant Alien Gay Partners Spousal Immigrant Benefits

• This is a bill which we reported on 02/21/2009. The bill was introduced in the Senate by a powerful Senator Leahy, Chairman of Judiciary Committee. Next Wednesday, June 3, 2009, at 10:00 A.M., Senate Judiciary is scheduled a hearing on this bill "The Uniting American Families Act: Addressing Inequality in Federal Immigration Law.” This bill proposes to recognize and grant the alien gay partners the spousal immigrant benefits under the immigration statute. The hearing will be webcasted.

'02/21/2009: Full Text of S. 424 and H.R. 1024 on Gay-Lesbian Partner Right to Spousal Immigrant Benefits
As we reported earlier, this bill was introduced in both Houses. Senate bill was introduced by the powerful Senator Leahy with quite a number of co-sponsors in the Senate. This bill is anticipated a strong opposition by Republican Senators in the Senate and the House.'

• Text of testimonies of witnesses:
  • Senator Patrick Leahy
  • Senator Russ Feingold
  • Shirley Tan
  • Gordon Stewart
  • Julian Bond
  • Roy Beck
  • Jessica Vaughan
  • Christopher Nugent

05/28/2009: CBP Changes Implementation Date of Rule Establishing U.S. Ports of Entry in the Commonwealth of the Northern Mariana Islands to 11/28/2009

05/27/2009: CIS Ombudsman's 05/15/2009 Recommendation to USCIS for Improvements in Processing of Motion to Reopen or Reconsider

The Ombudsman recommends that USCIS:

(1) Establish more uniform filing and review procedures for motions to reopen and reconsider among field offices and service centers by:

(a) Standardizing and clearly articulating to the public the procedures by which an applicant or petitioner may bring a clear Service error to the attention of a USCIS office without incurring the $585 filing fee for a motion to reopen or reconsider; [Currently, local procedures to bring clear Service error to the attention of a USCIS office lack uniformity. Clearly articulating to the public more uniform, customer-friendly filing procedures would minimize disparities in the quality of USCIS’ customer service.]
(b) Developing and implementing a uniform tracking mechanism for motions to reopen and reconsider; and, A uniform receipting and tracking mechanism would ensure that all customers are able to obtain official proof of filing for a motion to reopen or reconsider, and provide filers and USCIS the means to more efficiently track the status of motions.
(c) Instituting, publishing, and monitoring agency-wide completion goals for the adjudication of motions to reopen and reconsider. Implementing agency-wide completion goals for motions to reopen or reconsider would provide customers with a general estimated processing time for motions and permit sufficient flexibility at the local office level to take more time to review particularly complex cases. In addition to ensuring that cases will be completed timely, public knowledge of these completion goals would provide USCIS’ customer base with some assurance that motions will not unnecessarily languish due to a focus on other workload demands.

(2) Communicate the filing and review process for motions to reopen or reconsider more effectively to customers and stakeholders by:

(a) Consistently incorporating standard language on how to file a motion to reopen or reconsider into written denials that cannot be appealed; Consistently providing motion filing information in written, unappealable denials would ensure that customers have equal access to the USCIS motions process.
(b) Revising the information on motions to reopen and reconsider provided by Tier 1 of the USCIS National Customer Service Center (NCSC); and, To reduce customer confusion, USCIS should revise the information provided by the NCSC to ensure that it accurately reflects the filing requirements contained in the regulations and the AFM.
(c) Posting on the USCIS website more specific information about the filing and review procedures for motions to reopen and reconsider.
The USCIS website is a powerful tool of communication. Specifically incorporating motion filing and review information into the “How Do I?” section of USCIS’ website and the online glossary, for example, would better educate USCIS customers and improve compliance with the filing requirements for motions. Including specific information on the USCIS website would also reduce confusion regarding the differences between motions and appeals. Where necessary, USCIS should also publish local variations in motions processing on local office web pages.

05/27/2009: Answer to Mystery of Missing High-Speed Train in America Unlike Europe and Far East Asia

• As the President Obama intends to push the high-speed train program using stimulus package, everyone wonders why our country has been behind in this modern day commute distance revolution which is witnessed in the Far East Asia and some European countries. The United States is still the leader in technology and economy in the world and the answer to this mystery has nothing to the level of technology or economy in the country. Careful observer will notice one fundamental difference between the Unied States and other countries in the world. Generally, other countries are homogenic ethnically and culturally, while the United States is a country of immigrants initially formed by the European immigrants and afterwards added by other ethinic immigrants from other parts of the world. The second group is generally called in this country "minority."
• The history of urban development and community in the United States is marked by the struggle by the so-called "white" and well-to-do population of a town to escape from the minority population, particularly blacks. In order to achieve the purpose, in old days they used land-use control devises requiring acres of land to build a house in outlying areas such that economically and ethnically disadvantaged minority population could not move into the outlying areas since they could not affod it. They also used control of transportation accessibility to such outlying areas. Such struggle has induced urban sprawl in this country as the first group has migrated out farther and farther from the center of a city or town. Facing constitutional challenge, use of land-use control has tuned out less effective for them but there still lie such legal tools to protect the outlying areas from invasion of minority. Historically the most notorious struggle was witnessed in New Jersey right across the Hudson River of Manhattan in New York. Some of the communities still require a large acres of land to build a house in the areas. However, the most effective tool turned out to be control of transportation access. It is no wonder why the subway train never crosses the bridges to New Jersey from Manhattan. It is no wonder why other mass transit such as city buses do not give a full access between Manhattan and New Jersey. Even in Manhattan, subway system appeared to have been designed such a way that access from the West side and uptown Manhattan to the East side and lower Manhattan is made not that easy in connections among different lines of subways. The well-to-do East Mahanhattan is so-called "green line" subway zone and transfer to the green-line subway to other lines is not well developed, allowing the area protected from moving in of not-well-to residents who needs to commute for low-scale retail service jobs in the heart of the city.
• High-speed train will result in a revolutionary restructuring of the traditional pattern and migration of different ethnic groups. The unsponken question is "Is America Ready for Such Change?" Development of such high-speed trains is likely to create exodus of current so-called "suburban" whilte and well-to-do population from the corridors of the high-speed suburban train zones to the new suburban areas of seclusion and isolution blocked from access to the mass transit and will bring about spatial change in urban sprawl as well as social structure changes because there still lie and will continue to lie discomfort zones between the well-to-do white majority and the ethnic minority population in this country. Unlike the homogenic population in the East Asia and the Europe, the country must face a potential steep resistance within the communities to such social integration and change that will bring about by the high-speed transits. It is a very sensitive issue and topic but involves a reality. We will watch how this development will unfold.

05/27/2009: Congress Out of Session and Not Return Until 06/01/2009

• Both the House and the Senate are not in session this week. When Congress returns on the next week, even though the President is scheduled to meet high profile legislators on June 8th to discuss the CIR, it is predicted that the Hill will be obsessed with the confirmation hearing for Sotomayor U.S. Supreme Court justice nomination. Accordingly, there are a sign that the Hispanics take the Supreme Court justice confirmation as a higher priority over the CIR and the political heat and passion in the Hispanic community in the CIR may be somewhat quiet down and delayed. It will be interesting to watch how these two top stakes for the Hispanics will play out in the Congress for the rest of year 2009. Please stay tuned.

05/26/2009: Summary of Nursing Shortage Relief Provision of Wexler's "Emergency Nursing Supply Relief Act," H.R. 2536

• Numerical limitation will not apply to (1) the beneficiaries of I-140 immigrant petitions which are filed under Schedule A, Group I any time prior to September 30, 2012 and which are or have been approved and (2) their family members accompanying or following to join, provided that the total immigrant visa number should not exceed 20,000 per one fiscal year plus any available visa numbers under this new law which are not used during the preceding fiscal year. The annual cap will apply only to the principal aliens and not to the accompanying or following-to-join family members.
• The DHS should expeditiously review and act on such I-140 petitions within 30 days from the date of filing of such petitions.
• The sponsoring employer must pay $1,500 fee per each professional nurse sponsored upon approval of such nurse's I-485 application or immigrant visa application. No such fee will be imposed on the dependent family members accompanying or foloowing to join such professional nurses.
• The $1,500 fee will be waived with the following two employers:
  • (i) Health care facility that is located in a county or parish that received individual and public assistance pursuant to Major Disaster Declaration number 1603 or 1607; or
  • (ii) Health care facility that has been designated as a Health Professional Shortage Area facility by the HHS as defined in section 332 of the Public Health Service Act (42 U.S.C. 254e).
    

05/26/2009: H-1B Cap Count as of 05/22/2009=Approx. 45,700

05/26/2009: USCIS Service Center Operations Chief 05/20/2009 Memorandum on Guidance for Health Care Workers H-1B Adjudication and Standards

• This memorandum lays out general guidance for H-1B petition beneficiaries in a "health care occupation" which is defined under 8 CFR 212.15(c) meeting the specialty occupation definition under 8 CFR 214.2(h)(4)(ii)(4). If the beneficiary meets these two requirements, the memorandum generally provides the following guidance for the Service Center adjudicators:
  • If the beneficiary possesses a valid unrestricted state license in a given state to work within the state, the adjudicators should approve such H-1B petitions upto three years but not exceeding the periof of the license without looking beyond the license and consider the beneficiary meets the qualifications to perform services in a spcialty occupation as outlined in 8 CFR 214(h)(4)(iii)(C)(3).
  • If the beneficiary possesses a valid restricted state license in a given state to work within the state, the adjudicators should approve such H-1B petitions for a period of one year or the period of the valid license, whichever is longer, again without looking beyond the licenses.
  • If the beneficiary does not possess a state license for the reasons that a social security number could not be obtained without a license, the adjudicators should approve such H-1B petitions for a period of maximum one year, provided the beneficiary submits the evidence and he/she filed a license and could not obtain a full unrestricted license in the state due to the requirement for possession of a social security card, valid immigration document, and/or physical presence in the U.S. in the form of a letter from the State Board.
• Please read the full text of the memorandum carefully and follow the guidance in the memorandum.

05/24/2009: OMB Approves on 05/21/2009 DOL H-2A Final Rule with Changes

• On March 17, 2009,the DOL published a Notice of Proposed Suspension of the H-2A Final Rule, published December 18, 2008.Based on the comments received from the public and stakeholders, DOL submitted a Final Rule to the OMB for its approval. On May 21, 2009, the OMB approved the Final Rule as proposed by the DOL without changes. To avoid the regulatory vacuum that would result from a suspension, DOL proposed to reinstate on an interim basis the rules that were in place on January 16, 2009, the day before the revised rules became effective. This final rule will be published in the federal register soon.

05/23/2009: AC-21 Change of Employer and Fallacy of Belief That Terms of Labor Certifications Filed by Former Employer Was Same With H-1B or L-1 Terms of Employment

• Current economic recession and change of environment force EB-485 applicants to change employment invoking AC-21 portability. To invoke AC-21 portability, the foreign worker must prove that the new employment is a "same" or "similar" occupational classification. The adjudicators are currently guided by the USCIS so-called "AC-21 Memorandums" of Yates, Aytes, and Neufeld. When it comes to determination of what constitutes "same" or "similar," there are still room for different interpretations by individual adjudicators, especially when the new employment faills within the same occupational classification under the former DOT occupational classification system or the current OES/SOC occupational classification system of O*Net. Since over 10,000 occupational classifications under the old DOT system has been reclassified into less than 900 occupational classifications under the O*Net system, using of the O*Net occupational classifications substantially expands the scope and parameters of "same" or "similar" occupational classification for the purpose of AC-21 portability as one occupational classification under the O*Net system encompasses a large number of different occupational classifications under the old DOT system. Accordingly, "same" or "similar" occupational classification determination has been fairly broadly applied by the adjudicators in adjudicating AC-21 portability. However, there are still certain thresholds the foreign workers must establish beyond the job title, job description, and qualification requirements in the labor certification application and the terms of new employment. For instance, adjudicators also examine salary differences to determine "same" and "similar" occupational classification issues.
• Currently, a number of 485 applicants who want to invoke AC-21 portability and change of employment face a serious problem because of their inability to access the certified labor certification applications when former employers refuse to release the document. When it comes to preservation of record and evidence, these foreign workers tend to neglect keeping a good copy of such record in their files. Some foreign workers even fall into a naivete to assume that the employer filed a labor certificxation for an occupation that matches with their H-1B employment occupational classification and employment terms and conditions. Reality may be different depending on the employer's needs for so-called "permanent" employment. Accordingly, when they have no knowledge or access to the certifified labor certification applications, they face a srious problem as to whether the new employment falls under a same or similar occupational classfication under the certified labor certification applications. Unless the employers or their legal counsels are willing to release a copy of the application, the problem becomes critical since the certified labor certification is considered a government record that is protected under the employer's privacy right and not subject to release through Freedom of Information Request process. For the reasons, there is no easy solution to tackle the problem.
• When the labor certification used old form of ETA 750, the employees were asked to sign on Part B which is alien qualification attestations and the employers in most cases did not release the Part A, the employer requirement, to the employees. Beginning from March 28, 2005, the DOL started using a new form ETA 9089 which requires attestations to the application by employers, employees, and representatives. Supposedly, the whole document of ETA 9089 should be released to the alien employees before they are required to sign in signature box in certain page. Because of the new structure of the form, it may not comfort with the rule for the employers just to release Part J and K of the application to alien employees for their signature. This change gives the alien employees an opportunity to examine and even keep a copy of whole text of application for their individual files such that they be better prepared for AC-21 change of employment down the road. In immigration journey, record-keeping is critically important, particularly when the whole journey can take years and years because of the visa number retrogression.

05/23/2009: Unresolved Issue of Impact of H-1B 485 Applicant Working for Second Employer on EAD on H-1B Status

• The USCIS has been issuing RFEs to EB-485 applicants even during the visa number unavailability as part of the ongoing "preadjudication" initiatives. Some of these cases have been scheduled for interviews at local field offices. One of the issues that can involve in such RFE or transfer to the local field office inerviews is the agency's unresolved record or issues on the alien's violation of H-1B status when an information is detected that the H-1B aliens had income from sources other than H-1B employment. Over the years, the AILA has been arguing and pressing the USCIS to recognize that working for second employer on EAD while keeping employment with the H-1B employer would not constitute a violation of H-1B nonimmigrant status or would not cease the status of H-1B nonimmigrant at the time of taking second employment on EAD. However, the USCIS has resisted such demands and deferred to their future memorandum relating to the AC-21 Act or AC-21 regulation. Neither of these two actions has been materialized and the issue of this posting remains up in the air. We notice that there are a lot of conflicting online discussions or so-called online legal opinions or advices on this issue, but readers should be advised and cautioned that these discussions have no legal authority to back up the opinions in one way or another at this point and such opinions constitute neither a law nor a rule. People should take such information at his or her own risk under the changing environment on foreign workers.

05/23/2009: USCIS Notice of Everify Outages During the Memorial-Day Long Weekend

• The USCIS E-Verify system will be unavailable from 6:00 PM EDT Friday May 22 through Saturday May 23, and only intermittently available on May 24-25.

05/22/2009: Reduced Case Loads Combined With Some Changes in Processing Practice Leads NSC to a Successful Reduction of Backlogs and Processing Times

• NSC reported to the AILA very positive news and state of its backlog reduction and processing times. It appeaars that the NSC have successfully achieved such backlog reduction and processing time reduction, in part thanks to slow-down of new receipts as affected by the economy and the new international procedure refreshing the expiriring and expired fingerprints rather than rescheduling biometric collection scheduling.
  • Backlog Reduction:
    • All Types of Cases:
      • As of 12/31/2008: 250,000
      • As of 03/31/2009: 87,500
      • As of 06/30/2009: Current (Current means those figures which are set at the USCIS Target Processing Reduction Table)
    • I-140 Cases:
      • 10/2008: 40,000
      • 05/2009: 10,000
  • New Receipts:
    • All Types of Cases per Month:
      • As of 10/2008: 80,000
      • As of 01/2009: 40,000
      • As of 05/2009: 50,000
    • I-140 and EB-485 Receipts per Month Between 10/2008 and 05/2009:
      • I-140: 2,500
      • EB-485: 2,500
  • Internal Biometric Refreshing vs. Rescheduling of Biometric Recollection Scheduling
    • Average: 95% Refreshing vs. 5% rescheduling biometric recollection scheduling with some exceptions
    • Fingerprints captured on or before 01/01/2006: 95% refreshing rather than rescheduling for fingerprint recapture with some exception
    • Fingerprints taken between late 2007 and early 2008 (FY 2007 July Visa Bulletin fiasco affected cases?): Fingerprint recapturing is scheduled because of the system problem the agency experienced at the time
  • Preadjudication of Visa Number Retrogressed Cases: Preadjudication means the agency completes adjudication but for approval pending the visa number availability for each applicant in the future. This preadjudication practice is made possible because of the reduced new case receipts and overall reduced case loads.
• The report confirms our previous report that some of I-140 cases which were pending at the TSC have been transferred to the NSC to achieve the overall USCIS I-140 processing backing and time reduction goal per the USCIS Target Goal table. For the Target Goal table for different types of cases and by period, please visit USCIS website "Processing Times" site. Hats off to the agency!

05/21/2009: Finally, Legislators and Political Leaders Are Waking Up to the Voice of Call for Political Action for Immigration Reforms

• Whether the reality will lead to the achievement of a comprehensive immigration reform depends on the political leaders' attention, leadership, and action on immigration issues. During the first five months of the 111th Congress, as we stated earlier, the Congress was inactive in the area of immigration reform issues. Now, there is a sign that the Congress and the White House are waking up and become more active in legislative bills and initiating discussion and debates on immigration issues in the public and political arena. Other than the legislative bills which were introduced in the Congress yesterday, there are some indications that mroe legislative bills are likely to follow the suit. AILA has also reported that the President is also scheduling on June 8 a meeting of immigration reform team of legislators and his administration to discuss the direction and form of comprehensive immigration reform initiatives. There we go! The start is a half of journey to reach the destination. We welcome their initiatives to pull back immigration issues and debates into the public arena.

05/21/2009: President Sent Yesterday USCIS Director Nomination of Alejandro N. Mayorkas to the Senate for Senate Confirmation

• The President earlier announced his intent to nominate the new Director but yesterday the name was officially forwarded to the Senate Judiciary Committee for the nomination hearing and consent of the Senate for the nomination of Mr. Alejandro N. Mayorkas. The Senate is expected to schedule a hearing soon and consent to the nomination. The Directorship of USCIS has been vacant for quite some time filled temporarily by acting directors or acting deputy directors. Bush nominated at the last minute of his Pesidency the then Acting Director who for the obvious reasons resigned. Instability in leadership has posed a political vacuum for immigration policies and management. Immigration leadership requires at least two qualifications: One is political connection to the new White House and new government to push and attain political support for the Director's agenda for immigration policies and management. Second is the leadership and management skill and understanding of the nation's immigration issues. Please stay tuned.

05/21/2009: Family Unity Immigration Reform Bill Reintroduced in the Senate

• Senator Robert Menendez of New Jersey reintroduces in the Senate on 05/20/2009 his Family Unity Immigration bill, S.1085 with three cosponsors. This is his version of a comprehensive immigration reform legislative bill.

05/21/2009: Nurse Shortage Emergency Relief Act Bill Reintroduced in the House

• Congressman Robert Wexler of Florida reintroduced in the House Nurse Shortage Relief Act bill, H.R.2536 on 05/20/2009 with four cosponsors.

05/20/2009: CIR - May 2009 Has Come and is About to Go Away in Silence

• Despite the economic downturn, the Obama Administration sent out message upon boarding his Administration ship that he would keep his campaign promise to achieve CIR this year and pompous events would take place in May to initiate the campaign pulling together CIR team and leader in the White House and scheduling political appearances in support of the CIR. A report indicates that a key official of the Obama Administration admitted quietly yesterday that such CIR initiatives would be difficult under the given circumstances. The report continues to show information that can back up its assessment that May 2009 may go away without such events considering the current schedules of the President and the key official for the rest of May 2009.
• The key official reportedly analyzed difficulty of pushing the CIR this year into two factors: One is the current economic turmoil and rising unemployment and the other is a trend of rapid slow-down of illegal immigrants crossing the borders. The economic downturn reportedly has quiet down the immigration advocates, and the slow-down of stream of illegal entrants has dissipated the fervour of anti-immigration forces. These two factors combined, the CIR has remained in the dark closet with no loud noices and in silence, and it is likely to continue. Reportedly, in order to deal with the impact of the economic down-turn, immigration advocates have shaped up their new concerted and orchestrated strategy to advance their argument that legalization of illeganlimmigrants would help the country's economic recovery rather than hurt the economy. The AILA advocacy group has also started such campaign beginning this week. On top of all these developments, the pandemic threat of H1N1 flu is still there and rising with potentilly catastropic explosion into human misery throughout the world.
• Since opening of the 111th Congress, it introduced thousands of bills but have shyed away from the immigration legislations. The Judiciary Committess of both the House and the Senate have remained dormant when it comes to immigration reform legislations, no matter whether piecemeal or comprehensive. The immigration debates in the immigration subcommittes of both houses are visibly absent. The reality has set in with no one's defeat or victory. The dream for immigration reform in 2009 is slowly slipping away.

05/19/2009: USCIS Opens International Adjudications Support Branch in California

• The IASB will support USCIS overseas adjudicators to adjudicate I-601 waver applications in Mexico and reduce the current backlog of its overseas adjudication of I-601 applications.

05/19/2009: Recruitment Challenges for PERM Applications During Graduation Season and Economic Recession

• The next few months will represent a worst period for recruitment for permanent foreign labor certification applications for a number of reasons. This is a graduation season that produces college graduates en masse when the unemployment rate marks 8.9%. Worse yet, the current practice of the prevailing wage determination for the permanent foreign labor certification applications restricts the recruitment period to this toughest time. In the first week of July each year, the Department of Labor publishes a new wage data and the State Workforce Agency's prevailing wage determination after the release of new wage data must use the new wage data, which tends to go up. The problem is not rising wage rate. It is the practice of the wage determination agencies on the period of validity of the prevailing wage determination during when the employers must recruit U.S. workers. During the 90-day period prior to DOL's release of new wage data in July, the state agencies issue the prevailing wage determination with a cap of 90 days in validity of the wage determination. Such determination with a short span of validity restricts the employers to engage in the recruitment activities within the graduate seasons. What's the problem? Most jobs for the permanent labor certification applications require experience and the new graduates may not be qualified for the positions. However, in desperation of seeking jobs during the recession, the employers are likely to receive a large number of applicaations from the U.S. workers, including the new graduates. When a PERM application is audited, the sheer number of applications from such U.S. workers, albeit not qualified, prejudices the adjudicators and denial rate is likely to rise on issues of unduly restrictive requirement of qualifications or deficiency in the recruitment activities. Tough time to engage in foreign labor certification recruitment activities.

05/19/2009: Immigration Only 'Geniuses' Need Apply?

• Report indicates that U.S. Department of State issued 9,014 O-1 (extraordinary worker, EB-11) visas in 2008, up 40% from 2004. It also reports that the USCIS approval rate for the O-1 petitions averaged 94% during the period (2004-2008). This nonimmigrant category represents Nobel laureates level (?) of highly achieved foreigners who eventually obtain permanent resident status on self-petitions or by U.S. employers without labor certification. The other benefit is availability of concurrent filing of I-140 petition and EB-485 application, along with the ancillary application of employment authorization document and travel document. Additionally, Premium Processing Services are available for such nonimmigrant and immigrant petitions. The foregoing statistics appear to indicate that the country always opens arms to such 'geniuses,' when H-1B other professionals are continuously facing challenges. Hmm.................................

05/18/2009: USCIS Update of FY 2010 H-1B Cap Count on 05/18/2009

• The regular cap count is approximately 45,500 out of 65,000 annual cap. Read on.

05/18/2009: We Urge USCIS to Release the IBM Immigration Digitization Schedules for Processing Times Reduction

• As we reported earlier, the goal of processing time reduction for various applications and petitions will be achieved when the transformation program is operational in full. The transformation program has witnessed some delays for a number of reasons, and pending the transformation program, the agency appears to rely on certain reduction resources within the existing paper-processing system. One is active utilization of the pre-adjudication of applications and petitions and the other is increase in the number of human resources to process and adjudicate the petitions and applications. These options will however have a limited impact on the whole management and processing system when it comes to the efficiency. Thanks to the huge visa number retrogression for employment-based areas and use of these tools, the USCIS is witnessing some progress in the reduction of processing times, particularly in the permanent resident areas, such as I-140 petitions and I-485 applications. Their goal is to reach four-month processing times by the end of September 2009. Assuming, however, that this goal can be attained as planned, the next question is what will follow next and what's next. People will recall that the Bush Administration launched five-year processing time reduction plan pumping in $500 million, $100,000,000 each year. When the firve-year period was consumed, the agency announced that the reduction had more or less been achieved using certain statistics. Since then, the processing times of I-140 and I-485 have returned to "square one," worse than before the 5-year investment plan in some sense. It appears that the failure could have been related to the unexpected delays in the transformation program. Such patch work with a dubious success frustrated the employers, immigrants, public, and oversight authorities.
• Now, the USCIS has hired IBM investing billions of dollars for digitization of processing and adjudication systems. According to the limited information which has been made available to the public through the media, the IBM project includes two phases. One is to digitize the existing files and data in the USCIS and DHS management system, and the other is to convert the current paper filing and processing system into digitization processing system and manage the files and databases digitally. It appears that progress of the phase-one work will help the agency to reduction of processing times in internal processing, particularly for the purpose of clearance process for integrity of the applications and petitions, making the agency easier to launch preadjudication of the applications and petitions. However, the ultimage achievement of processing time reducations may have to depend on the progress of the second phase of the digitization program. However, hiring more officials and resources have a limit in that it must be funded by general fund, tax money, and further funding for the purposes may face a challenge in the Congress, considering the hostile environment against the immigration in the Congress and for the tax payers. Accordingly, the reduction must be achieved through the IBM project. Since the immigration stakeholders have a huge interest in the progress of the forthcoming changes, the USCIS should release its time tables for the IBM digitization program including the time table for the phase one and the time table for the phase two. It appears that because of the limited resources, they may not be able to undertake the two phases of work in parallell, but the stakeholders need the information from their perspectives of managing immigration matters. We urge the USCIS to release the information as soon as possible so that the employers and the immigrants be prepared for the upciming changes in the immigration management system and processing in the future. The stakeholders are in a sense entitled to the information considering the fact that the project is expected to be supported not by the tax general fund but by user fees which will come from the consumers of their services and they may increase the fees next year for the alleged purpose of reduction of I-140 and EB-485 processing times. Obviously the increased fees may be needed to support the digitization program.

05/18/2009: USCIS Undates on 05/5/2009 the Information for Filing of I-129 Nonimmigrant Worker Petitions

• In the year 2009, the form I-129 and filing procedures have gone through a lot of changes as affected by the legislative activities followed by its rule-making activities to reflect the legislative changes. The 05/15/2009 online update gives up-to-date guidance for users of the I-129 forms, particularly H-1B employers, R-1 religious worker employers, and other employers. Employers may download and keep this update information as a reference guide for processing of I-129 petitions in-house. Read on.

05/17/2009: American Embassy and Consulates in Canada Will be Closed Two Consecutive Mondays

• Monday, 18th, is the Canadian Victoria Day and Monday, 25th, is the Memorial Day in the U.S. To observe the Canadian and U.S. holidays, the U.S. Embassy and all the consulates will be closed on these two Mondays. Accordingly, during these two weeks, they will remain opened only four days each week.

05/16/2009: Highlights of AgJobs Bill

• Following is the highlights the bill sponsor published:
  • Undocumented agriculture workers would be eligible for a “blue card” if they can demonstrate having worked in American agriculture for at least 150 work days (or 863 hours) over the previous two years before December 31, 2008.
  • The blue card holder would be required to work in American agriculture for an additional three years (working at least150 work days per year) or five years (working at least 100 work days per year), before becoming eligible to apply for a green card to become a permanent legal resident.
  • The blue card would entitle the worker to a temporary legal resident status. The total number of blue cards would be capped at 1.35 million over a five-year period, and the program would sunset after five years.
  • Before applying for a green card, participants would be required to pay a fine of $500, show that they are current on their taxes, and show that they have not been convicted of any crime that involves bodily injury, the threat of serious bodily injury, or harm to property in excess of $500.
  • Employment would be verified through employer issued statements, pay stubs, W-2 forms, employer contracts, time cards, employer sponsored health care or payment of taxes.
  • All blue cards would have encrypted, biometric identifiers and contain other anti-counterfeiting protection.
  • The bill also would streamline the H-2A seasonal worker program so that it realistically responds to agriculture needs.
  • The bill would shorten the labor certification process, which now often takes 60 days or more, and reduce the approval time to 48 to 72 hours.
  • The bill also would require that growers first advertise and recruit U.S. workers in the local area by filing job notifications with state employment agencies.
  • The Department of Labor would be required to process H-2A applications within 7 days and notify the consulate or port of entry within 7 days of receipt.
  • The Adverse Effect Wage Rate would be frozen for three years, to be gradually replaced with a prevailing wage standard.
  • H-2A visas would be secure and counterfeit resistant.
• For the background of this bill, please click here.
• Reintroduction of AgJobs bill has its own merit and significance as a piecemal legislation. But one cannot ignore its importance for comprehensive immigration legislation process. As this reporter noted earlier, the initiatives and movement for comprehensive immigration reform must come from two sources. One is community mobilization and the other is legislative bills. Single bill of comprehensive immigration reform has yet to be presented in the Congress, but introduction of piecemeal immigration reform bills that tend to form backbone of a comprehensive immigration reform plays an important role in the comprehensive immigration reform legislation process. The comprehensive immigration reform covers primarily three components: (1) Control of Illegal Immigrants. This component includes (a) Border Security and (b) Immigration Enforcement. (2) Legal Immigration System Adjustment and Reform. This components includes adjustment of immigration allocation primarily among two components of (a) Family-Based Immigration, and (b) Employment-Based Immigration primarily relating to the high-tech and high-end industries. (3) Legalization of Illegal Aliens and Reform of Low-End Industry Immigrant Workers named Essential Workers which cover primarily farm and related food processing industries and hospitality industries. The foregoing three key components are inter-related in formulating the nation's strategy and direction for demand-supply of workforces for the nation's economy and demographic composition of the nation's future population. Thus far, two legislative bills have been introduced in the Senate that touch on the third component: One is "Dream Act" which is the benchmark of Senator Dick Durbin of Illinois, and the other is "AgJobs" bill which is the benchmark of Senator Dianne Feinstein of California. The first component is currently receiving the highest attention either as a precondition for consideration of reforms in the second and third components or as one of the key components in overall strategy and direction for formulation of nation's future economy and demographic visions. However, there are no legislative bills introduced in the Congress in the form of piecemeal legislation for this compoponet. The AFL/CIO labor union presented its proposal and the President Obama has also addressed this reform as key reform in his agenda, but these ideas and proposals have yet to be translated into legislative bills. What about the second component? Thus far, it remains "abandoned" and "orphans" in the reform agenda. In the House, Rep. Jackson from Texas introduced her comprehensive immigration reform bill early in the 111th Congress, but it totally focused on the family-based immigration and third component of legalization of illegal aliens and reform in essentail worker immigration. By all accounts, the employment-based immigration reform for high-tech industry turns out to be a "lone-star" and "abandoned" orphan. Historically, the piecemeal legislative bills for this part of the second component of a reform have been actively introduced and pushed by the Republicans backed by their primary constituents of the fortune 500 companies and higher learning institutions. In the 111th of Congress, these legislators remain in low-key, apparently intimidated by the nation's outrage which can burst into an emotional volcano in the environment of economic recession and horrific unemployment rate. However, from the perspectives of the comprehensive immigration reform, the reform in employment-based immigraiont is something which "cannot go without" in overall reform. Besides, the nation should be concerned with its long-term impact on its competitiveness in the world. Unlike the low-end industry, the education and high-tech that support the high-end industries are considered the areas that take decades and not months or year to build and sustain its strength and current political environment can leave a "permanent" scar on the nation's health against brutal competition by other nations in the world in the future. For the reasons, the damage can be witnessed not today but after decades in the future. We need leaders' vision for the future and not just short-sighted day-to-day run of the nation's business in the political gridlocks and jigzags. We need leaders who have sharp eyes to see changing events and history in the world and have a vision for the future and a courage to stand tall to lead the nation out of the political swamp of gridlocks and jigzags. The nation cannot afford potentially witnessing crumbling of foundation of its competitive edge in the high-end industry and face reality in the next generation that by the time we realize the past mistakes, it would be too late to correct the mistakes because of the nature of the high-end industry and high-tech which take decades to build rather than months or a year!

05/15/2009: USCIS Updates on 05/15/2009 Processing Times as of 03/31/2009

• USCIS releases today processing time update as of March 31, 2009. Please visit our home page.

05/15/2009: Positive News from Nebraska Service Center on I-140 and EB-485 Processing Backlog Reduction Progress

• AILA has reported the NSC update on its progress of backlog reduction for the employment-based I-140 and EB-485 (EB-3). Reportedly, the NSC will achieve its goal of four months processing time for I-140 and six months processing time for EB-485 (EB-3) by end of June 2009. Besides, the NSC will achieve its goal for processing time reduction to four months for EB-485 (EB-3) by the end of September 2009. More positive news is that the agency is "preadjudicating" certain visa number retrogressed I-485 applications such that when the visa number becomes current for these cases, they can act swiftly approving the cases. They are also conducting biometric recapture work for those whose biometric collection is older than 15 months and expired such that some of these EB-485 cases can be approved without rescheduling biometric collections at ASC for some cases. What a bright and positive news! Right on, Nebraska Service Center!!
• Indeed, preadjudication for numerical limit cases is the initiative of the DHS Secretary Napolitano for this period of her efficiency directives and it is likely that other Service Centers and field offices are also following the directives. Preadjudication is also a way of reducing processing backlog in the immigration benefits applications.

05/15/2009: AgJobs Bill Introduced in Both Senate and House 05/14/2009

• Yesterday, Senator Dianne Feinstein of Califoria introduced in the Senate S.1038 bill to improve agricultural job opportunities, benefits, and security for aliens in the United States and for other purposes., cosponsored by 16 other Senators.
• A companion bill was also introduced in the House, H.R.2414, by Rep. Howard Berman of California, cosponsored by 26 other representatives.

05/14/2009: USCIS Issues Memorandum on Consolidattion of Guidance on Unlawful Presence 05/06/2009

• This memorandum revises existing guidance in Adjudicator's Field Manual in the areas of three-year bar, ten-year bar, or permanent bar from returning to the U.S. for certain aliens who depart from the U.S. after an unlawful presence in in the U.S. for certaiin period of time or who were unlawfully present in the U.S. for more than a year and entered or attempt to enter the U.S. without inspection.

05/14/2009: USCIS May 5, 2009 National Stakeholder Meeting Questions and Answers

05/13/2009: State Department Seeks Internet Online Filing System of Immigrant Visa Applications Using New Form DS-260

• The State Department intends to initiate Internet filing system of immigrant visa application using a new form DS-260. The new form will be used to elicit information necessary to determine the eligibility of aliens applying for immigrant visas. The DS-260 form will be submitted electronically to the Department via the Internet. The applicant will be instructed to print a confirmation page containing a 2-D bar code record locator, which will be scanned at the time of processing. Applicants who submit the electronic application will no longer submit paper-based applications to the Department. The State Department is seeking the OMB approval for this proposal which will seek public comment for 30 days once it is published. The proposal indicates that there are appximately 700,000 immigrant visa applicants annually who will use the new form once this new form is in place. Well, this is a cyber-space age and more and more government processes will be converted to oneline service processes in one form or another. Please stay tuned.
  

05/13/2009: Schedule to Disable Current Online LCA Filing System Changed from 05/15/2009 to 07/01/2009

• AILA has just reported that OFLC has changed its plan to disable the current LCA filing system on 05/15/2009 because of the reported issues which the agency will have to address before mandating LCA filing only through the new ICERT portal system. Accordingly, the employers and the representatives will be able to keep filing H-1B LCA through the current LCA filing system at least until June 30, 2009. What a relief! Hats-off to Dr. William Carlson of DOL for the decision.
• Here is the official notice published in its website:
  • May 13, 2009: LCA Legacy System to Remain Operational Through June 30, 2009: OFLC will keep the old LCA system operational through June 30, 2009 to give all users sufficient time to fully transition to the new iCert system. Users are encouraged to familiarize themselves with the iCert system as quickly as possible to allow adequate time to establish accounts and file LCAs using the new ETA-9035. Please note that all technical issues need to continue to be raised through the iCert help desk at OFLC.Portal@dol.gov.

05/12/2009: Reminder of OFLC Schedule of Disabling Current H-1B LCA Online Filing System Effective 05/15/2009

• The Office of Foreign Labor Certification will mandate filing of H-1B Labor Condition Applications using iCert System effective May 15, 2009 and disable the current LCA Filling System as of May 15, 2009. Thus until May 14, 2009, Thursday, the employers and representatives will be able to file and obtain certifications in a matter of seconds online using the current online LCA Filing System. We post this reminder because until one is familiarized with the new ICERT filing details, they can experience delays in filing LCA through ICER System. Additionally, it appears that certification of LCA via ICERT system can take upto one week in each individual situation. Accordingly, those employers and represeantives who face H-1B filing deadline or need filing of FY 2010 H-1B cap or H-1B extension within certain days may want to file and obtain LCA certification ahead of time, certainly within the next three days or until this Thursday using the current LCA Filing System.

05/11/2009: USCIS Announces Extension of J-1 Entry Date for IMGs to Qualify for “Conrad 30” Waiver

• USCIS annoounces on 05/11/2009 that the current sunset date of Sept. 30, 2009 applies to the date the medical doctor originally entered the United States in J-1 status or received a change of status to J-1, to complete a residency program in the United States. Doctors who acquired J-1 status before Sept. 30, 2009, may pursue a waiver of the two-year foreign residence requirement under the Conrad State 30 program, if they meet all the eligibility requirements.
  

05/11/2009: USCIS Changes Plan for Halting Concurrent Filing of I-140 and I-485

• USCIS changes its initial plan to outrightly terminate the current system of concurrent filing of I-140 and I-485 by withdrawing its previous proposal and planning to release a new and revised proposal. Previous proposal was simply terminate such concurrent filing. The agency had been considering this plan for quite a while, but on April 16, 2009, they withdrew the initial proposed rule-making plan. Instead, they plan to present a revised version of their plan for termination of concurrent filing. Accordingly, there will be no change with its plan to terminate the concurrent filing, but the new plan would remove an alien’s reliance on the Visa Bulletin to determine visa availability and therefore eligibility to file for adjustment of status. Instead, the plan would propose that USCIS utilize a registration process for intending I-485 applicants by requiring an applicant to file a registration packet after the approval of I-140 petition and prior to visa availability, based on the use of “qualifying dates” established by DOS. This plan is intended to streamline adjustment application processing by utilizing a two-step process in which registration packets can be pre-screened for documentary evidence, security checks can be initiated and completed, and pending visa demand can be adequately conveyed to DOS. The DOS will then adjust its Visa Bulletin accordingly and applicants may then proceed forward with filing their I-485s based on visa availability as reflected in the monthly Visa Bulletin. This process will result in a steady workflow, will mitigate visa retrogression, and make applications generally decision- ready shortly after time of visa availability. This plan will also allow USCIS to correct a discrepant regulatory reference that defined an employment-based priority date based on a DOL issued labor certification incorrectly.
• Simply put, the USCIS will propose a regulation to terminate the concurrent filing of I-140 and I-485, but by adopting a two tear system of EB-485 application filing process that requires as a first step filing of "preregistration" of intended I-485 applicants, even during the period of visa number unavaility, and as a second step, filing of I-485 application when visa number becomes available in the Visa Bulletin. This new plan is likely to reduce drastically the processing time for I-485 application once the visa number becomes available. The USCIS wants to kick in and adopt "pre-adjudication" mechanism as part of I-485 application filing and adjudication process. The scheduled release of this proposal is December 2009, but it can change depending on the development of events.
• However, this plan will present a serious problem and hardship for employment-based immigrants under the current conditions of massive visa number retrogression and unpredictable visa number movement from month to month. Obviously, this new plan is intended to prevent reoccurence of July 2007 Visa Bulletin fiasco and related avalanch filing of millions of I-485 and EAD and Advance Parole applications in a short period of time. Additionally, under this plan, delay of I-140 processing for whaever reasons will present a tremendous hardship on the employment-based immigrants because of the potential consequences of a long wait for opportunity to file I-485 applications as affected by the unpredictable visa number movement by month to month.
• Considering the fact that the USCIS is planning to release a proposed new rule at about similar time this year along with the planned proposal to increase the filing fees for applicaations and petitions for the alleged purpose of backlog reduction for I-140 and I-485, the employment-based immigrants and employers will face a new chapter in the green card process beginning from sometime middle of 2010. Beware!

05/11/2009: USCIS Plans to Review Current I-485 Filing Fees to Help I-485 Backlog Reduction Cost

• The just released semi-annual rule making agenda for 2009 indicates that the USCIS is reviewing current I-485 fee rule to propose the fee in order to support onegoing 485 processing backlog reduction work. If this review recommends the fee incease, the proposed rule may be published in federal register in October 2009 with a comment period of two months. Should this plan proceed, the fee is like to go up next Spring, 2010. Please stay tuned.

05/09/2009: CIR Wind Storm Has Yet to Blow

• Currently, pro and con CIR forces keep spinning wheels in media in low key and in empty hands. For the reasons, the CIR remains practically out of picture in the public and in the mainstream America. The reform debates should come from two sources. One is mobilization of pro and con forces in the communities and the other is legislative proposals of CIR. The first source has been dampened by the so-called H1N1 flu scares, reported disastrous turn-out of supporters in the scheduled rallies in the first week of May that included May Day and Cinco de Mayo celebration for Hispanics. As for the second source, no single CIR proposal has been presented to the public either by the White House or the Congress. Debate requires contesting proposals. Without proposals, there cannot be any political process of negotiation and compromise to lead to a final legislative product. No fool will assume that there will be only one proposal to lead a CIR legislation. However, the legislators remain quite in both Houses, not to mention White House. Under the circumstances, one questions what we mean by "CIR?" Supposedly for the Obama Administration to initiate a CIR move, they keep pumping up so-called administrative fixes to reinforce the border security and immigration enforcement. We agree that it is a smart and important move and strategy to lead to CIR initiatives. However, at some point, the political leaders must show the public what they mean by "broken immigration system" and "how they are going to fix it by what reform." In such vacuum, no one can expect any debates and sense of importance of such debates for the nation. In this regard, we must say that the second source is very important even for the first source, mobilization of debates in the communities. Demagogue is perceived as a political gimmick and not enough to persuade the public to pay attention to. Something solid with substance must be presented to the public for them to debate about.
• We hope that CIR proposals be introduced in the House or in the Senate in various forms as soon as possible. Senator Reid's reported agenda to present a CIR in the fall should be a product that will be produced after negotiation and compromise of various CIR bills in the House and the Senate. Political leaders, let the public see "what's in your wallet" as soon as possible.

05/09/2009: USCIS 485 Processing Time Target of Four-Month and FY 2009 Employment-Based Visa Bulletin

• The USCIS has been aggressively working on reduction of I-140 and EB-485 processing times to achieve its target goal of four-month processing times by the end of September 2009. It appears that in order to achieve the goal, the involved cases have even been transferred around to different field offices. Thanks to this move, those whose priority dates were available have been receiving either approvals or RFEs or local interview notices for the pending EB-485 cases. This has been a good news for those whose priority dates were current and who had to endure the pains of long-wait. Obviously, this has resulted in massive taking out of FY 2009 EB visa numbers exhausting the pool of the EB visas. As is true in every immigration event, development of immigration news brings with it those who are winners and those who are losers, some smiles and some tears. As is predicted by the State Department, the picture of visa numbers for the rest of fiscal year 2009 may remain grim as the USCIS efforts to achieve the target goal of EB-485 processing times before October 1, 2009 are likely to continue. EB immigrants should prepare themselves to keep their legal status intact and alive during the long wait.

05/09/2009: Some Sites on the USCIS Website Will Be Down for Maintenance from 10:00 a.m. to 06:00 p.m. Tomorrow

• Those who will have to work with the USCIS sites during the weekend may as well complete it today.

05/08/2009: June 2009 Visa Bulletin

• SHOCKS! Indian EB-2 will be moved backward to January 1, 2000.
• EB-3 and Unskilled EW categories will be totally unavailable.

05/08/2009: House Bill to Eliminate Diversity Visa Program

• Rep. Bob Goodlatte of Virginia introduced in the House on 05/07/2009 H.R.2305 to eliminate the diversity immigrant program. This bill is cosponsored by 26 members of the House.

05/07/2009: DHS Reportedly Stepping Up Enforcement of the H-1B Program Including Work Site Visits

• Report indicates that DHS Security Secretary Janet Napolitano told at a Senate Judiciary Committee hearing yesterday that her agency was stepping up its enforcement of the H-1B program. She reportedly said that over the last month the department has added fraud prevention tactics that were not being used previously in the H-1B program. Those measures include visits to work sites.

05/07/2009: PERM Processing Times Update as of 04/30/2009

• Final Reviews (Clean-Cut Cases): November 2008 Receipt Date Cases
• Audit Cases: September 2007 Receipt Date Cases
• Standard Appeals Cases: June 2007 Receipt Date Cases
• Government Error Appeals Cases: Current (no backlog)

05/07/2009: USCIS Updates List and Profile of USCIS Leadership

• The newly announced nominee of new USCIS Director has yet to go through the Senate confirmation process. However, since the nomination of the new Director has been announced, it is likely that major policy decisions of the USCIS may await his coming aboard and in due deference to the new leader's direction and leadersahip, the current USCIS leadership team may slow down any major policy making activities until the new leader takes the office. Pending the upcoming changes, the USCIS website has updated the current acting or permanent leadership lists and profiles with their photos. Photos always help in humanizing and forming image of leaders not just as a mechanical figure but as a human being whom people can feel more touchable and perceived as "one of us."

05/07/2009: H-2A Final Rule Clears OMB Approval 05/06/2009

• The initial version H-2A final rule which was enacted immediately prior to the departure of Bush Administration has remained suspended until now in order for the Obama Administration to review the rule. The new version of its final rule was completed and is ready for publication. Accordingly, it is anticipated that the final rule will be published in the federal register in the near future. Please stay tuned.

05/06/2009: House Bill H.R. 2261 Introduced to Expand Visa Waiver Program to Greece

• Yesterday, Rep. Carolyn B. Maloney of New York introduced this bill to designate Greece as a program country for purposes of the visa waiver program.

05/06/2009: House Bill H.R. 2258 Introduced to Grant Immigrant Status to Certain Liberians Who Have Been Provided Refuge in the United States

• Rep. Patrick Kennedy of Rhode Islands introduced this bill yesterday in the House. For the details, please stay tuned.

05/05/2009: I-140 Projected 4-Month Processing Time Goal and Transfer of Stand-Alone I-140 from TSC to NSC

• AILA has reported that Texas Service Center is transferring the stand-alone I-140 petitions to Nebraska Service Center in order for the USCIS to achieve the targeted four-month processing time of I-140 petitions. This is a very good news for those who need approved I-140 petitions for the ancillary benefits such as H-1B extension beyond six years, two-year EAD application, AC-21 porting of approved I-140 petition to change employment, etc.

05/05/2009: Senate Bill to Restrict Private Contracting of Government Jobs, S. 924

• Currently, new contracting of federal jobs to private contractors remain in moratorium for FY 2010. Senator Barbara Mikulski of Maryland introducted on 04/29/2009, cosponsored by nine powerful Senators, S. 924 for alleged purpose of cleaning up inefficiency of government functions and restrict contracting practice of government jobs to private contractors. During the Bush Administration, a substantial amount of government jobs were contracted out to the private contractors instead of government employees with the alleged consequences of inefficiencies and waste of funds in government functions. For the outline of this bill, please click here.

05/05/2009: FY-2010 H-1B Cap Count Update of 05/04/2009

• The regular cap count remains at 45,000. Keep going and going and going! Ain't it interesting? Hmm......................................................................................

05/05/2009: What's the Meaning of USCIS Release of Non-Minister Religious Worker Immigration Processing News?

• There is a litigation in Seattle wherein the judge issued a conditional order to require the USCIS to accept the concurrent filing of I-360 and I-485, which was conditioned upon the completion of a certain procedural matter in the litigation. In a way, the just released (05/04/2009) USCIS processing news of I-360 and I-485 after the Congress passed legislation extending the sunset date of this program to September 30, 2009 raises a question of whether it is an overture of potentially upcoming concurrent processing of I-360 and I-485 or a signal of its determination to fight against such concurrent filing ruling all the way to the end? Hmm......................... Please stay tuned.

05/05/2009: Sen. Jeff Sessions to Replace Sen. Arlen Specter for Senate Judiciary Republican Leadership

• Not a too promising news for smooth sailing of CIR initiatives in the Senate Judiciary Committee. Read on.

05/02/2009: USCIS Releases Fact Sheet on Naturalization Process for the Military

• This fact sheet gives details of requirement, procedures, and statistics of alien naturalization in military in the U.S. and Overseas.

05/01/2009: Immigration Benefits Application Backlog and Statistics at the End of March 2009

05/01/2009: Naturalization Backlog and Statistics at the End of March 2009

• The number of pending N-400 cases reached 299,109 in March 2009, a decrease of 69 percent compared to the same month in fiscal year 2008. It keeps dropping.

05/01/2009: Processing of Clean-Cut PERM Applications Closely but Not Quite Keeping Pace with the Agency's Average Target Processing Time of Six Months

• The Office of Foreign Labor Certification of DOL is expected to release the third quarter report of their processing times and performances after June 2009 and through scheduled stakeholder meetings. However, unconfirmed and unscientific sources of information indicate that the Atlanta Processing Center has moved into adjudication of October 2008 cases. This means that the agency has yet to meet the target average six-month processing times, even though it is coming close to the target. Considering the apparent reduced number of applications filed by the employers as affected by the economic recession lately, the agency appears to be stuck with their tasks of reinforcing the integrity of the applications causing increased amount of time to process each application. They hope launch of the upcoming iCERT online system will help reducing processing times for new cases in the future, but the cases in the pipeline may have to leave with the current pace of their processing times for a while, particularly considering the fact that the agency will soon be overwhelmed by the time-mandated FY 2010 First Half temporary worker labor certification applications pouring into the system. Please stay tuned.

05/01/2009: Concern With Turnout of May Day Immigration Rallies Potentially Dampened by Swine Flu

• The watchers and supporters of the CIR movement will nervously watch the impact of the ongoing H1N1 Flu (Swine Flu) on the organized rallies scheduled today, May Day, and for that matter, throughout the month of May. Anti-immigrationists have also started drumming up their campaign against the CIR negatively implicating undocumented Mexicans with current health crisis and border security crisis for the nation. What a turn of the event.

05/01/2009: Notices of Winners of 2010 Diversity Visa Lottery Scheduled Beginning From Today

• The State Department is scheduled to send out notices to the 50,000 winners of the annual immigration lottery from May through July 2009. Since no notices will be sent out to those whose registrations failed in the lottery, millions of people who sent in the lottery will have to go through the pains of checking the notices religiously from today until the end of July. As is usual with any lotteries, there will be many smiles and many frustrations. We wish all the luck for the lottery result waiters!

05/01/2009: DHS Secretary Welcomes President's Intent to Nominate Mr. Alejandro Mayorkas as New USCIS Director