THE OH LAW FIRM
Immigration Law Practice for Over 29 Years

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

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Question & Answer Discussions [Latest Update: 02/19/2012]

Please present the questions anonymously or in general question format rather than your own individual problems for the security sake. Email should be sent to Matthewoh.Attorney@Gmail.Com. The answers be posted as a "hypothetical" Q&A. Those who are in similar fact situation should not take the answers as a legal advice for their individual question. Please do not use the term "I" or "My." Just ask "what happends if ..............."

05/17/2012: CBP & ICE House Written Testimonies on "Supporting Economic Growth & Job Growth Thru Customs Trade Modernization, Facilitation, & Enhancement"

• These written testimonies are submitted to the House Ways and Means Subcommittee on Trade hearing of 05/17/2012. The testimonies explain the roles of these two agencies for the nation's econimic growth and job growth and room for modernization, facilitation, and enhancement of the agencies to achieve the purposes. Read on.
  • CBP
  • ICE
• It is interesting that these two law enforment agencies talk about their roles which they can play for the nation's economic growth and job growth.

05/17/2012: Fate of Two STEM Senate Bills - SMART Jobs Act and STAR Act

• These two bills are pushed by high tech industries. Theoretically, political leaders of both parties have agreed to the needs for STEM foreign brains. So far, so good, right? Not too fast. No legislative bills work in a vacuum. There are at least two foes against these piece-meal legislative bills. One is the supporters of Comprehensive Immigration Reform legislation and DREAM Act who traditionally opposed such bills because passage of such bills could reduce the chances for the CIR or DREAM. The second foe is labor union backers and anti-immigration forces. These forces will creep out of the closet from both Republican party and Democratic party. On top of these, Senator Cornyn's STAR Act presents another obstacle in that on the surface, elimination of diversity visa system should work perfect to support the argument that the bill would not add single new visa quota number to the existing immigration system through elimination of the diversity visa system. The argument should work perfect under the current political and economic environment. Potential problem includes antagonization of all the countries and nationals other than a few that have been main pipeline and suppliers of immigrants to this country. The logics underlying the diversity visa system was to counter-balance such immigration streams by allowing some opportunity for other nationals to immigrate to this country. Initially, immigration from Europe, particularly Irish, was one of the important motivation for this legislation. Over the years, the color of diversity visa immigrants has changed from more or less "white" to "darker skins." Currently Africa constitutes the largest source for diversity visa immigrantion. Lately, for the alleged reason that the diversity visa system is ridden with the frauds, several legislative bills to eliminate diversity visa system have been introduced and pending in the Congress. However, whether intended or unintended, because of the change in primary beneficiaries of the diversity visa system, such bills can have complicated ethnic or racial overtones and such bills have been facing oppositions in the Congress. Immigration reform legislations always bring with it some ethnic issues. For the reasons, media started predicting that the chances for these bills are not too promising.
• But who knows? Legislation is a process of negotiation and compromise. Inasmuch as the country agrees and supports need for STEM immigrants, something can be worked out along the way. Rubio's DREAM proposal has growingly been receiving attention in both side of the isles. Obviously all of these legislative proposals are implicated with the election year political strategies, but it will be interesting to watch how the dramas will unfold. Look at how the battered women protection immigration proposals are riding similar tide of wave of the day. Women have surfaced as one of the key voters that will determine the outcome of the election in November and both parties started running fast to bring up women-related legislative and political issues. Again both parties agreed to the need for such protection, but when it comes to the details, ideological difference prevailed and the Republican House has just passed the bill which is a way different from the Demoratic Senate bill. That's the way it goes.

05/16/2012: DOL Publishes Guidance on H-2B Temporary Labor Certification Application Procedures Effective 05/16/2012

• DOL published a guidance in the Federal Register today advising the regulated community of the injunction placed on the implementation of the H-2B 2012 Final Rule and of procedures to be followed in seeking labor certification to file H-2B petitions. This Guidance is in effect as of today and the H-2B labor certification filers should follow this Guidance from today.

05/16/2012: Bi-Partisan SMART Jobs Act of 2012 in the Senate for U.S. STEM Foreign Students and Workers

• Senators Alexander and Coons introduced in the Senate another STEM bill, S. 3192, named "Sustaining Most Advanced Researchers and Technology Jobs Act of 2012" (SMART Jobs Act of 2012) proposing to create F-4 visa for STEM foreign students and immigration visa upon obtaining the jobs in STEM in the United States.

05/16/2012: USCIS Processing Times Update 05/16/2012

• See home page.

05/16/2012: Republican Senator John Cornyn of Texas Introduced a Bill in the Senate Yesterday to Eliminate 55,000 Diversity Visa Replaced by STEM Foreign Workers

• Yesterday a senior Republican Senator introduced a legislative bill, S. 3835 STAR Act of 2012 ("Securing the Talent America Requires for the 21st Century Act of 2012"), proposing to eliminate the current immigration lottery visa system of annual 55,000 immigrant visas and to use these 55,000 immigrant visas to STEM foreign talents as follows:
  • Allocating 55,000 new immigrant visas for eligible STEM graduates (Master’s and Ph.D.) of qualifying U.S. research institutions who have job offers in related fields;
  • Offsetting this new allocation of visas by eliminating the so-called “Diversity Visa” lottery program, which is no longer in America’s national interest; and
  • Streamlining STEM graduate students’ ability to obtain green cards and remain in the United States by allowing “dual-intent” for those admitted to pursue a STEM degree.
• Even though a media response to potential chance for passage of this bill is labelled "dubious" in election year, it is considered a step forward from the employment-based immigration perspectives and another offense to the Obama Administration's failure to act on immigration reform.

05/16/2012: New AAO Precedent Decision of 05/15/2012 on P-3 Nonimmigrant Visa Petition

• This time around, they made this AAO decision as a legally binding "precedent" decision in favor of the petitioner, opening a window of approval of P-3 cases slightly open for the petitioning employers. This is what the USCIS reports: The USCIS AAO today (05/15/2012) issued a decision addressing the term “culturally unique” and its significance in the adjudication of petitions for performing artists and entertainers. In the case at issue, the Skirball Cultural Center filed a P-3 nonimmigrant petition on behalf of a musical group from Argentina that was denied a performing artists’ visa for failing to establish that the group’s performance was “culturally unique” as required for this visa classification. Due to the unusually complex and novel issue and the likelihood that the same issue could arise in future decisions, the decision was recommended for review. USCIS’s AAO approved the petition after its review of the entire record, which included expert written testimony and corroborating evidence on behalf of the musical group. The regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination. The decision clarifies that a “culturally unique” style of art or entertainment is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region. The decision was selected by the U.S. Department of Justice as a "precedent decision."
• Wonderful for the performing arts community. Here is the full text of the decision: Matter of SKIRBALL CULTURAL CENTER, 25 I&N Dec. 799 (AAO 2012).

05/15/2012 Congressional Research Service Releases on 05/11/2012 In-Depth Review of STEM Foreigners and Their Visa/Immigration Issues

• A very timely release of the study considering Obama Administration's late expansion of the degrees that fall under the definition of STEM for the purpose of special 29-month OPT eligibility.

05/15/2012: OFLC Alert - Effective 05/14/2012, Use of New Version ETA 9142 Form Mandatory for H-2A and H-2B Temporary Applications

• The OFLC announces that the OMB has approved extend version of the ETA Form 9142, Appendices A.2 and B.1 and associated instructions which were previously set to expire on April 30, 2012. The new expiration date for these forms is October 31, 2012. As of the date of this announcement, future H-2A applications should be filed using the extended ETA Form 9142 and Appendix A.2 which reflect the October 31, 2012 expiration date. In light of the recent preliminary injunction of the 2012 H-2B Final Rule, employers filing H-2B applications under the 2008 Final Rule must do so using the extended ETA Form 9142 and Appendix B.1 (H-2B only), reflecting the October 31, 2012 expiration date. To view or download the extended forms, please click here. Read announcement.

05/14/2012: Supervised Recruitment PERM Proceeding and Consequences of Withdrawal of Application

• The Office of Foreign Labor Certifications has updated Frequently Asked Question (FAQ) regarding the consequences of withdrawing a PERM application in Supervised Recruitment process. This FAQ states that:
  • While OFLC/ANPC may grant an employer's request to withdraw an application undergoing supervised recruitment and the employer then files a new application meeting all regulatory requirements, the future application for the same foreign worker as in the withdrawn application will be subject to supervised recruitment. Additionally, where the OFLC/ANPC determines it appropriate, all other applications filed by the employer for any foreign worker or job opportunity may also be subject to supervised recruitment.
  • Besides, repeated requests to withdraw different applications undergoing supervised recruitment will be carefully reviewed and may evidence a pattern or practice of the employer's failure to comply with the supervised recruitment process, and may subject the employer to debarment from the permanent labor certification program for a reasonable period of no more than three years. For details of this FAQ, go to the PERM FAQ and Q&A 12 under Supervised Recruitment.
• Accordingly, once the PERM cases are turned into Supervised Recruitment Track, the employers may as well complete the supervised recruitment process and comply with the rules and instructions for the supervised recruitment rather than withdrawal of the applications when they are pending.

05/14/2012: H-1B Count as of 05/11/2012

• Regular Cap: 36,700
• Master Cap: 14,800

05/14/2012: Uninvited Advice to President Obama to Heal Wounds in Immigrant and Business Communities

• As we reported earlier, the Obama Administration has been struggling lately to fend off assaut by the Republican Party and its supporters for the President's failure in immigration forms (both comprehensive and picemeal immigration reforms) during his first term and Senator Rubio's side jab with his so-called DREAM proposal. The defense strategy appears to direct the blame to the opposite party and conservative forces. Probably no one will be able to deny the truth to the argument, provided that it was a half truth to the blame. This reporter does not have any evidence or statistical record to assess the number of legislative bills which have been introduced by the White House itself rather than Senators or House Representatives, no matter which parties they belonged to. In immigration reform areas, this reporter vaguely remembers any immigration reform legislative bills which were drafted and proposed by the White House itself. Even though this reporter strongly opposed the Bush White House's "Point System" Comprehensive Immigration Reform legislative bill, there have been more than one Presidents who took inititatives for the legislative bills by the White House teams themselves.
• This reporter writes this message because this reporter "truely" believes that President Obama cares, in his heart, about the immigrants and related stakeholders, no matter whether they are related to family-based immigration system, or undocumented alien community, or employment-based immigration system and businesses. In this reporter's humble opinion, just talk or blame-game for the past record may not fare well in the current vulnerable political environment. There are news all over that Democratic House Leaders are expressing their predicament and agonizing, squeezed in-between their disapointment with the President's record deportation of aliens and failure to initiate immigration reform on the one hand and their "need" for support of the President in the coming November Presidential election. It is indeed travesty to read such news report.
• The only remedy that can heal the wounds may be found with the White House taking initiatives, albeit very late, to draft and propose its legislative immigration reform bills to the House or Senate, probably more likely through the Democratic Senate. There was a brief news report last week that Majory Senate Leader, Harry Reid, in a passing way, alluded to his potential re-introduction of DREAM bill or CIR. To this reporter's opinion, it will not help to seal the hole. The White House, rather than taking a defensive position, should take an offensive position by drafting and introducing immigration bills to fix aling immigration systems, either in piecemeal or a comprehensive level. Some of the White House bills may fail because of the current gridlock in the Congress, but they will save the President from the deep wounds.
• The foregoing advice does not minimize this reporter's admiration for the President's initiatives to fix the ailing immigration "administratively." The history will record this as one of his achievements in reform of ailing immigration system.

05/14/2012: USCIS Upgrades e-Request Adding Error Reporting & Appointment Inquiry Features

• Effective May 11, 2012, USCIS e-Request went through two system updates: (1) Customers will be able to notify USCIS of typographical errors on their immigration benefit documents (e.g., employment authorization documents, permanent residence cards). (2) Customers will be able to inquire about Application Support Center appointments not received for I-90 and N-400 applications.
• What is e-Request and how to use it? Check p.6 of the USCIS online publication entitled "Latest Customer Service Enhancements on USCIS.gov and USCIS.gov/espanol." This was upgraded on 05/11/2012.

05/13/2012: A Day to Call and Say "Hello Mom, I Love You and I Miss You"

• Everyone has a mother, including immigrants. Mothers are so special to us not only because they carried us and gave us our lives but also they are literally the only ones in the whole wide world who think about us, care about us, and pray for our happiness and good health in their soul and heart every single minute. Most of immigrants live apart from their beloved mothers over the Oceans and Lands. This is the day for the sons and daughters in this Land to pick up the phone and call the mother over the seas or lands to tell her how much he/she loves her, at least, for one day.

05/12/2012: House Judiciary Schedules a Hearing on 05/17/2012 on H.R. 3039 "Welcoming Business Travelers and Tourists to America Act of 2011"

• It appears that national leaders want to open a flood-gate of foreign visitor traffics for apparent foreign policy and economic stimulus purposes, particularly hospitality industry and related industry. Lately Obama Administration has exerted a substantial effort to accellerate implementation of this policy. In the House, H.R. 3039 was introduced on September 23, 2011, which currently has 40 co-sponsors. The following summary and full text of the bill will give a glimpse of tools the legislation proposes to achieve the goal:
  • CRS Summary
  • H.R. 3039
• Implementation of this policy is likely to add a substantial pressue on DHS system from the perspectives of homeland security, immigration enforcement and integrity.
• Witness List:
  • Rep. Joe Heck
  • Janice Kephart, Director of National Seurity Policy, Center for Immigration Studies
  • Jessica Zuckerman, Research Associate, Allison Center for Foreign Policy Studies, The Heritage Foundation
  • Edward Alden, Bernard L. Schwartz Senior Fellow, Council on Foreign Relations
    

05/11/2012: Official June Visa Bulletin Released Again

05/11/2012: Obama Administration Expands the STEM list as Part of Administrative Fix of Broken Employment-Based Immigration System

• DHS has just released the expanded list of STEM specialties that qualify such students for 29-month OPT benefits.
  • Expanded List (See bolt prints for expanded STEM specialties)
  • DHS announcement
• For the title and definition of each degree program, readers may refer to CIP titles and definitions site. Readers may contact their DSOs to learn whether his/her degree program fits definition of one of the codes which are listed in the foregoing expanded STEM list. For the STEM OPT, they need certification and authorization by the DSO on their SEVIS I-20. Impact of this expanded list is substantial because they added a lot of codes that end with 99 which covers all the occupations which are not listed separately in the main specialty program lists.
• The number of new degrees added to the existing STEM list are quite substantial in numbers. This change will help new graduates and OPTs to stay and work for an extended period in this country and offer the U.S. businesses to recruit skilled workers, particulary when the H-1B cap reaches. Unlike the last two years, FY-2013 H-1B cap is likely to reach very early this year.
• In a way, the expansion of STEM list may be considered an "administrative fix" of the broken employment-based immigration system just as the stateside processing of I-601 waiver of inadmissibility and exercise of prosecutorial discretion against deportation of "clean" illegal aliens which are currently being implemented as administrative fixes to fill the gap which has been created by the failure of Congress to legislate Comprehensive Immigration Reform and DREAM Act. Another big challenge which will have to be dealt with is to fill a "big" hole in farm industry under the environment of growing exodus of undocumented migrant workers across the Southern Border and halt of inflow of such workers from the Southern border to supply the needed work forces to support the agricultural industry. It has reached the level of a crisis in the farm industry and several legislative bills have been introduced in the Congress, but these bills have been stalled under the current gridlock of legislative process in the Congress.

05/11/2012: Rubio Dwindling DREAM in Play of Semantics

• Senator Marco Rubio announced his version of DREAM Act forcing the Democrats and President Obama into a defense position until he started dwindling lately his offensive position by playing semantics that his proposal is not immigration reform but a humanitarian relief. His semantics has some truth to it. Problem is then what makes his proposal different from the Democrats' DREAM? Humanitarian concern with the innocent victims of the parents' acts has been all along the underlying premises of the DREAM bills. The strength of his proposal was to legalize these youngsters' illegal status without outrightly granting permanent status or citizenship status bypassing a long and long line of immigration route which "legal" immigrants had to and will have to endure to obtain permanent resident status or citizenship. That was the point which distinguished his proposal from the Democrats' and placed him in an offensive position and Democrats in a defensive position because his proposal will offend less the law abiding fellow immigrants. If the basic theme underlying his DREAM proposal lies with legislation of a true humanitarian relief, the DREAMERs should be given full benefits which are extended to all the refugees, including Cuban refugees which he alluded to. This will put him into a defensive position in that he will have to defend why the DREAMERs should be treated differently if his proposal indeed means a humanitarian relief in the line of a refugee relief. He is creating a distraction to his proposal. In politics, sometimes 'stand-up' works better than play of 'bending and twisting' skills. What a disappointment! Readers, read on.

05/10/2012: USCIS Updates EB-485 Inventory as of 05/03/2012

05/10/2012: State Department Amends Interim Final Rule for Exchange Visitor Program – Summer Work Travel

• This amendment provides guidance on additional regulatory changes and bolsters portions of the regulations to both further to protect the health, safety, and welfare of Summer Work Travel Program participants and to reinforce the cultural exchange aspects of the Program to promote mutual understanding in accordance with the Mutual Educational and Cultural Exchange Act of 1961. The amendment will take effect on May 11, 2012, except 22 CFR 62.32(h)(11) that will go into effect November 1, 2012. Please click here for the full text.

05/10/2012: China/India EB-2 Advisory

• Those whose priority dates are current under the current May 2012 Visa Bulletin should file I-485 applications without any delays until May 31, 2012. Filing means their I-485 packets must be "physically" delivered to the correct offices of the USCIS by May 31, 2012. Postmark is not enough. Please make it sure that all the forms are "signed and dated" and "there are no errors in filing fee checks." All the forms must be there in the packet. Some missing supporting documents will trigger RFE but such defective filing will not be rejected. Those who have yet to file I-485 as of the end of May 2012 will experience a long wait before they can file their I-485 applications. These people should check whether 245(K) relief be available for them when their priority date will become current in October but they failed to maintain nonimmigrant status or engaged in unauthorized employment during the period of wait.
• Those who have filed and are waiting for the approval of I-485 will experience a long wait until October 2012, unless their visa numbers have been authorized by the State Department before April 11, 2012. Some of these waiters are still receiving approval of their I-485 applications even now and will continue even in the future because they are lucky ones whose immigrant visa numbers have already been authorized but whose cases have experienced delays in actual final approval process.
• Upcoming freeze of immigrant visa numbers for these Chinese/Indian EB-2 may create a better environment for lobbying when it comes to the pending H.R. 3012. Accordingly, pro or con lobbying for or against this bill is likely to fire up soon. It will also be a good idea to push for three legislative or administrative fixes. One legislation is a STEM immigration without a numerical limit and with labor certification waiver. Two immediate administrative fixes should include availability of I-485 applications just with the approval of I-140 petition during the visa number regression and H-4 spouse employment authoriztion proposals. EB community and business should start working on these proposals as soon as possible.

05/10/2012: Unofficial June 2012 Visa Bulletin [American Consulate, Mumbai, India]

• Family-based Categories:

  • 	ROW(Rest of World)	INDIA
    FB1	06/22/2005	06/22/2005
    FB2A	01/01/2010	01/01/2010
    FB2B	04/15/2004	04/15/2004
    FB3	04/01/2002	04/01/2002
    FB4	01/08/2001	01/08/2001

• Employment-based Categories

  • 	ROW(Rest of World)	INDIA
    EB1	C	C
    EB2	C	U
    EB3	06/08/2006	09/15/2002
    EB-EW	06/08/2006	09/15/2002
    EB4	C	C
    EB4 Religion Workers	C	C

• American Consulate in Mumbai, India also confirms the State Department's initial release of June 2012 Visa Bulletin and one wonders why the State Department pulled off the release. We detected minor errors in its initial release, which did not affect the cut-date tables. We will find it out soon. Please stay tuned.

05/09/2012: What Happened With June 2012 Visa Bulletin?

• They released and removed!! Weird!! The following are the information which we collected from the removed June 2012 Visa Bulletin:
  • Family Based:

	ROW	China	India	Mexico	Philippines
F1	06/22/05	06/22/05	06/22/05	05/15/93	07/01/97
F2A	01/01/10	01/01/10	01/01/10	12/08/09	01/01/10
F2B	04/15/04	04/15/04	04/15/04	01/01/92	12/08/01
F3	04/01/02	04/01/02	04/01/02	01/15/93	07/22/92
F4	01/08/01	12/15/00	01/08/01	06/01/96	01/22/89

• Employment Based:

	ROW	China	India	Mexico	Philippines
EB1	C	C	C	C	C
EB2	C	U	U	C	C
EB3	06/08/06	06/08/05	09/15/02	06/08/06	05/22/06
EB3EW	06/08/06	04/22/03	09/15/02	06/08/06	06/08/06
EB4	C	C	C	C	C
EB Rel	C	C	C	C	C
EB5	C	C	C	C	C

• DV: All (Africa, Asia, Europe, North America, Oceania South American & Caribbean) Current, except Uzbekistan 17,050
• Advance Notification of DV: All current, except Uzbekistan 17,050.
• EB Prediction:
  • EB-1: Cut-Off date may be established at the end of the FY 2012 for all countries.
  • EB-2: Cut-Off date may be established for all countries other than China and India.
  • EB-2 China and India: Unavailable. (Despite the retrogression of the China and India EB-2 cut-off date to 08/15/2007, demand for numbers by applicants with priority dates earlier than that remained excessive. Such demand is primarily based on cases which had originally been filed with the USCIS for adjustment of status in the EB-3, and are now eligible to be upgraded to EB-2. The potential amount of such "upgrade" demand is not currently being reported, but it was evident that the continued availability of EB numbers for countries other than China dn India was being jeopardized. Therefore, it was necessary to make the China and India EB-2 "Unavailable" and it will remain so for the remainder of FY-2012. Numbers will once again be available China and India EB-2 cases beginning 10/01/2012 under the FY-2013 annual numerical limitations. Every effort will be made to return the China dn India EB-2 cut-off date to the 05/01/2010 date which had been reached in April 2012. USCIS has indicated that it will continue accepting China and India EB-2 I-485 filings during May 2012 based on the originally announced May cut-off date.)

05/09/2012: June 2012 Visa Bulletin

• India/China EB-2: UNAVAILABLE

05/08/2012: Visa Bureau Demand Data Used in the Determination of June 2012 Visa Bulletin EB Cut-Off Dates.

• Data as of 05/08/2012.

05/08/2012: USCIS Expedited Case Review Process for Specifically-Defined "Administrative Errors"

• This procedural note which is dated 05/02/2012 gives a guidance on what government errors are eligible for expedited case review and what procedure should be followed to seek such expedited case review with what evidence of errors. Read on.

05/08/2012: OFLC iCERT LCA Filing FAQ Round 2 on Tips for Completing Online LCA Form Using Acceptable Private Wage Surveys

• Many of the employers are filing LCA themselves using iCERT LCA site using OES wage data which is incorporated in the system. Sometimes, they will have to use wage surveys other than OES wage data for different reasons. This FAQ gives a guidance as to how to fill out ETA 9035E online form and what to do.

05/08/2012: Trend of FY 2013 H-1B Cap Count

• Ever since the H-1B cap season was opened on 04/02/2012, the cap count has progressed as follows:

Cap Count Date	Regular Cap (58,200)	Master Cap (20,000)
04/09/2012	17,400	8,200
04/13/2012	20,600	9,700
04/20/2012	25,000	10,900
04/27/2012	29,200	12,300
05/04/2012	32,000	13,700

• The cap count has been somewhat slowing down in the regular cap cases, but master cap count has been in progress at the pace of approximately 1,400/week. The master cap is available only to those foreign students graduating from higher learning institutions in the United States with a master degree or higher degree. We are now in graduation season in this country and it may affect the pace of master degree cap exhaustion during the next few weeks. However, should the current pace continue, the master cap is likely to reach in about five weeks or less (early June 2012). The U.S. master or higher degree holders will then start taking out cap numbers from the regular cap track. Accordingly, the regular cap numbers may be exhausted a little bit in a faster rate beginning June 2012. It is amazing how the improving economy of the nation is affecting the rate of demand for foreign skilled professional nonimmigrant workers as compared to the situations during the past two years. This change poses a challenge to the high-end industry and businesses during next one year because of the limited availability of professional foreign workers to meet their needs and demands. It is hoped that the Congress and the White House are placed under added political pressure by the changing circumstances to work on the legislative and adminstrative fixes to the ailing employment-based immigration system. Employers and readers are reminded that AC 21 Act was enacted during the Clinton Administration under such tense situation of short supply of skilled foreign workers constrained by the restrictive employment-based immigration system, especially during the period of booming economy of the country. Had there not been AC 21 Act, the country could have suffered tremendously at the time. The legislators and political leaders should have learnt a lesson at the time and may have to start paying attention to importance of their leadership to fix the current employment-based immigration system.

05/07/2012: Important Notice for DV 2013 Immigration Lottery Entrants

• The State Department has announced that the entrants in the Diversity Visa 2013 should start checking on the E-DV website beginning on May 1, 2012 through September 30, 2013. It also advises the DV-2013 entrants to keep their confirmation number since more DV 2013 entrants may be selected on October 1, 2012. What it means? Even if you are not initially selected, you should hang on with your confirmation number since you may have additional opportunity to be selected on October 1, 2012. Gotcha?!

05/07/2012: OFLC Announcement of 05/07/2012 on Court Enjoined New H-2B Wage Methodology Final Rule

• OFLC announces that on April 26, 2012, the Temporary Non-agricultural Employment of H-2B Aliens in the United States, Final Rule, 77 FR 10038, Feb. 21, 2012 was preliminarily enjoined by the U.S. District Court for Northern District of Florida, Pensacola Division in Bayou Lawn & Landscape Services, et al. v. Hilda L. Solis, et al., 12-cv-00183-RV-CJK, and was never implemented. Therefore, for the present time employers should file their H-2B labor certification applications under the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 FR 78020, Dec. 19, 2008. However, please be aware that this preliminary injunction necessarily calls into doubt the underlying authority of the Department of Labor to fulfill its responsibilities under the Immigration and Nationality Act and Department of Homeland Security regulations to issue the labor certifications that are a necessary predicate for the admission of H-2B workers.

05/07/2012: Prevailing Wage Determination Processing Times (ETA 9141) of National Prevailing Wage Center (NPWC) of OFLC as of 04/26/2012

• For PERM Program: March 2012 [NPWC determination is mandatory] - Within 60 days
• For H-1B Program: March 2012 [NPWC determination is optional] - Within 60 days
• For H-2B Program: April 2012 [NPWC determination is mandatory] - Within 30 days
• Processing time for Request for Redetermination of prevailing wage determination: March 2012
• Processing time for NPWC Director Review of prevailing wage determination: April 2012

05/07/2012: H-1B Cap Count as of Last Friday, 05/04/2012

• Regular cap=32,000 (out of 58,200 total cap, excluding Chile and Singapore Special Caps). Amazing. In about one month, it consumed about 55% of total available regular cap numbers. One wonders how long it will take to exhaust 26,200 remaining and available regular cap numbers. The speed of exhaustion of the regular cap numbers will be decided not only by the rate of regular cap numbers, but also by the rate of master cap numbers since the master cap applicants will start taking out the regular cap numbers once the master cap is reached. Accordingly, the employers should keep watching not only the rate of regular cap number movement but also master cap number movement from hereon to figure out how soon the cap will reach.
• Master cap=13,700 (out of 20,000 total cap). As anticipated, master cap numbers have been exhausted at much raster rate - close to 70% of total available master cap numbers.

05/07/2012: USCIS Merges Current Customer Service Directorate and Public Engagement Directorate into a new Customer Service and Public Engagement Directorate

• USCIS has just announced that it merges these two separate directorates into one newly-named operational directorate, the Customer Service and Public Engagement (CSPE) Directorate. The new structure will be headed by Mariela Melero, current Chief of the Office of Public Engagement under the title of Associate Director leading CSPE. We welcome this move of merging consumer services and public relations function under the single umbrella. We also propose that the new function should focus on the customer services and public relations function as separate from benefits filing and adjudication function including lockbox management to avoid potential disjunction between the benefits filing structure and the benefits adjudication structure which may be caused by two different lines of commands under the current operational structure. It is this reporter's understanding that Mr. Mayorkas initiated a move to create lockboxes under the umbrella of the Customer Services Directorate in anticipation of flood of legalization applications flowing into the system, should the Congress pass the Comprehensive Immigration Reform Act. However, it has turned out that the CIRA has never come into reality and is not likely to come into reality in the near future.

05/07/2012: Today is the Deadline for Citizenship Grant Applications

• USCIS reminds potential grant applicants of the May 7 deadline to apply for funding under the fiscal year (FY) 2012 Citizenship and Integration Grant Program. Applicants must apply electronically by 11:59 p.m. EDT on May 7 using the application package and instructions available at www.grants.gov. For details, please click here.

05/07/2012: Thank Lord, iCERT and PERM Sites Have Been Fixed and Up and Running Again as of 09:15 a.m. EST!

05/07/2012: Today's Returning Congress Facing Legislative Challenges Ahead Loaded With Election-Year Political Agenda

• As the two parties have narrowed down their Presidential nominees, a race has begun for the parties to pull into their camps "undetermined" middle of the road voters because the election will be determined by these groups. The focus shifts from the hard-core far-right or far-left constituencies because they will vote for their party nominees, no matter what. To seize the moment, Senator Marco Rubio announced his upcoming proposal for DREAM Act which carefully would sift out the elements that could ignite furors among middle of road Republicans and middle of road Democrats by proposing to remove opportunity for "automatic" adjustment of status to a lawful permanent residence which is argued as amnesty by the far rights and at the same time to legalize the DREAMers' illegal status which the far lefts may not be able to resist to swallow under the given economic and political environment. This proposal is considered an embarassment to the Democrats and a life-saver for the Republicans in the November election. Why there is a delay of release of the final draft of this proposal? All political calculations from Rubio's personal political agenda to build his political spotlight and the Republican party's own political agenda to smooth out party hardcores during the period of transition, continuously embarassing the Democrats. The President's last week announcement that he was ready for signing DREAM bill if the Congress would pass it was a far short from mending the wounds unless a positive move of his own for the legislative action in the Congress is presented. We will watch closely whether there would be such move by Democrat Senators before the Memorial Day Holiday of May 28, 2012.
• Under the foregoing environment, employment-based immigration reform legislations continue to remain in the shadow. For a while, H.R. 3012 and Senator Chuck Schumer's bill amending the House bill to accomodate Irish E-3 visas and relief of the undocumented Irish population in the United States took a center stage in employment-based immigrant community and leading high-tech businesses in the country, but these bills have disappeared from a political spotlight facing a powerful lobby of anti-immigration political forces against the bills. It is uncertain whether any of these bills can be taken up or survive, if taken up, in the Congress before the Memorial Day under the current political environment. We will keep watching the Hill.

05/07/2012: iCERT and PERM Sites Down Throughout the Past Weekend Presenting Problems for the Last-Minute Filers

• Offcial outage for maintenance is not scheduled until this Thursday evening, but for an apparent technical problem, these two important temporary and permanent labor certification sites witnessed down all weekend long. There are always some last minute filers of prevailing wage determination requests or temporary labor certification for H-2A, H-2B, E-3, H-1B1 or permanent labor certification for PERM. Some of them could have faced missing deadlines because of these unscheduled outage of the systems. Since there appears to be no remedies provided in the regulations or under the policies of the DOL, they may have to swallow some painful pills for a learning lesson. Ouch!

05/05/2012: iCERT and PERM Systems Down for Technical Reasons

• The PERM and iCERT online systems had to go down from time to time for the maintenance, and for the reasons, the consumers had to endure outage of the system. However, for the technical reasons other than system maintenance, the systems has witnessed outage of the systems from time to time. Currently, the systems are down for this "other" reasons and PERM, all the temporary labor certifications, prevailaing wage determination request for PERM and other services on iCERT system and PERM sites are down and not available to the consumers. It is hoped that the technical problem of the systems be addressed and cured in the near future for the stability and reliability of the systems.

05/05/2012: USCIS Immigration Benefits Statistics at the End of March 2012

05/05/2012: USCIS Naturalization Benefits Statistics at the End of March 2012

05/04/2012: H-1B Employers, Double Check Your Certified LCA Before Filing H-1B Petitions

• AILA has reported that it received a notice from the Office of Foreign Labor Certification that some of the certified LCA which they forwarded to the employer in the form of email attachment missed the signature page of the Certifying Officer, which is a critical part of the certified LCA. Since H-1B filings with such deficient certified LCA are likely to be rejected by the USCIS, the employers may double check the certified LCA before they sign and ship it out to the Service Centers as part of the H-1B petition.

05/04/2012: Open Question for Indian/Chinese EB-2 Visa Cut-Off Dates for June, July, August, and September 2012

• As we reported earlier, the State Department reportedly notified the USCIS that as of April 11, 2012, it had exhausted Indian/Chinese EB-2 visa numbers for FY 2012 and would not authorize such EB-2 visas to the USCIS. This raises a question for the State Department as to what cut-off dates they will publish for the next several months for Indian and Chinese EB-2 category. If they publish that India/China EB-2 is "Unavailable," the USCIS will not be able to receive any new EB-485 applications no matter how earlier priority dates the Indians and Chinese EB-2 cases have, not to mention their inability to adjudicate and approve pending cases. On the other hand, should they decide any specific cut-off dates for these categories, there arises a legal question as to whether the USCIS can refuse approval of the pending EB-485 applications or new EB-485 applications with earlier priority dates. The situation for May 2012 Visa Bulletin was different in that at the time the May 2012 Visa Bulletin was published, it had no information that the Indian/Chinese EB-2 annual visa allocations have been exhausted. Ideally, after the State Department learned that the visa number had been exhausted, they could have published revised visa bulleting for May 2012, which they opted not to. These two departments learned a valuable lesson from a political and legal disaster during the FY 2007 Visa Bulletin fiasco period. Additionally, the issue involves a more practical stake involved for the USCIS. Hypothetically, should the State Department set a cut-off date for the Indian/Chinese EB-2, the USCIS will be required to continuously receive EB-485 applications from Indian and Chinese professional workers with a priority date earlier than the cut-off date, albeit inability of the USCIS to approve any such pending EB-485 applications regardless of how far back of priority dates one has. This situation will keep the USCIS busy with continuing in-flow of fee funds to support the agency financially without any financial crisis. Imagine what happens if the State Department set the EB-2 visa numbers "Unavailable" for four months! During the four months, they will not be able to receive any new Indian/Chinese EB-2 I-485 applications!? Imagine its impact on the USCIS finance and idle resources!? Very curious of what has been cooked behind the spotlight on this matter between the State Department and the USCIS for the upcoming Visa Bulletins.

05/04/2012: Employers Face Increasing Audits and Supervisory Recruitment in PERM, Experiencing Increased Processing Times as Well as Denials

• As we reported recently, the Office of Foreign Labor Certification reported in the recent stakeholder meeting that the audits and supervised recruitment would increase. At the time of report, approximately 30% cases faced either audit and supervised recruitment. In a number of cases, after receiving the responses to the audits, the agency has turned the cases into a supervised recruitment track in a number of cases. This trend has resulted in a tremendous delay in PERM processing times and potential denials for the employers that have been picked for such audits and supervised recruitment. Strikingly, such cases have been denied after wasting a tremendous time and expenses for certain incredibly unbelievable "minor" "trivial" "technical" matters. For instances, there have been a number of reports that after the audit or supervised recruitment, the agency denied the application for the reason that in the job bank job order, employer checked the box of driver license requirement or drug testing requirement, travel requirement, etc. pursuant to the job bank formats when those requirements had not been printed in the advertisements. Another large number of denials have been produced for failure to justify why the unqualified U.S. workers were not offered an on-the-job-training when arguably such on-the-job-training would make such unqualified workers qualified for the job. Another traps included missing of information among the recruitment record in a minor matter or the employer failed to contact the applicants and failed to preserve evidence, etc. etc.
• Employers are strongly advised to pay attention to the details and good record-keeping to survive in the new permanent labor certification environment and not to experience waste of money and time and denials.

05/04/2012: OFLC iCERT Site & PERM Site Outage Alert in the Evening of 05/10/2012, Next Thursday

• ALERT: The Permanent Online system will be unavailable from 8 PM ET on Thursday, May 10, 2012 to 6AM ET Friday, May 11, 2012 for routine maintenance.

05/04/2012: Did You Miss Me? I Needed a Break!

For Pre-May 2012 Postings, Please Click Here.