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THE OH LAW FIRM
Home of 19 Million Visits

Immigration Law Practice for Over 25 Years

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

Automatic Visa Revalidation Restriction Regulation
I-140/485 Concurrent Filing Regulation
Age-Out Act
Non-1mmigrant Allied Healthcare Worker Visa Screen Requirement Final Rule
PERM Final Regulation
PERM Online Filing Link
AR- 11 Online Address Chage Report
Immigration Fee Schedules (Effective 07/30/2007)

Current Page[08/01/2008 - Present]/Archive XVII[03/31/2008 - 07/31/2008]Archive XVI[08/01/2007 - 03/31/2008/Archive XV [04/30/2007 - 07/31/2007]/Archive XIV[06/15/2006 - 03/31/2007]Archive XIII [12/01/05 - 06/14/06]/ Archive XII [08/01/05- 11/30/05]/Archive XI [04/30/05 - 07/31/05

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Restatement of PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR § 656.10(b)(2)
  The Department of Labor recently issued the following documents on the topic of attorney/agent consideration of U.S. workers under the permanent labor certification program: 1) Press Release, titled “U.S. Department of Labor auditing all permanent labor certification applications filed by major immigration law firm,” June 2, 2008; 2) Information Paper titled “Frequently asked questions on audit of permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP,” June 4, 2008; and 3) PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR § 656.10(b)(2), June 13, 2008 (collectively, the “Consideration Guidance Documents”). The Consideration Guidance Documents set forth the Department’s interpretation of 20 CFR § 656.10(b)(2) – in particular, with respect to the role an attorney may play in the employer’s recruitment and hiring process. The Department acknowledges that employers often require counsel when applying for permanent labor certification. However, the Department must also ensure that the employer’s recruitment and hiring processes are conducted in good faith, in accordance with the permanent labor certification program’s statutory and regulatory requirements. Since issuing the Consideration Guidance Documents, the Department has received considerable feedback from employers and employer representatives, including attorneys and agents, that regularly practice in or make use of the PERM Program. After consideration of these comments and suggestions, the Department has decided to issue the following Restatement of the PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR § 656.10(b)(2), which will supersede the Consideration Guidance Documents. The Department of Labor has a statutory responsibility to ensure that no foreign worker (or “alien”) is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. 8 U.S.C. § 1182(a)(5)(A)(i). The Department fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application. Accordingly, the Department relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith, even where the employer already has a temporarily-admitted foreign national working for the employer. The Department has long held the view that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process. In most situations, that normal hiring process does not involve a role for an attorney or agent (as defined in 20 C.F.R. § 656.3) in assessing the qualifications of applicants to fill the employer's position. It also does not involve any role for the foreign worker or foreign national in any aspect of the consideration process. However, given that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer’s normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process. Additionally, the Department respects the right of employers to consult with their attorney(s) or agent(s) during that process to ensure that they are complying with all applicable legal requirements. By prohibiting attorneys, agents, and foreign workers from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. § 656.10 (b)(2)(i) and (ii), the Department does not thereby prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer, and not the attorney or agent, must be the first to review an application for employment, and must determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. By requiring that initial reviews of and final determinations on all applications are made by the employer, the Department seeks to ensure that the consideration process is as close to the employer’s non-immigration-related hiring process as possible and that U.S. workers receive full and fair consideration by the employer for the job. Attorneys (and, to the extent it is consistent with state rules governing the practice of law, agents) may, however, provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations, and policies.
• More specifically, the types of actions prohibited by 20 C.F.R. § 656.10(b)(2)(i) and (ii) include:
  • Attorneys and agents may receive resumes and applications of U.S. workers who respond to the employer's recruitment efforts; however, they may not conduct any preliminary screening of applications before the employer does so, other than routine clerical or ministerial organizing of resumes which does not include any assessment of, or comments on, the qualifications of any applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. The attorney or agent may not withhold from the employer any resumes or applications that it receives from U.S. workers.
  • Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. Such involvement has resulted in an impermissible “chilling effect” on the interests of U.S. worker-applicants in the position.
• Where the Department finds evidence of potentially improper attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department will audit, and may subsequently require supervised recruitment, for those applications to determine whether the employer’s recruitment and hiring processes were conducted in good faith and to ensure adherence to all statutory and regulatory requirements. In evaluating a labor certification application, the Department will look carefully at the manner in which the employer reached its determination that there are no qualified, available, able and willing U.S. workers, including scrutinizing the manner in which the decision was made and whether or not the employer deviated from its normal course of business in evaluating the qualifications of U.S. applicants.

08/29/2008: Continuing Backlog of H-1B Extension Petitions in VSC and Employment Authorization Issue

• Under the immigration regulation, the alien beneficiary of the H-1B extension petition is authorized to "continue employment" pending the extension petition for 240 days "from the date of expiration of the authorized period of stay," assuming such extension petition was filed "timely." Currently, the Vermont Service Center is processing H-1B extension petitions which were receipted on January 22, 2008. Accordingly, 240-day authomatic extension of employment authorization pending H-1B extension petition will expire on about 09/22/2008, dangerously close to the 240-day deadline. Assuming that the extension petition was filed on 01/22/2008 and the current H-1B expired on 01/23/2008, the maximum authorized employment would expire on about 09/23/2008. If the Vermont Service Center issues RFE and fails to approve the H-1B extension petition by about 09/23/2008, the H-1B alien loses employment authorization at the expiration of this date. This issue has been raised and discussed between the immigration lawyers community and the USCIS for a number of times but failed to reach any concensus, particularly when it comes to the immigration enforcement agency of USICE is involved. Even though the agencies have been lenient in enforcing this part of the immigration regulation, the black language of the regulation authorizes the USICE to enforce the law if they choose to do so.
• We urge the agency to consider improvement of processing time for the H-1B extension petiions in VSC to relieve the involved employer and the alien beneficiary from the predicament and agony when they face delay in adjudication of their H-1B extension petition.

08/29/2008: EB-485 Processing Times for NSC=07/02/2007 and TSC=06/18/2007 (Oops! Typos)

• August 15, 2008 USCIS Service Centers Processing Time Report indicates that TSC was not processing the July 2007 VB fiasco cases, while NSC was probably adjudicating July 2, 2007 filing cases as of August 15, 2008.
• It is time for the USCIS leaders to either confirm or deny the ongoing rumor that the USCIS has been on hold adjudication of EB-2 485 applications for the Indians and Chinese effective August 21, 2008. This information has been allegedly leaked through the local district or field office Information Officers and some of other sources. They should confirm whether the current situation is "on hold" or "exhausted" EB-2 numbers for FY 2008 for Indians or Chinese. Nothing should be secret about this.

08/29/2008: Naturalization Test Change Effective October 1, 2008: Do You Know Which Test Materials to Read for the Interview?

• The redesigned test was publicly introduced on September 27, 2007. Naturalization applicants will begin taking the revised test on October 1, 2008. Following is the guidelines:
• Which Test Do I Take?
  The following guidelines will determine whether naturalization applicants will take the current test or the redesigned version:
  • If an applicanta applies BEFORE October 1, 2008 and is scheduled for his or her naturalization interview BEFORE October 1, 2008, he or she will take the current test.
  • If an applicant applies BEFORE October 1, 2008 and is scheduled for his or her naturalization interview AFTER October 1, 2008, he or she can choose to take the current test or the redesigned version until October 1, 2009.
  • If an applicant applies AFTER October 1, 2008, he or she will take the redesigned version.
  • If the nationalization interview is scheduled AFTER October 1, 2009, regardless of when he or she applied, he or she will take the redesigned version.
• Current Test
  • Civics & Written English Test
  • Sample Sentences for Written English Test
• Redesigned Test
  • History & Government Test
  • Reading Vocabulary Test
  • Writing Vocabulary Test
  • Information of the Redesigned Test:
    • FAQ
    • Scoring Guidelines for English Test
    • Civics Item Selection Analysis
• For the naturalization applicants, this is a confusing period because of the scheduled redesign of the citizenship interview tests. The following is the additional information for the applicants which the USCIS released in the August 26, 2008 Community Stakeholder Meeting Q&A: (See Question & Answer #3)
  • For the writing test, a USCIS Officer will dictate to the applicant using sentence(s) from one of the standardized test forms. The sentences are constructed from words included on the English writing vocabulary list. Applicants are required to write 1 sentence out of 3 correctly (same as the current test). During the writing test, the applicant is provided a form with blank lines to write the dictated sentence(s). The USCIS Officer instructs an applicant to write down exactly what he/she says. For the reading test, a USCIS Officer will use sentence(s) that appear on one of the standardized test forms and will ask the applicant to read the sentence(s), which are constructed from words included on the English reading vocabulary list. The applicant must read 1 sentence out of 3 correctly (same as the current test).

08/29/2008: Should I-485 Applicants Approaching 14 Years of Age Proactively File G-325A and Biometric Fee Payment to Avoid RFE After Reaching 14 Years of Age?

• Here is the USCIS answer: They can do that, but a new G-325A and biometrics fee will be requested once the child turns 14 years of age regardless of their proactive filing of these G-325A and biometric fees. Although the USCIS understand s and appreciates the pro-active approach, USCIS cannot accept the biometrics fee for an applicant under 14 years of age and must obtain the child’s signature on the Form G-325A once the child becomes 14 years old. The RFE process is not extensive for these cases and should not significantly slow down the adjudication of the case. Read the Stakeholders Meeting Q&A of 08/26/2008.
  

08/29/2008: USCIS 08/26/2008 Community Relations Stakeholders Meeting Q&A

08/29/2008: USCIS August 2008 Monthly Newsletter

08/27/2008: USCIS Memorandum on Guidance on Continuous Residence, Physical Presence, and Overseas Naturalization for a Spouse or Child of a Member of the Armed Forces

08/26/2008: USCIS Changed I-751 Filing Procedure Effective 08/25/2008

• The announcement in Spanish language, click here.

08/24/2008: USCIS Scheduled System Outage Monday, 08/25/2008

• USCIS website has announced that on Monday August 25, 2008, certain dynamic features of USCIS.gov will be unavailable due to scheduled maintenance from 8 AM to 1 PM Eastern Time. This includes the search function and Naturalization Self-Test.

08/22/2008: Proposed New ETA 9035E Form for H-1B Labor Condition Application

• This notice was published in June 2008 and comment period ends on 08/25/2008 Monday. We want to repost the form and other helpful information for the employers to review.
  • Proposed New ETA 9035E Labor Condition Application Form
  • Instructions ETA 9035CP for the proposed new ETA 9035E Form
  • Appendix 1: Mapping of 3-Digit DOT Codes to SOC/O*Net Job Titles
  • Appendix 2: Sample Acceptable Private Wage Surveys: Mercer Surveys and Watson Wyatt
  • ESA Violation Complaint Report Form
  • Supporting Statement for the Form Change
• We will report the details of the comments after the comment period is closed. Please stay tuned.

08/22/2008: Wild Forest Fire Sweeping Chinese and Indian Websites

• The USCIS has been delaying release of the August 15, 2008 USCIS processing time reports and so-called certain government agency processing tracking sites have been reporting slow-down of the EB-2 I-485 applications for the Indians and Chinese. Triggered in part by these evidence, the Indian and Chinese EB-2 I-485 waiters are literally consuming their emotions through the Indian and Chinese websites. However, we are still in August and have yet to reach the September 2008 Visa Bulletin which was released by the State Department assumedly after consulting with the USCIS, and there is absolutely no evidence at this point that the FY 2008 EB-2 visa numbers have already been exhausted. People should calm down, keep patience, and wait for the agencies' announcements, if any.

08/22/2008: USCIS Policy on Refiling of I-140 Petition Pending AAO Appeal

• The AILA-USCIS Service Center Operations Office Liaison minute indicates that the USCIS will allow the employers to refile I-140 petition when the denial of I-140 has been appealed and pending before the AAO. However, such refiled I-140 petition will be held in abeyance pending the decision of the AAO for the appealed I-140 petition. It advises that in order to seek the adjudication of the refiled I-140 petition, the employer must withdraw the pending AAO appeal. However, people must understand that such decision should not be made too lightly in that there are a lot of benefits attached to the pending AAO appeal, which will be wiped out once the appeal is withdrawn. Such benefits include AC-21 extension of H-1B nonimmigrant status even beyond the six-year limit. Besides, pending the appeal, the USCIS decision of denial is considered "not final," and there are a number of benefits attached to the situation when the denial is considered not final.

08/22/2008: Three-Year Canadian/Mexican TN Visa Final Rule Making Process Moving Forward

• After proposed rule-making was completed, the USCIS is moving ahead the "final rule" making process. Yesterday, the USCIS submitted the Final Rule to the OMB for its clearance. This rule increases the period of time that may be granted to a TN nonimmigrant upon admission or request for extension of stay from the current 1 year to 3 years. In addition this rule changes the filing instructions in 214.6(h)(1) from the Nebraska Service Center to the Vermont Service Center. Finally, the rule corrects a typographic mistake in 214.6(g)(1) changing the reference from paragraph (e)(3) to (d)(3). Final rule making clearance normally takes from 30 days to 90 days unless an emergency is established. The proposed rule was cleared unsually in a short period of time. Canadians and Mexicans hope that the final rule making process be also completed in 30 days rather than 90 days. We'll see! Please stay tuned to this website.

08/21/2008: Comment Period Ends at the End of This Week for Final Modified Version of ETA 9089 PERM Application Form

• The OFLC is scheduled to close the comment period for the final modified version of its ETA 9089 form which they schedule to launch on January 1, 2009. This final version is expected to reflect some comments for the their initial modified draft by the key stakeholders including the AILA, which we have already reported. Please stay tuned to this website for the text of final version which they will publish before they launch on January 1, 2009.

08/21/2008: F/M//J Sponsor Schools and F/M/J Nonimmigrants to Pay Increased Fees Soon

• The DHS is making a final rule to adjust the fees for SEVP (Student and Exchange Visitor Program) school certification petition fee and the application fee for nonimmigrants seeking to become academic (F visa) or vocational (M visa) students, or exchange visitors (J visa). This proposed rule would; adjust the fees for schools seeking to admit F or M students; adjust the fees paid by individual F, M, or J nonimmigrants; implement mandatory review of fees collected by SEVP as follows:
  • School certification petition: $1700, plus $655 for each site
  • Each F or M student: $200
  • Most J exchange visitors: $180
  • Exchange visitors seeking admission as au pairs, camp counselors, and summer work/travel program participants: $35.
• DHS is targeting to make this rule effective at the beginning of fiscal year 2009, on October 1, 2008. The rule also establishes oversight and recertification of schools for attendance by F or M students and procedures for schools to submit their recertification petitions, add a provision allowing a school to voluntarily withdraw from its certification, and clarify procedures for school operation with regard to F or M students during recertification and following a denial of recertification or a withdrawal of certification. Further, the rule will remove obsolete provisions used prior to implementation of the Student and Exchange Visitor Information System (SEVIS), a Web-enabled database that provides current information on F, M, and J nonimmigrants in the United States. Please stay tuned to this website for development of this rule-making process. This final rule is under review by OMB since August 19, 2008.

08/21/2008: Interim Final Rule for I-485 Application Requirements and Procedures for U or T Visa Holders

• USCIS has submitted this interim final rule to the OMB for its clearance on August 15, 2008. Interim final rule or final rule clearance usually takes from 30 days to 90 days unless some usual emergency is involved. Please stay tuned.

08/20/2008: Immigration Reauthorization Bills and Senate Needs a Political Push

• There are four reauthorization legislative bills in the Congress. (1) Conrad 30 NIW bill , (2) Regional Center Pilot Investment bill (EB-5), (3) Nonministerial Religious Worker R-1 and Special Immigration bill, and (4) E-Verify Electronic Employment Authorization bill. The E-Verify reauthorization bill is very controversial adn currently facing a stong political opposition from political forces. The House passed the first three bills and forwarded to the Senate quite some time back, but as we reported on 08/02/2008, the Senate floor referred the bills to the Senate Judiciary at the last minute before the Senate left the Hill on August 2, 2008. These bills are currently presented to the Senate in two different formats: One is the format of the Senate's consent to each of these House bills separately. The other is Senator Specter's consolidated bill that put together all of these four bills into one bill. Obviously, Senator Specter's strategy must have been to tie the reauthorization bills to the controversial E-Verify Reauthorization bill. We reported that he apparently changed his mind and was pressuring the Senate Majority Leader to introduce E-Verify bill in the Senate first. Accordingly, it is unclear which strategies will work better to get these reauthorization bills passed in the Senate before they return to the election recess in early October.
• The Senate is scheduled to return to the session on September 5, 2008, Friday, and to pick up the defense appropriation billl debates. The House is not scheduled to return to the session until September 8, 2008, Monday. Procedurally, unless each of the reauthorization bills is consented by the Senate floor without amendment, they will have to go to the conference committee or the House just consent to the Senate's amendment. The problem is the House bills were referred to the Senate Judiciary Committee just before the recess and unless a sufficient political pressure is added to the Judiciary Committee Chairman Lehey, they are destined to go nowhere when it comes to the time frame. On the other hand, Senator's consolidated bill faces its own problem because of the E-Verify reauthorization proposal. Besides, even if the Senate floor quickly takes up this consolidated bill, since it is a Senate bill, it will have to be presented to the House for their consent for the Senate versions. The question is how and when all of these actions will be taken up by the leaders of the Senate. The answer appears to be obvious. The relevant immigrant communities must recharge themselves and act quickly to add pressure on the Senate leaders to take up the bills quickly as soon as they return to the session. Probably it may be too late to attach these bills to the defense appropriation bill which they will pick up on the first day of their return to the Senate.

08/20/2008: Effective Today, Visa Posts Require 10 Scanned Fingerprints for "Nonimmigrant" Visa Applications

• The State Department published this rule in the federal register which takes effect today. This rule generally requires scanning of ten fingerprints of nonimmigrant visa applicants has already been implemented. For the purposes of verifying and confirming identity, conducting background checks, and to ensure that an applicant has not received a visa or entered into the United States under a different name, the Department of State may use the fingerprints in order to ascertain from the appropriate authorities whether they have information pertinent to the applicant's eligibility to receive a visa and for other purposes consistent with applicable law, regulations, and Department policy. Please read full text of the Rule.

08/20/2008: Acting Director of USCIS Solicits Comments to the Proposed H-2B Rule

• Mr. Jonathan Scharfen, Acting Director, is soliciting the comments through his DHS Journal article. This article also summarizes succinctly the benefits of the proposed H-2B program changes.

08/20/2008: USCIS Changes the Course of H-2B Program Management from Initially Proposed One-Tier System to Current Two-Tier System

• Today, the USCIS has released two rule-making announcements in the federal register. One is to withdraw the proposed H-2B program change rule which was released in January 2005, and the other is another proposed H-2B program change rule dated 08/20/2008. This simultaneous release of the two rules somewhat confuses the consumers of the H-2B program. In essence, though, what they are doing is to give up their initial plan to eliminate the temporary labor certification application requirement for filing of H-2B petition with the USCIS and to change the H-2B program from the current two-tier system to one-tier system. The January 2005 proposed rule thus encompassed a substantial procedural change in the H-2B management system. Today's announcement abandons this initial plan and consequently the USCIS has to withdraw the January 2005 proposed H-2B program change rule-making agenda.
• The new H-2B program will thus retain the current procedure requiring the certification of temporary labor certification prior to filing of H-2B petition with the USCIS. This change of course is a result of opposition to the initial proposed rules by the U.S. worker protection forces and signifies the defeat of the needs of the stakeholder employers in the involved industry to process the H-2B temporary worker petitions without the current time-consuming and prolonged technical procedural steps. This may also be taken a reflection of ongoing government policies swifting the focus from efficiency to integrity of the system.
• Employers should however notice that the new rule proposes substantial changes in the "substantive" matters from the current H-2B regulation, as reported it earlier on 08/15/2008.
• The following are the two H-2B rule-making releases today:
  • Withdrwal of January 2005 Proposed Rule
  • New Proposal to the H-2B Program Without Procedural Changes.

08/19/2008: USCIS Reminds EAD Applicants to Use Correct Version of EAD Application Form (05/27/2008 N)

• USCIS has issued a reminder to the EAD applicants to use the correct version, 05/27/2008 N version, I-765 form and use of earlier version may be rejected. Read on.

08/19/2008: Advisory for AC 21 Change of Employment EB-485 Filers

• AC 21 portability of approved I-140 after 180 days of I-485 filing growingly faces challenges at two different levels. Currently most of the ported EB-485 waiters have reserved their proactive report of porting since the Yates AC 21 Memorandum did not mandate proactive report of the change of employment. Until recently, these 485 applicants rarely received RFE before EB-485 was approved, and even when they received a RFE, the agency just requested to provide the evicence of continuous existence of proffered employment. When the original employer had withdrawn the approved I-140 petition, sometimes these applicants received a Notice of Intent to Deny I-485 application giving an opportunity for the I-485 applicants to submit the AC 21 portability evidence. Usually submission of basic threshold evidence in response to such RFE resulted in approval of the I-485 applications. However, lately we see increasing RFEs demanding a whole list of evidence in the event the applicant ported and changed employment. The request for evidence far exceeds their traditional practice. They even demand new updated G-325A, all the W-2s, paycheck copies, details of the new job including specific job title, description of duties, educational/experience requirement, wages, and much more. This is a sort of new challenge for the AC 21 ported EB-485 waiters who have reserved reporting of change of employment.
• The second potential challenge involves potential revisitation of approvability of I-485 applications when they apply for naturalization application after five years in permanent residence. As part of the naturalization application, the agency requires the applicants to disclose the employment and addresses for the past five years immediately preceding filing of naturalization application. For EB-485 applicants, the adjudicator of the naturalization applications can notice the name of different employer at the time the applicant's I-485 was approved and may need to explore potential error in the approval of the I-485 applications. The issue of revocability of the approved I-485 applications include the question of whether the adjudicator would have approved I-485 applications, had the adjudicators learned that the alien was not working for the sponsoring employer. The adjudicators may explore this issue through the interviews at the local field offices.
• Because of the changing environment, it may be prudent or even imperative for the EB-485 applicants who failed to report AC 21 change of employment to preserve the evidence of eligibility of AC 21 portability before AND after the green card approval not to face any serious consequences years after approval of the green card approvals. They should not destroy such evidence at least until after they file the naturalization applications.

08/18/2008: Nonimmigrant EB-Visa Application Potential Delays Associated With PIMS

• AILA has reported that this problem is still continuing and the EB nonimmigrant visa applicants who changed or extended the EB nonimmigrant status, particularly before late March 2008, may have to be prepared for the potential delays at the visa posts. This advisory applies only to those whose EB nonimmigrant EOS or COS duplicate original copy was not filed with the Service Centers at the time they filed I-129 EOS/COS petitions. There are a couple of things people should remember:
  • The visa posts no longer requires the original I-797 EB nonimmigrant EOS/COS approval notices issued by the Service Centers, but people may still have to carry it with them as the CBP officials at the airports may still require such original I-797.
  • Filing I-824 is neither required nor of help in the event that the people failed to file I-129 in duplicate. People may not waste money and time.
  • If the duplicate has not been filed, it is likely that the visa posts will issue a notice to such visa applicant that the visa application is "in administrative process." This language implies that the KCC does not have his/her I-797 approval record in their system and the KCC is in the process of accessing the USCIS CLAIMS database to get access to the USCIS approval action. Currently, only KCC has access to the USCIS CLAIMS database and not visa posts. This process will cause some delays for the visa posts to issue the visas, but they will be able to issue the visas eventually once the KCC completes the CLAIMS verification. This is one of the reasons why filing I-824 is not helpful at all considering the fact that I-824 has its own processing backlogs.
• Report indicates that the problem may persist until the USCIS electronoc filing system of Transformation Program is completed, which is still miles away. It is thus imperative that the EB nonimmigrant status extension or change of status applicants file the petitions "in duplicate" in every and all situations. Once the duplicate is filed, the USCIS forwards the second set to the KCC under the agreement between the USCIS and the State Department, and the KCC will be able to verify such record immediately upon the visa posts requests. Neither visa posts or involved aliens currently have any means to check the KCC record prior to filing of visa applications.
• What are the sources of the problem? It all boils down to the funding problem. The USCIS does not have financial and human resources to forward every single EOS or COS approval to the KCC and at the same time cannot allow the visa posts overseas to get access to the USCIS CLAIMS system until the Transformation Program is completed when all the EOS/COS will be filed online and no paper filing will be permitted. People should thus work within the given situation. "Given situation" means (1) Always File I-129 in Duplicate, and (2) If Failed to File in Duplicate, Be Prepared for Potential Delays in Visa Issuance at Visa Posts, Particularly if Filed Before Late March 2008!

08/17/2008: AAO Appeal Processing Times as of 08/12/2008

I – 140 EB1(A) Alien with Extraordinary Ability: 13 Months
I ­­­– 140 EB1(B) Outstanding Professor or Researcher: Current
I – 140 EB1(C) Multinational Manager or Executive: Current
I – 140 EB2 (D), (I) – National Interest Waiver: 17 Months
I – 140 EB3 (E), (G) – Skilled, Professional, or Other Worker: 14 Months
I – 687 Legalization Application for Temporary Residence: 20 Months
I – 698: Legalization Adjustment Application: Current
I – 700 Special Agricultural Worker: Current
I – 526 EB5 Alien Entrepreneur: Current
I – 129 L Nonimmigrant Intracompany Transferee: Current
I – 129 H1B Nonimmigrant Specialty Occupation Worker: 11 Months
I – 129 H2, H3 Temporary Nonimmigrant Worker: Current
I – 129 O Nonimmigrant Extraordinary Ability Worker: 12 Months
I – 129 F Petition for Fiancée: Current
I – 129 P1, P2, P3 Athletes, Artists and Entertainers: 17 Months
I – 129 Q Cultural Exchange Visitor: Current
I – 360 EB4 Petition for Religious Worker: 10 Months
I – 360 VAWA Violence Against Women Act Petition: 15 Months
I – 360 J Special Immigrant Juvenile: Current
N – 470 Application to Preserve Residence: Current
N – 565 Replacement Naturalization/Citizenship Document: Current
N – 600 Certificate of Citizenship: Current
N – 643 Certificate of Citizenship for Adopted Child: Current
I – 600 Petition for Orphan: Current
I – 485 Cuban Adjustment Certification: Current
I – 612 Application for Waiver: Current
I – 821 Temporary Protected Status: Current
I – 212 Application to Reapply for Admission: 10 Months
I – 601 Application for Waiver of Inadmissibility: 24 Months
I – 131 Application for Travel Document: Current
I – 485 LIFE Act Adjustment Application: 20 Months
I – 905 Application to Issue Cert for Health Care Workers: Current
I – 914 Application for T Nonimmigrant Status: Current

[Courtesy of USCIS]

08/16/2008: Stalled Non-Ministerial Religious Worker Special Immigration Reauthorization Bill and USCIS Action on Pending I-485 Applications

• As we reported earlier, the special immigration provision for the non-Minister category religious workers is about to expire (sunset) on September 30, 2008. What this means is that unless the pending I-485 applications based on the underlying I-360 religous worker special immigrant petition are approved before the law sunsets, their pending I-485 applications are destined to be denied after September 30, 2008. This law has been repeatedly reauthorized by the Congress in the past, usually right before or right after the law had sunset. This year, the House passed the bill and forwarded it to the Senate, but the bill has been stalled in the Senate. Since the Senate has only limited number of days to work when they return on September 8, 2008, these religious worker I-485 applicants are in nervous break at this time.
• Under similar circumstances, the legacy INS and the USCIS has been taking a special action to deal with such exigent situation. One is to expedite adjudication of some of the pending I-360 petitions and the related pending I-485 applications. The other action was to sort out these I-485 applications and preadjudicate them such that should the Congress fails to reauthorize the law or pass the reauthorization bill after the law sunset with the retroactive application provision such that such I-485 applications which were pending at the time the law sunset could be saved, the agency acted quickly either to approve these pending cases at the last minute before the law sunset or to approve it after the law was belatedly reauthorized after September 30.
• The Nebraska Service Center and the Texas Service Center are reportedly taking a similar action now. According to the AILA, these two Service Centers are advising the legal counsels for these I-485 applicants to contact them with the list of pending I-485 direct beneficiary applicants and the list of their derivative beneficiary applicants (spouses and children) for the apparentl purpose of potential action similar to those which they have taken in the past. We want to salute the leaders of the USCIS and NSC/TSC for their timely actions under the exigent circumstances.

08/15/2008: CRS Report for Congress on Foreign Science and Engineering Presence in U.S. Institutions and the Labor Force

• This Congressional report reviews the increasing foreign science and engineer presence in the U.S. and its policy implication not from the perspectives of the industries that need these scientists and engineers but from the long-term and overall interest of the nation's science and engineering. Hmm.............................................Readers, you be the judge of it. This is a weekend reading material.

08/15/2008: Are You an Immigrant Visa Applicant? Now Online Payment of Fees Are Available to National Visa Center

• For the online payment option, please click here.

08/15/2008: USCIS Proposes Today Changes to Improve H-2B Temporary Non-Agricultural Worker Program

• The proposed rule is designed to remove unnecessary limitations on H-2B employers while both preventing fraud and abuse and protecting the rights of temporary workers. The proposed rule will:
  
  • • Reduce from six months to three months the time H-2B workers must wait outside the United States before they are eligible to re-obtain status under the H or L classification;
    • Require employer attestations on the scope of the H-2B employment and the use of recruiters to locate H-2B workers;
    • Crack down on employers and recruiters who impose fees on prospective H-2B workers in connection with or as a condition of an offer of H-2B employment;
    • Require an approved temporary labor certification in connection with all H-2B petitions;
    • Preclude, with limited exception, the change of the employment start date after the grant of the temporary labor certification;
    • Require employers to notify DHS when H-2B workers fail to show up for work, are terminated, or abscond from the worksite;
    • Change the definition of “temporary employment” to provide that a job is of a temporary nature when the worker will end in the near, definable future and to eliminate the requirement that employers show “extraordinary circumstances” to be eligible to hire H-2B workers where a one-time need for the workers is longer than one year but shorter than three years;
    • Prohibit the approval of H-2B petitions for nationals of countries that are determined to be consistently refusing or unreasonably delaying repatriation of their nationals; and
    • Establish a land-border exit system pilot program, which requires H-2B workers admitted through a port of entry participating in the pilot H-program to also depart through a participating port and to present designated biographic and/or biometric information upon departure.
• Full Text of Announcement
• Requently Asked Questions

08/15/2008: Backlog Reduction vs. Integrity in Immigration/Visa Management

• People may recall that the country experienced an immigration system clogged with mountain of backlogs in both immigration proceedings and labor certification proceedings at the turn of the century from 1900's to 2000's, leading the Congress to pass AC 21 Act and Bush declaring the $5,000,000 five-year backlog reduction commitment. By the year 2006, the reduction commitment had achieved more or less some of the goal by reducing immigration benefits applications substantially with the USCIS and the elimination of labor certification backlogs and certification of labor certification applications in less than six month including the recruitment period with the USDOL.
• Since then the wind has been flowing in the other direction because of the apparent change of policies and political environment from focus of efficiency/backlog reduction to focus on integrity in the immigration management system. The ongoing development and focus on "account" system in the immigration benefits applications under the name of transformation program are targeting at achievement of both the efficiency and integrity, but in this period of transition, the agency appears to be heavily focusing on the issue of integrity over the backlog reductions. Current backlog of I-140 petitions marks a pivotal of such changing environment. We reported in Vancouver that the agency was initiating a program going online commercial websites to collect some information relating to the pending petitions and applications. Additionally, despite the pressure to adjudicate EB-485 applications expeditiously before the end of FY 2008 (09/30/2008), there are some indications that the Service Centers are issuing increased number of RFEs in EB-485 (EB-2) application proceedings. A similar phenomena have been witnessed in the nonimmigrant proceedings. Obviously, they are targeting at achievement of the integrity of the immigration benefits management. On the front of the foreign labor certification programs, since late FY 2007, along with the achievement of the backlog reduction program, they swifted the focus of the foreign labor certification programs 180 degree towards the goal of "integrity" producing massive audit notifications, increased sanction of employers and legal representatives in the forms of audits or supervised recruitment or debarment. They have just launched to maintain and publish the online debarment list sites signaling that more debarment actions may be forthcoming in the months ahead. Additionally, they are scheduled to launch the modified PERM and H-1B LCA online filing systems effective January 1, 2009 toally focusing on the achievement of integrity in the foreign labor certification programs. In the H-1B LCA, they warned that days will be gone soon when the online filing of LCA is certified in less than two seconds. They warned that it would take upto one-week to certify the H-1B LCA online applications. Worse yet, they informally have released their plan that the processing time of the H-1B LCA may start to witness delays in the near future and even before January 1, 2009 from current two seconds to longer period of time! On the USICE front, they have been increasing going after the employers hiring so-called illegal aliens through the increased raids and so-called E-Verify program.
• Immigrant community should learn to deal with the changed immigration environment that accompanies the increase in backlogs, scrutiny of applications, and enforcement actions against the violator employers and alien beneficiaries. They should not fool themselves with the misguided nottion that the term "illegal immigrants" are limited to the border crossers and not the "violators" of the nonimmigrant and immigrant status for those who who entered the country legally. Under the immigration laws, they both are illegal aliens.

08/14/2008: Sudanese TPS and EAD Extension Rule Published

• Here we go.
• USCIS Announcement
• USCIS Q&A

08/13/2008: Office September 2008 Visa Bulletin Including Diversity Visas

• State Department Notes:
  • VISA AVAILABILITY FOR OCTOBER: The Mexico F2A and Employment Third preference cut-off dates are “unavailable” for both August and September, since those FY-2008 annual limits have been reached. The Visa Office had originally anticipated that this would be a temporary situation. Then with the start of the new fiscal year in October the cut-off dates would have returned to those which had applied during June. However, continued heavy demand in those categories may require the establishment of cut-off dates which are earlier than those which had applied in June. A formal decision determination of the October cut-off dates will not be possible until early September.
  • DETERMINATION OF THE NUMERICAL LIMITS ON IMMIGRANTS REQUIRED UNDER THE TERMS OF THE IMMIGRATION AND NATIONALITY ACT (INA): The State Department is required to make a determination of the worldwide numerical limitations, as outlined in Sections 201(c) and (d) of the INA, on an annual basis. These calculations are based in part on data provided by the Citizenship and Immigration Services (CIS) regarding number of immediate relative adjustments in the preceding year and the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year. Without this information, it is impossible to officially determine of the annual limits. To avoid delays in processing while awaiting the CIS data, the Visa Office bases allocations on the minimum annual limits as outlined in Section 201 of the INA, along with estimates. On July 22nd, CIS provided the required data to the Visa Office. The Department of State has determined the family and employment preference limits for FY-2008 in accordance with the terms of Section 201 of the INA. The numerical limits for FY-2008 are as follows: (a) Worldwide Family-sponsored preference limit: 226,000, (b) Worldwide Employment-based preference limit: 162,704. Under the INA Section 202(A), the per-country limit is fixed at 7% of the family and employment annual limits. For FY-2008 the per-country limit is 27,209. The dependent area annual limit is 2%, or 7,774.
• Not too promising prediction for EB-3.

08/13/2008: September 2008 Visa Bulletin and Hope for No Waste of FY 2008 Employment-Based Visa Numbers

• The September 2008 Visa Bulletin reflects a further progression of EB-2 visa cut-off dates for India and China. Obviously, EB-3 Professional or Skilled Worker visa numbers have been exhausted and apparently, the DOS does not anticipate any filter-down numbers from EB-2 to EB-3 in September 2008. In other words, they might have concluded that the new cut-off date of August 1, 2006 would exhaust all the EB-1 and EB-2 visa numbers by the end of September 2008, assuming that the USCIS and visa posts diligently adjudicate all the backlog cases within this cut-off date before October 1, 2008. We hope that the eligible EB-485 applications be expedittiously adjudicated within the next one month and a half such that no EB visa numbers are wasted at the end of this fiscal year. The September Visa Bulletin is certainly a relief for those July 2007 VB fiasco filers with earlier priority dates in that they have at least a month and a half to look forward to obtaining their I-485 application approvals rather than only half a month from now!

08/13/2008: USCIS Updates Medical Examination Requirement Compliance for I-485

• USCIS announces that the CDC have informed USCIS that the Zoster vaccine is currently unavailable due to shipping delays by the manufacturer. The Zoster vaccine is one of the new vaccination requirements effective July 1, 2008 for applicants age 60 and older and is listed on the revised edition of Form I-693, Report of Medical Examination and Vaccination Record (06/05/08 edition date). Accordingly until further notice from the CDC, a Form I-693 may be accepted by the USCIS if it is only missing the zoster vaccine. Civil surgeons may notate it on the form as “vaccine not available”. Read on.

08/13/2008: Advance Copy of Sudan TPS Extension and Automatic EAD Extension Notice

• The USCIS is scheduled to publish this notice tomorrow, August 14, 2008. The extension of the TPS designation of Sudan will be effective November 3, 2008, and will remain in effect through May 2, 2010. The 60-day re-registration period begins on August 14, 2008, and will remain in effect until 60 days from August 14, 2008. To facilitate processing of applications, applicants are strongly encouraged to file as soon as possible after the start of the 60-day re-registration period beginning on August 14, 2008.
• The USCIS has extended the designation of Sudan for temporary protected status (TPS) for 18 months, from its current expiration date of November 2, 2008 through May 2, 2010. This Notice also sets forth procedures necessary for nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) with TPS to re-register with U.S. Citizenship and Immigration Services (USCIS) and to apply for an extension of their employment authorization documents (EADs) for the additional 18-month period. Reregistration is limited to persons who have previously registered for TPS under the designation of Sudan and whose applications have been granted or remain pending. Certain nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions. Given the timeframes involved with processing TPS re-registration applications, the Department of Homeland Security (DHS) recognizes the possibility that all reregistrants may not receive new EADs until after their current EADs expire on November 2, 2008. Accordingly, this Notice automatically extends the validity of EADs issued under the TPS designation of Sudan for six months, through May 2, 2009, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended. USCIS will issue new EADs with the May 2, 2010 expiration date to eligible TPS beneficiaries who timely re-register and apply for EADs.
  

08/13/2008: September 2008 Visa Bulletin

• Employment-Based:
  • Row: EB-1=C, EB-2=C, EB-3=U, EB-EW=U, EB-4=C, EB-5=C
  • China: EB-1=C, EB-2=08/01/2006, EB-3=U, EB-EW-U, EB-4=C, EB-5=C
  • India: EB-1=C, EB-2=08/01/2006, EB-3=U, EB-EW=U, EB-4=C, EB-5=C
  • Mexico: EB-1=C, EB-2=C, EB-3=U, EB-EW-U, EB-4=C, EB-5=C
  • Philippines: EB-1=C, EB-2=C, EB-3=U, EB-EW=U, EB-4=C, EB-5=C
• Family-Based:
  • Row: FB-1=04/01/2002, F-2A=12/01/2003, FB-2B=12/15/1999, FB-3=06/15/2000, FB-4=10/01/1997
  • China: FB-1=04/01/2002, FB-2A=12/01/2003, FB-2B=12/15/1999, FB-3=06/15/2000, FB-4=04/08/1997
  • India: FB-1=04/01/2002, FB=2A: 12/01/2003, FB-2B=12/15/1999, FB-3=06/15/2000, FB=4=04/08/1997
  • Mexico: FB-1=09/08/1992, FB-2A=U, FB-2B: 04/22/1992, FB-3=09/15/1992, FB-4=01/15/1995
  • Philippines: FB-1=04/01/1993, FB-2A=12/01/2003, FB-2B=04/08/1997, FB-3=04/22/1991, FB=4=03/08/1986

08/12/2008: Immigration Legislation Activities at State Legislatures (01/01/2008-06/30/2008)

• The National Conference of State Legislature report indicates that state legislatures continue tackling immigration in a variety of policy arenas at an unprecedentedrate. So far this year, 1267 bills have been considered in 45 state legislatures and at least 175 laws and resolutions have been enacted in 39 states. A total of 190 bills and resolutions have passed legislatures, 12 bills are pending Governor’s approval and three bills were vetoed. The 2008 level of activity is comparable to the same time last year, when 1404 bills and resolutions were considered in all fifty states, and 182 laws were enacted in 43 states. As in recent years, the top three areas of interest are identification/driver’s license (203 bills introduced – 30 laws enacted), employment (198 bills introduced – 18 laws enacted), and law enforcement (214 bills introduced -10 laws enacted). Please read the full report of NCSL.

08/12/2008: DOL Publishes and Maintains Debarred H-1B Employers List

• The OFLC Debarment Program lists debarred entities in PERM, H-2B, H-2A. However, the DOL's aggressive pursuit of the disclosure of the debarred employers does not end there. Another arm of the DOL, ESA is publishing and updating the list of the H-1B debarred employers list online. This enforcement actions are likely to flourish in a full blown manner, particularly beginning from January 1, 2009 when the OFLC launches a new ETA 9035E form that will focus on the "account" concept to track down the employer's pattern of irregular filing behaviors in violation of the labor condition application rules and prevailing wages. Beware.

08/12/2008: OFLC Publishes PERM Debarment List

• The Office of Foreign Labor Certification has just released the list of debarment. The OFLC will maintain and publish the list of debarred employers, attorneys, and/or agents from the Permanent Labor Certification Program as well as Temporary Labor Certification Program.
• The list does not include the DOL's recent decisions on audits of PERM applications or supervised recruitment for certain immigration law firms.
• The foreign labor certification program is undergoing a substantial change as it focuses on the integrity of the labor certification program. Additionally, recent developments in the foreign labor certification probably mark a lowest point in the relationship between the immigration bar and the agency in the country's foreign labor certification history.

08/12/2008: Advance Copy of Notice of Expansion of Global Entry Pilot Program

• The USCBP began operation of the Pilot program since June 6, 2008 at three initial airport locations: John F. Kennedy International Airport, Jamaica, New York (JFK); the George Bush Intercontinental Airport, Houston, Texas (IAH); and the Washington Dulles International Airport, Sterling, Virginia (IAD). Effective August 1, 2008, the Global Entry pilot also began on or after August 1, 2008, at the following airports: Los Angeles International Airport, Los Angeles, California (LAX); Hartsfield- Jackson Atlanta International Airport, Atlanta, Georgia (ATL); Chicago O’Hare International Airport, Chicago, Illinois (ORD); and Miami International Airport, Miami, Florida (MIA). Additionally, although the Global Entry pilot is currently operational at Terminal 4 of John F. Kennedy International Airport, Jamaica, New York (JFK), it will become operational at the remaining terminals of that airport as well, also on or after August 1, 2008. The exact dates of the expansion of the Global Entry pilot to the individual airports will be announced at www.cbp.gov. This expansion notice will be published in the federal register tomorrow.
• Report indicates that currently 1,100 people are enrolled and 370 out of 1,100 have used special kiosks at the airports.
  

08/12/2008: Challenges Await Returning Senate in September for Piecemeal Immigration Reauthorization Bills

• As we discussed earlier, there are two sets of piecemeal immigration bills pending in the Congress. One is a set of immigration bills that attempt to adjust available "employment-based immigration visa numbers" under the current quota system. The other is a set of immigration bills that will reauthorize the existing programs which are scheduled to sunset or expire at the end of September 2008. The first set of bills which are considered to be more challenging than the second set of bills still remain unresolved waiting for the House to return in September for its action. The second sets of bills have already passed the House and wait for the Senate to act when the Senate returns in September. In view of the needs for racing the clock, generally it has been viewed by the observers that the second set would have a better chance to make it than the first set of bills this fall. However, report indicates that the reauthorization of E-Verify program poses quite unexpected challenge for the second set of the piecemeal legislative bills in the Senate. Senator Specter bundled up all the reauthorization bills including controversial E-Verify reauthorization into a single bill, but reportedly changed his mind and asked the Senate majority leader to present the E-Verify reauthorization bill as the majority leader's own bill. Such turn of the event places the trio immigration reauthorization bills (Conrad NIW, Religious Workers, and EB-5 Invesotrs) into a question in what formats these bills will have to be presented on the Senate floor when the Senate returns in September. Since time will run out very fast, the Senate will face a tremendous pressure to keep these current immigration programs alive for the next five years. Let's wait and watch how it will unfold on the Senate floor in September.

08/11/2008: All Interview-Waiver Family-Based I-485 Applications Are Adjudicated by CSC

• The AILA-CSC liaison meeting record of August 6, 2008 indicates that currently all the family-based I-485 applications which are the types of interview-waiver categories are transferred to the California Service Center by the National Benefits Center, and all these applications are adjudicated by the CSC. The types of cases which are interview-waiver categories which are adjudicated by the CSC are as follows
  • Unmarried Child/Step Child of USC=IR7/CR7
  • Parent of USC=IR0
  • Fiance and Child of Fiance of USC=CF1/CF2
  • Unmarried & Under 14 Year-Old Child of Permanent Resident=F27
  • Cuban Adjustment of Act cases
• Remember that these cases are continuously filed with the NBC, but the adjudication of these applications are undertaken by the CSC. Remember also that the accompanying or following-to-join I-485 applications which are filed based on the "employment-based" approved petition of the direct beneficiary are continuous filed with and adjudicated by one of the four Service Centers as part of the employment-based immigration proceedings. These cases are not affected by the ongoing centralization of adjudication or filing window. they are continuously filed with and adjudicated by either NSC or TSC. There should be no mistake about that. People will remember that not too long ago, the USCIS also centralized "adjudication" of N-400 naturalization applications at the NBC. In these cases, the filing window Service Center and the actual adjudication Service Center are separated. Such changes are extremely confusing and hard to keep up with and keep track of.

08/11/2008: OMB August 2008 Report of Status & Problems of Implementation of International Marriage Broker Regulation Act of 2005 (IMBRA) by Agencies

• This is a thorough review of the current implementation of the federal agencies by the OMB and its recommendation for improvement in implementation of the statutory mandates by the agencies. Read on.

08/11/2008: USCIS Updates Projected Naturalization (N-400) Processing Times

• USCIS announced today that it continues to make steady progress in reducing the significant number of naturalization applications it received last year. USCIS now anticipates naturalization application processing will average 10-12 months nationally by the end of September 2008 – a substantial improvement from its estimated average processing time of 16-18 months first announced last year. This announcement includes the current processing times each local office. USCIS will continue to shift resources to ensure that all local offices achieve the goal of five month processing times. in the future. Read on.
  

08/10/2008: DOL Fragomen Lawfirm Audit Decision Leads to Litigation in Court

• Details have yet to be released, but a report indicates that the Fragomen law firm filed a lawsuit against the U.S. Department of Labor relating to the agency's recent decision to audit all the labor certification applications filed by the nation's largest immigration law firm. There was some confusion on the development of this confrontation with some rumors that the lawfirm and the agency were negotiating to resolve the differences in issues, but the report of this lawsuit more or less implies that the dispute still continues and the firm has decided to fight to defend its right of counsel for its clients. Please stay tuned.

08/09/2008: Immigrant Visa Petitions & Related Notifications From USCIS Now Routed "Only" Through National Visa Center

• AILA has reported the State Department cable to the visa posts throughout the world some changes in immigrant visa processing procedure, which are more or less similar to the current PIMS procedure in certain EB-based nonimmigrant visa application procedure at the visa posts overseas. This is apparently intended to streamline and centralization of the record verification of the USCIS actions which form the adjudication of the underlying visa petitions of the USCIS to process and adjudicate the immigrant visa applications at the American visa posts abroad.
• Effective immediately, visa posts should receive all official communications related to domestically-filed immigrant visa (IV) cases that are processing at overseas posts through the National Visa Center (NVC). In July 2007, CA Division of the Visa Bureau of the State Department and the USCIS agreed to designate NVC as the central clearinghouse for all official USCIS immigrant visa-related communications to visa posts. Visa posts should no longer receive immigrant visa-related notifications, petitions or cables, directly from USCIS. NVC provides central pre-processing and a central point of contact forimmigrant visa case tracking for all concerned parties: USCIS, petitioners, beneficiaries, as well as overseas posts. Additionally immigrant visa issuing posts should no longer be receiving notices such as Immigrant Orphan Advance Processing notifications (Visas 37), immigrant visa petition approvals (Visas 38 and 39), follow-to-join notifications (Visas 67 or I-824s) or refugee/asylee notifications (Visas 92/93) directly from USCIS. Instead, USCIS is sending these notifications to NVC via email or regular mail. NVC in turn forwards the notifications to post by DHL. NVC has procedures in place to sort, prioritize and expedite urgent cases. In addition, where applicable, NVC creates a case using the data from USCIS. In the following-to-join cases, since January 1, 2008, NVC has been processing all domestically-filed follow-to-join cases through the document review process which involves the collection of immigrant visa fees and forms. For visa posts where NVC does not yet schedule interviews, NVC will forward the file to post as a regular immigrant visa case once the required fees and forms have been received. For posts for which NVC performs scheduling, NVC will collect the applicant's immigrant visa fees, forms, and civil documents, send the appointment packet, and schedule the immigrant visa interview.
• While USCIS makes the complete transition to sending all notices through NVC, posts that receive notices directly from USCIS should refer the case to NVC and await advice as to next steps. Visa post should not start processing the case until they receive the petition or guidance from NVC.
• Immigrant visa applicants, please make a note of this change.

08/09/2008: OMB Approves Sudanese TPS Extension Notice of USCIS in One Day!

• On August 7, 2008, USCIS submitted its intended plan to publish in the federal register it's notice of extension of TPS designation and automatic extension of employment authorization for qualified Sudanese in the U.S. Yesterday, August 8, 2008, the OMB approved it in flash clearing the USCIS to publish it soon. Please stay tuned to this website for release of this notice in the federal register shortly.

08/08/2008: Are You One of 40 Million Freaky People Whose Credit ID Stolen from Certain Business Retailers by Recent Cyber Crime Rings?

• U.S. Secret Services announces that these cyber criminals are detected and being indicted. Even though it does not give peace of mind for potential problem of cyber ID theft, it is nice to know that at least these horrible international ring has been uncovered and indicted. This is not an immigration news but it is likely that most of our visitors may turn out to be the potential victims of this crime and we thought we should pass on the news.

08/08/2008: DHS Intends to Extend TPS and EAD for Sudanese Upon OMB Clearance

• USCIS is seeking the OMB clearance to publish a notice for extension of TPS designation for Sudan and automatic extension of EAD. Please stay tuned to this website for the development of this notice in the federal register.

08/08/2008: USCIS Announces New Passport Card Acceptable for Employment Eligibility Verification (I-9) Purposes

• USCIS has released an announcement that the U.S. Passport Card which the State Department has started issuing for the land and sea travel to border countries and Caribean islands is also acceptable for I-9 employment eligibility verication document. Read on.

08/08/2008: Unauthorized Employment Before or/and after I-485 Filing and Importance of Revisit of Recently Released 245(k) Memorandum

• A flood of foreign workers and their family members filed around this time last year the employment-based EB-485 applications along with or followed by filing of their ancillary applications of EAD and/or Advance Parole. Since the initial EAD was valid only for one year. these applicants are currently filing the EAD renewals en masse. However, some of these applicants are likely to face failure of receiving the renewed cards timely before the initial card expires for either the USCIS backlogs or security check issues. Those who face such gap should remember that the unauthorized employment will make them ineligible for I-485 approval unless they are eligible for the 245(K) relief. In this regard, the recently released 245(K) Memorandum was "very timely" particularly for the July 2007 VB fiasco filers of I-485 applications in that any period of unauthorized employment "after" filing of their I-485 applications is added and tacked on any period of their violation of nonimmigrant status and/or unauthorized employment which had been aggregated within six months "immediately prior to" filing of their I-485 applications since their "last admission to the U.S." For instance, if one filed I-485 applications with the record of less than six months of violation of nonimmigrant status and/or unauthorized employment immediately prior to filing I-485 application since the last admission to the U.S., he or she was eligible for I-485 application filing deespite their violation of the law. However, should the same applicant engage in unauthorized employment while they wait for the I-485 applications, he or she could exceed total of six months of violations when they aggregate the total period of violation prior to I-485 filing and "post" filing of I-485 application. Assuming the same individual accumulated overstay of I-94 for two months and unauthorized employment for two months resulting in total violation for a period of four months immediately before he or she submitted I-485 application, any unauthorized employment "after" filing and while waiting for I-485 application that exceeds two months will make him or her ineligible for I-485 approval. Close reading of the 245(K) Memorandum will tell such applicant that any employment between expiration of the current EAD and the renewed EAD is considered unauhorized employment for the purpose of 245(K) eligibility. Pending renewal application does not give the alien any employment authorization. Accordingly, should the extension of EAD be not received aftre the expiration of the initial EAD, he or she should immediately stop the work until the renewed EAD card is received to toll the running of click of clock of unauthorized employment and potential deadly consequences of ineligibility of the I-485 approval. This advisory applies only to those who work solely on the EAD rather than on a valid H-1B or L visa status.
• This reminder is also very important for their employers in that continuing