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THE OH LAW FIRM

Dedicated Professionals in Immigration Law for Over 25 Years@

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

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04/30/2009: DHS Secretary Reports Progress of 30-60-90 Days Efficiency Review Results

• The cost savings appear to be minor, but it is considered a critically important move in that this move has given a momentum for a large number of directorates and agencies under her command to coordinate among themselves through a newly created review arm which is representated by these agency across the board and the Department and its subunits are more focused on internal efficiency and effectiveness issues that go beyond simple monitary savings issue. We reported in numberous times our concern with a potential problem that underlied with the DHS line of command stemming from "Octopus" style of structure and management by the former Secretary which resulted in the consequences in some instances of right hand not knowing what left hand was doing within the Department. We hope the new move also improves transparency throughout the Department from top to bottom.

04/30/2009: Text of Witness Testimonies at Today's Senate Immigration Subcommittee Hearing on CIR

Dorris Meissner
J. Thomas Manger
Alan Greemspan
Joel C. Hunter
Jeff Moseley
Eliseo Medina
Wade Henderson
Kris Kobach
Sen. Chuck Schumer
Sen. Patrick Leahy

04/30/2009: USICE Worksite Enforcement Strategy

• Release of this strategy could be related to what the New York Times reported. Read on.

04/30/2009: Reported DHS Change of Focus of Immigration Enforcement from Illegal Workers to Employers

• New York Times has reported this morning that the DHS Secretary Napolitano was scheduled to issue a directive to the Immigration and Custom Enforcement (ICE) agency today to change focus of enforcement from the current illegal worker enforcement to the enforcement against employers including administrative and criminal prosecution. This directive is also considered one of the Obama Administration action to initiate "administrative fix" of the current broken immigration system in the area of immigration enforcement and control of unauthorized employment. The report indicates that the agency may aggressively go after certain targeted employers that have been detected through the past immigration enforcement against the illegal aliens and are known to have hired unauthorized employees.
• The reported action was more or less anticipated in that the history of CIR process had reflected whenever the government and political leaders launched the legalization of illegal aliens as part of the CIR, the move was preceded and overtured by "reinforcement" of immigration enforcement activities to earn public's political support for such immigration reform initiatives as well as to compromise with the hardline Republican conservative legislators and conservative Democrats in the Congress to lay a path for the CIR legislation. The difference of the reported decision from the past practices appears to be they have decided to go after the employers rather than the unauthorized illegal workers. Please stay tuned to this website to see how this policy will fit into the traditional path of CIR legislation process.

04/30/2009: Webcast Connection to Today's Senate Immigration Subcommittee CIR Initiative Hearing - 2:30 p.m. EST

04/30/2009: President's 100th Day Presidency Press Conference and CIR - What's in Your Wallet?

• We welcome the President's statement of commitment to the immigration reform in the yesterday's national press conference. We just hope that he had his own full commitment to CIR "within this year" in his wallet. The message that it is up to the Congress to put together working group and to initiate articulating details of the reform bill is short of total commitment to CIR "within this year" by the President, according to the press assessment. Surely enough, it is the authority of the Congress to enact a legislation, but under the Constitution, the President has an authority to propose a legislative bill to the Congress. It is uncertain, after his 100th day Presidency press conference, whether the White House will initiate and propose its own proposal to the Congress rather than acting as an instigator and moderator of the "Congressional CIR group" behind the scene. We need a little bit more commitment from the President and the White House to its legislative initiative in order to achieve CIR within this year. Will White House put together its own working group and work out its own CIR proposal soon? How soon? There are not a whole lot of legislative days in the rest of 2009 considering the fact that nation's legislative and policy top priority and agenda are likely to remain with the recovery from economic recession and the rising health crisis and health policy reform.
• Having said that, we wholeheartedly congratulate Mr. President for his remarkable achievement in a short period of time of his first 100 days in the White House, particularly the economic recovery. He has apparently built level of "confidence" in consumers and financial market and the nation appears to be moving towards the right direction. Hats-off to you, Mr. President and Your Team!

04/30/2009: State Department Notice of Revised J-1 Exchange Visitor "Skills List"

04/29/2009: Official Full Text of S. 887 H-1B and L-1 Visa Reform Act of 2009

04/29/2009: Potential Impact of Senator Arlen Specter Switching Party on Comprehensive Immigration Reform Legislation

• There has been a potential volatile contention between the business community which is generally backed by the Republican party and the labor union community and Hispacnic community which are backed by the Democratic party when it comes to the direction of the CIR. Currently on the table is the labor union proposal that focuses on legalization of undocumented aliens and border security and immigration enforcement and opposes reform in the legal immigration system, particularly employment-based immigration system. This proposal faces a steep opposition and contest from the business community that relies on skilled and high tech foreign workers, backed by the powerful Republican leaders including Senator McCain, Senator Kyle, Senator Cornyn, etc. Senator Specter is" ideologically moderate and middle of the road statesman who has been dedicated to a "balanced" comprehensive immigration reform. Even though his departure from the Republican party has alienated himself from the Republican party, he is still a heavy-weight senior Senator who is highly respected from both sides of the isle in the Congress. Some people misunderstood his switch of the party brings with it the Republican filibuster blocker or breaker or filibuser-proof role. It Ain't Going to Happen Unless the Majority Moves to the Center. Accordingly, it is expected that he will play an important role for CIR to mediate between the right and the left for a successful compromised CIR accomodating part of agenda of the right and the left. In this regard, the news of his switching party is considered an important development, not only in the general political landscape but also for the fate of upcoming battles in the CIR legislation. After all, he was able to muscle as the Chairman of Senate Judiciary Committee during the era of Republican majority and passed S.1932 immigration bill at the end of the 109th Congress, even though the bill was killed in the House!

04/29/2009: CBP Fact Sheet: Automatic Revalidation of Nonimmigrant Visas For Return From Less Than 30-Day Travel to Contiguous Countries

Summer travel season is approaching and there are a few things which nonimmigrants should be aware of and keep in mind when they travel over to the U.S. contiguous countries and Caribbean islands. The following fact sheet should give a good guidance for these travlers:

The general rule is: The automatic revalidation of nonimmigrant visas applies to expired nonimmigrant visas of aliens who have been out of the U.S. for thirty days or less in contiguous territory (Canada and Mexico) with a valid I-94. However, these travlers should be aware of the following variations of rules depending on the types of visas and other details:

(1) In the case of F-1 and J-1 students, automatic revalidation applies to contiguous territory and adjacent islands other than Cuba.
(2) An M-1 student can only apply for automatic revalidation readmission after an absence of less than 30 days solely from contiguous territory.
(3) Nonimmigrants who are eligible to re-enter the U.S. pursuant to the authority of automatic revalidation are not able to benefit from the automatic revalidation process if the nonimmigrant's passport reflects evidence that while in contiguous territory or on an adjacent island the nonimmigrant applied for a new visa and is pending a decision or has been denied a new visa application.
(4) Nationals of Iraq, Iran, Syria, Libya, Sudan, North Korea, and Cuba are not eligible for automatic revalidation of an expired visa. Thus, for example, if a citizen of Iran travels to contiguous territory for a day and has an expired visa, but a valid extension approval notice of status; he will need to obtain a visa to return to the U.S.
(5) Automatic revalidation does not apply to the Visa Waiver Program. Readmission to the U.S. after departure to contiguous territory or adjacent islands for Visa Waiver Program applicants is covered under 8 CFR 217. 3(b).

Those in pending I-485 green card proceedings should understand that travel over the contiguous countries without a valid H or L visa status or without an approved advance parole will result in a deadly consequence of abandonment of pending I-485 applications even if they are readmitted into the U.S. after a short trip to Canada and Mexico with an expired visa in the passport under the foregoing visa revalidation rule. Rule of readmissibility from such trip is one thing and abandonment of pending I-485 is the other. They should never depart from the U.S. without a valid H or L approved status or a valid Advance Parole.

04/28/2009: USCIS-National Stakeholder Meeting Q&A of March 31, 2009

04/28/2009: Congressional Research Services (CRS) Releases Its Study of Issues Pro and Con on Foreign Worker Programs in Economic Recession

• This study reflects pro and con contentions on need for foreign workers in the environment of economic recession and provides information on statistics of foreign workers in various foreign worker programs and related issues. The report is entitled "Immigration of Foreign Workers: Labor Market Tests and Protections."

04/28/2009: USCIS FY 2010 H-1B Regular Cap Count Update of 04/27/2009 - 45,000 Ouf of 65,000 Cap

• Please see the update. Just amazing.

04/28/2009: Swine Flu and Government Actions

• USCIS Field Offices: USCIS has announced that the field offices will operate as usual and as of now, the agency is not taking action either to suspend appointments and office schedules. Accordingly, those who are scheduled for interview and appearance at the field offices should keep their appointments. For the announcement, please click here.
• U.S. Visa Posts in Mexico: Unlike the USCIS, the U.S. Embassy in Mexico has announced that the nonimmigrant visa appointments scheduled from April 27 through April 29 are suspended and they would not be rescheduled until May 5 or thereafter. They are taking other precautionary actions and people should read the Embassy Annoucement.

04/28/2009: USCIS Announces Changes in I-90 Filing Requirement and Procedures

• Permanents residents who need replacement or duplicate green card application should read this announcement to learn the changes in requirement or direct mailing procedure.
• See also federal register notice.

04/27/2009: List of Witnesses to Testify in Senate Judiciary Immigration Subcommittee CIR Hearing on 04/30/2009

J. Thomas Manger: Chief of Police, Montgomery County, MD Director, Major Cities Chiefs Association, Rockville, MD
Alan Greenspan: Economist, Former Chairman Federal Reserve of the United States, Washington, DC
Dr. Joel Hunter: Senior Pastor, Northland Church,Member, President's Advisory Council on Faith-Based and Neighborhood Partnerships, Longwood, FL
Doris Meissner : Senior Fellow, Migration Policy Institute, Former Commissioner, U.S. Immigration and Naturalization Service, Washington, DC
Eliseo Medina: Executive Vice President, Service Employees International Union, Washington, DC

Noticeable in the list is Alan Greenspan, former Chairman of Federal Reserve. What Greenspan got to do with "immigration reform?" You guessed it. Because of the nation's top agenda on economic recovery from the crisis, the "economics" (economic gains and losses) involving immigration reform is likely to play a key role in this year's CIR debates.

04/26/2009: Senate Judiciary Immigration Subcommittee Schedules CIR Hearing 04/30/2009

• Senator Chuck Schumer from New York, Chairman of Senate Judiciary Committee Immigration Subcommittee is initiating the CIR debates by scheduling a hearing entitled “Date Change---Comprehensive Immigration Reform in 2009, Can We Do It and How?” on April 30, 2009 at 2:30 p.m. EST. There is no specific CIR bill that has been introduced or released, but the Chairman is apparently taking up the CIR legislation beginning from hearings from witnesses. As soon as the list of the witnesses and text of their testimonies become available, we will post it along with the Webcast link so that the readers will have a chance to hear the debate coming Thursday. By the way, the Senate Judiciary Immigration Subcommittee was chaired by Sen. Edward Kennedy who is undergoing treament of brain tumors. Please stay tuned.

04/25/2009: On-Going USCIS Efforts to Reduce Backlog in Employment-Based Immigration Applications

• Lately, I-140 and EB-485 applicants have been receiving envelopes from the Service Centers with their long-awaited approval notices, particularly those cases which were filed during and after the FY 2007 July Visa Bulletin fiasco period. Along with the development, information has been released by the stake-holder agencies of the Department of State and the USCIS indicating that there has been efforts on the part of the USCIS to eliminate employment-based immigation backlogs. In releasing the May 2009 Visa Bulletin, the State Department confirmed that the USCIS had been taking out EB visa numbers en masse exhausting all the EB-3 visa numbers available for the rest of FY 2009. This report is consistent with the information released by the USCIS on its projected processing time to four months for the employment-based I-140 petitions and EB-485 applications by the end of FY 2009, which is September 30, 2009. The goal appears to have contributed to the exhaustion of annually allocated employment-based visa numbers so that no EB visa numbers be unused or wasted by the end of FY 2009. The commitment to this goal of the USCIS is reaffirmed by yesterday's release of Mr. Michael Ayte's report on the employment-based visa processing times in the Leadership Journal of the DHS. Considering a huge backlog and processing delays in the employment-based immigration petitions and 485 applications for almost two years as affected primarily by the FY 2007 July Visa Bulletin fiasco, the recent event that evolved in the USCIS processing time change is certainly a welcome news for waiters who have suffered from the past backlogs.
• What have tirbuted to this change? The long-term strategy for reduction of processing times for immigration benefits applications appears to be launch of "Transformation Program" that intended to achieve reduction of processing times by turning current paper-based application and processing system into complete electronization system and process focusing on the concept of digital "account" databases within approximately a period of five years. However, this program has experienced a snag. However, lately the DHS disclosed its multi-billion dollar contract with the IBM for two programs. One is to convert all the existing files and date into digitazition and the other is to develop and implement electronic application and processing system. Reportedly, for this purpose, the IBM reenforced its operation in India and the work is underway. However, report indicates that the first phase appears to focus on the digitazation of existing database rather than implementation of electronic application and processing system. Overall, the goal of the contract appears to be completed in the next five years. It thus appears that the current efforts of elimination of backlogs within this fiscal year do not rely on the progress of this program. The big momentum was created by the Congress appropriating fund for USCIS human resources. Thanks to the Congress action to give fund for hiring additional 2,000 resources, the USCIS recxruited and trained new hires who joined the USCIS field offices including Service Centers and local district and field offices, initially focusing on the job of elimination of huge naturalization applications. USCIS had been reporting that the hurdle for reduction of employment-based immigration cases was the mountain of naturalization applications that poured in around the time of FY 2007 July Visa Bulletin fiasco. Now, the naturalization application backlog is under control, inreased resources are becoming available for the employment-based immigration files. Another important factor that has contributed to the agency's recent move was the implementation name-check reduction agreement between the FBI and the DHS and the USCIS policy to complete adjudicaion of EB-485 applications when the FBI name check failed to complete within 180 days. The third factor that cannot be discounted nor minimized is the new DHS leadership's move and commitment for the elimination of the employment-based immigration case backlogs. As people may recall, the Secretary Napolitano of the DHS issued a directive to report the state of backlogs in the immigration benefit applications and the USCIS leaders plan for reduction or elimination of such backlogs. With all of the above developments combined, the employment-based immgrant community is continuously expected to witness the reduction of processing times, at least for a short term. However, long-term reduction or elimination of EB case processing backlog is likely to depend on success of the IBM contract digitization program of the USCIS. This needs continuing internal and external political support, and we hope that the Congress extends its strong support, particularly considering importance of the successful reengineering program to accomodate the potentially forthcoming avalanche and flood gate opening for case loads for the USCIS when the country passes the Comprehensive Immigration Reform legislation.

04/24/2009: USCIS Acting Deputy Director, Michael Aytes, Addresses Employment-Based Wait Times

• Read on.

04/24/2009: President Intend to Nominate New USCIS Director

• The White House announced today the following: President Obama announced his intent to nominate the following individuals today: Alejandro Mayorkas, Nominee for Director, U.S. Citizenship and Immigration Services, Department of Homeland Security: Mayorkas is currently a partner at O'Melveny and Myers, and previously served as the United States Attorney for the Central District of California. As a litigation partner at O'Melveny, Mr. Mayorkas represents Fortune 100 and other companies in their highest profile and most complex and sensitive matters throughout the country and the world. He advises boards of directors and top executives, tries cases, leads internal investigations, and litigates bet-the-company matters in a wide array of industries, including telecommunications, health care, consumer safety, sports and entertainment, aerospace, media, and real estate. At 39 he was the youngest U.S. Attorney in the nation and the first in the Central District of California to be appointed from within the Office. Mayorkas led an office of 240 Assistant U.S. Attorneys in the prosecution of cases in varied areas of law enforcement, including cases of public corruption, investment fraud, civil rights violations, high-tech and computer-related crime, organized crime, environmental crime, and international money laundering. The National Law Journal recently named Mr. Mayorkas one of the "50 Most Influential Minority Lawyers in America."

04/24/2009: Full Text of H-1B and L-1 Visa Reform Act of 2009 Senate Bill (Advance Copy)

04/24/2009: H-1B and L-1 Visa Reform Act Introduced by Sen. Dick Durbin (IL) and Sen. Chuck Grassley (IA) on 04/23/2009

• As anticipated, Senator Dick Durbin introduced the H-1B and L-1 Visa Reform Act of 2009, S. 887. The bill will include, among others, the following provisions:
  • All employers who want to hire an H-1B worker to first make a good-faith attempt to recruit a qualified American worker.
  • Employers will be prohibited from using H-1B visa holders to displace qualified American workers.
  • Employers will be prohibited from using “H-1B only” ads
  • Employers will be prohibited from hiring additional H-1B and L-1 workers if more than 50% of their employees are H-1B and L-1 visa holders.
  • Authorize DOL to initiate investigations without a complaint and without the Labor Secretary’s personal authorization
  • Authorize DOL to review H-1B applications for fraud
  • Authorize DOL to conduct random audits of any company that uses the H-1B program
  • Require DOL to conduct annual audits of companies who employ large numbers of H-1B workers
• The L-1 visa program will be restricted substantially based on the experts' opinion that some employers use the L-1 program to evade restrictions on the H-1B program because the L-1 program does not have an annual cap and does not include even the minimal labor protections of the H-1B program and without reform of L-1 visa program, efforts to reform the H-1B program are unlikely to be successful. The Durbin-Grassley bill would institute a number of reforms to the L-1 visa program, including establishing for the first time a process to investigate, audit and penalize L-1 visa abuses.
• Durbin and Grassley introduced a similar bill last Congress. For the full text of the bill, please stay tuned to this website.

04/24/2009: State Department Intends to Impose Expiration Date for Presidential Permit of Border Crossing of Transportations

• The Department of State announces, in consultation with relevant Federal agencies, that it will include an expiration date among the conditions it establishes in Presidential permits that it issues for the construction, operation, and maintenance of border crossing facilities. Based on the Department's experience and on interagency consultations, the Department intends to provide for the expiration of permits for vehicular border crossings (i.e., crossings for cars, trucks, buses, and trains) ten (10) years after issuance unless the permittee notifies the Department within that timeframe that construction has begun, and for the expiration of permits for all other border crossing facilities (e.g., pipelines, conveyor belts, pedestrian crossings, etc.) five (5) years after issuance unless the permittee notifies the Department within that timeframe that construction has begun. The Department believes that this provision provides sufficient time for viable projects to move forward while preventing unexecuted permits from creating needless uncertainty and/or hindering the development of worthy projects that would better serve the national interest. For the full text of the notice, please click here.

04/23/2009: Curious of "DREAM" Kids?

• They are "texting" generation. Read on.

04/23/2009: 2010 Census Survey and Importance of Participation of Undocumented Aliens in the Survey and for 2010 Mid-Term National Election

• The population of undocumented aliens tend to be focused in certain identifyable districts and states in the nation. Result of the 2010 Census will change the landscape of the political bases of the Republican and Democratic parties in those districts and eventually on a national scale. The count of these undocumented aliens can hold in a sense a wild card since the result of the Survey can bring about changes in the number of districts and political color of each House district. Some states may lose the number of their representation in the House and the two parties can have a different number of representations in the House after November 2010 Mid-Term National Election.
• Assuming that the final resolution of the CIR may have to be turned over to the Year 2010 after a wild forest fire of CIR debates blowing and spreading all over the country this year, one cannot discount the critical nature of changes in political landscape for the nation's party politics and its impact on the chances of a successful resolution of the CIR within the year 2010. These undocumented aliens and, for that matter, immigrants in general, do not have a right to vote but can seize a momentum to influence the color of the new local and national political landscape by massively participating in the Census Survey. In a way, it can be more powerful, albeit invisible, than actual participation in the voting process. In this regard, we urge the immigrant communities including both legal and illegal,, start the movement of organizing and engaging in massive campaigns for their participation in the upcoming Census Survey. Remember that behind the scence, there is an ongoing struggle between the parties on the Census Survey, which resulted in resignation of a Republican Senator who participated in the Obama Cabinet as Secretary of Interior to return to the Senate. The Department of Interior is the government agency that manages the National Census! "Invisible" voice can turn into a "powerful" voice for the direction of Nation's future, not to mention the stakes of immigrants.

04/22/2009: Senate Bill to Expand the Immediate Relative Status to Surviving Spouse of Deceased U.S. Citizen Married Less Than Two Years

• Under the current immigration statute, an alien spouse of a U.S. citizen who died "after two years of the marriage" keeps the benefit of "immediate relative" status for the purpose of immigration application and is not subject to any annual numerical limition, provided certain conditions are met. The provision provides that "In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen's death and was not legally separated from the citizen at the time of the citizen's death, the alien (and each child of the alien) shall be considered, for pur poses of this subsection, to remain an immediate relative after the date of the citizen's death but only if the spouse files a petition ... within 2 years after such date and only until the date the spouse remarries."
• Senate bill, S. 815, which was introduced by Mr. NELSON of Florida with cosponsors of Mr. DURBIN, Mrs. FEINSTEIN, Mr. KENNEDY, Mr. KERRY, and Mr. MENENDEZ, is proposing to expand the eligible immediate relative status of survising spouse of a deceased U.S. citizen who has been a spouse for less than 2 years at the time of the citizen's death only for a period of two years from the date of enactment of this bill into a law. In order to receive such benefits, the surviving spouse who has been married less than two years must file the immediate relative immigrant petition within 2 years of the date of the enactment of this Act. In other words, the proposed expansion of immediate relative status to surviving spouse of U.S. citizens who die before they reach second anniversary of marriage will sunset and expire in two years from the date of enactment of this law.
• In fact, those alien spouses who had been married less than two years at the time their U.S. citizen spouse had died brought a class action lawsuit before the U.S. District Court, Central District of California in 2007 and on April 20, 2009, the judige issued a tentative order to the DHS to approve their green card applications if, and only if, the I-130 immediate relative petition was filed by the U.S. citizen spouse before his/her death and they reside in the jurisdictions of the 6th and 9th Circuits. Accordingly the spouses in similar situation are not covered by the lawsuit and the judge's temporary order if they reside in the states other than the 6th Circuit or 9th Circuit. Additionally, even if they reside in these two jurisdictions, if the deceased U.S. spouse had failed to file I-130 petition before his or her death, they are also not covered by the court order. The passage of S.815 will relieve, at least for two years, all the surviving spouses whose U.S. citizen spouses died, no matter whether he/she died before the second anniversary of the marriage or after the second anniversary of the marriage, and no matter whether the U.S. citizen spouse had filed I-130 petition before he or she died, because the survisiving spouse can file a self petition. For these reasons, this bill is very important from the perspectives of humaniran concerns of all of the surviving spouses of the deceased U.S. citizens in the country.

04/22/2009: House Bill Introduced to Punish Those Defrauding Aliens

• Rep. Yvette Clarkes of New York introduced H.R.1992 bill in the House yesterday to provide penalties for individuals who engage in schemes to defraud aliens and for other purposes. This bill is cosponsored by the powerful Chairman of the Judiciary Committee, John Coyers. A similar bill was introduced earlier in the new Congress. For the full text, please stay tuned to this website

04/21/2009: USCIS Houston, Texas Southeast Application Support Center (ASC) Closed 04/21/2009

• This biometric collection center remains closed today due to severe damage after Hurricane Ike. Under the USCIS policy, if an office is closed, or customers are evacuated from their homes, due to weather-related events, USCIS will automatically reschedule all appointments until a time when it is safe to resume operations. Those who are scheduled to appear for biometric session today should watch mail closely for the reschedule notice.

04/20/2009: DOL Releases Frequently Asked Questions (FAQ Round 1) for New H-2B Program

• The questions deal with the new forms ETA-9141 and ETA-9142, including where to find the NAICS and SOC codes, where and when to file, and other useful information.

04/20/2009: USCIS FY 2010 H-1B Cap Count Update as of 04/20/2009 - Still Only About 44,000!

• Hmm........................ What a pleasant surprise. Candidates, please keep filing!

04/20/2009: USCIS FY 2010 H-1B Cap Count Site

• As of April 13, 2009, approximately 43,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
• They have yet to update the cap count for last seven days. Probably it is approaching the cap soon.

04/20/2009: Need for Interim Legislative and Administrative Fixes of Broken Immigration System Pending CIR Debate and Legislation

• There have been looming up two indications with reference to the direction of immigration reform among major players of the CIR including the White House and the labor unions. One is that considering the current state of economic recession, these players may not be anxious to propose any reform to increase immigrant and nonimmigrant visa numbers. Second indication is that the chance is slim that the CIR will be enacted within 2009, even though they may actively initiate and engage in the debates. Assuming that the political leaders and the government agencies may have to work within these premises and assumptions, the next best and urgent things the Congress, White House, and the government agencies should pick up are interim legislative fixes and administrative fixes that do not increase the visa numbers. There are a host of legislative fixes that were proposed last year including recapture of unused immigration visa numbers which are estimated to go as high as 200,000, revision of immigration statute permitting I-485 applications upon approval of labor certifications or I-140 petitions regardless of visa number availability, amendment of CSPA to expand the relief to those aging-out youngsters who are not eligible under the current CSPA, etc. As for the administrative fixes, the last administration achieved 29-month OPT, for certain STEM students, three-year TN visas for Canadians and Mexicans, multiple-year EAD. The USCIS has yet to pick-up multi-year single document for EAD and Advance Parole. The USCIS may expand 29-month OPT from the current STEM major students to U.S. school students in any specialties to stop exodus of U.S. educated foreign brains. The USCIS should lift the current suspension or restrictions to the multi-year EAD applications and I-140 premium processing services removing the current conditions for such services. The State Department should lift suspension of the renewal services for the business and employment visas within the country. The labor department should expand areas of precertification of labor certifications beyond the current limit in occupations, based on the evidence of shortage of workers in certain areas, which can include certain Ph.D visa holders or even STEM degree holders.
• We named a few above, but there can be many other areas where the administration can fix the problems without legislation. We urge the Secretaries of State, DHS, and DOL issue directives to review and propose the administrative fix options within each Department.

04/20/2009: Congress Returns to the Session Today

• The House will return to the session this afternoon, followed by the Senate that returns to the session tomorrow. As we reported earlier, the Congress may not pick up CIR until the fall of 2009, but there are likely increasing activities of the legislators introducing flurry of piecemeal immigration legislation bills and even some comprehensive immigration reform bills as a process to be considered in the final CIR proposal in the fall. Accordingly, few of these upcoming piecemeal immigraion reform bills are likely to be enacted successfully as piecemeal legislations until the fall when the Senate is planned to initiate the debate of Senate version of the billl. Depending on the development of the nation's economy and other parameters, the schedules can change. For the reasons, we will closely monitor the immigration legislative activities which may be energized beginning from May 2009 following the lead of the President's initiative to call for such debates. Please stay tuned to this website.

04/20/2009: State Department Form to Collect Former and Current Iraqi Employees of Department's Prime Contractors/Grantees/Cooperative Agreement Partners

• The Department of State is developing a form (DS-7655) to collect information identity and background information for certain Iraqi citizen and national for the purpose of processing of their refugee, asylum, special immigration visas, and other immigration claims and applications. The country enacted the Refugee Crisis in Iraq Act of 2007 as part of the National Defense Authorization Act of 2008, Public Law 110-181 on January 28, 2008. Under Section 1248(c) of this Act , the Secretary of State is required to collect from each Department of State prime contractor, grantee, or cooperative agreement partner that has performed work in Iraq since March 20, 2003, under a contract, grant, or cooperative agreement with the Department that is valued in excess of $25,000, information that can be used to verify the employment of Iraqi citizens and nationals. For the 60-day federal register comment notice, please click here.

04/19/2009: Victims of Broken Immigration System - Legal or Illegal Children Accompanied Illegal or Legal Immigrant Parents

• There are a large number of youngster immigrants in this country who have been brought into this country by parents either legally or illegally. They were brought into the country when they were children mostly involuntarily by their parents. As time passes, these youngster assmililate into "Americans" and turn into "American kids" in terms of their behaviors, mentality, culture, and value orientation. These youngsters face one common hardship to return to their mother countries. Culturally, socially, politically, and economically they have turned practically "foreigners" in their mother lands and cannot successfully build a life and survive economically and socially in their countries because they are considered strangers to fit into the stereo-type cultures in these countries.
• In order to give a relief to these youngsters, the Congress passed the Child Status Protect ion Act (CSPA) for the "legal" accompanying children of legal immigrants and the Congress is about to debate and consider the so-called "DREAM Act" bill to relieve such innocent victim "illegal" youngsters from the hardships. As noted earlier, both of them share one common feature: They came to this country not at their choice but parents' choice. As the new Administration and the new Congress are about to initiate the Comprehensive Immigration Reform debate, one of these two groups starts receiving increased attention for their legislative relief, "illegal" youngsters, in the form of a piecemeal DREAM Act legislation or in the form of Comprehensive Immigration Reform Act legislation. These youngsters deserve such legislative relief and we fully support the DREAM Act initiatives.
• However, we want to call the political leaders attention to the predicament of other youngster victims from the nation's broken immigration system - legal youngsters who arrived at this great nation not on their own volition but the decision of the immigrant parents. As time passes, some of these legal youngsters who are practically "American kids" face the difficult destiny of a potential forced departure from the country to their mother land because of the flaws in the current CSPA. The problem starts to surface as they approach the age of 21 because of the increased visa number retrogression and the increasing backlog in processing of the green card applications. The CSPA gives relief to certain youngsters even after they reach 21 years of age, but there are some group of these youngsters who are not eligible for such relief beyond certain limited period of time when their opponuties for green card applications will have to be terminated because of the flaws in the currest CSPA. These practical "American kid" legal youngsters will soon have to be separated from the parents, siblings, close relatives, and friends, completely uprooting their lieves in this country because of the potential forced departure from the U.S. The hardship does not end here for these kids. The real hardship will start from the time these kids are forced to depart from the country and after their arrival at their mother lands. Since culturally, socially, politically, and economically they are strangers with not roots whatsoever in these countries, not to mention the language barriers for some of them, they will have to face a difficult issue of survivality in their "practical foreign" mother lands. At the personal and individual level, this can be a real challenge and threat and almost insurmountable hardship which is caused by none other than their parents and the legal system in this country.
• As the country is about to debate the fate of the innocent youngster victims in the immigration process in the form of DREAM Act and the CIR, the political leaders and legislators should not neglect the other grouip of these "voiceless" innocent victim legal youngsters from the perspectives of correct public policy and humanitarian considerations to give an equal shake in the comprehensive immigration reform.

04/19/2009: Massive "May Day" Rallies for CIR on the Move

• In parallel with the President's agenda to initiate the CIR debates in May, the Hispanic leaders and Labor leaders are reportedly organizing CIR rallies on May Day (May 1, 2009) in various locations. May Day is only about 10 days away and those who wish to participate in these rallies should contact these organizers in their areas to learn the details. As it stands now, the President is considering a CIR as part of Border Security legislation rather than an independent bill and the CIR part of the legislation may focus on legalization of illegal aliens who are already present in the country. Additionally, to collaborate with the labor union forces, the President is reportedly to propose a legislation that will allow employees to "organize" labor unions on the job sites. Because of the too far "left" leaning agenda, the right wings are reportly waging war against the President's agenda labelling them as a move of "class war." Please stay tuned to this website for the development.

04/17/2009: USCIS Issues Guidance for Processing of Military Naturalization Applicants Who Failed to Respond to RFE or Failed to Appear for Scheduled Interviews

• This USCIS memorandum issued by Mr. Donald Neufeld, Acting Associate Director of Domestic Operations gives a guidance to field offices how to handle and process N-400 applications by eligible military aliens who failed to timely respond to RFE or failed to appear at the scheduled interviews considering special circumstances the military applicants are in that could lead to such failures. For the details, read on.

04/17/2009: E-Verify Mandatory Requirement for Government Contractors/Subcontractors Further Delayed to 06/30/2009

• The Department of Defense, General Services Administration, and National Aeronautics and Space Administration have agreed to delay the applicability date of FAR Case 2007-013, Employment Eligibility Verification, to June 30, 2009. For the federal register notice of such amendment, please click here. See also USCIS announcement.
• It was previously delayed to May 21, 2009. Today announcement implies further delay of previous decision of delay in implementation of the final rule.

04/17/2009: Critical Date for Fate of Door Opening for "Concurrent" Filing of I-360/I-485 in Religious Worker Special Immigration Proceedings

• We reported that a federal district court judge in Seattle handed down a decision in March 2009 potentially opening a door for the religious workers to file I-485 applications concurrently with the I-360 special immigrant petition just as I-140 and I-485 concurrent filing procedure. Currently, the concurrent filing is not available in the religious worker immigration proceedings. The judge's order was not a final decision in that it ordered the USCIS and the class action plaintiff to submit proposed order and judgment, should the parties reach an agreement, by April 17, 2009, and if the parties should fail to reach the agreement, the USCIS to submit its proposed order and judgment which will disagree with that of the plaintiffs within 10 days. Accordingly, today marks a deadline of such agreement and a critical day for resolution of the disputes on the concurrent filing of I-360 and I-485 for religious workers in the future. Please stay tuned to this website for the update of this litigation.

04/16/2009: USCIS Updates on 04/16/2009 Processing Times as of 02/28/2009

• See our homepage.

04/16/2009: DOL Extends Date of Need for H-2A Employers from Current 07/01/2009 to 01/01/2010

• DOL published a final interim rule this morning to announce that all H-2A employers with a date of need on or before July 1, 2009, as established in the H-2A Final Rule published on December 18, 2008 and in effect as of January 17, 2009 is extended effective today to include all employers with a date of need on or before January 1, 2010. For the full text, please click here.
  

04/16/2009: Mysterious USCIS Calm on FY 2010 H-1B Cap Count

• In the last announcement of April 9, 2009, the agency reported that it had received about 42,000 regular cap cases and most of 20,000 U.S. master exempt cases. Since then almost one week has passed and there is no word from the USCIS. The regular cap is 65,000 and in the FY 2009 cap count, they needed 58,200 to reach the regular cap because of Singapore and Chile free trade agreement cap. Besides, it is obvious that by now, the agency has used up all the 20,000 U.S. master exempt numbers and those U.S. master exempt cases beyond 20,000 cap might have been added to the pool of the regular cap count. Considering all of these facts, the agency's silence on the cap count raises a mystery or thrill or even chill /thunderstom that can come after the mysterious calm. Hmm.........................................

04/16/2009: Mixed Signals Sending Out From the Hill and the White House on CIR This Year

• We have repeatedly reported that the majority Democratic Party is in predicament to appease the two conflicting political winds blowing from the opposite directions and struggling to find an answer on the immigration reform issue this year. One pressure comes from the Hispanic constituency and labor unions to push for the CIR within this year and other pressure comes from the middle of the road Democrats and conservative Republicans mobilizing anti-CIR campaign using ongoing uprise of public against the tax hikes and Obama Administration's aggressive economic recovery initiatives and push for too progressive political agenda including CIR. Currently, the President is to visit Mexican Presdient for the summit meeting which will focus on the southern border crisis. Under the circumstances, it appears that the Democrats have started sending out mixed signals to deal with the political predicament. Report indicates that the White House has started sending out message that the White House will start discussion of the CIR as early as May this year but will not push for enactment of CIR within this year and will focus on the economic issues, while Senate Majority Reid is reportedly sending out a message that he will take up the CIR legislative bill in the fall of this year. The report also indicates that the House may also introduce a CIR bill which is different from the Senate bill because of the deeply divided opinions within the Democratic group. Obviously, the mixed signals are coming out from the Democratic majority and White House to deal with the two conflicting political pressusres.using a highly sophisticated political skill. Apparently, the White House is sending out such message under the rising media opinion on risky political gamble involved with pushing for CIR and currently developing conservative public rise against the economic recovery issues and growing risk involved with "overreaching" beyond the economic agenda under the circumstances. The information that the White House will start debate of CIR as early as in May but will not push for the comprehensive immigration reform within this year and the Senate Majority Leader's alleged agenda to take up CIR in the late fall rather than now or in the near future throws a serious doubt on the Washington's "serious" commitment to comprehensive immigration reform within this year.

04/16/2009: USCIS Statistics of Immigration Benefits Applications and Petitions Processing and Pending Cases as of End of February 2009

04/15/2009: AFL-CIO Come Frontline to Support Immigration Reform Short of "Comprehensive" Reform

• As we reported earlier, the support of CIR by the labor union community has been anticipated and it will present a momentum to push for the CIR debates. The following is the proposal of the AFL-CIO:
  • The proposal calls for:
  • (1) An independent commission to assess and manage future flow of immigrants, based on labor market shortages that are determined on the basis of actual need;
  • (2) A secure and effective worker authorization mechanism that protects workers’ rights and privacy;
  • (3) Rational operational control of our borders;
  • (4) Adjustment of status for the current undocumented population;
  • (5) Improvement, not expansion, of temporary worker programs, limited to temporary or seasonal, not permanent, jobs.
• It is considered not "comprehensive" in that in a way it opposes the reform in legal immigration system. Comprehensive immigration reform should seek a balanced reform to correct the ailment in legal and illagal immigration systems. But the proposal is a good start to call attention to importance of immigration reform and we do support the proposal with the revision. Read on.
  

04/15/2009: AILA's Annual National Conference in June 2009 and Representation of Increased Stakeholder Agencies

• AILA has been sponsoring annual national conference every year, mostly in June, to give an opportunity for the members (1) to develop networking, (2) to learn the changing laws, rules, and practice from experienced colleagues in different specialties, and (3) update their knowledge on the stakeholder agencies' current and future practice, policies, and directions. The first and part of second part are important for the new practitioners, and the other second part and the third part have formed incentives for the experienced practioners to practicipate in the annual conferences. When the immigration lawyers community was smaller in earlier days, the second and third parts were considered important purposes of the annual conferences. For the reasons, the annual conferences invited host of stake holder government agency representatives for continuing education of the immigration practitioners relating to the changing practices, policies, probable changes in future practices and policies. Such government representations also gave the attendants opportunities to make direct contact with these crucial officials and to develop a sense of operation of the agencies from human perspectives.
• However, over the years, the membership of AILA has exploded as increased number of new practitioners come into the immigration law practice. It thus appears that the weight of AILA service needs for these new practitioners have gradually increased and along with it, it appears that AILA's focus has gradually swifted to the first and second parts of "education, training, and networking." We do not know whether it was related to such changes, but over the years, the annual conferences witnessed reduced representation of stakeholder agencies, particularly consular officers, Service Center Directors, field office directors, etc. in annual conferences. This has resulted in reduced opportunties for samll practitioners to meet with and update information from the key government officials unlike the major players of the organization who represent in most part large lawfirms and have such accesses.
• There is a sign that the AILA leaders intend to change the course in the 2009 Annual Conference. The program reveals that they will invite the representatives from all the Service Centers to update their practices and policies and to intermingle with the attendants. This is indeed a welcome move, particularly from the perspectives of small practitioners. Accordingly, we encourage the members of the AILA to attend this year's Annual National Conference and meet with these key officials to update their practice information and develop network with these officials.
• Such change in AILA's direction from the large lawfirm focused operation to the grass-root focused operation is particularly important because of the changing law practice environment. In old days when the economy boomed or at least stabilized, the employment-based immigration played a very important role in the immigration law practice leading to growth of large immigration law firms. Now, wind is blowing to different direction. Current economic recession, rising unemployment, growing hostility against foreign labor forces, and increasing focus on the government immigration policy on enforcement have swifted the market of the immigratiopn law practice from the national employment-based practices to local practices representing non-emploment-based immigration clients for immigrations that fall under the jurisdiction of the local district and field offices such as family-based immigration, immigration inspection, immigration law enforcement proceedings in local ICE or USCIS offices, immigration courts, their appeal proceedings before the Board of Immigration Appeals and federal courts, asylum and Temporary Protect Status proceedings, etc. It appears that growing number of immigration practioners have changed their practice from the practice of national jurisdiction to the practice of local jurisdictions and even large firms have growingly expanded the weight of their practice to such local jurisdiction practices. Accordingly, the AILA's role of providing services for such practitioners, mostly small or medium size, rather than large law firms has demanded a new direction. We welcome the recent actions of the leaders of the AILA to increase the focus on such issues in teleconferences, infonet updates, liaison and other activities. The attendants of this year's National Annual Conference will also notice such change of focus and direction in the conference programs. For these reasons, local-focused practitioners may also actively participate in this year's Annual National Conference and assist the leaders of the organization to continue their move to a new direction to which the changing wind blows.

04/15/2009: DOL Activates and Launches New H-1B and PERM Filing System of iCERT System Portal Today

• As announced, the DOL has activated the new H-1B and PERM filing system of iCERT Portal today. Accordingly, effective April 15, 2009, the iCERT portal is available for the submission of ETA 9035E (electronic LCA H-1B application). The current electronic LCA system will continue to be available through May 14, 2009. However, effective May 15, 2009, the LCA for the H-1B program will be available for submission only through the iCERT portal system. The PERM application, Form ETA 9089, will become available for application submission by iCERT Portal on September 1, 2009. However, too allow for an appropriate transition from the current PERM online filing system to the new iCERT system, both systems will be active during the month of September. However, beginning October 1, 2009, PERM applications will be submitted electronically only through iCERT system accounts.
• DOL will deactivate the current electronic version of the Form ETA 9035E on May 15, 2009. and ETA 9089 on October 1, 2009. DOL recommends the employers to copy all necessary application information into the new iCERT system prior to these deactivation dates. However, the status of applications submitted prior to deactivation will continue to be available through current system accounts.
• For the details, please read DOL announcement, fact sheet, and manuals which we posted on 04/10/2009. For the official notice of the launch of iCERT System, please refer to its federal register notice of 04/15/2009.
• For the iCERT related questions, the following contacts will be available:
  • The Help Desk: LCA.Chicago@dol.gov.
  • Technical Assistance: OFLC.Portal@dol.gov or Wilson.david@dol.gov or (202)693-3493, Mr. David Wilson, Chief, Division of Technology Applications, Office of Performance and Technology, 200 Constitution Avenue, N.W.,
    Washington, DC, 20210
  • LCA Processing Contact: lca.chicago@dol.gov.
  • PERM Processing Contact: plc.atlanta@dol.gov or (312)886-8000.
• We encourage the readers to visit the portal and familiarize themselves with the new system. One important advisory: Remember that once the employers start using the new system of H-1B and PERM iCERT Portal System, all the information will go ino a single online account and employers should make it sure that they do not file inconsistent H-1B and PERM applications in order to avoid any potential misunderstanding or fraud investigation by the agency. iCERT Portal is launched for dual purposes: One is efficiency in management and customer convenience. The other is to achieve integrity of the foreign labor certifications and detection and prevention of frauds. Statistics reflect that 80% of H-1B foreigners are also filing PERM applications. Every single LCA for these H-1B foreigner's jobs will be in the account when PERM applications are filed for the same or similar positions or aliens. It is hoped that the new system will help the agency to reduce processing times of PERM applications down the road. Once the USCIS completes ongoing "Transformation Initiatives" and lanuches online filing system of immigration benefit applications and petitions, the USCIS will also achieve the similar purposes and one cannot brush aside potential sharing of their portal databases between the agencies, even though it may take time.

04/12/2009: Upcoming Immigration Reform Debates and Focus of "Comprehensive" Immigration Reform

• Congress is coming back to work after April 20, 2009 and the President has announced that he would put together immigration reform group in May 2009 to initiate the comprehensive immigration reform initiatives which he promised to achieve during the campaign in the first year of his Presidency. Currently, the political reaction shows a mixed bag for the possibility of enactment of comprehensive immigration reform within this year.
• When it comes to the comprehensive immigration reforms, there are three broad areas of reform: (1) Reform of current legal immigration system that has been ailing for years without any changes; (2) Legalization of 12 million illegal aliens; and (3) Tightening border security and immigration enforcement to "prevent" illegal immigrants. Currently, because of the current environment which is created by the two wild cards of nation's economic turmoil on one hand and the President's campaign promise of CIR and growing discontent and pressure flowing from the Hispanic community on the other, the debates are likely to focus on the legalization of illegal aliens and tightening border security and reinforcing immigration enforcement. We agree that these two reforms are extremely critical for the future of this nation and we fully support such reforms. However, we also hope that the nation's policy makers do not neglect the importance of reform of ailing legal immigration system to relieve millions of legal immigrants from the choked immigration system forcing them to wait for years and years. Let's watch how the drama will unfold coming May.

04/11/2009: PERM Processing Progress

• It appears that the Atlanta Processing Center is catching up with processing of PERM applications. Most recently, the OFLC reported that they were processing June 2008 cases. It now appears that they are clearing up July and August 2008 cases and moving into September 2008 cases. Certainly a good news, but still behind their 2010 performance goal of average six months for PERM processing. Please keep it up, APC, and keep running and running to reach at least the target performance goal of average six months!

04/11/2009: Statistics of H-1B Visa Holders in the U.S. and Reach of H-1B Cap in Recent Years

• Total H1-B Visa Holders in the U.S. in Recent Fiscal Years
  • 2008: 409,619
  • 2007: 461,730
  • 2006: 431,853
  • 2005: 407,418
  • 2004: 386,821
• Reach of H-1B Cap in Recent Fiscal Years
  • 2010: Still Open, and Going and Going, as of 04/11/2009! May be it will record the statistics between 2007 and 2008.
  • 2009: 1 day
  • 2008: 2 days
  • 2007: 56 days
  • 2006: 132 days
  • 2005: 184 days
  • 2004: 323 days
• The total H-1B holders steadily increased until 2008 when it dropped substantially. Probably it was affected by FY 2007 July Visa Bulletin fiaso which opened the flood gate for EB-485 filings with no visa number cut-off date in July 2007, accompanied by massive issuance of EAD allowing some of the H-1Bs in this stream to drop out of H-1B status and use EAD, most of which were issued beginning from November 2007. There being no such event in 2009, presumedly the total numbe of H-1B holders in 2009 might have increased. Considering the fact that every year a same new number of H-1B holders are added to the total pool, a large number of H-1Bs have kept extending their H-1B status on and on. Additionally, the fact that overall the total H-1B holder numbers remained steady may indicate that more or less of from 85,000 to 100,000 numbers of H-1B are added to the pool and about the same number moved out of the pool, mostly into green card holder pool, adding flesh blood of valuable workers to the main stream of this country. It Ain't Interesting?

04/11/2009: Revised/Updated Post-Completion OPT SEVP Policy Guidance 04/06/2009

• USICE revised and updated this guidance on OPT policy for school DSOs, particularly relating to the Cap Gap extension pending or approved H-1B. This Guidance provides helpful and up-to-date information on this subject. F-1 students and those in OPT may review this material.

04/10/2009: Advisory for FY 2010 H-1B Cap Filers

• The USCIS has been diligently posting the H-1B cap count, even daily thus far. But people should remember that the cap can reach not in the far future. Remember that there are a large number of foreign students who are ready to graduate in a matter of weeks. Under the current USCIS policy, they can even file the H-1B petitions even before they attend commencements and get the degree certificates in their hands. If they complete everything and wait for the commencement and degree certificate, they can still file the petition with the school registrar's written verification of completion of all degree programs but for the commencement plus full academic transcripts. Once the members of this group start participating in the stream of H-1B cap filing through their employers, the cap numbers can run out fairly quickly. If you really need the cap filing, you may not want to waste too much time to file your cases.

04/10/2009: New Nonimmigrant Visa Application Procedure Requiring ASC Biometric at U.S. Consulates in Ciudad Juarez, Monterrey and Nuevo Laredo, Mexico

• The American Consulates in these locations of Mexico has just launched a new procedure for applying for nonimmigrant visas at these consulates requiring biometric collections at the designated Application Support Centers at the locations. Those Mexican nationals or Third Country Nationals (TCN) who plan to apply for a NIV at these consulates should read the announcement of the consular offices.

04/10/2009: Office of Foreign Labor Certification Announces New iCERT System Rollout Schedule

• The Office of Foreign Labor Certification (OFLC) has announced the implementation of a new one-stop visa portal system, called the iCERT System, to improve employer access to employment-based visa application services and OFLC immigration news and information. Beginning April 15, 2009, next Wednesday, employers or their authorized representatives will be able to register with the iCERT System and establish a single account to file the new ETA Form 9035E Labor Condition Application (LCA) covering the H-1B, H-1B1, and E-3 visa programs. Along with the launch of the new system, the OFLC has implemented a dedicated Help Desk Unit at the Chicago National Processing Center to serve as a resource to those employers and or their authorized representatives filing LCAs with the Department. Please keep the following links in your system to use the new system:
  • Factsheet for preliminary schedule for implementing the new ETA Form 9089 for the PERM program
  • User Manual for Account Registration
  • User Manual for Filing New ETA Form 9035E
• The new chapter opens with the launch of the new iCERT portal for filing ETA 9035E for H-1B. Please get used to the new system during the weekend.

04/09/2009: Here is the USCIS 04/09/2009 Update of FY 2010 H-1B Cap Counts and Processing Information

04/09/2009: USCIS Notice of Infopass Appointment Close Schedules

• The notice states that INFOPASS schedule has closed April 23 and 24 for appointments. INFOPASS will resume taking appointments Monday, April 27, 2009.

04/09/2009: FY 2010 H-1B Cap Count Update

• AILA reports that the total regular cap cases they have received are about 42,000 and the U.S. master degree cases are about 20,000, coming close to the cap considering some potential ineligible or rejectable cases. The USCIS is thus continuing to accept both regular cap cases and U.S. master degree cases. The regular cap number is literally a shocker! The whole text will be released to the public shortly.

04/09/2009: CIR Drummed Up in Time for U.S.-Mexico Summit Meeting in Mexico Coming Week

• Democrats and Obama Administration have launched a campaign to drum up Comprehensive Immigration Reform agenda as an overture to the summit meeting between the President Obama and Mexican President coming week. The question is which direction the CIR debate will be shaped. Currently, Obama Administration is sandwitched between the hostile environment against the CIR as affected by a serious situation of unemployment and the rising disconent within the Hispanic community, one of the most important polical base and constituency for Obama political forces. It appears that in order to deal with these conflicting political landscapes, the Obama Administration is heading in a direction to focus on the issue of legalization of so-called 12 millinion illegal aliens and as part of the bargain to push for reinforcement of the border security and control of unauthorized employment in the country. Currently, legalization of the illegal aliens is supported by the nation's powerful labor unions in order for them to recruit and expand their memberships and political power base. Additionally, such direction of CIR can mend somewhat discontent of Catholic community that has been growing during the past three months over the issues of stem cell and CIR. This direction of his CIR agenda has surfaced through the New York Times report: "Administration officials said that Mr. Obama’s plan would not add new workers to the American work force, but that it would recognize millions of illegal immigrants who have already been working here."
• We welcome the overture of the Obama Administration to energize the political debates on the immigration reform. However, even though we do recognize and realize the political reality surrounding the economic recession and rising unemployment, the Obama Administration should shape up the immigration reform in a right direction. "Broken" immigration system involves two phases, among others. One is, as the Obama Administration properly recognized, the issue of legalization of illegal aliens. The other is the choked immigration quota systems that have been ailing for decades without being mended and seriously affecting the environment for the businesses and academic institutions to survive in the ever growing international competitions in this age of cyber space and global economy. One should not brush under the rug the serious state of exodus of brains and businesses from the nation. This hostile environment against the businesses and research and development communities needs urgent surgery. Direction of the CIR must be shaped more on long-term vision of the future of the country and never on a short-sighted political decision. "Broken Immigration System" needs a surgery in "balanced" direction between the reform of "legal" immigration system and legalization of "illegal" immigration system. We hope that the reported direction of the Obama Administration in the phrase of "Mr. Obama’s plan would not add new workers to the American work force" is not intended to focus only on legalization of illegal aliens based on the misguided notion of "broken" immigration system. Again, we do recognize that immigration reform is a part of political decision and constrained by the political landscape of a given time. However, a true leadership should lead the nation with a long-term vision of the nattion's future and interest without being blinded by the given poltical environment. That's what "leadership" should mean unlike "followership." Even though it may be taken as a minor matter, look at what happened with the FY 2010 H-1B cap filing results. Last year, on the first of FY 2009 H-1B cap filing, the USCIS received more than double of annual cap numbers in "one single" day, while this year, the agency reportedly has received only half of the annual cap numbers in "seven" days. Some may misinterprete that it was caused by economic recession. Probably it may be true, but not entirely true. It was in part caused by the political constraint imposed by recent amendment of H-1B law practically prohibiting TARP-funded employers from hiring foreign workers as well as growing exodus of American businesses and foreign talents from this country. The nation blames China and such and such countries. Has anyone thought about who brought such changes in economic and polical landscape of the world? Something to think about seriously. Before one blames others, one should take a close look at what we have done, contributing to such change. Failure of retaining foreign talents and failure of retaining American businesses in the country are key culprits. We admire President's new leadership and hope that he leads the CIR agenda in the right direction, which is a balanced reform of the broken immigration system and not politically driven policy decision.

04/08/2009: FY 2010 H-1B Cap Processing Update

• AILA has reported that the USCIS started issuing Receipt Notices today and started processing Premium Processing cases effective yesterday. There is no lottery until the cap is reached in the uncertain future and when the cap is reached and the agency fixes the final receipt date, the agency will select randomly cases only among the cases which are received in the final receipt date only. Any cases which are received before that date will be processed in the order they are received.
• It appears that it will take quite sometime before the cap reaches because the agency has received only half of the regular cap numbers. The employers who have yet to file H-1B cap petitions may continue to file their cases.

04/08/2009: May 2009 Visa Bulletin

• My God! EB-3 will be "Unavailable" across the board!! Worse yet, EB-3 visa number will remain unavailable until the end of September 2009. The EB-3 annual visa numbers have been exhausted. It means for five months form May 1, 2009, no EB-3 visa numbers will be available and the USCIS and visa posts will not be able to adjudicate any EB-3 cases during this five-month period. SHOCKS!

04/08/2009: USCIS Announcement: USCIS Continues to Accept FY 2010 Petitions

• Here is the release. No one has predicted this level of impact of the economic recession and unemployment rate.

04/08/2009: USCIS FY 2010 H-1B Cap Status Report of April 8, 2009

• The USCIS has just released the advance copy of the report to the AILA dated April 8, 2009. It will announce that it continues to accept H-1B cap petitions and the USCIS will continue to monitor the number of petitions received for both 65,000 regular cap and the 20,000 U.S. master's degree or higher educational exemption cap. This reporter's reading of this report is that the cap did not reach at the end of the day of April 7, 2008 and the final receipt date could not be determined. That sounds a good news to all of those who filed the cases at least before today.
• However, it goes on to say that "To ensure a fair system, USCIS may randomly select the number of petitions required to reach the numerical limit from the petitions received as of the final receipt date." This is a very confusing statement to confuse the people that the agency may decide to select the number of petitions out of all the cases which they received until the final receipt date, including the final receipt date. The confusion arises from change of wording from the regulations. The regulation reads: "When necessary to ensure the fair and orderly allocation of numbers in a particular classification subject to a numberical limitation or the exemption under section 214(g)(5)(C) the Act, USCIS may randomly select from among the petitions received on the final receipt date the remaining number of petitions deemed necessary to generate the numerical limit of approvals." This is the rule that should apply if the cap number does not reach by the end of the day of April 8, 2009. The only situation wherein the USCIS is permitted to select cases out of all the numbers received by certain date is the situation where the cap number reached before August 8, 2009 under the last sentence of 8 CFR 214(h)(8)(ii)(B) which reads, as we cited earlier, that "If the final receipt date is any of the first five business days on which petitions subject to the applicable numercial limit may be received (i.e., if the numerical limit is reached on any one of the first five business days that filings can be made), USCIS will randomly apply all of the the numbers on any one of those five business days, conducting the random selection among the petitions subject to the exemption under section 214(g)(5)(C) of the Act first."
• From the reading of the regulation, if the cap indeed failed to reach yesterday or earlier, the agency is not, repeat not, authorized to select randomly the cases which had been accepted at least until yesterday. Remember that the regulation provides "from among the petitions received on the final receipt date" and not "petitions received as of the final receipt date."
• Please stay tuned to this website for the agency's release of the announcement for the public.

04/08/2009: What Kind of FY 2010 H-1B Cap Count Will the USCIS Announce Today or Tomorrow?

• As we reported on March 20, 2009, the USCIS did not explain in its FY 2010 Cap filing announcement the rule of the cap count under the USCIS regulation. The H-1B cap count rule is provided in 8 CFR 214.2(h)(8)(ii)(B) which provides in part that If the final receipt date is any of the first five business days on which petitions subject to the applicable numrical limit may be received (i.e., if the numerical limit is reached on any one of the first five business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those five business days, conducting the random selection among the petitions subject to the exemption under section 214(g)(5)(C) of the Act first (Revised 3/24/08; 73 fr 15389).
• Now this five business day was over yesterday, April 7, 2009, and everyone is anxiously waiting for the USCIS cap count announcement. We hope that the USCIS may not announce it today. Why? Because it may mean that the cap did not reach by the end of April 7, 2009 and any cases which they had received by yesterday would not go through the so-called H-1B lottery process and would be safe. In other words, we just hope that they do not announce that they received enough FY 2010 H-1B cap numbers before the end of the day of April 7, 2009!!
• If they failed to receive enough cap filings by yesterday, they will have to announce certain future date when the cap reached and will have to fix the final receipt date. Should this happen, any cases that are received by any days before the final receipt date should not be subject to the lottery, and only cases which should go through the random selection process will include only those cases which will be received within the final receipt date. For these reasons, FY 2010 H-1B cap filing is still available and open even though they should take a gamble until the cap count is announced. For these "late" filers, they will have nothing to lose in that should the cases fail to come within the future cap reach date, their cases will be rejected and returned without losing the filing fees.
• In hindsight, it was a smart move for the USCIS not to release the detailed cap count rule and highlight of potential 7-day filing window periof of time in that it has forced the employers to file on April 1, 2009 or as early as possbile rather than waiting for seven days, leading the agency to figure out the total cap filings fairly quickly and depending on the total cap filing numbers, to potentially avoid a massive lottery process.
• Stay tuned to this website for the anticipated USCIS cap count announcement.

04/08/2009: USCIS Projected I-140 and EB-485 Processing Times and Ongoing Massive Adjudication of Pending Visa Number Available I-140 and EB-485 Cases

• The I-140 and EB-485 waiters, particularly those who filed the cases during the period of FY 2007 July Visa Bulletin fiasco period, are currently receiving either the RFEs and approvals or denials en masse from the Service Centers, turning a lot of waiters into smiley faces. On behalf of all of these smiley faces, we want to send our message of "THANK YOU" to the leaders of the USCIS and the Honorable Napolitano of DHS for the action in place to remove the backlogs. Thank you, Thank you, and THANK YOU!!

04/08/2009: State Department Fixes Current Au Pairs Exchange Visitor Rule as Final Rule Without Any Changes

• Today, USCIS publishes in the federal register that the regulations contained in the interim final rule are adopted as final rule without any change effective April 8, 2009. The interim rule was published and has been implemented since June 19, 2008 revising former regulations in order to permit qualified au pairs to participate again in the au pair program after completing a period of at least two years of residency outside the United States following the end date of his or her initial exchange visitor program.

04/05/2009: USCIS Employer Handbook for Completing New I-9 Form 04/03/2009

• As revised I-9 form is enforced effective April 3, 2009, the USCIS has updated the handbook for employers to complete the new I-9 form to comply with the new requirement. Employer should read this handbook. We have updated I-9 User Manual posting at the home page and employers may be able to access to the manual anytime through the link.

04/04/2009: Congress Passed Concurrent Resolution, H. Con. Res. 93, to "Conditional" Recess Until April 20, 2009

• The 111th Congress has passed most of key and time-sensitive bills in the first three months. The last important bill which the Congress passed was the Obama Administration's FY 2010 budget proposal. Both the House and the Senate swiftly passed the budget in the last two days. It is historical in that the single most hot button legislative bill is a budget for the government and it tends to drag the legislative process for months. This week's Congressional action on the FY 2010 budget recorded a history.
• Having resolved most of hot botton legislations, yesterday the House and the Senate passed by unaimous consent a concurrent resolution to go into recess "conditionally" until April 20 for the Senate and April 21 for the House. "Conditionally" means when any hot issues develop, the leadership of the House and the Senate can always call back the Congress into the session during this period. Accordingly, unless such event develops, the Hill will remain quite for almost next three weeks in the legislative activities.
• The members of the House and the Senate are returning to their neighborhoods to recharge their energy in their political constituency. This presents a golden opportunity for the pro and con immigrant advocates to work with the legislators to support their immigration agenda when they return to the Hill after April 20th. These legislators never rest. Recess does not mean that they can take a time off to enjoy sleep for extended hours or enjoy a vacation. In fact, they tend to get busier in their community to harden and expand their political roots. It is time for the immigration advocators to roll up their sleeves to work with these legislators in their neighborhoods on person to person basis.

04/03/2009: FY 2010 H-1B Cap Count: USCIS Silence and What is at Stake for Filers Before April 8, 2008

• There were wide reports that the H-1B cap filing will be much lighter this year. Now three days have passed and there is no announcement of cap count by the USCIS. There were unconfirmed reports or rumors that on the first day, the agency had received less than 40,000 out of the total cap of 75,820 excluding the free trade special H-1B1 cap numbers for Singapore and Chile. Considering the fact that most of the employers had sent in cap petitions on the first day of April, the volume can be considered much lighter this year than that of last year. Those who have filed or will file before the end of the day of April 7, 2009 are just wishing that the cap number does not reach by the date since the filing which will have been received before April 8, 2009 will not be subject to the lottery and considered within the cap if the cap does not reach by the end of the day of April 7, 2009. Only cases that will be subject to the lottery will be those which will be received after April 7 and on the so-called final receipt date which the USCIS will announce after April 7, 2009. For instance, should the cap does not reach by the end of the day of April 7, 2009 and hypothetically reaches on April 8 or 9 which the USCIS will announce as the final receipt date, those cases which are delivered before the final receipt date will not be subject to the lottery under the H-1B cap gap regulation and only those cases which are received on April 8 or 9 whichever is the final receipt date will go through the computer random selection process. On the other hand, should the cap reacheds any day before April 7, 2009, all the cases which are received by the end of the day of April 7, 2009 will have to go through the computer random selection process!! For the reasons, those who have filed the cap cases should hope and cross their fingers that the cap would not reach before April 8, 2009 so that they do not have to go through the emotionally painful lottery process!! Have a nice weekend!

04/03/2009: House Bill for a Relief for Surviving Spouse and Children

• Rep. James McGovern introduced H.R. 1870 yesterday in the House to give relief for surviving spouse and childrent. For the full text, please stay tuned.

04/03/2009: Update of Litigation Challenging 29-Month OPT Rule

• Later part of last year, we reported that anti-immigration groups filed a lawsuite in the federal district court in New Jersey seeking permanent injunction against the rule. We also reported that the federal district court judge ruled against these groups not on the merit but on standing issue that the groups are not the parties who had suffered from such new rule. Since then, the news almost disappeared. But you know what? ComputerWorld reports that these groups appealed the decision before the Third Circuit Court of Appeals in Philadelphia. Good news is that the rule is receiving a strong support from the Obama Administration. For instannce, in filing defense appellate brief with the appeals court late last month, the Obama administration repeated many of the same arguments used by the Bush administration in defending the ruling in the initial case. "The inability of U.S. employers, particularly in the fields of science, technology, engineering and mathematics, to obtain H-1B status for highly skilled foreign students and foreign nonimmigrant workers has adversely affected the ability of U.S employers to recruit and retain skilled worker and creates a competitive disadvantage for U.S. companies," the government argued, according to the report. We are confident that the U.S. Court of Appeals will uphold the lower court decision. Please stay tuned.

04/03/2009: Mr. Michael Aytes, Acting Deputy Director of USCIS Testifies: "Priorities Enforcing Immigration Law"

• The testimony is focused on the importance of E-Verify Program, its progress and improvement, and need for continuining legislative support for the program. E-Verify Program has been a hot political botton between the government and immigration advocates, including U.S. Chamber of Commerce.

04/03/2009: USCIS Reminder of All Employers for Requirement of Revised Form I-9 Effective Today

• U.S. Citizenship and Immigration Services (USCIS) issued a reminder that the revised Form I-9, Employment Eligibility Verification (Rev. 02/02/09), goes into effect today for all U.S. employers. The revision date is printed on the lower right-hand corner of the form. For the Questions and Answers and other information, please visit the Q&A link.
• What is the difference between the revised Form I-9 and the old one?
  • (1) The biggest difference in the revised Form I-9 is that all documents presented during the Form I-9 process must be unexpired. The list of approved documents that employees can present to verify their identity and employment authorization is divided into three sections: List A documents verify identity and employment authorization, List B documents verify identity only, and List C documents verify employment authorization only.
  • (2) The following documents have been added or removed from the List of Approved Documents:
    Two documents have been added to List A: A temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp; and A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.
    Three documents were removed from List A: Form I-688, Temporary Resident Card;Form I-688A, Employment Authorization Card; andForm I-688B, Employment Authorization Card.
• Please review all the links.

04/03/2009: Bill Introduced in the House for H-2B Returning Temporary Worker Cap Exemption for FY 2009

• Rep. Frank Kratovil, Jr. of Maryland introduced H.R.1934 on 04/02/2009 to grant the exemption of returning workers from the numerical limitations for seasonal nonimmigrant workers in order to provide short-term immediate relief to small and seasonal businesses for FY 2009. FY 2009 has only six months to close, but this is a period which is very important for seasonal businesses in a year. Currently all the annual cap for FY 2009 have been exhausted and no H-2B temporary workers can be brought in until October 1, 2009 (FY 2010). This is a time-sensitive bill but the chance for passage of this bill in both Houses in time for the critical needs for supply is yet to be known. Please stay tuned to this website for the development of this legislation.

04/03/2009: AAO Appeal Processing Times of March 18, 2009

• I-129F = Current
• I-129 H1B: 13 Months
• I-129 H2, H3 = Current
• I-129 L = Current
• I-129 O = Current
• I-129 P1, P2, P3 = Current
• I-129 Q = Current
• I-131 = Current
• I-140 EB1(A) = 9 Months
• I-140 EB1(B) = 8 Months
• I-140 EB1(C) = 9 Months
• I-140 EB2(D) = 21 Months
• I-140 EB2(NIW) = Current
• I-140 EB3(Skilled Worker) = 22 Months
• I-140 EB3(EW Unskilled Worker) = 20 Months
• I-212 = Current
• I-360 EB4 (Religious) = Current
• I-360 J(Juvenile) = Current
• I-360(VAWA) = 9 Months
• I-485(Cuban) = Current
• I-485(Life) = Current
• I-485(Section 13) = Current
• I-526 EB5(Investment) = 8 Months
• I-600(Orphan) = Current
• I-601 = 23 Months
• I-612 = Current
• I-687 = 20 Months
• I-698 = Current
• I-700 = Current
• I-821 = Current
• I-905 = Current
• I-914 = Current
• N-470 = Current
• N-565 = Current
• N-600 = Current
• N-643 = Current

04/02/2009: "A Day in the Life of USCIS": Did You Know These Average Daily Statistics Involving the USCIS?

• Read on. The statistics remain still fresh since it is dated February 2009.

04/02/2009: GAO April 2009 Report on Lobbying Disclosure

• As the Obama Administration reenforces transparency of the government, it is likely that along the way, the Administration will increase its regulation of lobby activities of various nonprofit organizations. In the immigration areas, the country witnessed mushrooming of entities during eight years of Bush Administration that directly or indirectly engaged in lobbying activities which were loosely regulated. The entities that are involved in such activities should be mindful of the law that put these entities subject to criminal and civil penalties for violation of the lobby regulating statute. These entities may review this report to be more conscious of the line which the entities should not cross in their activities in lobbying for immigration advocacy.

04/02/2009: CIS Ombudsman Recommendation of 04/01/2009 for Improving the Process for Payment of USCIS Filing Fees and Other Costs

• To improve customer service and agency efficiency, the Ombudsman recommends that USCIS consider implementing:
  1. A batch filing system that would enable high volume filers to pay USCIS fees online;
  2. An online shopping cart mechanism that would simplify the process of identifying appropriate USCIS forms, calculating related fees, and submitting payments;
  3. An expansion of the payment options within the e-Filing system to include all USCIS fees; and,
  4. Additional visual and written aids within current instructions to ensure that payments are submitted correctly.
• Please read other details for the full text of the Recommendation. By the way, people are often confused with the names of offices of USCIS and CIS. The CIS Ombudsman's Office is not part of the USCIS in the DHS organization structure. The two terms are very confusing.

04/02/2009: USCIS Releases I-360 Religious Worker Special Immigrant Petition Filing Check List 03/30/2009

• In 2009, the rules on religous worker "immigrant petition" rules have also witnessed a significant change. The USCIS has also released this handy checklist for filers on 03/30/2009.

04/02/2009: USCIS Releases I-129R Nonimmigrant Religious Worker Petition Filing Check List 03/30/2009

• In 2009, the rules on religious worker proceedings witnessed a significant change in rules. To assist the filers, the USCIS has just released a handy Checklist for filing I-129R petitions.

04/02/2009: USCIS Joint Memorandum of Directors of Three Directorates: Refugee, Asylum & International Operations, Domestic Operations, & Policy and Strategy

• The joint memorandum releases significant updates to add/modify Adjudicators Field Manual (AFM) on Illegal Entrants and Immigration Violators under Section 212(a)(6), affecting policies and rules on removability and relief available in the immigration benefits proceedings, refugee benefit application proceedings, and and over removal waiver proceedings. Immigration practitioners should review and update their inhouse library with this joint memorandum of March 3, 2009. This joint memorandum will impact immigration practice across the spectrum.
  
  

04/01/2009: USCIS Q&A: Extension of Post Completion OPT and F-1 Status for Eligible Students Under the Cap Gap Regulations

• Relating to the ongoing FY 2010 H-1B Cap petition filing process, both the USICE and USCIS have released very helpful guidance in the form of Questions and Answers. Those who are in F-1 or OPT status and participate in the H-1B cap gap benefit process should read these materials. USCIS part of Q&A is released today, 04/01/2009. Very good and well organized Q&A!

04/01/2009: Full Text of U.S. Ph.D. STEM Foreign Worker Immigration Bill

SECTION 1. SHORT TITLE.

This Act may be cited as the `Stopping Trained in America Ph.D.s From Leaving the Economy Act of 2009' or the `STAPLE Act'.

SEC. 2. EXEMPTION FROM NUMERICAL LIMITATIONS ON PERMANENT RESIDENTS FOR CERTAIN UNITED STATES EDUCATED IMMIGRANTS.

(a) Aliens Not Subject to Direct Numerical Limitations- Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(1)) is amended by adding at the end the following:

`(F) Aliens who have earned a Ph.D. degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))) in a field of science, technology, engineering, or mathematics and who have an offer of employment from a United States employer in a field related to such degree.'.

(b) Procedure for Granting Immigrant Status- Section 204(a)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(F)) is amended--

(1) by striking `or' after `203(b)(2)';

(2) by inserting `, or 201(b)(1)(F)' after `203(b)(3)'; and

(3) by striking `Attorney General' and inserting `Secretary of Homeland Security'.

SEC. 3. EXEMPTION FROM H-1B NUMERICAL LIMITATION FOR CERTAIN UNITED STATES EDUCATED NONIMMIGRANTS.

Section 214(g)(5) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(5)) is amended--

(1) in subparagraph (B), by striking `or';

(2) in subparagraph (C), by striking the period at the end and inserting a semicolon; and

(3) by adding at the end the following:

`(D) has earned a Ph.D. degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))) in a field of science, technology, engineering, or mathematics and with respect to whom the petitioning employer requires such education as a condition for the employment.'.

04/01/2009: Senators Grassley of Iowa and Durbin of Illinois Poised to Reintroduce H-1B/L-1 Reform (Restriction) Bill in the Senate

• Report indicates that the H-1B and L-1 Visa Fraud and Abuse Prevention Act of 2007 which these two Senators introduced in 2007will be reintroduced with some changes, but its broad thrust is expected to remain. The earlier bill would have required employers to advertise job openings for 30 days before submitting H-1B applications for those positions. It also sought to prevent employers from hiring H-1B workers and then outsourcing them to other companies. The report however also indicates that reintroduction of the bill will raise the H-1B issue again and give a momentum for the proponents of a cap increase a potential opportunity to seek increase of H-1B annual cap numbers which have been advocated by the business community. Additionally, the piecemal effort of the H-1B/L-1 reform legislationation-reform will have to face an argument for the supporters of H-1B program to use against piecemeal efforts to set new restrictions. Piece-meal immigration legislation bills have always been challenged from two fronts at the end of the opposite spectrum: proponents of the comprehensive immigration reform and immigration restrictionists and opponents of immigration reform. In fact, CIR has been a ball that has been kicked around by legislators who wanted to oppose any picemeal immigration bills as an excuse. Please stay tuned to this website for another controversial drama that will unfold shortly in the Hill.

03/31/2009: ICE Releases Cap-Gap Fact Sheet for Students

03/31/2009: ICE Releases OPT Checklist for Students

03/31/2009: DHS Delays the Transition to Full Application of U.S. Immigration Laws in the Commonwealth of the Northern Mariana Islands

03/31/2009: USCIS Releases Eye-View of Target Processing Times at 09/30/2009 and Current Backlog by Type of Cases

• The USCIS has released on March 23, 2009 a very helpful eye-view table of the goal/target of the processing times of each type of immigration benefits applications or petitions by September 30, 2009 and the status of backlogs at the end of January 2009. The table reports the following:
  • Target/goal of processing times as at 09/30/2009 which were set before the new filing fees schedule took effect under the July 2007 rule. The new fees applied effective August 1, 2007. Accordingly, the target which the USCIS fixed did not reflect most of the FY 2007 July Visa Bulletin fiasco filing.
  • Target/goal of processing times as at 09/30/2009 which were set after the new filing fees schedule took effect under the July 2007 rule. The new fees applied beginning from August 1, 2007. Accordingly, the target which the USCIS fixed did reflect all of the FY 2007 July Visa Bulletin fiasco filings and in this regard, this target is considered to be more realistic.
  • Target/goal of number of pending (backlog) cases at the end of September 2009, which did not include visa number retrogressed cases.
  • Total number of cases (backlogs) estimate that need processing before October 1, 2009.
  • Total number of cases (backlogs) at at 01/31/2009.
  • Type of cases that have already met the FY 2009 goal. (See bold blue colored boxes)
• The eye-view table relly helps to understand the current processing time issues and predicted processing times and volumes at the end of September 2009, six-mont from now.

03/31/2009: U.S. Earned STEM Ph.D Workers Special Immigration Bill Introduced in the House

• Rep. Jeff Flake of Arizona introduced H.R.1791 in House on 03/30/2009 to authorize STEM aliens who have earned a Ph.D. degree from a United States institution of higher education in STEM to be admitted for permanent residence and to be exempted from the numerical limitations on H-1B nonimmigrants. This bill proposes STEMS earned in the U.S. two benefits: (1) to be admitted for permanent residence and (2) to be exempted from the numerical limitations on H-1B nonimmigrants. For the details, please stay tuned to this website.

03/31/2009:House Bill to Expedite I-140 for Extraordinary Artistic Ability Workers

• Rep. Howard Berman of California introduced on 03/30/2009 H.R.1785 in the House to expedite adjudication of employer petitions for aliens of extraordinary artistic ability. This bill is co-sponsed by eight other Representatives.

03/30/2009: Permanent Labor Certification Processing Status

• Processing of PERM applications is still experiencing a substantial backlog: As of March 20, 2009, the Atlanta National Processing reported at an AILA conference that they were processing priority date of July 2008 for straightward cases, priority date of September 2007 for audit cases, and priority date of June 2007 for appealed cases. Those facing H-1B six-year limit may have to learn to deal with the situation since there is no expite process for those facing the H-1B six-year limit.
  

03/30/2009: Effective 04/01/2009 Six-Month Automatic EAD Extension for Extended DED Eligible Liberians

• Today, USCIS has published a notice in the federal register that the six-month automatic extension of employment authorization for Liberians who are eligible for DED, including the extension of their EADs, as specified in this notice, is effective as of 12:01 a.m. April 1, 2009. This automatic extension will expire on September 30, 2009. This notice itself is taking effect as of today with reference to the procedures for application for DED extension and other details.

03/30/2009: DHS Initiative of Efficiency Review and Belt-Tightening/Reform of Management Underway

• Secretary Napolitano announced last week her initiatives of efficiency review of management without compromising effectiveness of management. It appears that at the core of the efficiency review lies her reform of the current poorly coordianted masaic shape of 22 former federal departments lacking effective and efficient central oversight and control over these directorates into a literally single federal department through increased oversight and centralized control within the DHS. Such initiatives are expected to bring about removal of the bureaucratic wastes and achievement of cost savings with the resultant belt-tightening in the management of the Department. One interesting initiative under the comprehensive efficiency review is that within the next 30 days, the Department will replace lot of current paper communication process by electronic communication and notification processes. For the details, please read the following:
  • Efficiency Review announcement
  • Leadership Journal
• We wholeheartedly welcome this efficiency review initiatives.

03/28/2009: DREAM Act of 2009 - Sen. Dick Durbin, Sponsor of the Bill, Press Release (Edited)

• This bill would permit undocumented students to become permanent residents if they came here as children, are long-term U.S. residents, have good moral character, and attend college or enlist in the military for at least two years. Our immigration laws prevent thousands of young people from fully contributing to our nation’s future. These young people have lived in this country for most of their lives. It is the only home they know. They are American in every sense except their technical legal status. They are honor roll students, star athletes, talented artists and valedictorians. These children are tomorrow’s doctors, nurses, teachers, policemen, firefighters, soldiers, and senators and we should give them the opportunity to reach their full potential. Due to their undocumented status, tens of thousands of immigrant students with good grades are shut out of the American dream because they cannot attend college without legal immigration status. These students had no choice in the matter because they were brought to the United States by their parents at a young age and have spent most of their lives in America.Our current immigration laws prevent thousands of young people from pursuing their dreams and fully contributing to our nation’s future. For many, this is the only home they know. They are fully assimilated into American society and they want nothing more than to be Americans. We should not punish children for their parents’ mistakes. That is not the American way. The DREAM Act says to these kids: America will give you a chance. We will give you the opportunity to earn your way to legal status if you work hard and play by the rules. In order to be eligible for the DREAM Act individuals must:
  • Have arrived here at the age of 15 or under;
  • Have lived in the U.S. for at least 5 years;
  • Graduate from high school;
  • Serve in the military or attend college for at least two years; and
  • Have good moral character
• For the unedited press release, please click here. This is a bi-partisan bill and bi-cameral bill. As we predicted early this year, this bill has a good chance to make through before the end of this year. Most of the beneficiaries of this bill are practically "American kids" in English language, behaviours, life styles, value orientations, and mentality who cannot be easily distinguiished from American-born decendants of immigrants. Some of the readers may remember one-time headline story of a high school student in the twin cities, Minnesota, whom no classmates or others in the school had detected as an undocumented alien over the years. More importantly, no one detected that he was a homeless who slept in hide in the basement of the school building most of the nights over the years. The parents who brought the kid crossing the border illegaly had been deported, leaving this poor kid behind and homeless. Many readers, including this reporter, dropped tears at the news. The kid was destined to be saved, had he behaved himself, but revealed a dark side in moral character and behavior (attempt to jumpt bail) which were caught by the law enforcement authorities, and eventually deported from the United States. It was a shocker! Those who dropped tears one time took the news as a betrayal. A "human" side of the event.

03/28/2009: DHS Updates and Releases Immigration Statistics (FY 2008) March 2009

• U.S. Legal Permanent Residents: 2008: This report provides information on the number and characteristics of persons who became legal permanent residents during fiscal year 2008.
  • Data on Legal Permanent Residents: Access data on immigrants who became legal permanent residents in fiscal year 2008 by class of admission, country of birth, state of residence, and other characteristics.
• Naturalizations in the United States 2008: This report presents information on the number and characteristics of foreign nationals who became American citizens during fiscal year 2008.
  • Data on Naturalizations: Access data on persons who became American citizens in fiscal year 2008 by country of birth, state of residence, and other characteristics.
• Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2008: This report provides estimates of the unauthorized immigrant population residing in the United States as of January 2008 for periods of entry and leading countries of birth and states of residence.
• The Foreign-born Component of the Uninsured Population: This report provides information on the trends in the population without health insurance coverage by nativity and citizenship status.
• Characteristics of Major Metropolitan Destinations of Immigrants: The report provides information on leading metropolitan destinations of immigrants ranked by immigrant population growth rates and selected economic and social indicators.

03/27/2009: Full Text of Newly Introduced "DREAM Act of 2009" Bill

• Statement of Sen. Leahy in support of this bill: "This legislation has the potential to change the lives of many young people in an extraordinary and positive way and is an investment in America's future. The Senate has attempted several times to pass the DREAM Act, but the bitter politics of immigration have stalled our best efforts in the past. I appreciate Senator Durbin's persistence, and I share his commitment to the young people whose lives this bill would profoundly improve. Those who came to the U.S. as minors under the care of their parents are not guilty of their parents' transgressions. For many, the U.S. is the only home they know. We will further the Federal policy that supports educational opportunity and military service if we exercise the forbearance to defer rigid application of our laws upon those who have the potential to be citizens that will move our country forward. We all recognize the value of higher education and service to our country. To serve these Federal policy interests by giving legal stability and opportunity to young people caught in the limbo of our laws through no fault of their own is the right thing to do. As Congress and the administration work through the immediate challenges that lie ahead, and begin to restore the faith of Americans in our economy and our government, I hope Congress will not shy away from other important issues such as immigration reform. When our Federal Government confronts the issue of immigration, I hope we will see not only the opportunity to correct what is wrong, but also to improve and build upon what is good and just about the traditions of welcoming and refuge that define our immigration system. The promise this bill holds for so many young people will reinforce the spirit that underlies the history of American immigration and the diversity that has moved us so far. I thank Senator Durbin and hope all Senators will join us in support of this legislation. "
• For the summary of this bill, please stay tuned to this website.

03/27/2009: Federal District Court in Seattle Rules Religious Workers Should Be Eligible for "Concurrent" Filing of I-360 and I-485

• The litigation was pioneered by an immigration attorney named Robert Gibbs fighting against the USCIS that has been precluded religous worker special immigration proceedings from the employment-based immigrant's concurrent filing of I-485 and underlying immigrant petition when the immigrant visa number is current. The litigation has gone through rollercoaster because of the agency's continuing fight against the plaintiff. After all the struggle, the religous immigration community is finally seeing a light at the end of turnel at the news that the judge in the litigation, Ruiz-Diaz et al v. United States of America et al. Case 2:07-cv-01881-RSL Document 118 (W.D. WA, 3/23/09), handed down a decision that the religious worker special immigration proceedings are indeed included in the statute that permits a concurrent filing of the immigrant petition and I-485 application just as same as I-140 and I-485 concurrent filing. However, the decision is not final until the USCIS decides not to challenge the decision before April 17, 2009. Salute is due to the attorney Robert Gibbs for his persistent fight. He deserves another award of 'Yogi Bera It Ain't Over Till It is Over.'Please stay tuned.

03/26/2009: "DREAM" Act Reintroduced in the House and Senate for Illegal Youngsters Permanent Residence

• Today, the same bill was introduced in the House and the Senate as companion bill.
• The House version, H.R.1751, , was introduceed by Rep. Howard Berman of California. This bill is to amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit States to determine State residency for higher education purposes and to authorize the cancellation of removal and adjustment of status of certain alien students who are long-term United States residents and who entered the United States as children, and for other purposes. This bill is cosponsored by nine other Representatives: Rep Cao, Anh "Joseph" [LA-2], Rep Conyers, John, Jr. [MI-14], Rep Diaz-Balart, Lincoln [FL-21] , Rep Diaz-Balart, Mario [FL-25], Rep Lofgren, Zoe [CA-16] , Rep Nunes, Devin [CA-21], Rep Polis, Jared [CO-2], Rep Ros-Lehtinen, Ileana [FL-18], Rep Roybal-Allard, Lucille [CA-34].
• The Senate version, S.729, was introduced by Sen Durbin, Richard [IL] and cosponsored by seven other Senators: Sen Feingold, Russell D. [WI, Sen Kennedy, Edward M. [MA], Sen Leahy, Patrick J. [VT], Sen Lieberman, Joseph I. [CT], Sen Lugar, Richard G. [IN] , Sen Martinez, Mel [FL], Sen Reid, Harry [NV].

03/26/2009: USCIS Liberian DED Extension

• Announcement
• Q&A
• Presidential Memorandum
• Federal Register Notice

03/26/2009: March 2009 DHS Inspector General Report on Management Oversight of Immigration Benefit Application

• This report addresses the effectiveness of USCIS' management oversight in improving timeliness of the immigration benefits application "intake" process. The report states that the need for management oversight of improvement efforts coupled with the absence of a knowledge management system risk inefficient use of resources, duplication of effort, and lost institutional knowledge, and also undermine efforts to improve intake processing time and eliminate the backlog of immigration benefit applications. This is a 27-page document and will be a weekend reading material.

03/26/2009: USCIS Response to CIS Ombudsman's Recommendation for Improving the Processing of "Schedule A" Nurse Visas

• The responses are not necessarily positive in that the agency will not be able to carve out one type of nonimmigrant or immigrant petitions or applications from a stream of similar petitions or applications to give it a processing priority over others and allocate resources at the cost of some of the other types of petitions or applications in similar situations. The answer appears to suggest that unless the Congress passes a special legislation for the nurses, the agency will stay put at the current level of processing priorities owing to the severely retrogressed EB-3 visa numbers throughout the world. The nurse Schedule A immigrant classification falls under EB-3 at this time. One time, the Congress carved out nurse cases from the general EB-3 category and created a separate category for the visa numbers allowing nurses to recapture unused visa numbers. Since the unused visa numbers had been all recaptured by the nurses, the special category sunsetted a couple of years back.

03/26/2009: PERM First Quarter Selected Statistics of FY 2009

• We reported earlier a summary of this statistics. However, this full statistics will give some additional information such as usage of permanent labor certification programs by state or by occupational classification. Read on.

03/26/2009: DOL Notice of Withdrawal of Interpretation of the FLSA Concerning Relocation Expenses Incurred by H-2A and H-2B Workers

03/25/2009: Indian Business Delagates Reportedly Met Obama Team Last Week to Make a Case for H-1B Program

• Report indicates that this delegation visited Obama White House team last week to promote H-1B program which had been facing a serious challenge in the Congress but these Indian businesses have a stake with the H-1B program in this country. The impact of the meeting has to be assessed and whch will have to be closely watched. Please stay tuned.

03/25/2009: USCIS Memorandum Extends Validity of Medical Examination Reports (Classes A & B) Until I-485 Adjudication

• For the past few years, the USCIS has been issuing a memorandum extending the validity of the medical examination applications which were submitted as part of their I-485 applications until their I-485 applications would be adjudicated. Without such memorandum, such medical report would have expired after one year from the date of the doctor's certification in the sealed envelope. On December 8, 2008, Mr. Donald Neufeld, Acting Associate Director of Domestic Operations issued a memorandum extending such policy which will remain in effect until January 1, 2010. Accordingly, those who have submitted the civil surgeon's sealed medical examination reports before January 1, 2010 will not need reexamination and new medical examination reports until their I-485 application is adjudicated, no matter how long such adjudication will take. The USCIS has just released this memorandum.

03/25/2009: Forty-One Congressmen and Women Request DHS and DOS Secretaries to Expand Visa Waiver Program to the Nationals of Greece

• A letter to these Secretaries jointly signed by 41 Congressmen and women requests that Greece be admitted to the list of the Visa Waiver Program countries. Read on.

03/25/2009: Darkest Era of Immigration System in Recent American History

• Admittedly, the country is witnessing and undergoing one of the most difficult times in the history. Under the circumstances, any policy or agenda that addresses the improvement of the broken immigration system can be taken a "forbidden" word unless a policy maker wants to commit a political suicide. Because of such environment, only words people nowadays read or hear in printed or aired messages from the government at both legislative and executive level are: "enforcement" and "border security." During the Bush Administration for eight years, similar words were heard but differently: "terrorism" and "homeland security." However, despite the similarity in the nature of environment against the reform of broken immigration system between the current Administration and the Bush Administration, we find a ditinctive difference between the two from the perspectives of the immigration advocates. Even though it was repeated ly knocked down, the community witnessed reform activities at both legislative and administrative levels during the previous administration, while thus far there is practically none at both legislative and administrative levels at this time. Again, we agree that the country's prime most need is economic recovery and no one can be blamed for the policy makers' silence on immigration reform at this time. However, we submit that it does not translate into a complete vaccuum in policies to reform some aspects of the broken immigration system on a piecemeal basis. The current environment of coloring the term "immigration" negatively into "enforcement" or "border security" may be considered not sound and not in the nation's interest in the long haul. The policy makers at both legistive and administrative levels should see whether they are not only distancing themselves from the immigration reform but also creating "hostile" environment against immigration and immigrants. The term "immigration" can not be painted negatively in a broad brush. We submit that it is wrong and should be stopped. Silence alone is damaging enough and injection of image of the term of immigration into negative terms of enforcement or border security will be irreparavely damaging that will leave a long and ugly scar on the face of this nation in the years ahead. Something to think about. Remember that we all are immigrants and decendents of the immigrants.

03/25/2009: What is Foreign Labor Certification iCERT Visa Portal System?

• It is a portal system in the DOL Foreign Labor Certification site that gives a number of features which are not currently available in the current LCA or PERM online filing systems. Registration creates a single account system for each employer or legal representative and the information in the account is shared throughout the subsequent filings of new LCAs and PERMs. The portal will also allow access to the current Online Wage Library in the portal rather than as a separate site. According to the agency's information, the new portal system will include the followings:
  • Prepare applications with the feature of automatic pre-populating of visa forms with the employer's business/contact information
  • Create and manage sub-account users (e.g., HR staff or in-house legal counsel) to prepare and submit applications on behalf of the company
  • Track the status of applications across visa programs through a single account
  • Submit requests to withdraw applications or authorize sub-account users to do so on behalf of the company
  • Notify USDOL, at any time, when the employer becomes aware that applications for labor certification have been submitted without its authorizatin
  • Allow attorneys or agents and their subaccount users such as paralegals to prepare and submit applications taking advantage of all the foregoing features which will be allowed to their clients, employers.
• Launch of iCERT program is likely to help both the agency and the customers in two different ways. For the agency, it will help tremendously in achieving efficiency and effectiveness of different foreign labor certification program management and integrity of the programs at the same time by allowing the agency to have access to all the information on an employer or attorney or agent in single account including all the prior filings. Such sharing of information among different programs will make the agency's job for detection of frauds and issues easier and less time-consuming. Currently, the labor certification application processing has been experiencing a tremendous delays because of their jobs to maintain an integrity of the programs. From the perspectives of the employers and their legal representatives, the new portal system will present a convenience in prepaparing and filing of applications online as well as managing the record of all the applications filed online, not to mention the convenience of withdrawing the applications which currently requires a lot of hassle.
• Asingle message the DOL is sending out through the launch of new iCERT System can be summarized: "Should you maintain integrity in the applications, we will give you all the convenience of filing, withdrawing, and managing applications and swift approvals! Otherwise, you should be prepared against a hell!"

03/25/2009: New PERM Application Form 9089 and Filing Procedure Change (From Current Online Filing System to New iCERT Visa Portal System) Schedules for Permanent Labor Certification Applications

• According to the DOL information, the new form filing will be launched on the following schedules. The filing will require iCERT (Account) registration online for employers and legal representatives.
  • 09/01/2009: Start receiving new PERM form for processing through iCERT System as an option.
  • 09/31/2009: Last day of receiving existing PERM form through PERM OnLine System
  • 10/01/2009: Disables filing of existing PERM form, but keeps PERM OnLine System up for case status checks/withdrawals only. Filing new form through iCERT system becomes "mandatory."
• The change is coming, but it will give some comfort to some employers because of adjustment of change schedules from the previous announcement.

03/25/2009: New Labor Condition Application Form 9035E and Filing Procedure Change (From Current Online Filing System to New iCERT Visa Portal System) Schedules for H-1B

• According to the DOL information, the new form filing will be launched on the following schedules. The filing will require iCERT (Account) registration online for employers and legal representatives.
  • 04/15/2009: Start receiving new LCA form for processing through iCERT System as an option.
  • 05/14/2009: Last day of receiving existing LCA form through LCA OnLine System
  • 05/15/2009: Disables filing of existing LCA form, but keeps LCA OnLine System up for case status checks/withdrawals only. Filing new form through iCERT system becomes "mandatory."
• The change is coming.

03/23/2009: U.S. Immigration Policy on Permanent Admissions - CRS Report of 03/09/2009

03/23/2009: FY 2010 H-1B Cap Filing Tip: Preservation of Evidence for Filing and Filing Date

• Most likely the petitioners may ship out the package on Tuesday, March 31, 2009 to assure that the package be delivered to the facility of the Service Center of the right jurisdiction on April 1, 2009. Even though the Final Receipt Date is likely to be announced on April 2, 2009 or any later date and the petitions which are received after April 1 but within the Final Receipt Date may be considered timely filed for the purpose of the lottery, most employers prefer delivery of their packages on the first day, April 1, 2009. In order to achieve the purpose, the petitioners tend to use overnight delivery services which should be timely shipped out on March 31, 2009 by the overnight delivery services such that the packages are delivered to the involved Service Center "facility" on April 1, 2009 and NOT before April 1, 2009. As the USCIS announcement visibly highlighted, for the purpose of "filing," postmark is not acceptable and actual physical delivery of the package to the Service Center "facility" is required. Since physical delivery to the Service Center facility is required, using USPS express mail often presents problems because of its practice of keeping all the incoming Express Mails for the Service Centers within the USPS local station until it is picked up by the Service Center's scheduled trruck. Usually the Service Centers pick up the mails and Express Mail packages from the local USPS station only once or twice or only certain cut-off times, and the packages which arrive at the local station can remain in the postal station in some cases depending on the time of arrival of the shipment. Thus the USPS online confirmation of delivery at the local station does not necessarily mean that the package has been physically delivered to the "facility" of the Service Center within the given day. Those who use USPS should inquire of the cut-off time for the overnight delivery package as well as the cut-off time for the Service Center's pick-up truck time of the specific date at specific local station.
• The Q&A of the USCIS states that multiple petitions of the same employer or different employers can be shipped out in a single packet. However, such practice of multiple petitions in single packet poses a risk, albeit not big risk, of proving by evidence that the petitioner filed certain specific cases. Overnight delivery tracking gives only one tracking number and delivery confirmation by the overnight delivery tracking report is not a proof or evidence that a specific petition contained in the multiple petitions packet has indeed been physically received by the Service Center, in the event that the Service Center cannot trace the filing of the specific petition. Against such casualty, it may be prudent for the employers to file each petition in a separate packet identifying the tracking number on the cover letter such that the commercial delivery service can confirm the delivery of such specific petition. For the purpose of preservation of evidence, noting the name of the petitioner on the shipping document (slip) may not be a 100% proof either when it comes to a proof of filing of the petition by the same employer for a specific individual beneficiary. It is thus recommended that each case be filed separately in a separate envelope and print overnight delivery service ID and tracking numbrer on the cover letter. In the event of dispute as to the agency's receipt of a specific petition, such evidence can lead the agency to accomodate the misplaced or lost filings by accepting a copy of the petition to "reconstruct" the lost or misplaced petition. Without such evidence, simple copy of lawyer's cover letter or petition may not prove that the petition was indeed received by the agency regardless of the overnight delivery service's tracking and confirmation of delivery of package identified by a certain specific tracking number because the paper may be considered too self-serving without the objective identification for proof of "chain of evidence." It may cost more for the petitioners but may be prudent from the standpoint of the rule of evidence. Again tap twice before one crosses a bridge.

03/21/2009: Questions & Answers at USCIS-AILA Meeting, 03/19/2009

03/20/2009: Liberians Saved from Forced Departure from the United States

• As reported earlier, Liberians have stayed and worked in the U.S. on a DED status which is destined to expire on March 31, 2009. They were desperately waiting for DHS action to extend the DED status in vain. Report indicates that the President issued, close to the last minute, an Executive Order today to extend the DED for one year. Stay tuned to this website for a copy of the Executive Order.
• The Senator from Rhode Islands has also introduced a legislative bill proposing to give permanent residence to some of these Liberians, S.656, as we reported earlier, as a long term solution.

03/20/2009: USCIS Updates I-129 Form to Reflect TARP Attestation

03/20/2009: President Signed into Law, P.L. 111-9, Today Lofgren Immigration Program Extension Bill, H.R. 1127

• The nonminister religious worker immigration program and IMG national interest waiver program laws have been exended to September 30, 2009.

03/20/2009: FY 2010 H-1B Cap: USCIS Announcements

• USCIS to Accept H-1B Petitions for FY 2010 Beginning April 1, 2009
  • Questions & Answers
  • Premium Processing
  • Direct Filing Address
• USCIS Announces New Requirements for Hiring H-1B Foreign Workers - TARP
  • Questions & Answers : Employ American Workers Act and its Effect on H-1B Petitions
• It is unclear why the announcement does not explain the cap selection process when the cap number is reached and they determine the "final receipt date" to be within the five business days from April 1. The relevant rule provides in 8 CFR 214.2(h)(8)(ii)(B) in part that If the final receipt date is any of the first five business days on which petitions subject to the applicable numrical limit may be received (i.e., if the numerical limit is reached on any one of the first five business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those five business days, conducting the random selection among the petitions subject to the exemption under section 214(g)(5)(C) of the Act first (Revised 3/24/08; 73 fr 15389). The practitioners who use the 8 CFR one volume publication which was purchased at the annual national conference in June 2008 should note that the publication does not reflect this amendment because the data collection date was February 2008. Thus unless they updated the publication online through the author's services, they should refer to the USCIS site to read the amended version. We urge the USCIS to add this part of the procedure in its just released announcement. Otherwise, people will be confused just as this reporter did if they just rely on the announcement itself. However, the readers are cautioned to rely on the agency's announcement until the agency itself clarifies on this rule.

03/20/2009: DHS Testimony on Biometric Identification Before House Committees

• This is a very good run-down of biometric issues and programs. This should a good week-end reading material.

03/20/2009: USCIS to Release Answers to Scope of TARP-Funded Employer Restrictions to H-1B New Hire

• AILA has reported the USCIS update on this issue dated 03/20/2009. According to this USCIS release which may be released on its website soon, the people will be either subject to the new law or not subject to the new law:
  • Those Who Are Subject to the New Law:
    • Any LCA or petition filed on or after 02/17/2009 by such employer for hire as a new employee regardless of whether he/she is already in H-1B status and regardless of concurrent new employment by such a new employer.
    • New employment based on a petition approved before Feb. 17, 2009 but the H-1B employee had not actually commenced employment before that date.
      
  • Those Who Are Not Subject to the New Law:
    • H-1B petition to extend the H-1B status (EOS) of a current employee with
      the same employer (TARP funded).
    • H-1B petition seeking to change the status (COS) of a current U.S. work authorized employee to H-1B status with the same employer (TARP funded).
• It is a huge relief for those nonimmigrants who are currently working with the TARP employers who need extension of their current H-1B status or change of their nonimmigrant status from other nonimmigrant classification to H-1B, particulay in the FY 2010 H-1B cap filing on April 1, 2009. We salute the USCIS leaders for such lenient and liberal interpretation of the new law. For details, people are advised to wait until it is published in the agency's website.

03/20/2009: Mr. Michael Aytes, USCIS Acting Deputy Director Reports "USCIS and FBI Achieve Interim Backlog Elimination Goals" in DHS Leadership Journal

• He reports that "As of mid-February, USCIS and the FBI had completed all name checks that were pending for more than six months. In doing so, we beat our publicly stated goal by almost two full weeks. With the milestone’s completion, the FBI and USCIS have met or exceeded the first six milestones outlined last summer." Congratulations, Mr. Aytes! Hats-up to you and your staff!

03/20/2009: NSC I-140 Adjudication is Indeed Moving Forward

• It appears that the USCIS is indeed pushing ahead the backlog removal for I-140 petitions. Our office starts receiving adjudication of long-delayed I-140 petitions. People should keep patience. The USCIS is striving hard to reach four-month processing times for I-140 petitions. Please do not call the agency nor your legal counsel's offices. They will not be able to give you any information about individual cases other than what you see online. Remember that adjudication process is not a beltline in the manufacturing machine, which is commonly misunderstood such by some immigrants. Every single case is different from the perspectives of the adjudicators because of different facts and issues involved in each case.

03/20/2009: Backburner Immigration Reform and Rep. Gutierrez (IL) Initiative to Mobilize Support for CIR

• We reported earlier the town-hall meeting schedules of the Congressman from Illinois, Gutieerez, to scull the CIR movement, particularly in the Hispanic constituency throughout the nation. He has already invited the Presidrent to one of the town-hall meeting to motivate the President to initiative CIR. He will continue the town-hall campaign through April, 2009.
• Initial response to this campaign is less visible and enthusiastic than anticipated. Such move faces two hurdles other than economic recess and rising unemployment rate. One is that the immigration reform is not in the top 10 agenda of the President at this point. Secondly, the President is facing steep challenge by Republicans and , for matter matter, the public, for his so-called "overreaching" allegedly not fully focusing on economic recovery. At this time, this second hurdle poses an almost insurmountable hurdle for the President to participate in this CIR campaign. The Congress is not in a mood to participate in such move either apparently for the same reason. During the Presidential campaign year of 2008, the current economic disaster did not surface and everyone had a hope that there would be a good chance for CIR in 2009. Well, turn of the event has destroyed such prediction and hope. At the best, not until the end of the year.

03/20/2009: Senate Bill to Grant Permanent Residence to Certain Nationals of Liberia

• Over the years, certain Liberians have been permitted to stay and work in the U.S. in the forms of TPS or Deferred Departure of Enforcement relief because of the alleged political prosecution in Liberia. This relief is about to end and no extension of the relief has been announced by the DHS. Accordingly, the Liberian community in the U.S. has been experiencing a tense and distressful life lately.
• Yesterday, Senator Jack Reed of Rhose Island introduced a bill, S.656 to provide for the adjustment of status of certain nationals of Liberia to that of lawful permanent residents. However, it is a long shot under the given circumstances to those who will face a forced departure.
• Here is the full text of the bill:
  • SECTION 1. SHORT TITLE.
  • This Act may be cited as the ``Liberian Refugee Immigration Fairness Act of 2009''.
  • SEC. 2. ADJUSTMENT OF STATUS.
  • (a) Adjustment of Status.--
    • (1) IN GENERAL.--
    • (A) ELIGIBILITY.--Except as provided under subparagraph (B), the Secretary of Homeland Security shall adjust the status of an alien described in subsection (b) to that of an alien lawfully admitted for permanent residence, if the alien--
    • (i) applies for adjustment before April 1, 2011; and
    • (ii) is otherwise eligible to receive an immigrant visa and admissible to the United States for permanent residence, except that, in determining such admissibility, the grounds for inadmissibility specified in paragraphs (4), (5), (6)(A), and (7)(A) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) shall not apply.
    • (B) INELIGIBLE ALIENS.--An alien shall not be eligible for adjustment of status under this section if the Secretary of Homeland Security determines that the alien has been convicted of--
    • (i) any aggravated felony (as defined in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)); or
    • (ii) 2 or more crimes involving moral turpitude.
    • (2) RELATIONSHIP OF APPLICATION TO CERTAIN ORDERS.--
    • (A) IN GENERAL.--An alien present in the United States who has been subject to an order of exclusion, deportation, or removal, or has been ordered to depart voluntarily from the United States under any provision of the Immigration and Nationality Act may, notwithstanding such order, apply for adjustment of status under paragraph (1) if otherwise qualified under such paragraph.
    • (B) SEPARATE MOTION NOT REQUIRED.--An alien described in subparagraph (A) may not be required, as a condition of submitting or granting such application, to file a separate motion to reopen, reconsider, or vacate the order described in subparagraph (A).
    • (C) EFFECT OF DECISION BY SECRETARY.--If the Secretary of Homeland Security grants an application under paragraph (1), the Secretary shall cancel the order described in subparagraph (A). If the Secretary of Homeland Security makes a final decision to deny the application, the order shall be effective and enforceable to the same extent as if the application had not been made.
  • (b) Aliens Eligible for Adjustment of Status.--
    • (1) IN GENERAL.--The benefits provided under subsection (a) shall apply to any alien--
    • (A) who is--
    • (i) a national of Liberia; and
    • (ii) has been continuously present in the United States from January 1, 2009, through the date of application under subsection (a); or
    • (B) who is the spouse, child, or unmarried son or daughter of an alien described in subparagraph (A).
    • (2) DETERMINATION OF CONTINUOUS PHYSICAL PRESENCE.--For purposes of establishing the period of continuous physical presence referred to in paragraph (1), an alien shall not be considered to have failed to maintain continuous physical presence by reasons of an absence, or absences, from the United States for any period or periods amounting in the aggregate to not more than 180 days.
  • (c) Stay of Removal.--
    • (1) IN GENERAL.--The Secretary of Homeland Security shall provide by regulation for an alien who is subject to a final order of deportation or removal or exclusion to seek a stay of such order based on the filing of an application under subsection (a).
    • (2) DURING CERTAIN PROCEEDINGS.--Notwithstanding any provision in the Immigration and Nationality Act, the Secretary of Homeland Security shall not order an alien to be removed from the United States if the alien is in exclusion, deportation, or removal proceedings under any provision of such Act and has applied for adjustment of status under subsection (a), except where the Secretary of Homeland Security has made a final determination to deny the application.
    • (3) WORK AUTHORIZATION.--
    • (A) IN GENERAL.--The Secretary of Homeland Security may--
    • (i) authorize an alien who has applied for adjustment of status under subsection (a) to engage in employment in the United States during the pendency of such application; and
    • (ii) provide the alien with an ``employment authorized'' endorsement or other appropriate document signifying authorization of employment.
    • [Page: S3567] GPO's PDF (B) PENDING APPLICATIONS.--If an application for adjustment of status under subsection (a) is pending for a period exceeding 180 days and has not been denied, the Secretary of Homeland Security shall authorize such employment.
  • (d) Record of Permanent Residence.--Upon the approval of an alien's application for adjustment of status under subsection (a), the Secretary of Homeland Security shall establish a record of the alien's admission for permanent record as of the date of the alien's arrival in the United States.
  • (e) Availability of Administrative Review.--The Secretary of Homeland Security shall provide to applicants for adjustment of status under subsection (a) the same right to, and procedures for, administrative review as are provided to--
    • (1) applicants for adjustment of status under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255); and
    • (2) aliens subject to removal proceedings under section 240 of such Act (8 U.S.C. 1229a).
  • (f) Limitation on Judicial Review.--A determination by the Secretary of Homeland Security regarding the adjustment of status of any alien under this section is final and shall not be subject to review by any court.
  • (g) No Offset in Number of Visas Available.--If an alien is granted the status of having been lawfully admitted for permanent residence pursuant to this section, the Secretary of State shall not be required to reduce the number of immigrant visas authorized to be issued under any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
  • (h) Application of Immigration and Nationality Act Provisions.--
    • (1) DEFINITIONS.--Except as otherwise specifically provided in this Act, the definitions contained in the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) shall apply in this section.
    • (2) SAVINGS PROVISION.--Nothing in this Act may be construed to repeal, amend, alter, modify, effect, or restrict the powers, duties, function, or authority of the Secretary of Homeland Security in the administration and enforcement of the Immigration and Nationality Act or any other law relating to immigration, nationality, or naturalization.
    • (3) EFFECT OF ELIGIBILITY FOR ADJUSTMENT OF STATUS.--Eligibility to be granted the status of having been lawfully admitted for permanent residence under this section shall not preclude an alien from seeking any status under any other provision of law for which the alien may otherwise be eligible.

03/20/2009: Will Congress be Able to Override Matter of Compean, et. al, 24 I&N 710 (A.G. 2009), Interim Decision #3632 (A.G. January 7, 2009)?

• On January 7, 2009, the ougoing Attorney General of the U.S. Department of Justice handed down a very controversial last minute decision to overturn two precedent decisions of the Board of Appeals in order to restrict the alien's right to legal counsel in the removal (deportatin) proceedings in the immigration courts. This decision was condemned by the immigration lawyers community and the Democratic Congress as an attempt to root conservative agenda of restricting alien's rights in removal proceedings before the departure of the Bush Administration. The liberal sector of the immigration lawyers community has been pushing the Congress to override this decision legislatively and such legislation has been more or less predicted in the community.
• Yesterday, H.R.1651 was introduced in the House to establish and restore a right for an alien to file a motion to reopen a case in removal proceedings if the alien can demonstrate that counsel or a certified representative provided deficient performance, a right to a defense counsel against ineffective legal counsel in ihe immigration court proceeding through MTR.

03/19/2009: USCIS Four-Month Processing Time Report of Certain Immigration Programs Flooding Status Calls to the Agency and Legal Representatives

• The latest release of the USCIS processing times report includes change of processing times of certain programs such as certain I-140 petitions to "four month." This new report raises and stirs unusual expectation within the immigrant community, flooding the phones of the agency and the lawyers offices. Strikingly, though, this report is inconsistent with the reports by field offices in the latest AILA-USCIS Field Office Liaison Meeting Minutes which even had admitted errors in the USCIS recent online monthly processing times reports. Unless the agency indeed achieved in less than two months such a striking miraculous backlog reduction which the new Secretary of DHS is pushing for, obviously these reports must not necessarily reflect reality either caused by errors or whatever reasons, and such report will not serve public interest in that it can hurt reliability of the online reports of the agency at the huge cost of time and money to handle floods of inquiries at the level of the agency and the lawyer's offices. We hope the agency releases a clarification on this issue, at the earliest, to calm down rising unusual expectations within the immigrant community.
• Aside from the issue of potential problem in online reporting of the processing times, we take this opportunity to extend our compliment and contratulations to the leaders of the USCIS and FBI for their achievement of name-check clearance times down below six months. This is expected to help the USCIS to reduce the backlogs substantially in the future.

03/19/2009: Update of Lofgren Immigration Program Extension Legislation

• This is the bill that extends the sunsetting nonminister religious worker immigration program and international medical graduate national interest waiver of J-1 home residency requiement for immigration until September 30, 2009. These programs were scheduled to expire on September 30, 2008, which was extended by the Congress two continuing resolutions to fund the government, initially until March 6, 2009 and afterwards, until March 11, 2009. Rep. Zoe Lofgren of California introduced this as an individual bill, H.R. 1127 which was passed by both Houses on March 11, 2009, the date when these two programs sunsetted.
• All along, we assumed that the Congress presented this bill to the President for his signature upon passage of the bill. To our surprise and amazement, we have just learned that the bill was presented to the President for his signature only yesterday, March 18, 2009. Accordingly, unless the President finds exceptional circumstances in the bill and decides to signs it during the period, the delay in enactment of the bill into a law obviously will demand patience for the involved employers and the alien workers due to the new policy of the President not to sign any legislative bills at least for five business days unless any unusual and emergent circumstances involved. Once the bill is signed into a law, though, it is likely to extend the programs "retroactively" because the bill is providing a new sunset date rather than an effective date and the cases which are in the pipeline of the USCIS or other agency's adjudications may not be affected by the delay other than a delay of the decisions, but those who need to file new cases may continuously suffer from this delay in the legislation since the USCIS will not accept any new applications during this period of gap.

03/18/2009: H2A Regulation Mailbox Temporarily Suspended

• OFLC Notice: The Office of Foreign Labor Certification has temporarily suspended its H.2ARegulation@dol.gov mailbox. The purpose of the temporary suspension is to avoid the inadvertent and incorrect submission of comments to the Notice of Proposed Suspension to that email box. The Notice directs all comments to the appropriate submission vehicles, both electronically and by mail or other methods. The box will be reactivated after the comment period on the Notice.

03/18/2009: What About Reengineered H-2B Rule?

• The H-2A and H-2B reeneineered rules are twins that the outgoing Bush Administration intended to block the new incoming Obama Administration from withdrawing the rules by making these two rules to take effect on two or three days before the new President sworn in. There is a good possibility that the H-2B rule "may" also be proposed to be suspended for 90 days. Remember that these two rules have already taken effect and the new Administration cannot just withdraw or revoke the rules unless they go through a rule-making process, which will take time. This is exactly what the outgoing Bush Administration intended by making the rules of their agenda taking effect just before January 20, 2009.
• Don't be surprised to see a notice soon that will propose to suspend H-2B new rule as well. Should it happen, the reengineered rule again will remain in full force until it is suspended through the rule-making process. Wait and see.

03/17/2009: DOL Releases FAQ on Proposed H-2A New Regulation Suspension

• DOL states that the publication of the Notice of Proposed Suspension has no immediate effect on the regulated community as it outlines a proposed action on which the Department is currently soliciting public comment. The Notice opens a 10 day public comment period, and the Department must take into consideration all comments before taking final action. Therefore, all applications pending as of the date of publication of the Notice of Proposed Suspension will continue to be adjudicated under the regulations currently in place. The Notice of Proposed Suspension does not make any changes to the regulations currently in force.
• The publication of the Notice of Proposed Suspension has no immediate effect on employers seeking to hire H2A workers, since it simply outlines a proposed action on which the Department is currently soliciting public comment. The Notice opens a 10 day period for public comments. Until the Department takes further action, all employers are expected to comply with the regulations currently in place and effective as of January 17, 2009. The Department will publish in the Federal Register any final actions taken inresponse to the Notice of Proposed Suspension. See also ETA's earlier release.

03/17/2009: DOL Proposes Suspension of Reengineered H-2A Rule for 9 Months

• DOL publishes a notice today that it proposes to suspend for 9 months the H-2A regulations published on December 18, 2008, which became effective on January 17, 2009. Along with the H-2B reengineered program, the H-2A new rule is one of the Bush Administration's so-called overnight enactment of certain rules under its agenda to make them effective immediately prior to the new President's sworn-in on January 20, 2009. Currently, a large number of the Bush Administration's regulations of such nature have been either withdrawan or revoked or on hold pending reviews. The fallout of this process is continuing state of freeze in rule-making activities for the USCIS, DOL/DFLC, and DOS relating to the immigration and visa programs. Additionally, vacancy or anticipated potential change in this layer of leaderships in these departments have been affecting somewhat negatively the management and reform of the visa and immigration programs. The nomination and appointment of the second-layer or sub-layer leaderships have witnessed a drag pending nominations and Senate consent to the pending first-layer leaders appointment of the federal departments. It is hoped that the staffing of the Obama administration is completed as soon as possible.

03/17/2009: Profile of Mr. John Morton, Nominee for Assistant Secretary for Immigration and Customs Enforcement (ICE), DHS

• Mr. Morton is a career official at the U.S. Department of Justice with lengthy experience in immigration enforcement and criminal prosecution. He began his career as a trial attorney in the honors program in 1994 and now serves as Acting Deputy Assistant Attorney General of the Criminal Division. From September 2007 until last month, he was Acting Chief of the Domestic Security Section and Senior Counsel to the Assistant Attorney General for the Criminal Division, and prior to that, he was Deputy Chief of the Domestic Security Section. In those roles, he was responsible for the prosecution of criminal cases and the development of Department policy in the areas of immigration crime, particularly human smuggling and complex passport and visa frauds; human rights offenses, particularly torture, war crimes, genocide, and the use of child soldiers; and international violent crime, particularly violent crime under the Military Extraterritorial Jurisdiction Act ("MEJA"). From 1999 to 2006, he was as an Assistant United States Attorney in the Major Crimes and Terrorism Units of the United States Attorney's Office for the Eastern District of Virginia. Prior to that, he served for two and a half years as Counsel to the Deputy Attorney General, focusing primarily on immigration matters. (www.whitehouse.gov)
• He will soon lead the ICE leadership structure defining the direction of immigration law enforcement in the future.

03/16/2009: USCIS Updates Processing Times as of 01/31/2009

• USCIS reports on 03/16/2009 processing times of field offices as of 01/31/2009. Please visit our home page.

03/15/2009: Approaching FY 2010 H-1B Cap Filing and Unanswered Question on Current Employees of TARP Employers Seeking Change of Status from Other Nonimmigrant to H-1B

• Beginning from April 1, 2009, the USCIS will start accepting FY 2010 H-1B Cap Change of Status cases. Currently there are a number of nonimmigrants who are employed by the TARP funded employers in a nonimmigrant classification other than H-1B and need answers from these two agencies as to whether they will be subject to the Sanders/Grassley amendment to the H-1B law relating to the TARP employers. Recently, the USCIS answered a question on the applicability of the Sanders/Grassley amendment to the existing employees of TARP employers who were working in a H-1B status at the time of enactment of the new law and are seeking extension of the H-1B status. The answer was no and the employees of these TARP funded employers who were working in a H-1B nonimmigrant status at the time of enactment of the so-called Stimulus Act would be able to apply for extension of their H-1B status withoug being subject to the new law. However, in response to the AILA quiry on the applicability of the new law to the similar employees working in other nonimmigrant status, the USCIS answered the agency was reviewing the issue and had yet to make a decision. Obviously, most of these latter group employees will be those who are working in a student OPT or CPT or L-1 or E-1 or E-2 or O-1 and currently consider participating in the FY 2010 H-1B cap H-1B. For these employers and nonimmigrant employees, time is indeed running out fast when there is no answer to the question. April 1 is only a little over two weeks away. We urge the USCIS/DOL leaders to release their decisions as soon as possible to allow these foreign workers to consider options.

03/14/2009: H-2B Wage Determination Alert for Employment That Begins on or after October 1, 2009

• The Office of Foreign Labor Certification of the U.S. Department of Labor announces that employers must begin using the Form ETA-9141 for wage requests for H-2B work that is to commence on or after October 1, 2009. The U.S. Department of Labor has created and received approval from OMB for a new form to collect the necessary information from employers in order to provide a prevailing wage so that employers may begin the recruitment process. For the new form and instructions, please click the following:
  • ETA-9141 H-2B Prevailing Wage Determination Request
  • ETA-9141 Instructions
  • DOL/ETA New H-2B Regulation Effective 01/18/2009: The new regulation federalizes prevailing wage determinations, previously performed by the SWAs under this program. To test the U.S. labor market appropriately, employers are required to first obtain from the Chicago NPC a prevailing wage rate to be used in the recruitment of U.S. workers if the employment will start on October 1, 2009 or later date. To make this request, such employers should use this new ETA Form 9141 which was designed to be implemented in conjunction with this Final Rule. As with the Form 9142, additional information about the Form 9141 appears in the Administrative Information section of the preamble.
• It means the FY 2010 First Half H-2B cap temporary labor certification application filing requires the prevailing wage determination using the new form. Please note that even though the Instruction indicates that this form will be used for prevailing wage determination for “H-2B”, “H-1B”, “H-1B1 Chile”, “H-1B1 Singapore”, “E-3 Australia, and "PERM", but the just released announcement note that at this point, it is required only for the H-2B Temporary Worker Labor Certification Application for employment that commences on or after October 1, 2009. This change is implemented under the new H-2B reengineering rule of the Department which took effect on January 18, 2009. For the details of the H-2B reengineering in DHS and DOL regulations, please visit our posting on 12/19/2008.
• The new wage determination procedure and the new prevailing wage determination form do not appear to apply to permanent foreign labor certification applications except H-2B program, but considering the final rule which is cited above, it is obvious that it may be a matter of time before they require the same prevailing wage determination procedure and the new form for other foreign labor certification programs in the future. The new H-1B LCA form ETA 9035E will be launched in the middle of next month and the PERM form ETA 9089 is scheduled to be launched in the middle June 2009 and we should watch closely whether the Department will expand the new prevailing wage determination procedure and form to these two programs in the near future. Considering the fact that the LCA rule for H-1B does not mandate the prevailing wage determination by the government agencies, while the PERM currently requires the government determination and does not permit employer's determination using government wage data or private wage surveys, the new wage determination procedure using ETA 9141 may be launched without much rule changes, should the agency decide to do so. However, it may take a while before they launch such changed prevailing wage determination process since the DOL's just released new ETA 9089 form and briefing sessions did not indicate that such change will happen when they start the new form ETA 9089 for permanent labor certification applications in the next three or four months. Please stay tuned.

03/14/2009: Acceptable Evidence of "Completion of Degree Requirments" for the Purpose of H-1B Cap Filing with California Service Center

• FY 2010 H-1B Cap filing date is fast approaching since it is likely that the cap may reach on April 1, 2009 or any date which the USCIS will announce as the Final Receipt Date when they learn that they have received enough number of cases to reach the cap. The threshold requirement for 65,000 cap qualification requirement is a bachelor's degree or equivalent which includes combination of education and/or progressive work experience. For the purpose of equivalency through work experience, three-year of progressive experience in the speciality field is considered equivalent to one year college in the specialty education. However, the threshold requirement of 20,000 cap qualification requirement is a U.S. advanced degree and does not accept combination of education degrees nor combination of education and work experience in the specialty.
• When one intends to file the H-1B petition based on a single education degree of bachelor's or U.S. master's, most of them would have already earned " a degree" at the time of filing and may be able to submit a copy of the "degree certificate." However, there may a group of people who have yet to attend the commencement of graduation and yet to receive the "degree certificate" even if they have completed the degree requirement. In that case, thee rises a question of what kind of evidence or proof of completion of the degree requirements will be acceptable to the USCIS. According to the AILA, the CSC will accept one of the following evidence as proof of completion of the degree requirements prior to filing of the H-1B petition:
  • A final transcript; OR
  • A letter from the Registrar; OR
  • A letter executed by the person in charge of the records of the educational institution where the degree was awarded. If this option is utilized, then he/she must show that he/she is authorized to issue such letters.
• Considering the fact that time is running out, people should immediately collect one of the foregoing evidence before fiing the H-1B cap petition. Those who have been issued a degree certificate should make a copy of such certificate together with the full transcript. When the alternative options are taken, they may want to submit the official and "original" document rather than a copy. Remember also that this alternative proof without a full transcript or required experience proof is not enough for H-1B eligibility since the rule requires the petitioners to submit full academic transcipt as a required "initial evidence" to establish the education in the involved specialty in the case of 65,000 cap filing. Remember that the agency can "reject" the filing for lack of initial evidence. However, in the case of 20,000 U.S Earned advanced degree filing, education in the involved specialty is not required as far as the degree is concerned. Accordingly, any advanced degree in any major fields which is awarded by one of the qualified U.S. higher learning institutions which are regionally recognized be enough for the purpose of the cap selection. This does not however mean that the H-1B petition will be approved with such an advanced degree alone which is irrelevant to the specialty occupation. People must still prove by evidence that they have a qualified knowledge in the specialty occupation through the education and/or training and/or years of work experience at least at the bachelor's degree level. Most typically, this applies to those who earned a bachelor's degree in the involved specialty but eaned an advanced degree in a different specialty not directly related to the specialty occupation. In other words, those who try to pass the lottery AND to pass the threshold for 20,000 U.S. Earned Advance Degree cap category must prove a bachelor's degree in the specialty or bachelor's degree equivalent combination of education and experience in the area of specialty. Unlike 20,000 U.S. earned advanced degree cap category, 65,000 cap category does not require a degree from a U.S. higher learning institutions and any foreign degree in the specialty which is equivalent to a U.S. bachelor or advanced degree is acceptable and any eligible combination of foreign degree in the specialty and experience is also acceptable.
• There is one caveat when one submits 20,000 U.S.earned advanced degree category with a bachelor degree earned in the specialty but a U.S. advanced degree earned in an unrelated area of specialty. The adjudicators may review the alien applicant's transition or change of specialty from a bachelor's degree education to a master's degree education and lapse of time since the completion of a bachelor's degree with a potential loss of knowledge in the specialty area. The longer the gap is, the high the risk is that the adjudicators may question and challege the alien's qualification for specialty occupation in a specific specialty area, even at the level of undergraduate level because of his/her failure to keep up with ever changing and developing new body of knowledge and theory in the specialty area. This is not a cap selection issue but a H-B eligibility issue after he/she is selected in the lottery. Just beware and be prepared against such RFE unless he/she submits sufficient additional evidence on this issue upfront at the time of filing. Good luck everyone!

03/13/2009: USCIS Online Status Check Hits - Estimate 20,000,000/Year

• The USCIS rule making notice to extend the current online status check site reflects that its estimate online hits by all of you people will mark 20,000,000 a year! WOW!

03/13/2009: Senate Bill, S. 577 to Punish Immigration Sharks Defrauding and Victimizing Immigrants and Related Parties

• Senate Dianne Feinstine from California, cosponsored by Senator Ted Kennedy, introduced this bill in the Senate yesterday. The full text of the bill is as follows:
  • SECTION 1. SHORT TITLE.
  • This Act may be cited as the ``Immigration Fraud Prevention Act of 2009''.
  • SEC. 2. SCHEMES TO DEFRAUD ALIENS.
  • (a) Amendments to Title 18.--
  • (1) IN GENERAL.--Chapter 47 of title 18, United States Code, is amended by adding at the end the following new section:``§1041. Schemes to defraud aliens
  • ``(a) In General.--Any person who willfully and knowingly executes a scheme or artifice, in connection with any matter that is authorized by or arises under Federal immigration laws or any matter the offender willfully and knowingly claims or represents is authorized by or arises under Federal immigration laws, to--
  • ``(1) defraud any person; or
  • ``(2) obtain or receive money or anything else of value from any person by means of false or fraudulent pretenses, representations, promises, shall be fined under this title, imprisoned not more than 5 years, or both.
• Here is the background for this bill: The Immigration Fraud Prevention Act would prevent and punish fraud and misrepresentation in the context of immigration proceedings. The act would create a new Federal crime to penalize those who engage in schemes to defraud aliens in connection with Federal immigration laws. Specifically, the act would make it a Federal crime to wilfully and knowingly defraud or obtain or receive money or anything else of value from any person by false or fraudulent pretences, representations, or promises; and to wilfully, knowingly, and falsely represent that an individual is an attorney or accredited representative in any matter arising under Federal immigration law. Violations of these crimes would result in a fine, imprisonment of not more than 5 years, or both. The bill would also authorize the Attorney General and the Secretary of Homeland Security to use task forces currently in existence to detect and investigate individuals who are in violation of the immigration fraud crimes as created by the bill. The act would also work to prevent immigration fraud by requiring that Immigration Judges issue warnings about unauthorized practice of immigration law to immigrants in removal proceedings, similar to the current law that requires notification of pro bono legal services to these immigrants; requiring the Attorney General to provide outreach to the immigrant community to help prevent fraud; providing that any materials used to carry out notification on immigration law fraud is done in the appropriate language for that community; and requiring the distribution of the disciplinary list of individuals not authorized to appear before the immigration courts and the Board of Immigration Appeals, BIA, currently maintained by the Executive Office of Immigration Review, EOIR. Unfortunately, the need for Federal action to prevent and prosecute immigration fraud has escalated in recent years as citizens and non-citizens attempt to navigate the immigration legal system. Thus far, only States have sought to regulate the unauthorized practice of immigration law. Since immigration law is a federal matter, I believe the solution to such misrepresentation and fraud should be addressed by Congress. By enacting this bill, Congress would help prevent more victims like Vincent Smith, a Mexican national who has resided in California since 1975. His wife is an American citizen, and they live with their 6 U.S. citizen children in Palmdale, CA. Mr. Smith would likely have received a green card at least two different times during his stay in California. However, in attempting to get legal counsel, Mr. Smith hired someone whom he thought was an attorney, but was not. As a result, Mr. Smith was charged more than $10,000 for processing his immigration paperwork, which was never filed. Mr. Smith now has no legal status and faces removal proceedings. Another victim of immigration fraud is Raul, a Mexican national, who came to the United States in 2000. He also married a U.S. citizen, Loraina, making him eligible to apply for a green card. Raul and his wife went to Jose for legal help. Jose's business card said he had a ``law office'' and that he was an ``immigration specialist.'' But Jose was not a specialist and charged Raul $4,000 to file a frivolous asylum petition. While Raul thought he was going to receive a green card, he was instead placed into removal proceedings. From California to New York, there are hundreds of stories like these. Many immigrants are preyed on because of their fears--others on their hope of realizing the American dream. They are charged exorbitant fees for the filing of frivolous paperwork that clog our immigration courts and keep families and businesses waiting in limbo for years. Law enforcement officials say that many fraudulent ``immigration specialists'' close their businesses or move on to another part of the state or country before they can be held accountable. They can make $100,000 to $200,000 a year and the few who have been caught rarely serve more than a few months in jail. Often victims of such crimes are deported, sending them back to their home countries without accountability for the perpetrator of the fraud. Most recently, hundreds of immigrants were exploited by Victor M. Espinal, who was arrested for allegedly posing as an immigration attorney. Nearly 125 of Mr. Espinal's clients attended the New York City Bar Association's free clinic to address their legal and immigration options. According to prosecutors, Mr. Espinal falsely claimed on his business cards that he was licensed and admitted to the California bar as well as the bar in the Dominican Republic. Organizations such as the Los Angeles Country Bar Association, National Immigration Forum, American Immigration Lawyers Association, and American Bar Association have been documenting this exploitation for many years.
  

03/13/2009: USCIS File Digitization and Backlog Reduction Plan

• Part of the USCIS backlog reduction plan has relied on its plan to electronize the filing and adjudication process and for that purpose to digitize the files instead of paper files. The magic of digitization of the process is witness in current production of the plastic green card. In old days, after the green card applications were approved by the adjudicators, it took even six months or one year to receive the plastic cards and people had to visit local USCIS offices to obtain termporary proof of permanent stamps in the passport for the proof of employment authorization and international travel. This is called ADIT stamping process. How nowadays, through the digitization of photos and fingerprint record, the card production facility produces and mails out the plastic cards almost instantly upon the adjudicator's transmittal of approval decision over the computer and people tend to receive the plastic cards in a matter of 10 days or less in the mail at almost same time or immediately after receiving the approval notices.
• Report indicates that as part of the transformation program, the USCIS signed a five-year contract with IBM in November 2008. Under the contract, the IBM will be the lead systems integrator on the project. It’s tasked with digitizing the USCIS processing system, which currently relies on some 70 million paper files scattered at hundreds of locations across the country. The USCIS processes more than 5 million applications each year, all of which eventually need to be converted to an electronic format. Ideally the IBM contract could eventually shave months off processing times. However, five-year contract implies in a way that it is still a long way to go to complete the process.

03/12/2009: Congress Passed Lofgren Immigration Programs Extension Legislative Bill and Timing of President's Obama's Signature Into Law

• Obama promised in the election campaign not to sign legislative bills which come to his desk for five days to give opportunity for the public's input and feedback on the legislation. He was politically attacked for breaking his campaign promise when he signed a bill after he took office without waiting for five days. For this reason, the President is adhering to the five-day waiting period for his signature unless the circumstances warrant exception. He exercised the exception in signing the Omnibus Appropriations Act of 2009. Will the President find a similar exception for the Lofgren bill in that the involved laws expired yesterday? Close call. Unless he gives such exception, the Lofgren's bill may not be signed for the next five days including today, meaning not until next Wednesday or Thursday. Hmm..........................

03/12/2009: USCIS Announces EB-5 Program Extension Through 09/30/2009 and USCIS' Continuous Processing and Adjudication of I-526 and Related I-485

• It states that USCIS will continue to receive, process, and adjudicate all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Forms I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on “indirect” job creation analysis. It says there are currently 45 regional centers throughout the United States.

03/12/2009: USCIS Monthly Newsletter and Responsive Gorvernment

• For a few years, the USCIS published online Monthly Newsletter to keep immigration stakeholders and immigrant community informed of the status of USCIS policies and programs, and more importantly future direction of USCIS policies and management of various programs and activities. Since October 2008, this newsletter has been suspended for unknown reasons. The leaders of the USCIS and DHS now tend to use the DHS Leadership Journal to send out their messages to the immigrant community rather than the USCIS Monthly Newsletters. When the Monthly Newsletter was launched years back, it played the right role sending out messages on the State of USCIS and forth coming direction and changes for the agency. It played a right role in that a government newsletter like this one can contribute and achieve a purpose of channelling and keeping the customers and constituents of the agency informed such that they can give feed backs to the management of immigration programs and more importantly to the future direction of the immigration program management and policies. This is very important in that responsive government is a key foundation for democratic government process in the American democracy as opposed to other forms of democracies, such as institutional democracies, which are found in other countries. The uniqueness of the "American Democracy and American Government" lies on the decision and policy making process from the down to top (government) as opposed to the other systems in some other countries that tend to take decision making process from top to down focusing on the institutional democracies. In this regard, responsive government is an essential element of the democratic princles formed by the founding fathers of this nation.
• Unfortunately, over the years, the monthly newsletters of the USCIS lost audience and interest in the audience because it had gradually turned the publication into the agency's P.R.medium to promote the agency's agenda rather than reporting the State of USCIS and its future direction. In this nation, people are highly educated and well informed and cannot be discounted of their intelligence and level of their knowledge. We strongly believe that the USCIS Monthly Newsletter can serve an important purpose relating to the responsive government process and the USCIS should resume this online publication with different editing policies and directions. People do not take the government P.R. materials favorably.

03/11/2009: Senate Passed by Unanimous Consent Rep. Lofgren Bill, H.R. 1127 Without Amendment Extending Two Programs Until 09/30/2009

• The Senate passed this critical bill for nonminister religious worker immigration program and IMG national interest waiver immigration program extension legislation by unanimous consent without amendment and without vote, and sent it to the President for his signature. This legislation extends the two programs until September 30, 2009.
• By this legislation, the Congress has successfully extended all three sunsetting immigration programs "timely" and "without interruption" relieving the involved employers and alien beneficiaries from the rollercoaster. Three programs include EB-5 investment pilot program, EB-4 nonminister religious worker immigration program, and interntional medical graduates J-1 waiver program based on national interest waiver under so-called Conrad 30 program. The employers and alien beneficiaries hoped either permanent or more extended period of extension (three years or longer), but under the given circumstances, the passage of these bills is considered the best option available at this time.
• On behalf of the involved employers and foreign investors and professional workers in religious and medical communities, we want to take this opportunity to extend gratitude to Representative Zoe Lofgren from California for her tireless struggle and fight to keep these important immigration programs alive. We urge the immigrant community to send her "thank you" notes via fax or email which she deserves. We must note that there were some other backers of these legislations who had worked very hard to get the extension of these bills including the religious community organizations for the certain EB-4 program and some lawyers specializing in healthcare immigration including Carl Shusterman in California. On top of all of these, one cannot miss the contribution by the American Immigration Lawyers Association (AILA) that worked hard behind the scene to push the legislators to pass these legislations. Hats-off to all of these contributors!

03/11/2009: Full Text of Omnibus Appropriations Act of 2009 and Immigration Program Extensions

• As we reported earlier, this apppropriation act extends EB-5 program and e-verify programs until 09/30/2009. It is in Division J, Section 101 of the Act.
• The President signed this bill into law today. This law overrides the current continuing resolution that extended the federal funding and extension of immigration programs until March 11, 2009. Accordingly, legally the nonminister religious worker immigration program and IMG national interest waiver immigration program expired by the force of Omnibus Appropriations Act of 2009 taking effect. There is unconfirmed information that the Congress will pass a legislative bill temporarily extending for a short period of time these two immigration programs, which have yet to be materialized. From the perspectives of the USCIS and the visa posts, they have lost their legal authorities to accept any new cases and to adjudicate any of the pending cases of these two immigration programs at this moment.

03/11/2009: Congress Freezes New Contracting of Government Jobs to Private Contractors Until 09/30/2009

• As we reported earlier, Obama Administration is reversing Bush Administration's oursourcing of government jobs to private contractors. The Omnibus Appropriations Act of 2009 includes a moratorium of private contracting of government jobs to private contractors. The bill which the President is about to sign into law contains a governmentwide moratorium on new public/private job competitions for federal work until Sept. 30, 2009. Under this bill, agencies could not begin any new studies on converting federal work to contractors. Those competitions are defined by Office of Management and Budget Circular A-76. The spending bill also stipulates that federal agencies must establish guidelines for bringing back government work currently being performed by private contractors. It is thus obvious that the private contractors in the current immigration-related agencies are not affected by the new policy, at least for now.

03/11/2009: Plea for Administrative Fix of Broken Employment-Based Immigration System

• Current political and economic environments draw a grim picture for any "legistive" fix of the nation's broken employment-based immigration system. Report indicates that increased number of critically needed talented foreign workers are deserting this nation heading for their countries or other European countries that have been competiting against this nation to attract the foreign brains. Continuing drain of these foreign brains will eventually lead to a negative impact on the nation's critically needed economic recovery and a long-lasting scar on the nation's economic health and competitive edge. The nation can no longer afford such drain of the brains and the leaders of the DHS, particularly USCIS, should put a plug on thecurrent loopholes in the employment-based immigration management policy as soon as possible.
• Previous administation including former Secretary of DHS launched a very limited number of actions to fix the problem at the administrative level. There may be a number of administrative fixes the Honorable Secretary of DHS, Napolitano, can initiate within the given political and economic environments and constraints. One of the critically needed fixes can include "immediate" expansion of I-140 Premium Processing Services. Expansion of I-140 PPS will give a number of incentives for these foreign brains to remain rather than leave the country because of assurance of continuing employment and stay permission in the employment-based non-immigrant visa status or in the pending immigration processings. It appears that such expansion is overdue and currently do-able in that the USCIS' own recent statistics of I-140 backlogs and workloads have gradually reduced and may continuously reduced in a fairly rapid pace due to the decreasing number of filings of permanent labor certification applications and decreased number of new I-140 petitions they have been receiving and will receive in the future as affected by the unemployment rate and the exodus of some of these foreign workers. As acklowledged by the USCIS leaders themselves, the N-400 naturalization applications and EB-485 applications that have added constraints to the agency's resources for processing and adjudication of I-140 petitions are now under control. Educated guess may lead to a conclusion that such changing workloads may lead to increeased resources made available for I-140 petitions. Indeed, such indication was released by the Nebraska Service Center leaders recently by predicting that I-140 processing times may be reduced to four months by June 1, 2009. Though the news is very encouraging, we submit that the USCIS should take further steps to allow these foreign workers receive incentives to stay and work here. Considering all the indications that have been evolving, we see no reasons why the USCIS should not expand the critically needed I-140 PPS at this point. From the perspectives of these foreign workers, the expanded I-140 PPS is dire and desperate because of the continuing retrogression of employment-based immigrant visa numbers and the State Department's grim prediction and outlook of further retrogression of the employment-based numbers for the rest of the fiscal year. Under the circumstances, we urge the Honorable Napolitano to immediately review the current policy of USCIS putting a deadly cap on the I-140 premium processing services and initiate expansion of the services as soon as possible. The sooner, the better.

03/10/2009: Congress Passes Omnibus Appropriations Act of 2009, H.R. 1105

• Amazingly, the Senate successfully rejected all of the amendments introduced by the Republican opponents, and with the support of some Republican Senators, passed procedural hurdle of motion to cloture, followed by passage of the bill by voice votes. Since the House's original bill has not been amended by the Senate, today's Senate's action has resulted in the passage of the bill as the Congressional bill. Reportedly, the President is expected to sign it swiftly into law and official FY 2009 budget funding the government programs and activities through the end of September 2009.
• As we reported earlier, the bill included EB-5 and E-Verify programs extension bills. Accordingly, pending EB-5 cases are expected to be continuously processed and adjudicated by the USCIS. As for the nonminister religious worker program and IMG national interest waiver programs, these programs will sunset at the end of the day either today or tomorrow depending on when the President will sign the just passed Omnibus Appropriation bill AND whether the Senate will be able to pass the H.R. 1127, Rep. Zoe Lofgren's bill tomorrow, hopefully by unanimous consent. Please stay tuned.

03/10/2009: NSC Projected Processing Times of I-140 Petition and EB-485 Applications

• There is a very good news on the projected times. As affected by the current economic recess, NSC reports that the agency has been receiving reduced number of cases, which will allow the agency to reach four (4) months processing for I-140 petition by 06/01/2009 and for EB-485 by 09/30/2009. Remember that this is just a projected time and not an assured time. Very promising news, though. Thank you, NSC!

03/10/2009: NSC I-140 Processing Times as of 02/26/2009

• NSC and AILA liaison minutes of 02/26/2009 reflects that the current I-140 processing times by types are as follows:
  • EB-11, Extraordinary Worker= 04/01/2008
  • EB-12, Oustanding Researcher or Teacher=03/01/2008
  • EB-13, Multinational Corporate Executive or Manager=06/15/2008
  • EB-2 Regular, 07/01/2008
  • EB-2 NIW, 08/01/2008
  • EB-3, Skilled Worker or Professsional, 10/01/2007
  • EB-3 EW, Unskilled Worker, 10/01/2008
• Remember that the USCIS processing times cut-off date is 12/31/2008, while the foregoing NSC processing reflects the cut-off date of 02/26/2009.

03/10/2009: Understanding Management, Uses, and Availability of Individual Private Records of USCIS Computer Immigration Benefits Information System

• The USCIS published this information as part of its compliance with the Privacy Act. Understanding this information is helpful to the immigration stakeholders, immigrants, nonimmigrants, and related parties in handling immigratiopn benefits applications.
  • Benefits Information System: The DHS is managing the following computer information system relating the immigrant and nonimmigrant processings: SORN: CLAIMS 3, CLAIMS 4, the Redesigned Naturalization Application Casework System (RNACS); the Citizenship and Immigration Services Centralized Oracle Repository (CISCOR), the Interim Case Management System (ICMS), Integrated Voice Response System (IVRS), and the Integrated Card Production System (ICPS).
  • Purposes and Uses of the Information System: The records and information in the system broadly serves three purposes: (1) Automatic access and retrieval in immiration benefits and naturalization applications processing and adjudication for efficiency and fraud detections. (2) National and homeland security. (3) Information sharing with local, state, and federal law enforcement agencies or other government and private entities within the parameters of the Privacy Act of the country. As for the purpose of achievement of efficiency of immigration benefits processing and adjudications, the system assists in the automated processing of f immigrant and nonimmigrant benefit petitions and applications. Both investigative and administrative records are maintained in this system to permit USCIS to function efficiently. Reports are also generated from the data within the system of records. This system of records notice enables DHS/USCIS to provide automated support to process applications and/or petitions for benefits; determine the status of pending applications and/or petitions for benefits; account for and control the receipt and disposition of any fees and refunds collected; conduct searches pursuant to FOIA and Privacy Act requests; and locate related physical and automated files to support DHS/USCIS responses to inquiries about these records.
  • Categories Individuals Covered: Persons who have filed (for themselves or on the behalf of others) applications or petitions for immigration benefits (other than asylum and refugee) under the Immigration and Nationality Act, as amended, and/or who have submitted fee payments or received refunds from such applications or petitions; current, former and potential (e.g., fianc[eacute]) family members of applicants/petitioners; persons who complete immigration forms for applicants and petitioners (e.g., attorneys, form preparers); name of applicant's employer; and individuals who seek access to records retained in the Benefits Information System under the Freedom of Information/Privacy Acts (FOIA/PA).
  • Categories of Records in the System:
    Individual's name;
    Social Security Number (if applicable);
    A-Number (if applicable);
    Addresses;
    Telephone numbers;
    Birth and death information;
    Citizenship or nationality;
    Immigration status;
    Marital and family status;
    Personal characteristics (e.g., height and weight);
    Records regarding tax payment and financial matters;
    Records regarding employment;
    Medical records;
    Military and Selective Service records;
    Records regarding organization membership or affiliation;
    Biometric and other information collected to conduct background checks;
    DHS issued card serial numbers;
    Records regarding criminal history and other background check information; and
    Case processing information such as date applications were filed or received by USCIS; application/petition status, location of record, FOIA/PA or other control number when applicable, and fee receipt data.
  • Record and Information Safeguards: Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated system security access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information
    for the performance of their official duties and who have appropriate clearances or permissions. The system maintains a real-time auditing function of individuals who access the system. Additional safeguards may vary by component and program.
• It ain't interesting? Don't try to be outsmart over the federal institutions! For additional details, readers may review the USCIS published notice.

03/09/2009: State Department Prediction of Visa Availability in the Coming Months

• During the past year, many preference categories have experienced steady and sometimes rapid cut-off date movement. Such action is normally followed by an increase in applicant demand. Heavy applicant demand for numbers in some categories could require cut-off date movements to slow, stop, or even retrogress at some point during the remainder of FY-2009, in order to hold visa use within the applicable annual numerical limits. Should such action occur, it would most likely be only temporary in nature, pending the start of the new fiscal year in October. Ouch!

03/09/2009: Official April 2009 Visa Bulletin

• EB-3 ROW, Mexico, and Philippines moved backward to 03/01/2003! Here is the State Department explanation:
  • Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from Citizenship and Immigration Services (CIS) Offices for adjustment of status cases remains extremely high. Therefore, it has been necessary to retrogress the April cut-off dates in an attempt to hold demand within the FY-2009 annual limit. Since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced. As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately. It should also be noted that further retrogression or “unavailability” at any time cannot be ruled out.
  • It has also been necessary to retrogress the Employment Third Preference Other Worker cut-off date for all countries in order to hold the issuance level within the annual limit.

03/09/2009: Acting Deputy Director Michael Aytes Emotional Message in the DHS Leadership Journal on Naturalization Sworn-In Ceremony in DC

• His words should tell this special message better than this reporter's description. Here is a part of his message:
  • Marine Lance Corporal Jose Gasca, a native of Mexico, served in Iraq with the 3rd Battalion, 6th Marines. Lance Corporal Gasca lost bought his legs to an improvised explosive device during combat operations last September. He's currently undergoing rehabilitation at Walter Reed Army Medical Center, where he is learning to walk once again. When Lance Corporal Gasca, with his wife and young son by his side, raised his right hand to take the Oath of Allegiance, he joined a long line of naturalized American heroes who served and sacrificed on behalf of our nation before becoming American citizens. There are few words I can use to describe the overwhelming sense of appreciation and admiration I have for men and women like Lance Corporal Gasca. As an agency, we best express that gratitude by completing military naturalization cases as quickly as possible.
  • USCIS naturalized more than one million citizens during fiscal year 2008 and we've naturalized more than 45,000 U.S. service members since September 2001. Each new American has made a personal sacrifice to become part of our American fabric. None, however, have made more striking sacrifices than Jose Gasca and his fellow soldiers, sailors, airmen and Marines who voluntarily took up arms to defend rights and liberties they had yet to secure for themselves or their families
• Job well done, Mr. Aytes!

03/09/2009: We Urge Honorable New Secretary of State Clinton to Consider Reinstatement of Employment-Based Nonimmigrant Visa Revalidation Program

• The State Department had had a long tradition to revalidate employment-based nonimmigrant visas by the State Department in the U.S. relieving such foreign workers and business people from unnecessary hassle of making international trips to apply for the visa renewal at the American visa posts outside of the U.S. until the program was terminated for the alleged security reasons. The involved leaders of the consular affairs in the State Department advanced their justification for such termination based on the reasons that the State Department in the United States were not equipped to handle the security checks through biometric collection activities for the visa renewals in the U.S. However, it has been years since such termination took effect and since then both the DHS and the State Department itself have reengineered their security management systems sufficiently enough to handle such revalidation of the employment-based nonimmigrant visas for these crucial foreign workers and business people. Over the years, this website has urged the State Department to consider sharing or outsourcing of their required biometric collection functions to the DHS rather than developing their own new field offices to collect biometrics for such visa revalidation from the perspectives of coordination of the security functions between the DHS and DOS within the country as well as cost savings and efficiency and effectiveness that can be achieved from the rich experience of the DHS' biometric collection networks within the country. Indeed, when these foreign workes and business people obtain extension of their employment-based nonimmigrant visa status from the USCIS, the agency has already been going through its own layer of the so-called name checks, albeit lack of biometric collections at this time for the extension of their visa status. We understand that the USCIS was considering to add biometric collection requirement for the COS or EOS petitions of employment-based nonimmigrant petitions once the currently being developed transformation program of electronic filing system is fully in place. Such change will practically remove the State Department's need for repeatitive biometric collection for the visa revalidation program. Indeed, it is a question of how innovative and cooperative the leaders of the two departments are in achieving coordination between the government departments for efficiency and effectiveness of the management of immigration and visa functions. Such reform and reinstatement of visa revalidation program may be consistent with the Obama Administration goals to reform the government management towards achievement of efficiency, effectiveness, transparency, and accountability.

03/09/2009: Obama Administration to Act Against Contracting Government Jobs to Private Contractors

• Durng the Bush Administration, a lot of government jobs were turned over to private contractors who have been performing government works which were performed by the government officials. The Obama Administration is likely to apply a brake and reverse such policy. Reportedly some of these private contractors performed so poorly leading to the waste of government resources and inefficient and ineffective operation of the government works. President Obama has already issued a directive and the White House is scheduled to issue a directive in July to the federal departments and agencies to review, report, and act per the new policy against outsourcing of government functions to private contractors. The report indicates that the FY 2009 Omnibus Appropriations Act bill which is poised to pass the Congress this week includes such policy initiatives and plan. In immigration areas including DHS, DOL, and DOS, a substantial amount of government works have been turned over to the private contractors, particularly in information and contact functions. It is uncertain how much these contractors will be affected by the upcoming reform in government staffing policy. Please stay tuned.

03/08/2009: Senate Schedule of Omnibus Appropriations Bill, H.R. 1105

• Senate will resume the floor debate on this bill on Monday and scheduled to vote on the bill on Tuesday or Wednesday at the latest, in accordance with the following agreement which was passed on Friday, March 6, 2009:
  • A motion was entered to close further debate on the bill, and, in accordance with the provisions of Rule XXII of the Standing Rules of the Senate, a vote on cloture will occur on Tuesday, March 10, 2009. A unanimous-consent agreement was reached providing that Senate resume consideration of the bill at 2 p.m., on Monday, March 9, 2009, and that the following amendments in this agreement be the only first-degree amendments remaining in order to H.R. 1105; that no amendment be in order to any of the listed amendments prior to a vote in relation thereto; that the amendments must be offered and debated Friday, March 6, 2009; Monday, March 9, 2009; or Tuesday, March 10, 2009; provided further, that upon disposition of the amendments, and Senate has voted on the motion to invoke cloture on the bill, and cloture having been invoked, all post-cloture time be considered yielded back, the bill be read a third time, and Senate vote on passage of the bill: Ensign Amendment No. 615, Vitter Amendment No. 621, Sessions Amendment No. 604, McCain Amendment No. 593, Thune Amendment No. 662, Barrasso Amendment No. 637, Enzi Amendment No. 668, Kyl Amendment No. 631, Kyl Amendment No. 629, Kyl Amendment No. 630, Kyl or designee amendment relative to dues notification, Cornyn Amendment No. 673, and Bunning Amendment No. 665.
• Currently, nonminister religious worker immigration program and IMG national interest waiver program have been extended by the continuing resolution amending last year's continuing resolution from March 6, 2009 to March 11, 2009. Under the last year's continuing resolution, all the programs and activities which were covered would be either extended until March 6, 2009 or enactment appropriations bills or any individual bills relating to such programs or activities, whichever comes first. For instance, in the unlikely event that the Congress passes and Present signs the Omnibus bill into law before March 11, 2009, the continuing resolution will expire earlier than March 11, 2009. It thus appears that should the Congress pass and the President signs the Omnibus Appropriations Act on Wednesday, March 11, 2009, the continuing resolution expires on March 11, 20009 and only immigration programs and activities that will be extended upto September 30, 2009 may turn out to be those which will be passed as part of the Omnibus Appropriations Act of 2009. Thus far, only EB-5 extension bill is known to be included in the Omnibus Appropriations Act of 2009. Accordingly, it appears that the nonminister religious worker immigration law and IMG national interest waiver law may remain expired after March 11, 2009 unless Rep. Lofgren's bill to extend these two programs will pass the Congress on or before March 11, 2009. The Senate has yet to pass the Rep. Lofgren's bill. Should the Senate pass this bill after March 11, 2009, it is likely that the Senate may act on this bill fairly quickly and may amend her bill to take the legislation effective retroactively from March 12, 2009 until September 30, 2009. We will watch closely the Senate action on the Rep. Lofgren bill for the next three days, apart from the Omnibus Appropriations bill. Please stay tuned.
• Should any of these programs sunset on March 11, 2009 or by enactment of Omnibus Appropriation Act of 2009, the USCIS' existing announcement is likely to remain in full force and will hold the affected cases in abeyance of the potential passage of extension bills in the Congress. Reportedly, the adjudicators in the USCIS field offices have been working very hard to adjudicate as many affected pending I-485 applications as possible before the laws sunset. We salute to the hard-working women and men in the field offices of the USCIS exercising their compassion to assist the affected employers and foreign workers.

03/08/2009: Reminder for Employers: I-9 Form Changes Before and After 04/03/2009

• Employers, nowadays in-house compliance system needs your increased attention. I-9 compliance is one of the compliance systems which employers tend to neglect not realizing serious consequences because of the government's increasing enforcement actions against the employers hiring employment unauthorized aliens. In order to assist you, we have posted in our home page I-9 manual and current I-9 form and new I-9 form with accompanying instructions that takes effect on April 3, 2009, along with E-Verify Manual. We also posted earlier list of states mandating E-Verify system at different times and different level. Currently, E-Verify is not mandatory at the federal level but mandatory at the state level in some states. Please visit our home page.

03/07/2009: Main Text of "Tibetan Refugee Assistance Act of 2009" House Bill

(a) In General- Notwithstanding the numerical limitations specified in sections 201 and 202 of the Immigration and Nationality Act (8 U.S.C. 1151 and 1152), there shall be made available to qualified displaced Tibetans described in subsection (b) of this section 3,000 immigrant visas in the 3-fiscal-year period beginning with fiscal year 2010.
(b) Qualified Displaced Tibetan Described-

(1) IN GENERAL- An individual is a qualified displaced Tibetan if such individual is an individual who-
(A) is a native of Tibet; and
(B) since before the date of the enactment of this Act, has been continuously residing in India or Nepal.
(2) NATIVE OF TIBET DESCRIBED- For purposes of subparagraph (A) of paragraph (1), an individual shall be considered to be a native of Tibet if such individual was born in Tibet or is the son, daughter, grandson, or granddaughter of an individual born in Tibet.

(c) Distribution of Visa Numbers- The Secretary of State shall ensure that immigrant visas provided under subsection (a) are made available to qualified displaced Tibetans described in subsection (b) (or described in subsec (d) as the spouse or child of such a qualified displaced Tibetan) in an equitable manner, giving preference to those qualified displaced Tibetans who are not resettled in India or Nepal or who are most likely to be resettled successfully in the United States.
(d) Derivative Status for Spouses and Children- A spouse or child (as defined in subparagraphs (A), (B), (C), (D), or (E) of section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1))) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under this section, be entitled to the same status, and the same order of consideration, provided under this section, if accompanying, or following to join, the spouse or parent of such spouse or child.

03/07/2009: USCIS Statistics of Receipts and Backlogs of Naturalization Applications as of January 31, 2009

• Unlike immigration benefits receipts, the number of new N-400 filings in January sustained its recent trend of reduction, which will certainly help the agency to achieve its goal of reduction of N-400 processing times.

03/07/2009: USCIS Statistics of Receipts and Backlogs of Immigration Benefit Applications as of January 31, 2009

• This report reflects that there was a surge of new filing of immigration benefit applications in January 2009, reversing the recent past trend of gradual reduction.

03/07/2009: Wild-Fire Rumor of EB-3 One Year Retrogression for Worldwide Category in April 2009 Visa Bulletin

• The April 2009 Visa Bulletin is likely released shortly. However, there is a wild fire burning towns all over from the rumor that EB-3 visa numbers will be moved backward for one full year for Rest of World category in the April 2009 Visa Bulletin. The sources of the information appear to be credible, but we will have to wait and see. Please stay tuned!

03/07/2009: DOL Under Development of an Integrated Web-Based H-1B and PERM Case Management System

• The DOL FY 2009 budget justification for foreign labor certification reflects that $7,500,000 is requested for an integrated, web-based case management system to support the DOL's initial steps to consolidate the various case management systems currently in use into two integrated systems. The Department spends a large portion of resources developing and maintaining four different case management systems that are all utilized by the same staff at the OFLC National Processing Centers (NPCs). This situation has resulted in substantial administrative inefficiencies and a lack of communication among the systems to combat fraud and abuse. Since nearly 80 % of H-1B visa holders are sponsored for permanent employment in the United States, these funds will be used to develop a seamless H-1B/PERM case management system that will track an employer's use of the H-1B and, subsequently, the PERM program.
• For other details of the DOL foreign labor certification plan, please read FY 2009 Congressional Budget Justification: Foreign Labor Certification

03/07/2009: Omnibus Appropriations Bill in the Senate: What Happened Yesterday? It is Not a Done Deal!

• Democratic majority in the Senate thought they were assured of 60 votes to break filibuster but at the last minute they had to face two Democratic Senators who disagreed to the bill and the Democratic leader had to pull the bill from the floor. This development occasioned the Congress to introduce and pass the stop-gap temporary funding continuous resolution yesterday. The Majority Leader, Senator Reid is scheduled to put back this bill on the floor next week, but it is not a done deal. Read on. Accordingly, the three sunsetting immigration programs will continue to experience a "thrill" and "suspense" of huge roller coaster during a week ahead! Can you imagine the problem which USCIS and DOS visa posts had to deal with such a roller coaster to manage these three immigraiton programs, not knowing what these laws will hold next day?

03/06/2009: H.J. Res.38 Continuing Resolution Extends Sunsetting Immigration Programs Until 03/11/2009, Wednesday

• AILA has reported the details of this Resolution. The Resolution extends the federal government funding until March 11, 2009, and the three sunsetting immigration programs (EB-5, Religious Worker Immigration, and IMG National Interest Waiver Programs) are also extended until March 11, 2009. Also extended is the E-verify program until the same date. The Congress apparently passed such short continuing resolution with the anticipation that the Congress would be able to pass and the President would be able to sign the Omnibus Appropriations Bill by March 11, 2009. What a relief!

03/06/2009: House Passes Continuing Resolution, H.J. Res. 38 to Prevent Shutdown of Federal Government

• For the full text of the Resolution, please stay tuned. However, this means that EB-5 program may sunset today. Other two programs of nonminister religious worker immigration program and IMG national interest waiver program will have to wait and see the result of Rep. Lofgren's bill in the Senate at the end of today.

03/06/2009: Will the Congress Indeed Let the Sunsetting Immigration Programs to Sunset at the End of Today?

• For these three programs, today marks a critical day to see whether these programs will indeed sunset at the end of 03/06/2009. Should the Congress fail to pass the extension bills within today, the USCIS will cease processing of petitions and applications related to these three programs but keep the pending cases in abeyance pending the Congress' action in the future. No new petitions and applications will be received after today. Since the programs sunset on Friday, unless the involved employers shipped out the petitions yesterday by overnight delivery services, any new cases that will arrive at the Service Centers after today are likely to be rejected.
• Yesterday, at least Rep. Lofgren's bill to extend nonminister religious worker immigration program and IMG national interest waiver program was reported to the Senate and there is some chance that this bill may pass the Senate today by unanimous consent and without vote. However, EB-5 program extension bill is currently stuck with the Omnibus Appropriation bill (*report indicates that this bill stalls in the Senate being one vote shy of breaking filibuster) and mostly likely to sunset at the end of today for a number of reasons. The motion to cloture for the Omnibus bill was withdrawn yesterday and the Senate floor will be continuously stuck with the debates on amendment bills. Besides, unless there is a change in schedule, the current schedule does not include votes in the Senate today. Should continuing resolution be introduced today to extend funding of the federal government, it is likely that the resolution may be passed by unanimous consent in both Houses. We will cross our fingers for the Senate's favorable action for these three programs today. Please stay tuned.

03/06/2009: TARP-Funded Company Foreign Employees Requiring Extension or Change of Status to H-1B

• The new law that was enacted as part of the Economic Stimulus Act last month prohibits the TARP-funded companies from hiring a new employee to commence employment in H-1B status unless such employers meet the H-1B dependent employer attestations. There has been confusion on the interpretation of this new law and the immigrant community has been anxiously waiting for some answers from the stakeholder agencies of USCIS and DOL. Aside from th issue of scope of the TARP-funded employers, one question that needs an answer from these agencies involves the scope of the foreign employees of these companies. There are some foreign workers currently working with these companies either in H-1B status or other nonimmigrant status such as F-1 OPT, L-1, etc. Therefore, those currently working in H-1B may need extension of their H-1B status and question remains whether the employers can file the extension petition without such attestations. Those currently working in nonimmigrant status other than H-1B may have to particiate in the upcoming FY 2010 H-1B cap lottery and question remains whether the employers can file the change of nonimmigrant status to H-1B on behalf of these existing employees.
• AILA has reported that the USCIS may release their answers sooner or later, but it appears that they may interprete that the new law would not apply to the existing H-1B employees who need "extension" of status. However, the report indicates that the USCIS has yet to make a decision as to whether the law will apply to the existing employees working in other nonimmigrant status and needing "change" of status to H-1B. Since the people in the latter group has a great stake at the answer to this issue to participate in the FY 2010 H-1B cap petitions, the agency may have to come up with their position on this issue soon. Until that time, this issue will remain up in the air. Please stay tuned.

03/06/2009: House Bill to Admit Certain Tibetans to the United States

• Yesterdday, Rep. George Miller from California introduce in the House H.R. 1340 to admit certain Tibetans to the United States.H.R.1340. This bill has been referred to the Judiciary Committee for action. For the details of this special immigration admission proposal for certain Tibetans, please stay tuned to this website.

03/05/2009: Employers Approved for H-1B in 2008

• The following are the top ten companies that filed and obtained approval of H-1B petitions last year, 2008:

Inforsys Technologies Limited 4,559
Wipro Limited 2,678
Satyam Computer Services Limited 1,917
Tata Consultancy Services Limited 1,539
Microsoft Corporation 1,037
Accenture LLP 731
Cognizant Tech Solutions U.S. Corp 467
CISCO Systems Inc 422
Larsen & Toubro Infotech Limited 403
IBM India Private Limited 381

• For the full list of entire employers, please click here. One wonders how it is going to change in 2009 H-1B cap petitions.

03/05/2009: Effective March 1, 2009, Immigrant Visa Application Financial Sponsor Must Meet FY 2009 Poverty Guidelines Income

• State Department instructs the visa posts to use FY 2009 Poverty Guidelines for Immigrant Visa Applications which are received on or after March 1, 2009 and the immigrant visa applications which were received before March 1, 2009 should use FY 2008 Poverty Guidelines. For the visa post guidelines, please click here. USCIS has already implemented the new FY 2009 Porverty Guidelines for I-485 applications.

03/05/2009: Will Omnibus Appropriations Bill with EB-5 Program Extension Pass the Senate Before March 7th?

• Thus far, the Democratic majority was successful in the Senate for a potential successful passage of this bill before the deadline without continuing resolution for the two reasons. They were able to reject all the amendments introduced by Republican Senators. Secondly, they were successful in passing the motion to cloture blocking any further amendments introduced on the floor from hereon. However, there are still about three amendment bills that will have to be resolved and rejected within today or tomorrow before passing this bill. Again, as we reported earlier, unless the Senate is successful in rejecting all the amendments to the House bill and agrees to the House bill without amendments, the chance of passing this bill in the Senate and House before March 7, 2009 is slim or none, unless the House quickly passes the Senate amended bill by unanious consent. Accordingly, whether or not EB-5 program extension will survive from the scheduled sunset at the end of the day tomorrow will depend on the Senate action today and the President's signature before the end of the day tomorrow. Otherwise, the Congress may have to pass a continuing resolutions to fund the federal government beyond March 6, 2009 to prevent shut-down of the federal government. Please stay tuned.

03/05/2009: We Salute Rep. Lofgren for Her Courageous Fight for Passage of H.R. 1127 Yesterday

• Madam Chairwoman courageously introduced this bill on the floor of the House bypassing her Judiciary Committee proceedings recognizing importance and urgency of this bill and courageously fought against the opponents on the floor to get this bill passed. There was no opposition to the IMG National Interest Waiver Program extension but strong oppositions to the nonminister religious worker immigration program extension on the floor for the two reasons - reported massive frauds in this program and countries in the world that do not allow similar freedom for the American religious workers for the religious missions. By the end of the debate, the following letter to the House by the religious community helped the House to agree to this part of the extension bill. We thus extend congratulations to these religious groups for their successful power of persuation in favor of this bill.

"March 4, 2009.

DEAR REPRESENTATIVE: We write to strongly urge the House of Representatives to pass H.R. 1127, legislation that would extend the Special Immigrant Non-Minister Religious Worker Visa Program through September 30, 2009. As you know, without congressional action, this important program is set to expire on March 6, 2009. The Special Immigrant Non-Minister portion of the Religious Worker Visa Program became law in 1990. Originally enacted with a sunset provision, it has enjoyed broad, bipartisan support in Congress and has been reauthorized four times since then. Under this important program, up to 5,000 visas each year are available for religious workers employed by a broad range of religious denominations and organizations. Religious communities that participate in the program have found these special visas vital to carrying out their work. The following are just a few examples of how large and small religious denominations and organizations use the visas to benefit their own communities and the larger society: Catholic dioceses and Catholic institutes of religious men and women rely heavily upon religious sisters, brothers, and lay missionaries from abroad, who are sponsored and qualify for these permanent residency visas. Some fill a growing need in the Catholic Church for those called to religious vocations. Others provide critical services to local communities in areas including religious education, and care for vulnerable populations such as the elderly, immigrants, refugees, abused and neglected children, adolescents and families at risk. Jewish congregations, particularly in remote areas with small Jewish communities, rely on rabbis, cantors, kosher butchers, Hebrew school teachers, and other religious workers who come from abroad through the religious worker program. Without them, many Jewish communities would be unable to sustain the institutions and practices that are essential to Jewish religious and communal life. Smaller religious communities rely on the visa, as well. For example, the lifetime vocation of members of the Church Communities International, a religious communal order, includes a commitment to Christian brotherhood and faithful service through the provision of emergency relief, housing assistance, food distribution, education, medical care, counseling and mediation. To affect its ministries, the order depends upon the ability afforded by the program to relocate non-clergy religious members from its locations overseas. Other religious denominations, such as the Methodist and Baptist churches, The First Church of Christ, Scientist, the Church of Jesus Christ of Latter Day Saints, the Lutheran Church, the Hindu faith, the Church of Scientology, and the Seventh Day Adventist Church, also rely on the visas to bring in non-minister religious workers, who, in addition to providing some of the same services mentioned above, also work in areas as diverse as teaching in church schools, temple workers, producing religious publications, sustaining prison ministries, and training health care professionals to provide religiously appropriate health care. Because of the increasingly diverse ethnic makeup of our religious congregations and the nation as a whole, the special immigrant religious worker visa category is particularly important in addressing the specific pastoral and service-related needs of ethnic groups, including the Hispanic, Asian, and African communities. A special category for non-minister religious workers is also necessary because religious organizations face obstacles in using traditional employment immigration categories, which historically have not fit their unique situations.

We ask that you support H.R. 1127, which would extend this important program, prior to its expiration on March 6, 2009. Your support is vital for the continuation of the Non-Minister Special Immigrant Religious Worker Visa program and for the service of its beneficiaries on behalf of religious organizations and communities across the nation. Thank you for your continuing support of the Religious Worker Visa Program and your assistance in achieving a permanent extension of this program.

Respectfully,

American Jewish Committee; Catholic Legal Immigration Network, Inc.; Church Communities International; Conference of Major Superiors of Men; Hebrew Immigrant Aid Society; Lutheran Immigration and Refugee Service; Mennonite Central Committee, United States. National Association of Evangelicals; National Spiritual Assembly of the Bahai of the United States; The Church of Scientology International; The First Church of Christ, Scientist, Boston, MA; United Methodist Church, General Board of Church and Society; World Relief; U.S. Conference of Catholic Bishops. "

• We hope the Senate acts the same on the floor today or tomorrow to agree to and pass this House bill. Otherwise, these two programs will expire at the end of the day tomorrow.

03/04/2009: USCIS Adds Passport Data in E-Verify Process for Foreign-Born Citizens to Enhance Reducing Tentative Nonconfirmations (Mis-Matches)

• USCIS announces that in E-verify program, failure of employment authorization confirmation was related to the foreign-born U.S. citizens, and in order to enhance and reduce nonconfirmation of such identities in E-Verify system, it has added the passport data. For the details, please click here.

03/04/2009: House Passes Immigration Program Extension Bill Today

• Today, the House passed H.R. 1127 sponsored by Rep. Zoe Lofgren by unanimous consent and without vote. This bill proposes to extend the sunsetting non-minister religous worker program and the IMG national interest waiver program until September 30, 2009. It is hoped that the Senate also passes this bill by unanimous consent before the end of Friday, March 6, 2009.

03/04/2009: Has Obama Forgotten Immigration?

• The immigration reform has remained and probably will remain in the back-seat of the Obama train during the FY 2009 that ends in September 2009. What about FY 2010 that starts in October 2009 and ends in September 2010? The budget is a reflection of policy direction of a President and Administration. Analysis of the Obama Administration's FY 2010 budget proposal reportedly reflects that "immigration" is rarely mentioned in the budget proposals in the first place. Reportedly the word is found only eight times in almost 150-page new fiscal year budget proposal document of the Obama Administration as opposed to repeated mentionining of the word "reform" for other areas. Worse yet, whatever immigration reform which is brought up heavily focuses on enforcement and border security funding.
• This is just a proposal and the future policies that are contained in the budget proposals are expected to go through a lot of negotions and compromises in the legislative process and between the White House and the Congress. We also do not discount the new President's need for bi-partisanship in his policy formulation and need for sending a "wink" to the Republicans accomodating the conservative forces' immigration policy agenda at this early stage of his Presidency, but as judged from the budget proposal, there may be a group of people who are disappointed with his policy direction that does not reflect his election promises. After all, this is a beginning and not an end of the road of the journey of the New Administration. We hope that along the way, the immigration reform closes up as a big picture defining the direction of the future of this nation of immigrants.

03/03/2009: McCain Amendment to Omnibus Bill Defeated

• Please stay tuned.

03/03/2009: USCIS Abandons Current Policy of Requirement for Approval of I-485 Cases Pending in Excess of 180 Days from FBI Name Check Request

• This new policy took effect on February 9, 2009. In order to cancel the previous policy, Mr. Don Neufeld, Acting Associate Director of Domestic Operations of USCIS issued a memorandum to the field offices. The new policy is as follows:
  • Adjudicators must obtain definitive FBI fingerprint check and the IBIS check and resolution before they can approve I-485, I-601, I-687, and I-698 applications.
• For the full text of the February 9, 2009 memorandum, please click here.

03/03/2009: Update of Omnibus Appropriations Bill in the Senate and Sunsetting Immigration Programs

• Yesterday, the Senate could not complete this bill because of Senator McCain's amendment bill to substitute the proposed Omnibus bill funding by his proposal putting a cap on government spending at the level of FY 2008 continuing funding bill until September 30, 2009. His intent was to place a cap on FY 2009 government spending. Early this afternoon, the Senate will vote on the Senator McCain's amendment bill and once his amendment bill is taken care of, the Omnibus bill is likely voted on fairly quickly before March 6, 2009 when the current funding continuiing resolution expires. At stake is EB-5 extension bill in the Omnibus bill. Should the Senate adopt McCain's amendment, which is not likely, the EB-5 extension bill will also go to the tomb. Other than Sen. McCain amendment, there have been introduced some other amendments in the Senate. Should any of these amendments be passed in the Senate, the Omnibus bill will not pass the Congress until the Senate bill and the House bill are adjusted into the final bill through the House-Senate conference process followed by votes on the compromise bill in the both Houses. For the tight schedule, the Congress may have to pass another continuing resolution to extend funding for the federal government beyond March 6, 2009 but, this time, for a short period of time. Please stay tuned.
• As for the non-minister religious worker program and IMG national interest waiver program extensions, the House has yet to mark up and act on the Rep. Zoe Lofgren bill on these programs. Unfortunately, her bill is not scheduled to be marked up today nor tomorrow in the Subcommittee, and unless both of these bills are taken up as part of the continuing resolution of government funding or unanimous consent in both Houses without votes, these programs are destined to expire again on March 6, 2009, pending further actions in both Houses after March 6, 2009. What a roller-coaster!

03/02/2009: USCIS Reposted I-131 and I-765 Forms

• These forms are back in the Form site of the USCIS. Please visit the site to obtain the forms online.

03/02/2009: New Final Permanent Labor Certification PERM Form (ETA 9089)

• As reported earlier, DOL is scheduled to initiate the new form middle of June 2009. The new form and its filing instructions are as follows:
• ETA 9089
• ETA 9089 Filing Instructions

03/02/2009: New Final Labor Condition Application Form (ETA 9035E)

• As reported earlier, DOL is scheduled to initiate the new form middle of April 2009. The new form and its appendix are as follows:
• ETA 9035E Form
• Filing Instructions
• Appendix I (Codes)
• Appendix II (Sample Acceptable Private Surveys)

03/02/2009: Labor Condition Application (ETA 9035E) Help Desk Information Released by DFLC

• In March 2009, a huge number of employers are likely to file labor condition applications for FY 2010 H-1B cap cases. The following is the labor department release of information on use of Help Desk for filing of labor condition applications:
  • The Office of Foreign Labor Certification has implemented a dedicated Help Desk Unit at the Chicago National Processing Center to serve as a resource to those employers and or their representatives filing Labor Condition Applications (LCAs) with the Department of Labor. The purpose of the LCA Help Desk is to provide assistance with questions specific to the Department’s LCA filing process and the H1B, H1B1 Chile, H1B1Singapore and E3
    Australia temporary visa programs.
• Procedure: Please submit your question by email to LCA.Chicago@dol.gov. The subject line of your email should include the <LCA Case Number> and whether the inquiry is either a <General LCA Question>, <Case Status Inquiry>, or <LCA Account Question/Issue>. The body of your email should include the following information:
  • Ø LCA Case Number
  • Ø Contact information (i.e., return phone number or email address) and, if applicable, relationship to the application (e.g., attorney/agent representing employer)
  • Ø Your specific question and/or additional information, as appropriate, such as employer name or specific filing issue(s)
• The LCA Help Desk email box will be monitored by the Chicago National Processing Center during their business hours of 8:30 AM to 5:00 PM Central Time Monday through Friday. Your email inquiries will be handled as expeditiously as possible. For computerrelated issues such as access to the system, the resetting of user passwords or computer system problems, please contact the following email address: LCAHELP@dol.gov. The LCA Help Desk email box will be monitored by the Chicago National Processing Center during their business hours of 8:30 AM to 5:00 PM Central Time Monday through Friday. Your email inquiries will be handled as expeditiously as possible. For computerrelated
  issues such as access to the system, the resetting of user passwords or computer system problems, please contact the following email address: LCAHELP@dol.gov.

03/02/2009: Employers, Beware of Current State Laws Mandating Use of E-Verify

• E-Verify program has been is in such a state of political and legislative struggles and confusions that employers, particularly small business employers, are in a state of literal nightmare. Added to the nightmare are partial or full enforcement of E-Verify programs at the two levels: One at the federal level and the other at the state level. The information on the enforcement at the federal level is more or less publicized enough and employers are somewhat informed, but the enforcement at the state levels is still not well informed for small mamma and pappa stores hiring not a large number of employees who struggle to survive to bring bread and butter to their kids at him in the current de facto economic "Depresssion" state. Life is just difficult.
• Following are list of the States that mandated by States' executive orders or statutes use of E-Verify by some or all employers as of September 2008, as reported by MPI:
  Arizona: all employers required by statute (signed 7/2/07) effective 1/1/08
  Colorado: Applies to employers holding public contract for services with state or political subdivision required statute (signed 6/6/06; amended in 2007 and 2008) and effective Aug-06
  Georgia: Applies to public employers and contractors by statute (signed 4/17/06) and applicable to all employers with 500 + employees effective 1/1/07 and all employers with 100+ effective 1/1/08, and all public employers by 1/1/09
  Minnesota: Applies to state executive branch agencies and state contractors seeking contracts of over $50,000 mandaed by State executive order (signed 1/7/08) which took effect in 1/7/08
  Mississippi: Applies to all employers by statute (signed 3/17/08), emloyers hiring 250+ employees effective 7/1/08, and expanded to the employers hiring 100+ employees effective 7/1/09, and further expanded to employers hiring 30+ employees effective 7/1/10, and from July 1 2011 to all the employers.
  Missouri: Applies to public employers, contractors with contract of moe than $5,000, and businesses receiving certain state benefits mandated by statute (signed 7/7/08) and effective 1/1/09
  North Carolina: Applies to state agencies and universities under statute (signed 8/23/06) and took effect on 1/1/07
  Oklahoma: Applies state and local agencies and government contractors under a statute (signed 5/15/07) which took effect on 11/1/07 for public employers and on7/1/08 for contractors [all stayed by federal court preliminary injunction]
  Rhode Island: Applies to executive branch agencies and all state contractors and vendors under a State executive order (signed 3/27/08) to take effect through Department of Administration directives
  South Carolina: Applies to all employers (unless they hire only persons with S.C. driver's licenses or equivalent) under statute (signed 6/4/08), public employers, and contractors hiring 500+ employees effective on 1/1/09, private employers hiring 100+ employees effective on 7/1/09, and all employers effective on 7/1/10
  Utah: Applies to public employers and contractors under a state statute (signed 3/13/08) and will take effect on 7/1/09.
• The foregoing information covers just the list of the states as of September 2008. Employers in other states should contact their state offices to learn the laws in their states. Nowadays, since the employers are placed under so many different compliance rules when they hire people that businesses of small and medium size employers will have to swim literally in a mud! Where were all those politicians, legislators, and governments at federal and state levels throughout all of the history of this country when there were tons of undocumented aliens all over the country and why all of sudden, they all now come out preventing that there were no laws (Really?) and they will now have laws? Hmm....

03/01/2009: I-765 (EAD Application) and I-131 (Travel Document Application) Forms Missing on the USCIS Form Site

• For unknown reasons, these most frequently used forms have disappeared from the USCIS form site creating a huge problem for those who need last minute filing. In represented cases, people will not experience any crisis since attorneys use commercial form softwares, but in non-represented cases, it presents a huge problem. It is hoped that the problem be fixed by tomorrow. Otherwise, the last minute filers should either use e-filing or go to our home page and use the I-765 form link. The form was last revised in October 2008. Thank you for a reader who brought up this problem.

03/01/2009: Senate Passed Unanimous Consent to Mark Up House Omnibus Appropriation Bill Monday for Debate, 03/02/2009

• On Friday, 02/27/2009, the Senate passed unanimous consent to take up H.R. 1105 Omnious Appropriation Bill for debate. This bill includes the EB-5 Investor Visa Pilot Program extension which is scheduled to sunseand government funding will run out, on March 6, 2009, Thursday.

02/28/2009: Designated Countries for H-2A Agricultural and H-2B Non-Agricultural Temporary Worker Program Until 01/18/2010

• Until January 18, 2010, currently only the nationals of the following countries are eligible for the new H-1A and H-2B temporary worker petitions and visas. Those who had H-2A and H-2B on or before January 18, 2009 are not affected by these designation.

H-2A Eligible Countries	H-2B Eligible Counries
Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Dominican Republic; El Salvador; Guatemala; Honduras; Indonesia; Israel; Jamaica; Japan; Mexico; Moldova; New Zealand; Peru; Philippines; Poland; Romania; South Africa; South Korea; Turkey; Ukraine; United Kingdom.	Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Dominican Republic; El Salvador; Guatemala; Honduras; Indonesia; Israel; Jamaica; Japan; Mexico; Moldova; New Zealand; Peru; Philippines; Poland; Romania; South Africa; South Korea; Turkey; Ukraine; United Kingdom.

(Sources: H-2A new reg. and H-2B new reg.)

02/28/2009: Leadership and New Members of House Judiciary Immigration Subcommittee

• On January 22, 2009, the House Judiciary ratified (see line 556) new members from the Democratic and Republican Caucases to its subcommittees additing a few new members to the Immigration Subcommittee from both side of the aisle. It also ratified the chairmanship of each subcommittees. We are happy to report that the long-time ally and friend of immigrant community, Rep. Zoe Lofgren was reappointed and ratified as the Chairwoman of the House Judiciary Immigration Subcommittee. Please see the full line-up of the immigration subcommittee.
• The Immigration Subcommitte has since then been not too active owing to other priority matters of the full Judiciary Committee, but we are confident that with the leadership of Chairwoman Lofgren, the Immigration Subcommittee will start taking up new immigration bills and stay active in some piecemeal immigration legislation. This website whole-heartedly welcomes return of Madame Chairwoman Zoe Lofgren to the leadership of the House Judiciary Immigration Subcommittee. The first few bills which the Subcommittee may mark up shortly will include the bills to extend the sunsetting nonminister religious worker immigration program and international medical graduates national interest waiver program (Conrad 30) legislation which she herself introduced on the House floor earlier. Please stay tuned.

02/27/2009: FY 2010 H-1B Cap Filing Procedure

• USCIS has confirmed through the AILA liason conference that they will apply the same procedure and rule which they applied in FY 2009 H-1B cap filing in April 2009. Accordingly, they will take in cap petitions from April 1 (Wednesday) through April 7 (Tuesday), April, (five business days) , should the cap number reach during the period. People may want to revisit our postings dated March 2008 through April 2008 to review the rules, procedures, questions and answers, etc., including USICE and USCIS OPT rule changes in the context of the H-1B cap filing.
• Some of the important USCIS links are as follows:

Important Cap Filing Information and Rules USCIS Announces Interim Rule on H-1B Visas [Rule Modifies Selection Process and Prohibits Multiple Filings] Fact Sheet: Changes to the FY2009 H-1B Program Questions and Answers: USCIS Announces Interim Rule on H-1B Visas [Rule Modifies Petition Selection Process and Prohibits Multiple Filings] Interim Final Rule on Duplicate H-1B Petitions Questions and Answers #1 Questions & Answers #2 USCIS Answers to AILA Questions on H-1B Cap Processing USCIS Q&A on OPT Extension Rule OPT Exrtension Rule OPT New Rule Update: DHS/ICE Issues Important Updates Answering Most of Unanswered Questions. ICE Policy Guidance on Post-Completion OPT Revised by the New OPT Rule

02/27/2009: Backlog of Permanent Labor Certification Program and Proposed Two-Tier System of Applications

• It appears that as affected by the continuously deteriorating economic recession and rising unemployment environment, the permanent labor certification program is heading towards the old system which it intended to renegineer through the PERM online filing system. The difference between the old system and the new PERM system appears to be that in the old system, whether the case should be a time-consuming government supervised track was more or less determined by the employers themselves, while under the new PERM system, it is the agency who makes the decision of so-called "supervised recruitment" track. The problem of the new system appears to be apparently there is no mechanism or internal step involved that could quickly upfront determine the fast-track vs. supervised recruitment track. It sounds that under the current system, the fast-track or supervised recruitment track will not be determined until the cases come to the desks of analysts in the order of the priority date (filing date). Depending on the decisions of the analysts, the cases will then be processed in the two different tracks. With due respect to the leaders of the OFLC, we see a serious flaw with the currrent queue system. Under the current system, legitimate and straight forward cases appear to to be trapped and fall into victims of this single queue system at the initial stage of processing. We recognize that the Atlanta National Processing Center is currently developing a system that would allow the agency to check the unemployment rate in the area of the intended employment for each application and the record of the employers' layoffs to determine the supervised recruitment track. We urge the OFLC and APC leaders to develop two queues not at the stage of adjudication but at the stage of intial processing such that legitimate and straight forward cases be not trapped in the single pipeline of the time-consuming intial processing. It appears that currently the agency is taking more than six months for processing and adjudicating straightforward cases exceeding the policy goal of six months. We do not have any idea as to what mechanism should be in place to determine cases for these two queues at early stage of filing, but it may be an issue of realigning processing teams within the APC, along with reconfiguration of online processing system. The suggested reform will also allow the employers to determine whether to proceed or withdraw at early stage not clogging the processing pipeline of the agency. Under the current system, employers have to waste months to learn which track their cases will fall, not being able to determine whether they should pursue or withdraw. It does not make sense that such employers should wait that long to decide whether they should withdraw their applications. In this regard, such reform will serve well mutual interest of the agency and the consumers.

02/27/2009: Happy Sixth Anniversary of the Department of Homeland Security!

• The Department of Homeland Security is about to celebrae their sixth anniversary and this website wants to join the Congress to recognize and honor the hardworking women and men working for the Department of Homeland Security for their continuous efforts to keep the Nation safe and for improverment of their services for immigrants, their families, and their employers well.

02/27/2009: Change of H-1B Employer For H-1 Employee Working for the Employer in a Parolee Status After International Trip Using Advance Parole

• AILA-CSC liaison minute of 02/25/2009 indicates that CSC will approve H-1B petition by a new employer as an extension of H-1B status if the H-1B alien traveled on an Advance Parole and has returned and resumed employment with the current employer and the H-1B status remains valid. This is a practice point of the CSC rather than a binding opinion or rule, and different Service Centers may differ in their practices. Even for the same agency,f CSC, the agency may not be liable for disagreeing with the practice point which is stated in the liaison minute. Having said that, people should understand that for this practice point to work in an individual case, one must meet the following conditions: (1) One must be in a valid H-1B; (2) After returning from the international trip on Advance Parole, one must return to and resume employment with the current H-1B employer. Inasmuch as these conditions are met, the new H-1B petition by a new employer will be approved in the form of "extension of status," and his/her H-1B status will be reinstated upon approval of the H-1B petitiion filed by the new H-1B employer.
• There are a few caveats: (1) When a H-1B alien returns from international trip on advance parole, he/she is still classified as a "parolee" until the H-1B status is reinstated by the approval of H-1B "extension" petition filed either by the current employer or new employer. Accordingly, it appears the AC 21 rule of H-1B portability may not applicable, meaning that until the new H-1B petition is approved, he or she may not be able to join the new employer pending the new H-1B petition. (2) The rule of employment authorization and authorized permit of stay for 240 days pending extending petition may not be available with the new employer. Accordingly, it may be important that people use premium processing services when H-1B externsion petition is filed to reinstate the H-1B status with a new employer. When such reinstatement extension petition is filed by the same employer, he/she may be authorized to work continuously pending the petition not because of the 240-day rule but because of the USCIS presumption of employment authorization for advance parolee during the period of the approved H-1B with the same employer. These two caveats are individual opinion of this reporter and not authoritative opinion. This opinion will have to be either agreed or disagreed by the agency since there is no known authoritative opinion or rule at this point.

02/26/2009: Secretaries of DHS and DOS Certified to the Congress That Western Hemisphere Travel Initiative (WHTI) Implementation Requirements Have Been Met

• By this certification, the CBP is ready to implement documentary requirement for trave at sea and land beginning from June 1, 2009.

02/26/2009: AILA Report of USCIS Clarification on Expanded I-140 Premium Processing Groups and Requirements

• According to the USCIS clarification as reported by AILA, those who are in other nonimmigrant status or who are currently outside of the country come under the scope of the expanded policy eligible class inasmuch as they meet the following requirements: They:
  • Are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
  • Have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
  • Are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
  • Are ineligible to extend their H-1B status under section 106(a) of AC21.
• It appears that those who are ouside of the country may include those who were in the U.S. in H-1B status, and at the time of reaching their H-1B six-year limit, they failed to meet 365 days from the date of their initial labor certification filing, and therefore, they left the country. Assuming that labor certification application has since then been certified while they were outside of the U.S., assumedly they should be eligible for three-year increment H-1B extension but for the "approved" I-140 petition. Under the expanded PPS policy, their employers will be able to file I-140 PPS so that they can return with a renewed H-1B visa based on the three-year increment approved H-1B extension petition.
• The other group of eligible people which the clarification may refer to are those who have reached H-1B six-year limit when the labor certification was pending or approved but were not eligible for the 7th year H-1B extension and had to change their nonimmigrant status from H-1B to other nonimmigrant status. If some people in this group are still ineligible to apply for 7th year extension because of 365 days requirement, the expanded PPS policy would allow their employers to file a PPS I-140 petition and upon approval of the I-140 petition, they will be able to change their status back to H-1B from the current other nonimmigrant status.
• Unlike our previous position, the clarification of the USCIS is not clear as to whether those have reached the H-1B six-year limit and fallen out of status wiould be eligible for the expanded PPS benefits. Please stay tuned.

02/26/2009: Reminder to FY 2010 H-1B Cap Filing Employers

• We posted earlier information on the changes in LCA filing procedure. Additionally, the DOL is scheduled to use new ETA 9035E beginning from April 2009. On top of all these changes, lawyer's offices, including this office, are facing increased case loads of the H-1B cap cases, and require client employers to work with them as early as possible not to experience a last minute crush. Employers will learn that their legal counsels will be increasingly not accessible over the phone. Just a reminder.

02/26/2009: House Passed H.R. 1105 Omnibus Appropriations Act of FY 2009 Bill With EB-5 Program Extension Until 09/30/2009

• In a flash, the House passed the Omnibus bill yesterday, 02/25/2009. This bill includes extension of EB-5 program until 09/30/2009. For the final version, please open H.R. 1105 EH and read through the volumious text of over 150 pages. We will monitor the Senate action to see the Senate will be able to consent to the House bill before March 6, 2009. As we reported earlier, should the Congress pass the bill after March 6, 2009, it is almost certain that there will be a provision to take effect retroactively for this provision to March 7, 2009.

02/26/2009: Text of Bill to Allow Green Card Status for Long-Tem (5 Years or +) E-2 Nonimmigrant Investors

• Interesting bill. It is interesting in that the country's economic recovery emphasizes resiliency in small business sector Besides, the $1,000,000 immigrant investor program was in part designed to attract the Hong Kong money when Hong Kong was turned over to China and investors from the countries that were not qualified for E-2 investment program because of lack of investment treaties between the U.S. and these countries. By now, Hong Kong millionanaires have moved out mostly to other countries because of the defects in EB-5 program and that pipeline more or less has disappeared.
• The main text of this interesting bill is as follows:
  • SPECIAL RULES FOR CERTAIN E-2 NONIMMIGRANT INVESTORS-
  • (a)(i) IN GENERAL- In the case of an alien who has been present in the United States in the status of an alien described in section 101(a)(15)(E)(ii) for at least five years--
    • (I) the amount of capital required under subparagraph (A) shall be $200,000; and
    • (II) the alien is deemed as satisfying the requirement of subparagraph (A)(ii) if the enterprise has created full-time employment for not fewer than two individuals (or five individuals for each year after the third year in such status) described in such subparagraph (A)(ii).
  • `(ii) LIMITATION- Not more than 3,000 visas may be made available under this paragraph to principal aliens described in clause (i) in any fiscal year.'.
  • (b) Effective Date- The amendments made by subsection (a) shall take effect on the date of the enactment of this Act. Periods of presence in the United States in the status of an alien described in section 101(a)(15)(E)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(E)(ii)) before such date shall be counted towards satisfying the time requirement specified in subparagraph (E) of section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)) (as added by paragraph (3) of subsection (a)).
  • (c) Immediate Eligibility of Adjustment of Status of Certain Long-Term E-2 Nonimmigrant Investors- An alien who has been present in the United States as an E-2 nonimmigrant investor for at least five years may be immediately eligible to adjust status to that of an alien lawfully admitted for permanent residence pursuant to the amendment made by subsection (a).
• This bill thus shuts out the countries that do not have the international investment treaty with the U.S., including China and India. In order for the Chinese and Indians to immigrate to the U.S. through investments, they will have to go for the EB-5 investor immigrant route.

02/26/2009: USCIS Releases on 02/25/2009 Revised Processing Time Reports for December 31, 2008

02/25/2009: Short-Lived Hilarious News of NSC EB-485 Processing Time of Four-Month

• As is usual, when there is something which is hard to believe, people should not take it or rely on it. Apparently, that is what happend with this news. The USCIS Processing Time Report for December 31, 2008 still shows that NSC's EB-485 processing time is "4 month." AILA has reported that this is an error. The current processing time is August 15, 2007. It means that the NSC is just finishing up last FY 2007 Visa Bulletin fiasco EB-485 cases. Even though it is disappointing to learn that the processing time is not four months, the correct processing time news is not bad at all in that once the agency passes the VB fiasco lofty uphill mountain road, the agency may start running down hill road with the anticipated improvement in the processing times. No problem, NSC!

02/25/2009: USCIS 01/27/2009 National Stakeholder Meeting Q&A as Released on 02/25/2009

• The meeting minute discloses one important information on the progress of transformation program with reference to processing of incoming and outoing mails. Here is the information:
  • The USCIS Mail Management Program recently transitioned to the DHS Consolidated Remote Delivery Site (CRDS), and mail is now processed offsite. NSRV will provide an overview of the Consolidated Remote Delivery Site, including the unique zip code, mailstop information, and address format that must be used for all incoming and outgoing mail. USCIS will notify all customers, stakeholders and business partners of new address and provide instructions for sending information to File Control Offices (FCO) in the National Capital Region. NSRV will also provide contact information for mail or CRDS related questions or concerns in the NCR, as well as USCIS and Mail Management links to find USCIS offices and mailstop information.
• Somewhat confusing.

02/25/2009: New Secretary of Labor, Honorable Hilda L. Solis

• Yesterday, the Senate consented to the appointment of the new Secretary of Labor and President Obama quickly appointed her. She was thus able to attend the President's State of Union yesterday as a member of the cabinet. Pending the appointment of new Secretary, some of the DOL programs, including the foreign labor certification program, have remained on stand-by state since the new Secretary will definitely inject her own agenda into the policies and programs. We will see how the foreign labor certification program will be affected by the new leadership. Please stay tuned.
• Some information on the new Secretary.

02/25/2009: Bill to Allow Immigration Opportunity for E-2 Nonimmigrant Investors

• Yesterday, 02/24/2009, Rep. Adam Putnam of Florida introduced H.R.1162 to permit certain E-2 nonimmigrant investors to adjust status to lawful permanent resident status. Wow, considering the economic crisis in the country, it may certainly help the State of Florida to attract investments by rich foreigners, wouldn't you say? We will see how this bill will be received by other legislators in the Congress.

02/25/2009: Omnibus Appropriations Bill Introduced in the House

• On February 23, 2009, Rep. David Obey of Wisconsin introduced H.R.1105, Omnibus Appropriations Act of Fiscal Year 2009. However, since there is a slim chance for this bill to pass both Houses before March 6, 2009, it is obvious that the Congress may have to pass another continuing resolution to prevent shut-down of federal government on March 7, 2009. It also means that the sunsetting immigration laws must be passed either as an attachment to the contuining resolution or on its own. Or who knows? The Omnibus bill can pass the Congress not too long after March 6, 2009 and the immigration extension bills also pass the Congress as part of the Omnibus bill. However, should the latter take place, the extension bills may be enacted retroactively effective March 6, 2009, but the USCIS hands will be tied by such legislative waiting game from March 7, 2009 and the involved employers and the alien beneficiaries will have to experience a rollercoaster emotionally pending the legislation. Any chance for unaimous consent without vote? We will pray for these employers and alien beneficiaries.

02/25/2009: Disappointing Rep. Zoe Lofgren H.R. 1127 Bill for Extension of Sunsetting Programs on 03/06/2009

• People are disappointed with this bill in two points:
  • Extension is limited to non-religious worker immigration program and medical docors national internest waiver program and does not include the EB-5 Regional Center Investor Pilot Program.
  • Extension for only six months until September 30, 2009.
• We want to see her statement in support of such limited period proposal. Please stay tuned.

02/25/2009: What Does Expanded I-140 Premium Processing Services (PPS) Mean?

• Careful reading of the notice and fact sheet will reflect that there is practically no change from the current policy except that the employers can file for those H-1B beneficiary employees whose labor certification has been certified but who has already reached his/her H-1B six-year limi. Currently, the only people who are eligible for PPS are those whose H-1B six-year limit will reach within two moths (60 days) at the time of request for PPS. This expansion does not affect those ineligible beneficiaries for the PPS such as EB-1C Multi-National Corporate Executive or Manager I-140 petition, EB-2 National Interest Waiver I-140 petition, or filing of I-140 petition without the "original" certified labor certification application and with the request for duplicate certified labor certification application, etc. Initially, the USCIS intended to change the processing times from 15 calendar days to 15 business days when they expand the PPS, but apparently the agendy could not achieve it because of the Obama Administration's executive orders which practically have frozen most of the pending rule-making proposals. Changing the processing times require amendment of the PPS regulation.
• However, those beneficiaries of certified labor certification applications who have reached six-year H-1B limit will benefit from the expansion of the PPS tremendously in the following context:
  • 245(k) Benefit: There may be some people who have already exhausted H-1B six-year limit but who could not extend H-1B status because they were not eligible for the one-year increment extension after passing 365 days from the date of filing of labor certification application or I-140 petition. Some of them could have fallen out of status and clock has been ticking close to six months beyond a valid I-94. Since the 245(k) benefit is attached only to those who have violated lawful stay or unauthorized employment for less than 180 days since the latest admission to the country at the time of filing of I-485 application, this expansion policy can be a savior in that approval of I-140 petition in 15 days will allow him/her to file I-485 applications before reaching such six months, provided that his priority date is current in the Visa Bulletin.
  • Invoking AC 21 I-140 Portability: Current USCIS policy (Neufeld) requires that at the time of adjudication of EB-485 applications, those who invoked AC 21 180-day portability must prove that the underlying I-140 petition has been approved. Otherwise, the adjudicators are required to deny such I-485 application without issuing RFEs or NOID. Besides, for those who have yet to file EB-485 applications, AC 21 requires approved I-140 petition for invoking the portability and taking new employment.
  • Three-Year Increment H-1B Extension Instead of One-Year Increment H-1B Extension: Inasmuch as they are not eligible for one-year increment H-1B extension, the expanded PPS policy will allow three-year increment extension of H-1B petition, giving the benefit of cost savings and hassle of repeated filing of extension annually.
  • Two-Year EAD Instead of One-Year Valid EAD: Since the current practice of USCIS for issuance of multiple-year EAD requires "approved" I-140 petitions, expanded PPS will allow them to obtain two-year valid EAD.
  • EB-1(A) Extraordinary Workers: The biggest winner in the expanded PPS will be the self-petition EB-1 beneficiaries. Since EB-1 visa number is current accross the board, 15-day approval of I-140 petition without employer will give them a tremendous edge in filing I-485 applications. The same will go true with EB-1(B) Outstanding Researcher beneficiaries, but it requires the continuing employer petition and support through I-485 process. Under the rising unemployment rate, some of these top notch professionals may receive a tremendous help from the expanded PPS.
• It is unclear how much this expanded PPS will help the DHS with the reduction of I-140 processing backlogs and raising funds for the immigration benefits management account. It is hoped that the agency expands the PPS further in the near future.

02/25/2009: USCIS Fact Sheet on Expanded I-140 Premium Processing Services

• The fact sheet indicates that efiling of premium processing request will not be allowed. If it is addressed to the wrong jurisdiction, it will be rejected. Accordingly, the employers should make it sure that it filed with the right Service Center at the right address.

02/24/2009: USCIS Expands I-140 Premium Processing Services to Certain Beneficiaries Beginning March 2, 2009 (Monday)

• USCIS has announced that the agency is expanding the Premium Processing Services as follows:
  • Beginning March 2, 2009, USCIS will accept Form I-907 (Request for Premium Processing Service) for alien worker petitions filed on behalf of alien beneficiaries who, as of the date of filing the Form I-907:
    • Are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
    • Have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
    • Are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
    • Are ineligible to extend their H-1B status under section 106(a) of AC21.
• The eligible beneficies are still narrowly limited.

02/24/2009: Bill Introduced H.R. 1127 in the House to Extend Certain Sunsetting Immigration Programs

• As we reported earlier, there are a few immigration programs which are scheduled to sunset on March 6, 2009 and time was indeed running out. These bills include the non-minister religious worker immigration program, EB-5 Regional Center Investor Pilot Program, IMG national interest waiver program. Yesterday, on February 23, 2009, Representative Zoe Lofgren introduced a bill to extend the non-minister religious worker immigration program and IMG NIW program until 09/30/2009. The bill has been referred to the House Judiciary Committee. In view of the need for running clock, it is anticipated that the House Judiciary Committee will swiftly take up this bill and the House floor may also act quickly on this bill. Hooray! Please stay tuned.
• However, it is very disappointing that the bill proposes to extend the two programs only until 09/30/2009 and did not cover the EB-5 program.

02/24/2009: Bill Introduced in the House to Extend Termination Date of Exempt of Returning H-2B Workers From Annual H-2B Cap

• Representative Bart Stupak of Michican introduced H.R.1136 on February 23, 2009 to extend the termination date for the exemption of returning workers from the numerical limitations for temporary workers. This bill is co-sponsored by 46 members of the House. Yesterday, this bill was referred to the House Judiciary Committee for its action. Finally, the House is waking up to work on the broken immigration legislations. Please stay tuned.

02/24/2009: Immigration Enforcement Sweep Against H-1B Violators and Undocumented Aliens

• There are growing reports that the USICE is reinforcing its raids on the sites of farm-related unskilled foreign worker employers to arrest undocumented aliens. In the H-1B professional worker program, we have already reported that eleven people were arrested and indicted by the federal prosecutor in Iowa. There are also growing reports that the U.S. Department of Labor is reinforcing the worksite visits to enforce the H-1B labor condition application compliance. It appears that they are targetting particularly the small and medium-size IT consulting businesses. It should be taken as a critical alert for these businesses. The employers hiring H-1B employers should be more mindful of the in-house compliance system which should include the LCA compliance system as well as I-9 compliance system.
• The fact that these enforcement activities are intensifying, particularly by the DOL, when the Secretary of Labor has yet to be appointed, may indicate that the Obama administration is pushing such immigration law enforcement actions to accomodate the anti-H-1B program legislators and Republican legislators against illegal farm workers as well as to solicit support for the Administration's economic and financial stimulus and bailout programs under the growing deterioration of the nation's economy and rising unemployment rate. The forecasted unemployment rate is 10% in the near future! The nation's economy is still far from the economic depression of 1920s but gradually moving toward that direction with the accompanying widespread fears in the public. "Buy-American" policy and H-1B restriction policy against the TARP-funded employers, together with the ongoing reenforcement of immigraion violation law enforcement at both the DHS and DOL levels reflects changing environment against foreign workers and foreign trade competitors. Potential next target may include growing outsouring of the businesses. Report indicates that along with the rising unemployment rate in the country and hostile environment for the employers to hire their required foreign workers have induced the leading companies to outsource the businesses and this news has been receiving increased concerns and attention by the policy makers and public. Outsourcing services should be prepared against a potential forthcoming legislative and government action.

02/23/2009: Legislative Bills Introduced in 111th Congress Since January 2009 and Piecemeal or Comprehensive Immigration Legislation in Total Backburner

• The only legislative activities people have noticed are the TARP and Stimulus bills to deal with the country's economic crisis. Accordingly, people may have misconceived that the Congress, being buried in the two hot-botton legislations, has not done any other legislative activities. To our disbelief, though, since January 2009, 1,095 bills have been introduced in the House and 436 legislative bills have been introduced in the Senate, altogether more than 1,500 legislative bills in the 111th Congress! Where are all these bills?
• Despite such large number of bills being introduced in such a short period of time, practically no bills have been introduced to deal with the broken immigration system in the form of piecemeal legislation or comprehensive immigration legislation other than Rep. Jackson's comprehensive immigration reform bill which is totally focused on illegal immigraion relief part and missing legal immigration reform part of fixing broken immigration system. Besides, for the past several years, the month of February has been marked as the point of time when legislators started kindling the immigration reform burner. Not this year. The immigrant community had started the new year with a level of understanding that "comprehensive" immigration reform legislation might remain in backburner until towards the end of the year 2009. However, the current state of immigration legislations are a total shock considering the fact that the community had an unspoken expection and hope that the legislators might work on the broken immigration system for legislative fixes through piecemeal legislations. Hope this was not a day dream! We still do not want to believe that the broken immigration system is stored in the farthest and darkest back place in the legislative vault.

02/22/2009: Our Directory for Immigration Practitioners in Foreign Countries

• Our website is currently developing a directory for immigration practitioners in foreign countries to help our visitors, particularly business and institutional visitors to seek help on information relating to immigration rules and entry-exit restrictions and procedures in and out of the foreign countries for business and professional travelers and immigrants, particularly the foreign countries with which the United States has active trades in goods, services, and human resources. We will post only those foreign sites that provide helpful and up to date immigration news and information for the foreign countries in their websites and offer friendly help and legal services. We will post website link, lawfirm name, and name of principal contact immigration practitioner in the firms. For the long lawfirm names, we will just print the first name in the firm name and et.al, such as Oh, et al. If you are interested in, please send your email to ohlaw@immigration-law.com with your website links. We will not entertain telephone inquiries.

02/21/2009: Full Text of S. 424 and H.R. 1024 on Gay-Lesbian Partner Right to Spousal Immigrant Benefits

• As we reported earlier, this bill was introduced in both Houses. Senate bill was introduced by the powerful Senator Leahy with quite a number of co-sponsors in the Senate. This bill is anticipated a strong opposition by Republican Senators in the Senate and the House.

02/21/2009: B-1 Business Visa Available for Foreign Missionaries Who Are Not Eligible for R-1 Religious Worker Visa

• The State Department has issued a cable to visa posts to give a guidance on this issue. The cable states that Visa Office of the State Department has recently received inquiries from a religious group claiming that applicants applying for visas to perform missionary work in the United States, who are ineligible for R status because they have not been members of the religious organization for two years, are not alternatively considered eligible for B-1 status. This cable reminds visa posts that the B-1 note regarding religious activities is still in effect and provides an alternative method for bona fide religious workers to enter the United States. In cases where the applicant is a recent member of the religion and cannot demonstrate two-year membership in an affiliated organization, B-1 status remains an option where the applicant meets the requirements in 9 FAM 41.31 note 9.1. This is true even if the applicant who meets the qualifications in the note intends a stay of one year or more in the United States. 9 FAM 41.31 note 3.1 provides that the period of stay in a given case may exceed six months or one year is not in itself controlling, provided the consular officer is satisfied that the intended stay has a time limitation and is not indefinite in nature. The State Department would also like to remind visa posts that many cases involving religious workers generate substantial public or congressional interest. Therefore, it may be prudent to consider requesting an advisory opinion, or sending information cables to the State Department in cases where a refusal might generate a response from the sponsoring religious organization. For the text of the cable, please click here.
• 9 FAM 41.31 note 3.1. provides that the period of time projected for the visit must be consistent with the statedpurpose of the trip. The applicant must establish with reasonable certaintythat departure from the United States will take place upon completion of the temporary visit. Although “temporary” is not specifically defined by either statute or regulation, it generally signifies a limited period of stay. The fact that the period of stay in a given case may exceed six months or a year is not in itself controlling, provided that consular officers are satisfied that the intended stay actually has a time limitation and is not indefinite in nature.
  

02/21/2009: USCIS Updates on 02/20/2009 Service Centers Processing Times as at December 31, 2008

• Please see our home page.
• WOW! EB-485 processing times in Nebraska Service Center is FOUR (4) Months for the visa number available cases!! AND EB-2(NIW) processing cut-off date is 08/27/2008, meaning it takes only SIX Months! Wow, wow, wow!!!!!!!!!!!!! Is this a magic the DHS Secretary Napolitano has brought with her for backlog reduction? This may also imply that the NSC do not have a large number of pending EB-485 cases whose visa numbers are current and ready to adjudicate.

02/21/2009: Sunsetting Immigration Programs in a State of Continuing Limbo

• The nonminister religious worker immigration program and EB-5 investor immigrant pilot program will sunset on March 6, 2009. We were hoping that the House would act on Omnibus Appropriation bill following passage of the Stimulus bill, but this appropriation legislaton remains still in limbo. Since we have less than two weeks to act on such legislation, it is by now certain that the Congress may have to pass another continuing legislation to fund the federal government beyond March 6, 2009.
• Our interest in the appropriation legislation lies with the sunsetting immigration programs which we hoped to be attached to such Omnibus bill. Considering the delay in the Omnibus action, our only hope at this point is that the Congress attaches these programs to the upcoming continuing resolution or quickly passes unanimous consent resolution to extend these programs. The appropriation legislation process is, as one can imagine, the most complicated legislative process which cannot be completed in a matter of a few days. Those who are interested in the Congressional Appropriations Process may read a Congressional material on this legislative process.

02/21/2009: House Judiciary Immigration Subcommittee Flooded(?) With Private Bills

• We have been reporting the private bills taking two positions. One is we support these bills because each of these bills involves very humanitarian concerns facing insurmountable wall under the current immigration statutes. Second position is that these private bills reflect a seriously broken immigration system that needs a fix as soon as possible since some of these bills must have been introduced because of the "insurmountable wall" under the current immigration system. Haveing said that, we report that the following bills were referred to the House Judiciary Subcommittee yesterday. Pending immigration reform legislation, these bills deserve a favorable action in the Congress.
  • H.R.798 : Private Bill for Adrian Rodriguez.introduced by Rep Filner, Bob [CA-51] on 2/3/2009 and referred to the Immigration Subcommittee on 2/20/2009.)
  • H.R.799 : Private Bill for Francisco Rivera and Alfonso Calderon introduced by Rep Filner, Bob [CA-51] on 2/3/2009 and referred to the Immigration Subcommittee on 2/20/2009.
  • H.R.910 : Private Bill for John S. Unpingco introduced by Rep Bordallo, Madeleine Z. [GU] on 2/4/2009 and referred to the Immigration Subcommittee on 2/20/2009.
  • H.R.974 : Private Bill for Alejandro Gomez and Juan Sebastian Gomez introduced by Rep Diaz-Balart, Lincoln [FL-21] on 2/10/2009 and referred to the Immigration Subcommittee on 2/20/2009.
  • H.R.975 : Private Bill for Terence George introduced by Rep King, Peter T. [NY-3] on 2/10/2009
  • H.R.976 : Private Bill; for Ibrahim Parlak introduced by Rep Upton, Fred [MI-6] on 2/10/2009 and referred to the Immigration Subcommittee on 2/20/2009.
  • H.R.1009 : Private Bill; for Corina de Chalup Turcinovic introduced by Rep Lipinski, Daniel [IL-3] on 2/11/2009 and referred to the Immigration Subcommittee on 2/20/2009.
  • H.R.1104: Private Bill for Mikael Adrian Christopher Figuerora Alvarez introduced by Rep. Lofgren , Zoe[CA] on 2/13/2009 and referred to the Judiciary Committee.
• For readers who are not familiar with the relief of private bill, these bills represent immigration legislations that would apply only to the named individuals based on the extreme level of humanitarian concerns. Once these legislative bills are passed in the Congress and signed by the President, the Immigration & Naturalization Act does not apply to these individuals with respect to certain specific bars to the immigration. Since it is a legislation, the Congress is not taking such legislative bills lightly.

02/20/2009: USCIS Immigration Benefits Applications and Naturalization Application Statistics as of End of December 2008

• Immigration benefits applications
• Naturalization applications

02/20/2009: Admission of EB-485 Applicants on Advance Parole and Validity of Parolee I-94 for Future Traveling

• A large number of EB-485 applicants are traveling outside of the United States using Advance Parole. When they return on a valid Advance Parolee, the CBP officials issue a I-94 giving a permit of stay in a parolee status for one year. Accordingly, the Advance Parole (I-512L) usually expires earlier than a parolee I-94. This raises a question of whether he/she will be able to travel outside of the U.S. in a parolee status based on the one-year parolee permit in I-94 which was granted by the CBP officials at the time of his/her last reentry to the U.S. when the Advance Parole which was issued by a Service Center has already been expired. It appears that there are a lot of people who are confused with the question. The simple answer is no. The I-94 which is issued at the port of entry is valid only for the permitted stay in the U.S. and not good for international travel. For the international travel, he/she must have a valid I-512L Advance Parole. Accordingly, those who do not travel on a valid H-1B, H-4, L-1, and L-2 must always travel on a "valid" I-512L at the departure as well as at the time of their reentry. Should they be admitted on a return trip on other nonimmigrant visas, they will lose their pending I-485 application as such admission at the port of entry will be considered "abandonment" of pending application for permanent residence, no matter whether they were admitted by the CBP officials in error or for a good reason. Most of the EB-485 applicants are aware of the rules on Advance Parole travel, but there are still some people who do not understand the detailed rules on traveling on an Advance Parole. One other rule which is not related to the instant question is the consequences of departure from the U.S. pending Advance Parole application and reentry with a valid Advance Parole which has been subsequently issued by a Service Center while they were staying outisde of the U.S. The USCIS has been repeatedly warning the international travelers that they should not, repeat not, depart from the U.S. pending application for Advance Parole. They should depart only with an approved and valid I-512L. Should the agengy detect record of such departure and return on a parolee status due to the error of the CBP official, the adjudicator of the I-485 application can deny it based on the rule of abandonment of I-485 application for having departed from the U.S. without a valid advance parole. It is one thing whether one can be admitted to the U.S. at the port of entry, and it is completely other thing whether such reentry constitutes an abandonment of a pending I-485 application. This message is posted because we have been receiving questions related to this issue over and over again from the I-485 applicants.
• A question which is not related to the issue at hand is a not-well-informed nonimmigrant's confusion between a nonimmigrant visa in the passport and I-94 which is received at a port of entry. A visa is important only for "admission" to the U.S. at the port of entry and has nothing to do with the determination of the aline's "permit" to stay in the U.S. Flip side of this coin is that I-94 is good for a "permit" to stay in the U.S. and not good for reentry to the U.S. except the situation of visa revalidation for the border country travel for a period of less than 30 days. For reentry to the U.S., one has to possess a valid visa in the passport unless traveling on an Advance Parole. Accordingly, inasmuch as I-94 is issued for a period beyond the validity of a visa either at the time of entry or by the USCIS in the country through either extension or change of nonimmigrant status, even after the visa has expired, the alien is permitted in "status" during the period of such valid I-94. This question often arises when an alien is given a shorter period of I-94 than a valid visa. It happens in the context of expiration of a passport before the expiration date of a visa in the passport. There are some people who mistakenly believe that they are permitted to stay in the U.S. during the period of a visa even after the expiration of a I-94. It is false. At the airport, a CBP official can issue a I-94 only until the period of validity of a passport no matter whether he/she has a longer period of a valid visa in such passport. As for the revalidation of a nonimmigration visa on return trip from Canada or Mexico within 30 days carrying a valid I-94, it applies only to a person in a "nonimmigrant" status. People entering on a parolee status is not in a nonimmigrant status. Accordingly, the rules that apply to a nonimmigraant in readmission to the U.S. after a travel to the border countries do not apply to the parolee. Unless they carry a valid I-512L, their application for rentry to the U.S. after such trip across the border will be denied. More importantly, their pending I-485 application will be denied afterwards since they have abandoned their I-485 applkications by such travel. Something to keep in mind for the foreign travelers pending I-485 applications.

02/19/2009: DOL Announcement of Processing of H-1B Labor Condition Applications for TARP-Funded Businesses

• Effective upon the enactment of HR 1, the American Recovery and Reinvestment Act of 2009, pursuant to section 1611(b), Div. A, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) for new employment unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply. Employers who are recipients of such funding may not file Labor Condition Applications (LCAs) for new employment unless they complete the actions and make the attestations required of dependent employers. *Until further notice, for those companies that are not dependent H-1B employers but are subject to this provision, please check Box “B” in Section F-1.1 of the ETA-9035 in order to demonstrate compliance as required. It is recommended that such employers retain documentation regarding their status.* Information regarding the additional attestations required of H-1B-dependent employers—non-displacement and recruitment of U.S. workers--can be found at 20 CFR sections 655.738 and 655.739. For information regarding those employers who are recipients of such funding, go to http://www.treas.gov/initiatives/eesa/transactions.shtml

02/19/2009: Sunset of EB-5 Regional Center Pilot Program on 03/06/2009 and USCIS Announcement of Its Actions

• USCIS will continuously accept I-526 and adjudicate pending I-526 and related I-485 until March 6, 2009. If the Congress fails to enact legislation before March 6, 2009, USCIS will cease accepting new cases after mid-night of 03/06/2009 but hold pending cases in abeyance potential legislation extending the program. I-829 will not be affected by the sunset of EB-5 program and USCIS continuously adjudicate the petition to remove the two-year conditional status. For the USCIS announcement, please click here.

02/19/2009: H-1B Transfer Alert

• AILA has reported that it is the practice and policy of Vermont Service Center that if it receives a revocation letter from the current employer before it receives the transfer H-1B petition by a new employer, they deny the transfer petition because it is the VSC position that at the time the current employer revokes the current position, the H-1B alien immediately falls into a period of "unauthorized stay" in the U.S. This policy can push the transfer H-1B aliens into a tricky situation when the alien employees invoke AC 21 H-1B portability against the will of the current employer and the current employment contract requires 14-day advance resignation notice. It is thus imperative that the transfer H-1B employees should neither notify nor turn in the resignation before the new H-1B petition is "filed." Worse situation could be termination of H-1B employees by the current employer in a hostile environment. Since the current employer is likely to file the revocation (withdrawal) notice in the latter situation immediately, such H-1B alien can face a serious problem unless they are eligible for nun pro tunc H-1B filing.

02/19/2009: Watson Wyatt Wage Data No Longer Acceptable for Prevailing Wage Determination for PERM Application?

• The Watson Wyatt Wage Data has been used by the employers as the most popular alternative private survey sources for prevailing wage determination in the permanent labor certification application. The private wage data had been widely accepted by the State offices and the federal Certifying Officers until a new determination has just come down from the Atlanta National Processing Center remanding a case back to the State office in Michigan in prevailing wage determination appeal case. In remanding the case back to the State Officer, the Certifying Officer asked the State office to use OES. This decision of potential critical impact on the permanent labor certification was reported by the AILA. The occupation involved in the case was IT manager (Computer System and Information Manager) occupation which had been used very popularly until FY 2008 to deal with O*Net Job Zone problem for IT occupations defining almost all IT occupations as Job Zone 4 which could require only a Bachelor's degree plus up to 2 years of experience and the level of education in the industry was considered to be a bachelor's degree. The IT manager position was one time classified as Job Zone 5 and employers could require a bachelor's degree plus 5 years of experience or a master's degree plus some years of experience to make it EB-2. However, beginning from October 2008, the DOL reclassified even IT Manager occupation into Job Zone 4 creating a tremendous problem for IT businesses that required or will require EB-2 level of education and experience backgrounds for recruitment, particularly when the new PERM program will start beginning from July 2009. The Certifying Officer did not clarify the basis of decision of remand as related to the regulation which allowed use of authoritative private wage sources for prevailing wage determination. Private wage survey has lately been continuously experiencing problem because of the agency's hostility as evidensed by its recent decision changing H-1B labor condition application procedure that can take up to one week or longer when employer uses a private wage survey for determination of prevailing wage determination. Please stay tuned to this website for the development of this important news.

02/18/2009: Identity of Employers in Foreign Labor Certification and Immigration Proceedings

• Along with the agency efforts to detect and prevent frauds in immigration proceedings as well as to achieve homeland security, the stakeholder government agencies have been developing so-called "account" system in electronic filing system. Under the account system, all the information, data, and records of applications and petitions filed by same employer or same representative or same beneficiary are supposed to be housed and linked to a single database of identity. Accordingly, from the perspectives of the agencies, correct identification of the parties appears to gain increased weight and importance in their management of labor certification and immigration benefits processing and adjudication.
• USCIS has yet to initiate such process as part of the ongoing transformation program, but the DOL has already launched in part such process through their requirement for online registration of the employers in both temporary and permanent labor certification processes. One of the fall-outs of such change appears to be a potential delay in the registration process as evidenced by the recent delays in some PERM labor certification online filings relating to the agency's delays in confirmation of receipt of the filings or sponsorship questionnaires in the permanent labor certification application process and changes in online labor condition application filing system for H-1B petitions including the requirement of pre-registration of the employers or representatives for filing and potential delay in processing of labor condtion applications upto seven days where private wage survey data is used or other issues are involved.
• Apparently, some businesses have attempted a scheme to circumbent the agency's work to achieve integrity in the applications and petitions by changing their names or other identity information. We are posting this message because some employers will have to file FY 2010 H-1B petitions beginning from April 1, 2009 and they will have to be aware that they may experience delays with the labor condition application process unless they start registering their identity online with the DOL LCA online filing system. Additionally, they should file the Labor Condition Applications earlier than other employers if they have changed their names or other information on the identity or they intend to use a private survey for the prevailing wage determination instead of the DOL SOC/OES online wage data because they will learn that in these cases, they may not be able to obtain the certifications instantly and may take even for one week or longer. Considering the fact that FY 2010 H-1B cap filing will not be available unless they enclose "certified" Labor Condition Applications in the H-1B petition packet, the H-1B employers should start paying attention to the timing issue not to experience a nightmare.

02/17/2009: Secretary Napolitano Issues Bold Efficiency Review Initiative

• DHS Secretary issued a directive to the head of each agency under her command to work on organized review for each agency to achieve accountability, transparency, and customer satisfaction.

02/16/2009: President Day is Federal Government Holiday

02/15/2009: USCIS 2009 Poverty Guideline Took Effect on 02/13/2009

• USCIS publishes 2009 Poverty Guideline on 02/13/2009. The sponsors of I-864 Affidavit of Support must meet the new Poverty Guideline effective 02/13/2009 and previous USCIS Poverty Guideline is no longer acceptable.

02/16/2009: Senate Bill to Extend Termination Date of H-2B Returning Worker Annual Cap Exemption Law

• This bill entitled 'Save Our Small and Seasonal Businesses Act of 2009' is introduced in the Senate. The text of the bill is:
  • SEC. 2. EXTENSION OF RETURNING WORKER EXEMPTION TO H-2B NUMERICAL LIMITATION.
  • (a) In General- Section 214(g)(9)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(9)(A) is amended to read as follows:
    • `(A) Subject to subparagraphs (B) and (C), an alien who has already been counted toward the numerical limitation under paragraph (1)(B) during any 1 of the 3 fiscal years immediately prior to the fiscal year of the approved start date of a petition for a nonimmigrant worker described in section 101(a)(15)(H)(ii)(b) shall not again be counted toward such limitation for the fiscal year for which the petition is approved. Such an alien shall be considered a returning worker.'.
  • (b) Effective Date; 3-Year Limitation; Sunset Provision- The amendment made by subsection (a) shall--
    • (1) take effect as if enacted on December 1, 2008;
    • (2) apply only to petitions with an approved start date in fiscal year 2009, 2010, or 2011; and
    • (3) terminate on the date that is 3 years after the date of the enactment of this Act.
• This bill is in the Senate Judiciary Committee.

02/15/2009: Full Text of Nursing Relief Act of 2009 Introduced by Rep. Shadegg

• This bill proposes to creat a new nonimmigrant visa classification of "W" with similar benefits that are attached to the current H-1B visa. This new visa will have an annual cap of 50,000 and if the petitions in a given year exceeds the cap number, the next year annual cap will increase at 120%. Accompanying spouse and children are not subject to the annual cap of 50,000 and only the principal will be counted for the number of 50,000 annual cap. The benefits include:
  • Qualified RN will be admitted on W visa without Social Security Number.
  • W-visa holders will enjoy dual intent just as H-1B aliens.
  • Initial petition be filed for three years with extension upto six-year limit in total (just like H-1B).
  • W-visa holders may port to a new employer pending a new W-visa petition filed by the new employer (W-visa portabiliity).
  • Those who filed I-140 petition or I-485 application and pass 365 days, pending the adjudication of the petition or application, W-visa status will be indefinitely extended in one-year increment.
  • The extension will be available notwithstanding the immigrant visa number retrogression.
  • Accompanying spouse will be given authorization for employment (similar to L-2 spouse of L-1 Intracompany transferee aliens).
• Similar to the H-1B petition proceedings, W-visa petitioning employer must file attestation similar to the H-1B labor condition application attestations with the U.S. Department of Labor. The employer will be required to pay minimum of prevailing wage or actual wage whichever is higher in the area of intended employment before filing such application with the U.S. Department of Labor.
• For the details, please read carefully full text.

02/15/2009: S.424 Bill to Treat Gay/Lesbian Partners as Same as Spouses in Nonimmigrant and Immigrant Benefits

• As we reported earlier, this bill was introduced both in the House and in the Senate. Senate bill was introduced by Senator Leahy. This legislation will allow U.S. citizens and legal permanent residents to petition for their foreign same-sex partners to come to the United States under our family immigration system. This Senate bill is cosponsored by Senators Whitehouse, Kerry, Schumer, Feingold, Wyden, Cardin, Menendez, Murray, Brown, Akaka, and Lautenberg. Senator Leahy discloses that 16 countries including Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, South Africa, Sweden and the United Kingdom- recognizes same-sex couples for immigration purposes. For the full text of this bill, please click here.

02/15/2009: Running Out of Time for Legislation for Extension of EB-4 Nonminister Religious Worker Immigration Program and EB-5 Pilot Investor Immigration Program

• These two laws have been temporarily extended until March 6, 2009 during the 110th Congress. Currently, the USCIS is reportedly doing everything possible to adjudicate pending cases before these laws expire. However, there is an indication that some cases may still be left behind because of the new procedures mandating in most cases site visit in the case nonminister religious worker cases and other issues involved in individual cases which cannot be resolved before March 6, 2009.
• These laws were extended until March 6, 2009 with the Congress expection that they would resolve further extension as part of the FY 2009 federal department appropriation bills. The Congress passed a continuing resolution to fund the federal departments until March 6, 2009. Accordingly, the Congress will have to enact soon appropriation bills to keep the federal government in operation beyond March 6, 2009. Information indicated that the Congress was scheduled to pick up an Omnibus Spending bill to take care of all the appropriation legislations for all the federal departments in one single bill rather than piecemea individual appropriation bills for each department. That schedule has been pushed off because of the economic stimulus legislation. Now that bill is behind them as they passed the bill. The Congress is expected to pick up financial bailout bill and will remain busy for the controversial legislation to bail out again the financial institutions. However, there is a good chance that the Omnimus spending bill may be picked up within next week. Should the Congress fail to enact Omnibus spending bill before March 6, 2009, the Congress will have to pass another continuing resolution to extend funding for the government beyond March 6, 2009.
• As far as these two sunsetting immigration bills are concerned, there are three options available. One is to introduce the bills as piecemeal immigration bills, which have yet to take place. Should the Congress take this option, unless the Congress pass them in unanimous consent without vote, the bills may face serious challenges because of running out of time. The second option is to introduce it as amendments to the forthcoming Omnibus Spending bill and see whether the Omnibus bill could be enacted before March 6, 2009. The third option is to attach these bills to the another continuing resolution, should the Congress fail to enact the Omnibus legislation before March 6, 2009 as the Congress has to definitely pass a continuing resolution not to shut down the federal government. The Congress has only a little over two weeks to take care of the appropriation legislation or continuing legislation or the two immigration bills.
• The stakeholders of these immigration bills are likely to experience a breathtaking and painful drama for the next two weeks. One thing for sure is that Congress has been notorious of enacrting sunsetting laws retroactively after the laws have expired. In this regard, failure of the Congress to extend the laws before March 6, 2009 may not imply that the sky will indeed fall down. It is just the pain the stakeholders will have to experience because of the uncertainty of the survivial of the sunset laws for a prolonged period of time. Please stay tuned to this website for another emerging drama on the stage of immigration theatre.

02/14/2009: Tough Times Ahead for Professional Foreign Workers in EB-Based Nonimmigrant or Immigrant Journeys

• The just relased arrests and indictments of eleven people for H-1B frauds by U.S. District Attorney in Iowa may not be taken as an isolated event or incident. It is a signal showing government's determination to crack down abuse of the employment-based nonimmigrant and immigrant proceedings for the purpose of alleged protection of U.S. workers' jobs. This is a union-backed government. Besides, current economic crisis allegedly mandates the government leaders to take an action to protect American workers' jobs. No one will be in surprise to see Senators Durbin and Grassley reintroducing sooner or later their H-1B and L-1 reform legisation which they introduced last year but failed to make it before the last Congress closed at the end of 2008. The H-1B and L-1 reform legislation will mandate the agencies' reinforcement of enforcement activities against the abuse of such visas and tighten the threshold requirements for these visas in a line similar to the TARP-funded employer H-1B rules. Reinforcement of enforcement actions is soon to be made easy because of the two developments. One is reengineering of agencies's filing system and database in a direction of "account" system for each involved employer, each representative, and each alien worker, allowing detection of violation of the rules easy. The USCIS has been pushing such reengineering process in the form of electronization of filing of petitions and applications using "account" system and building such database. The DOL has also been working on such reengineering and is scheduled to implement it beginning from May 2009 for H-1B labor condition application filing using new ETA 9035 form which is designed to accomodate such account system and dababase and from July 2009 for PERM labor certification application filing using new ETA 9089 form which is also designed to accomodate such concept. The other development that makes the government's enforcement activities easy is electronization and data-sharing system among different agencies and their database. Electronization of the processes makes such data sharing available and easy among the related agencies. Expansion of E-Verify programs allows the Social Security Administration to participate in such enforcement process. Timing of release of recent indictment of evelen alleged H-1B visa fraud offenders is in a way not just a coincident.
• The Chief of DOL Division of Foreign Labor Certification, Dr. William Carlson, released as recent as February 2, 2009 that in the first quarter (October, November, December 2008) of FY 2009, they completed about 4,500 PERM applications, but in one month of January 2009 alone, they completed about 3,500 applications. But don't get excited about this statistics. He cautioned that the processing times would slow down as they feed into adjudication process investigation of unemployment conditions in various labor markets, increasingly turning cases into so-called "supervised recruitment" process considering worsening labor markets and rising unemployment. When the agency posted the supervised recruitment Q&A on its website quite some time back, we speculated that it was intended to send out a signal that they would increase supervised recruitment cases ahead. It has turned out that it was not just speculation. Worse yet, the Chief stated that once a case is turned into a supervised recruitment track, there is no set processing time implying that it can take time and time. When the PERM system is already clogged bad, the information is indeed depressing. On top of all of these, the newly designated Republican Commerce Secretary who was known to be a H-1B program supporter all of sudden backed out from participation in the Obama administration. Year 2009 may be marked as a difficult year for foreign workers, particularly professional foreign workers.

02/14/2009: Senate Passed Stimulus Bill and Bill Awaits President's Signature As Early As Monday, President's Day

• Yesterday the bill passed the House 246 to 183 and the Senate 60 to 38. President Obama is expected to sign it into law as early as Monday, President's Day next week. Upon the President's signature, the Sanders/Grassley's H-1B bill defining businesses receiving TARP money as H-1B Dependent Employers will take effect. However, this H-1B amendment will not affect the businesses that will receive the contracts or subcontracts under the just passed economic stimulus plan unless such employers are defined as H-1B dependent employers under the current law. The current law exempts master degree holding foreign workers or $60K or higher salary foreign workers from the H-1B dependent employers from recruitment attestation and no displacement attestation before filing H-1B petitions, but the TARP funded employers cannot hire H-1B foreign workers unless they can attest such recruitment and no layoff during 90 days before and after hiring of such foreign workers even if the foreign workers have master degrees or they are paid $60K or higher salary. It is expected that USCIS and/or USDOL may release guidelines before April 1, 2009 for the participants in FY 2009 H-1B cap filings as related to this new law, particularly the scope of TARP-funded employers and definition of "hire" that can answer such questions as whether the restriction will apply to the current foreign worker employees in other nonimmigrant status or in H-1B status at the time of effective date of this new law. Expansive interpretation will naegatively affect their change of status from other nonimmigrant status to H-1B or extension of their H-1B status when such H-1B petition is filed by their TARP-funded employers.

02/13/2009: Senate Judiciary Immigration Subcommittee Members Appointed 02/12/2009

• Schumer (Chair)
• Leahy
• Feinstein
• Durbin
• Whitehouse
• Wyden
• Cornyn
• Grassley
• Kyl
• Sessions.
  

02/13/2009: Congressman Gutierrez (IL) Announces Five-Week, Fourteen-City Tour to Document Urgency for Immigration Reform in 2009

• It is a good start in that after the economic stimulus plan being taken care of, immigration reform should be one of other top priorities and someone should start mobilizing the immigration reform energy somewhere.
  • February 27, Providence, RI
  • February 28, Atlanta, GA
  • March 1, Albuquerque, NM
  • March 7, Houston, TX
  • March 8, Phoenix, AZ
  • March 13 McAllen, TX
  • March 14, Dallas, TX
  • March 15, El Paso, TX
  • March 21, Chicago, IL
  • March 22, Milwaukee, WI
  • March 28, Tampa, FL
  • March 28, Orlando, FL
  • March 29, Miami, FL
  • April 4, Philadelphia, PA
• Please note that the AILA is also scheduling immigration reform advocacy move in the D.C. in March 2009.

02/13/2009: Text of Conference Report Which House Approved Today

• House approved this conference report and the Senate is scheduled to pass this conference report this evening.
• The section number of TARP-funded employer H-1B is changed from 1610 to 1611. Section 1611 is found in the last page of Division A part of the conference report.
  • Division A
  • Division B

02/13/2009: Stimulus Bill Conference Committee Reached Final Agreement and Accepted Senate Bills to Remove E-Verify Bill and Accept H-1B Bill

• AILA has reported that the House-Senate compromise final version of Stimulus bill which is expected to be passed by both Senate and House this week does not include E-Verify bill but keep the TARP-funded H-1B Employer bill. This means that the Conference Committee accepted the Senate version of the Stimulus bill when it comes to these two immigration-related bills. As we reported earlier, the final version of the Senate bill that was sent to the Conference Committee did not include the E-Very bill as the bill was not approved by the Senate, while the Senate passed the Sanders H-1B bill relating to the TARP and was included in the Senate's final bill. E-Verify proposals were knocked down in the two different bills. The other bill was introduced by the powerful Senator Leahy as S.A. 331. This amendment was never approved by the Senate and his bill was not included in the Senate final bill which was presented to the Conference Committee. The bad part of failure of S.A. 331 is EB-5 extension bill. S.A. 331 included EB-5 Regional Center Pilot Program extension beyond March 6, 2009. One up and one down!
• It appears that the employers, immigrants, and even some immigration practioners do not comprehend the extent of impact and scope of the TARP-related H-1B bill. This amendment to the current H-1B law can have impact on employers far beyond their common sense reading of the bill. As we reported earlier, since most of these TARP-funded employers have laid off employees including high-tech and financial professionals, they are practically shut out of FY 2010 H-1B cap filing. Additionally, since they are required to engaged in recuritment process to test the labor market for U.S. workers before they consider filing of H-1B petitions, this requirement alone will shut them out of the FY 2010 H-1B lottery process. The employers appear to include not only banking institutions but "any" businesses that have received TARP fund, and depending on how this is interpreted, the scope of the employers that will be hit by this law can be far reaching. This law on the surface can help the consulting buisnesses, but we will have to wait and see whether the law will be interpreted to consider hiring of H-1B foreign workers by TARP-funded busineses in the name of "consultants" through consulting companies as it can be considered a circumvention of the intent of the law. Since it is almost certain that this law may take effect from next week, employers and their legal counsels should review their options to deal with the changing environment under the new law. Obviously, this law may trigger outsourcing. Other options they can consider are other types of nonimmigrant services, such as 29-month OPT aliens, L-1 and L-2 professionals, E-1, E-2, and E-3 Professionals, O-1 Professionals, J-1 Exchange Visitors, TN Canadian and Mexican Professionals, alien in EAD pending I-485 applications, H-2B Temporary Workers, H-3 Indistrial Trainees, etc.

02/13/2009: Eleven Arrested by ICE for H-1B Visa Frauds After Extensive Investigation of H-1B Visa Petitions

• This report is very disturbing. Read on.

02/13/2009: Bills Introduced Concurrently in Both Houses to Treat Permanent Partners Equal to Spouses of U.S. Citizen or Permanent Resident and Allow Spouse-Sponsored Green Cards

• Senate bill S.424 to eliminate discrimination in the immigration laws by permitting permanent partners of United States citizens and lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of citizens and lawful permanent residents and to penalize immigration fraud in connection with permanent partnerships introduced by Sen Leahy, Patrick J. [VT] on 2/12/2009 and cosponsored by 14 other Senators.
• House bill H.R.1024 to eliminate discrimination in the immigration laws by permitting permanent partners of United States citizens and lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of citizens and lawful permanent residents and to penalize immigration fraud in connection with permanent partnerships, introduced by Rep Nadler, Jerrold [NY-8] on 2/12/2009 and cosponsored by 79 other members of the House.

02/12/2009: Rep. Shadegg of Arizona Introduces a Separate Visa Category for Foreign Nurses

• Yesterday, Rep. John B. Shadegg introduced H.R.1001 to create a new nonimmigrant visa category for registered nurses, and for other purposes and this bill was referred to the House Judiciary Committee. For the details of the bill, please stay tuned to this web site. This bill is cosponsored by Rep. Flake and Rep. Pastor.

02/12/2009: Private Bill Introduced (H.R.1009) for Corina de Chalup Turcinovic by Rep Lipinski, Daniel [IL-3] on 2/11/2009

02/12/2009: Private Bill Introduced (S.415) for Maha Dakar by Sen Brown, Sherrod [OH] on 2/11/2009

02/11/2009: High-Tech Big Winner in Senate-House $789.5 Billion Agreement Reached Late This Evening

• Report indicates that this evening, after some hang-up on education stimulus issue, the Senate and House reached agreement. The details have yet to be released with reference to the H-1B and E-Verify bills, but report indicates that the high-tech industry will receive billions of dollars in subsidies to expand broadband access to rural and other underserved areas and a huge infusion of funds to computerize health care records. In all, $19 billion is set aside for health information technology. Physicians would get bonuses of between $44,000 and $64,000 -- and hospitals would get as much as $11 million -- if they show they have computerized their medical-records systems. Without doubt, this will create jobs for high-tech consulting businesses and high-tech foreign workers. Read on.

02/11/2009: Reportedly E-Verify Requirment Bill for TARP-Funded Contracts Failed to Survive in the Final Senate Stimulus Bill

• Report indicates that the Senate version of Stimulus bill which the Senate passed did not include the House bill in the original H.1 bill that requires E-Verify employment verification for all contracts created through stimulus funding. One positive news for Stimulus bill. Read on.

02/11/2009: Mounting Hurdles for EB Immigration and Likely Rise of Self-Petitions and Outsourcing of the Foreign Worker Services

• Currently, foreign workers are facing mounting hurdles to the labor certification based immigration opportunities or employer-sponsored immigration opportunities. As for the labor certification based employment opportunities, chances of obtaining certification or approval of permanent applications may turn slimmer and slimer for the following reasons. AILA conference with the OFLC reflects that the PERM applications have been experiencing delays primarily for the two reasons. One is a huge surge of H-2A agricultural temporary worker labor certification applications which are time-sensitive and the agency had to reallocate the limited resources to deal with the H-2A cases. More importantly, the agency is scrutinizing applications increasingly intensively and more or more number of applications have been and will be turned into the Supervised Recruitment track. The agency cannot tell how long it will take for such Supervised Recruitment cases to be completed. As for the employers, increasing number of employers are reluctant to sponsor the permanent labor certification applications because of their ever deteriorating financial resources as well as the general environment that is hostile to hiring foreign workers. On top of all of these, EB-3 visa numbers are going nowhere for Indians and Chinese, not to mention a terrible backlog in processing of I-140 petitions at the Service Centers. For the foregoing reasons, increasing number of Ph.D. foreign workers are seeking not just EB-1 but also self-petition EB-1 or EB-2(NIW). As the number of such self-petition EB-1 or EB-2 grow, the agency will likely intensify scrutiny as more and more unqualified people may abuse such petitions to obtain EAD and travel documents. These high-level scientists and engineers may face increasing denial of such self-petitions as current environment persists. There are no easy way out for the employment-based immigration nowadays and in the foreseeable future for the foreign workers at all levels.

02/11/2009: Economic Stimulus Legislation Conference Committee Members

• The Democratic leaders decided to appoint limited numbers for the House-Senate Conference Committee for this legislation as follows:
  • Senators: Inouye, Baucus, Reid, Cochran, and Grassley
  • House Rpresentatives: Obey, Rangel, Waxman, Lewis, Camp.
• Senator Grassley is there.

02/11/2009: USCIS Fact Sheet on Iraqi Refugee Admissions

02/11/2009: USCIS Announces The Status of Cambodian Adoptions

• USCIS announces that it continues to be unable to approve any Form I-600, Petition to Classify Orphan as an Immediate Relative, filed for a child to be adopted from Cambodia. Also, the Department of State (DOS) has advised USCIS that DOS has determined that Cambodia is not currently meeting its obligations under The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention). As a result, DOS consular officers cannot issue the required Hague Adoption Certificate or Hague Custody Declaration. Therefore USCIS is unable to approve any Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, filed for a child to be adopted from Cambodia at this time.

02/11/2009: Three More Private Bills Introduced in the House 02/10/2009

• As we reported earlier, failure of the Congress to fix the broken immigration system apparently induces members of the Congress to introduce private bills almost every day in session. We admit that under the current environment of historical economic crisis and rising unemployment, economic stimulus and financial bailout should be the top priority for the government's agenda. However, it does not mean that the other important parts of the nation's policies should remain on hold. We have learned a lesson from the past eight years that leaders' total obsession with only one agenda, "war," led to neglecting of almost all other parts of the country's policies and people's life , including deteriorating economic competitiveness, education, healthcare, arts, etc. and the country is now paying its price. Look at the state of our country's education. Priority in policies should not mean that all other important nation's agenda should remain in standstill.
• Broken immigration system has been affecting almost every aspect of the nation's life. We reminded earlier that a nation is a system which is consisted of various subsystems. These subsystems are impacting one another determining progress or downfall of the whole system. Each subsystem does not stand in isolation nor in vacuum. This notion should tell the country's policy leaders that there may be two approaches to the leadership. One is to stimulate one of the subsystems, for instance, economy, hoping that it will impact other subsystems leading to the change in the whole system. The other approach may be to initiate the priority subsystem policy in terms of stimulus but at the same time, continue to lead other subsystems to add the speed improvement and progress of whole system. It is a matter of policy leaders' attention, vision, and leadership.
• Now, the Congress and the White House will soon be relieved from their struggle to pass a legislation to launch bold economic stimulus actions. We submit that it is time for the policy leaders to increase their policy attentions to other subsystems of the society and the country, including immigration reform in order to accelerate the progress of the nation, whole sytem, moving ahead in an accelerated fashion. Whenever we report introduction of private bills in the Congress, we share their pains , but at the same time, desperate need for leaders' action for immigration reform. Having said that, we will have to report here again the following new three private bills introduced in the Congress yesterday:
  • H.R.974 Private Bill for Alejandro Gomez and Juan Sebastian Gomez., introduced by Rep Diaz-Balart, Lincoln [FL-21] on 2/10/2009
  • H.R.975 Private Bill for Terence George., introduced by Rep King, Peter T. [NY-3] on 2/10/2009
  • H.R.976 Private Bill for Ibrahim Parlak, introduced by Rep Upton, Fred [MI-6] on 2/10/2009.

02/10/2009: List of Banks Receiving TARP Money as of 01/30/2009

• With the gratitude to Crystall Williams, Esquire, Deputy Director of AILA for sharing this information, we have a privilege to post the fox news site link for the names of the banks that have received TARP money as of January 30, 2009. Again those who have been seeking H-1B employment with these banks may seek legal counsel for their course of action.
• Caveat: The foregoing list appears to be limited to the banks. Since the Sanders' bill is not limited to the banking institutions, they may be additional businesses that come under the parameter of this H-1B legislation. Considering the fact the number of banks alone listed in the foregoing sources is more or less overwhelming, the impact of this legislation will be tremendous for the H-1B aspirants coming April 1, 2009.

02/10/2009: Senate Passed Stimulus Bill, H.R. 1, as Amended by S.A. 570, at 12:30 p.m. Today

• As predicted, this bill was swiftly passed by 61:37 and one no vote in the Senate at 12: 30 p.m.. For who's who for yeas and nays, please click here. The conference committee is scheduled to be convened immediately with a target of passing the Congress bill before the President's day, Monday.
• We have been monitoring this legislative process for the purpose of tracking down the TARP H-1B restriction bill in the legislation. As reported earlier, the TARP funded employer H-1B Dependent Employer bill remains in the Stimulus bill which the Senate has just passed. The H-1B bill is indeed a poisonous bill which has nothing to do with job creation and stimulation of the economy. For these reasons, the AILA and U.S. Chamber of Commerce have just written joint statement to the members of the Congress expressing their opposition to this bill. We cannot however ignore the reality, particularly as related to the Congressional schedule to quickly wrap up the conference and finish up the Stimulus legislation before next Monday. This time factor will unfortunately work against the immigrant community in that from the perspectives of the members of the conference committee and other Congressional members, this poisonous bill is literally beyond the bigger picture of the whole bill at this point for which they are currently pushed to pass and legislate into a law by the President's day. It is sad from the perspectives of the immigration community in that the H-1B bill was literally nothing but an earmark to the Stimulus legislation and people are sick of earmarks in the legislative process.

02/10/2009: More Private Bills in the Senate

• Yesterday, 02/09/2009, the following private bills were introduced in the Senate:
  • S. 396 for Marcos Antonio Sanchez-Diaz, introduced by Sen. Levin and referred to the Committee on the Judiciary.
  • S. 397 for Anton Dodaj, Gjyljana Dodaj, Franc Dodaj, and Kristjan Dodaj, introduced by Sen. Crapo and refeered to the Committee on the Judiciary.

02/10/2009: State Department Advance Notice of Potential Certain EB-4 and Certain EB-5 Visa Number Turn Unavailable on 03/06/2009 or 03/07/2009

• EB-4 Certain Religious Workers:
  • The nonminister special immigrant program expires on March 6, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after March 6, 2009. Visas issued prior to this date may only be issued with a validity date of March 5, 2009, and all individuals seeking admission as a nonminister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight March 5, 2009.
• EB-5 Regional Center Pilot Program:
  • The immigrant investor pilot program will expire on March 6, 2009. No I5-1, I5-2, I5-3, R5-1, R5-2 or R5-3 visas may be issued after March 6, 2009. The initial cut-off dates for the categories mentioned above have been listed as “current” for March. If these categories have not been extended based on legislative action those cut-off dates will become “unavailable” effective March 7, 2009.

02/10/2009: Immigrant Visa Waiting List in National Visa Center, State Department

• The number in this list does not include the USCIS pending I-485 cases. The list contains only the immigrant visa application waiting list that have been stuck with the visa number retrogression;. This statistics is released by the State Deparment in the Visa Bulletin.
  • Family-Sponsored Preference Categories
    • F1: 228,787
      F2A: 322,212
      F2B: 481,726
      F3: 484,230
      F4: 1,206,397
      Total: 2,723,352
  • Top Ten Countries
  • The ten countries with the highest number of waiting list registrants are listed below; together these represent 75.4% of the Department of State total. This list includes all countries with at least 45,000 persons on the waiting list. INA 202 sets an annual limit on the amount of family-sponsored preference visas which may be issued to applicants from any one country; the 2009 per-country limit is 15,820.
    • Mexico 961,744
      Philippines 401,849
      Dominican Republic 136,070
      China 132,325
      India 115,394
      Vietnam 109,910
      Bangladesh 50,275
      Haiti 50,029
      El Salvador 48,776
      Pakistan 45,905
      All Others 671,075
      Worldwide Total: 2,723,352

02/10/2009: Official March 2009 Visa Bulletin

• Wow, the pipeline is indeed clogged.

02/10/2009: Sanders-Grassley TARP Employer H-1B Restriction Bill Survives in the Senate Final Compromise Stimulus Bill Which Will Pass in the Senate Today

• As we reported earlier, the Senate version of Economic Stimuls plan was debated and acted upon in the Senate in the form of Senate Amendment #98 to the House economic stimuilus bill which was H.R. 1. After going through the painful negotiation between the Demoratic and Republican Senators in the Senate, the Senate was eventually successul in reaching a bi-partisan Senate version of the Economic Stimulus bill. S.A. #570. As part of this development, the Senate withdrew the old Senate version S.A. #98. By three senior Republican Senators joining the Democrats, the Senate was able to muscle out 61 votes and passed Motion for Closure that prohibits any more amendments to the final Senate compromise bill, S.A. #570. With these 61 votes, the Senate is scheduled to pass this bill today with no obstacles ahead. Currently, any chance for filibuster to this bill is blocked. In this final compromise bill, the notorious Sanders-Grassley S.A. #306 amendment that mandatorily defines the TARP funded employers as "H-1B Dependent Employer" survived in the text which they have already agreed to by voice vote. It is buried in Title XVI, Section 1610 of the final compromise bill.
• This Senate final compromise bill will then quickly go to the Senate-House conference committee within this week where another cycle of negotiation between the leaders of the Senate and the House will take place. This is not going to be an easy task considering a substantial change to the House version in the Senate final version. Should the conference process be successful in the Senate-House compromise bill, the bill will then go back to each house (Senate and House) and voted. President Obama is anxious to sign the bill.
• What is the chance for the TARP funded employer H-1B bill restriction renegotiated in the conference? Under the current environment, it is practically nil. Unfortunately, these TARP employers and the foreign professional workers seeking H-1B employment with these employers should be prepared to deal with the forthcoming cold reality. Their participation in the upcoming April FY 2010 H-1B cap visa lottery through the sponsorship of these TARP funded employers may be disappearing. There are a host of unaswered questions for some foreign professional workers relating to this bill. One of them involves those who are already employed by these employers in OPT status. It is a question of definition of "new"employee to commence employment in H-1B status during the period of this bill. The same question may be involved with such current employees in other EB-nonimmigrant status such as TN for Canadians and Mexicans working with such TARP funded employers who need change of their status from TN to H-1B for the purpose of green card proceedings. One may interprete that any new H-1B petition filed after the effective date of the new law by the TARP is subject to the H-1B Dependent Employer rule under this new law regardless of when the employee was hired. In this interpretation, "new employee" in the new statute would mean new employee in H-1B status post the effective date of the new law. Should such interpretation prevail, the OPT employees and other nonimmigrant visa status working with the TARP funded employer may be subject to the new law and may face a serious problem in changing status from F-1 OPT or TN or other employment-based nonimmigrant status to H-1B for the next two years through the TARP funded employer. Other question is "which business is the TARP-funded business" under under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq. The employers that fall under this group may be larger in number than a few fotune 500 financial institutions that one has been watching on TV. It extends far more than Citi Group, Bank of America, etc. etc. Such OPT and other nonimmigrats should watch carefully how this new bill unfolds and how this new law will be interpreted and implemented by the agencies after this bill is passed and signed into law. These foreign professional workers should immediately seek legal counsel to cope with the changing environment.

02/09/2009: Senate to Vote on Massive IT Fund Cut from Stimulus Package

• There was one time a news that excited the IT community because of chunk of IT allocation in the Stimulus package. These IT stimulus package could have generated business in IT consulting contractors and subconstractors and could have trickled down the business to the related medium and small IT businesses allowing IT professional jobs survived. However, today, the same sources of the update news is reporting that the Senate is about to vote on the amendment to the Stimulus bill that will cut the IT funding projects from the Stimulus compromise packet which the Senate is rushing to wrap up. Ouch!

02/09/2009: State Department Proposes Online Filing of Immigrant Visa and Registration System, DS-260, and Online Applicant's Address Report System, DS 261

• The State Department is seeking the online filing system and soliciting comments on the DS 260 forms. Reportedly, this form is used by 700,000 applicants annually. When they launch the online filing system, the DS-260 will be submitted electronically to the Department via the internet. The applicant will be then instructed to print a confirmation page containing a 2-D bar code record locator, which will be scanned at the time of processing. Applicants who submit the electronic application will no longer submit paper-based applications to the Department.
• Along with proposed online filing of immigrant visa, the Department is also proposing online report of the address of the immigration visa applicant and their agent using DS-261. Currently, DS-261 allows the beneficiary of an approved and current immigrant visa petition toprovide the Department with his current address, which will be used for communications with the beneficiary. The DS-261 also allows the beneficiary to appoint an agent to receive mailings from the National Visa Center (NVC) and assist in the filing of various application forms and/or paying the required fees. The beneficiary is not required to appoint an agent but must provide current contact information. All cases will be held at NVC until the DS-261 is electronically submitted to the Department. If the form is not electronically submitted to the Department within one year, NVC will begin the case termination process. They are now proposing to submitt DS-261 electronically to the Department via the internet. Applicants who submit the electronic form will no longer submit paper-based applications to the Department. The notices will be published soon.

02/09/2009: Scope of TARP Employer H-1B Restriction Bill (Sanders Bill)

• Ever since we reported the Senate floor's approval of this bill by voice vote on 02/06/2009 as part of the Senate Stimulus packet bill, we have received a large number of queries from those who may be affected by this bill, should this bill be enacted by passage of the Stimulus bill. Here we want to touch two issues which most of queries have raised in the emails:
  • How Current H-1B Employees of the TARP Employers and Their H-1B Will Be Affected: The bill provides that the change will apply only to "new" employees hired after the passage of the bill and the signature of the bill by the President. It thus appears that the H-1B status of the current H-1B employees of these employers will not be affected. Additionally, it appears that these employers who need to file extension of the current employees' H-1B status will not be subject to the restrictions imposed on the H-1B Dependent Employers even if such extension petition is filed after the enactment of this law, provided that the number of H-1B employees hired will not exceed 15% of their total staff. In the latter case, they are subject to the H-1B Dependent Employer rule even under the current law. However, because of the rule in the following discussion, even if they are currently defined as H-1B Dependent Employer, they can and will be able to get around of the recruitment requirement and no U.S. worker layoff requirement under the current law.
  • What About New Employees Who Have a Master's Degree or Are Offered a Salary of $60,000 or More a Year: Under the current law, the H-1B Dependent Employers are exempt from such recruitment requirement and no-layoff requirement within 90 days before and after such hiring if the new employees hold a master's degree or will be paid an annual salary of $60,000 or higher. However, once the new law takes effect, the TARP employers will still be subject to the recruitment requirement and no layoff requirement even if the newly hired employees have a master's degree or will be paid $60,000 or higher amount of annual salary. For the reason, this new law will practically wipe out any chances for the TARP employers to file H-1B petitions for new foreign worker employees, not to mention the chances for participating in the upcoming April 1, 2009 FY 2010 H-1B cap lottery. However, it is likely that even under the new law, the exension of H-1B status of the TARP employers who will have been hired before the enactment of the new law will be exempt from such recruitment requirement and no layoff requirement inasmuch as they hold a master's degree or are paid $60,000 or higher salary, even if the TARP employer will be defined as a H-1B Dependent Employer under the current law.
• The new law will hit hard the job market for finance and business major or math and IT major foreign workers, particularly those who have an advance degree from the U.S. higher learning institutions or who seek higher level of positions with the TARP businesses. Until now, the South Asian financial/business professionals and IT professionals with an advanced degree have been successful in getting jobs in these specialty areas with largeU.S. financial firms and becoming prominent in the U.S. financial/business arena as opposed to some other nationalities such as Chinese because of their advanges in English proficiency and familiarity with the Western culture. Accordingly, the new law will "practically" hit harder the Western country and South Asian coutry nationals than the financial/business or IT professionals of other nationalities who are educated in the U.S. because their job opportunities with such TARP employers have been limited anyway. Hmm..............................................................

02/08/2009: Text of Bill Extending Sunsetting Returning Worker H-2B Program

• As we reported on 02/06/2008, Senator Mikulski of Maryland introduced a bill in the Senate to extend the currently sunsetting returning worker H-2B program. This bill is co-sponsored by Senator Specter of Pennsylvania. The text of the bill is as follows:
  • SECTION 1. SHORT TITLE.
  • This Act may be cited as the ``Save Our Small and Seasonal Businesses Act of 2009''.
  • SEC. 2. EXTENSION OF RETURNING WORKER EXEMPTION TO H-2B NUMERICAL LIMITATION.
  • (a) In General.--Section 214(g)(9)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(9)(A) is amended to read as follows:
  • ``(A) Subject to subparagraphs (B) and (C), an alien who has already been counted toward the numerical limitation under paragraph (1)(B) during any 1 of the 3 fiscal years immediately prior to the fiscal year of the approved start date of a petition for a nonimmigrant worker described in section 101(a)(15)(H)(ii)(b) shall not again be counted toward such limitation for the fiscal year for which the petition is approved. Such an alien shall be considered a returning worker.''.
  • (b) Effective Date; 3-Year Limitation; Sunset Provision.--The amendment made by subsection (a) shall--
  • (1) take effect as if enacted on December 1, 2008;
  • (2) apply only to petitions with an approved start date in fiscal year 2009, 2010, or 2011; and
  • (3) terminate on the date that is 3 years after the date of the enactment of this Act.
• Sponsor Senator's statement in support of the bill: Today I rise to introduce a bill that is needed by small and seasonal businesses all over the nation. In 2005 I introduced and the Senate overwhelmingly passed legislation to keep these small and seasonal businesses alive. For many years they have relied on the H-2B visa program to meet these needs, but this year they can't get the temporary labor they need because they have been shut out of the H-2B visa program. That program lets them hire temporary foreign workers when no American workers are available. So today, I join with my colleague Senator Specter to introduce legislation that provides a quick and temporary fix to the H-2B problem. The Save our Small and Seasonal Businesses Act of 2009 will help these employers by extending the H-2B returning worker exemption for three years. It does not raise the cap and keeps the limit at 66,000. I urge my colleagues to work with us to pass this legislation quickly to save these businesses and the thousands of American jobs they provide. Many in this body know about the H-2B crisis--a real crisis to thousands of small and seasonal businesses who face a shortage of workers as they approach their seasons. These small businesses count on the H-2B visa program to keep their businesses afloat. But this year, because the cap was reached so early in the year, many of these businesses will be unable to get the seasonal workers that they need to survive. Hitting the cap so early will have a great impact on Maryland. We have a lot of summer seasonal businesses in Maryland on the Eastern Shore, in Ocean City or working the Chesapeake Bay. Many of our businesses use the program year after year. They hire all the American workers they can find, but they need additional help to meet seasonal demands. Because the cap will be reached so early this year summer employers face a disadvantage. They can't use the program, so they can't meet their seasonal needs and many will be forced to limit services, lay-off permanent U.S. workers or, worse yet, close their doors. These are family businesses and small businesses in small communities in Maryland. If the business suffers the whole community suffers. For seafood companies like J.M. Clayton, what they do is more than a business, it's a way of life. Started over a century ago and run by the great grandsons of the founder, J.M. Clayton works the waters of the Chesapeake Bay, supplying crabs, crabmeat and other seafood, including Maryland's famous oysters, to restaurants, markets, and wholesalers all over the nation. It is the oldest working crab processing plant in the world and by employing 70 H-2B workers the company can retain over 50 full time American workers. But its not just seafood companies that have a long history on the Eastern Shore. It's companies like S.E.W. Friel Cannery, which began its business over 100 years ago when there were 300 canneries on the Eastern Shore. But now those others are gone and Friel's is the last corn cannery left. Ten years ago, when the cannery could not find local workers, it turned to the new H-2B visa Program. It has used the program every year since, and many workers are repeat users who come each year and then go home after the season. What's important is that having this help each year has not only allowed the company to maintain its American workforce, but it has paved the way for local workers to return to the cannery. Now these employers can't just turn to the H-2B program whenever they want seasonal workers. First, employers must try to vigorously recruit U.S. workers. These businesses try to hire American workers--they would love to hire American workers. In fact, the H-2B program requires these businesses to prove that they have vigorously tried to recruit American workers. They have to advertise for American workers and give American workers a chance to apply. They have to prove to the Department of Labor that there are no U.S. workers available. Only after that are they allowed to fill seasonal vacancies with H-2B visa workers. The workers that they bring in often participate in the H-2B program year after year. They often work for the same companies. But they cannot and do not stay in the U.S. They return to their home countries, to their families and their U.S. employer must go through the whole visa process again the following year to get them back. That means an employer must prove again to the Department of Labor that they cannot get U.S. workers. This legislative fix keeps that visa process in place. It's a short-term legislative fix to solve the immediate H-2B visa shortage. It does not take the place of comprehensive immigration reform. This legislation is a temporary 3 year fix. It exempts returning seasonal workers from the cap. These are workers who have already successfully participated in the H-2B visa Program. They received a visa in one of the past 3 years and have returned home to their families after their seasonal employment with a U.S. company. Everyone must still play by the rules. Employers must go through the whole visa process, prove they need the seasonal help and only after that are returning employees exempt from the cap. Employees must be those who have left the U.S. and are requesting a new H-2B visa to come back for another season. This new system rewards those who have played by the rules, worked hard and successfully participated in the program. The bill gives a helping hand to businesses by allowing them to retain workers who they have already trained to do their seasonal jobs. This is a quick and simple fix. It lasts three years. And it does not get in the way of comprehensive immigration reform. I worked with my colleagues to get a bill with strong bi-partisan support. A bill that would work. This bill is realistic. It provides a temporary solution because immediate action is needed to help these small and seasonal businesses stay in business. Yes--we need to help them now. Their seasons start soon. If they don't get seasonal workers this year, there may not be any businesses around next year to help.

02/08/2009: Another Private Bill, But This Time in the Senate

• S.393 Private Bill for Sopuruchi Chukwueke, introduced by Sen Levin, Carl [MI] on 2/6/2009 and referred to Senate Judiciary Committee on 2/6/2009.

02/08/2009: New Development of Senate Stimulus Legislation and Update on Sanders H-1B Bill

• The Sanders bill was one of the bills to amend the original Senate Stimulus package and its fate depends on the result of the Senate and House's final action on the Stimulus bill . However, yesterday there was a new development in the Senate reaching a successful compromise and the Senate is poised to pass the final Senate version of stimulus package apparently on Tuesday, 02/10/2009. Obviously, as part of this development, the Senate version of the Stimuls bill "The American Recovery and Reinvestment Act of 2009" which was originally introduced in the form of Senate Amerndment #98 by Senator Inoue of Hawaii was withdrawn and will be replaced by the newly reached compromise bill. Hundreds of amendments which have thus been introduced and debated or agreed to in the Senate during last several days to amend the original version of the Inoue's Senate amendment bill #98, including the Sanders H-1B bill and Leahy's EB-5 bill may or may not survive in the final compromise bill which will be acted upon reportedly on 02/10/2009. Accordingly, these immigration bills will also either survive or collapse in the final compromise bill . Even though it is likely that the Sanders H-1B proposal which the Senate has already agreed to by voice vote has a good chance to survive in the final compromise bill, we will have to wait and see. Please stay tuned to this website for the development.

02/07/2009: Clarification of Sanders H-1B Bill Agreed to in the Senate by Voice Vote on 02/06/2009

• It appears that there are readers who did not understand our previous posting of this bill. Senator initially introduced a bill to prohibit TARP financial institutions from hiring H-1B workers, but he himself modified this proposal on 02/06/2009 to define such TARP employers as "H-1B Dependent Employers" rather than to prohibit hirfing of H-1B foreign workers. The Senate agreed to this modified version of Senator Sanders. The full text of the bill which the Senate agreed to yesterday is as follows:
  • SEC. __. HIRING AMERICAN WORKERS IN COMPANIES RECEIVING TARP FUNDING.
  • (a) Short Title.--This section may be cited as the ``Employ American Workers Act''.
  • (b) Prohibition.--
    • (1) IN GENERAL.--Notwithstanding any other provision of law, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) of such Act (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply.
    • (2) DEFINED TERM.--In this subsection, the term ``hire'' means to permit a new employee to commence a period of employment.
  • (c) Sunset Provision.--This section shall be effective during the 2-year period beginning on the date of the enactment of this Act.
• In this regard, the Sanders proposal has been substantially toned down in the final text which the Senate agreed to by voice vote. As seen in the Washington Post report, because of the ongoing layoffs by these employers, they may practically be barred from the H-1B petitions for the new foreign workers. For other impact, please read another news report.
• Caveat: This is one of the amendment bills to the Senate Stimulus package bill and its fate depends on the result of the Senate and House final action on the Stimulus bill entitled "The American Recovery and Reinvestment Act of 2009." Accordingly, this amendment bill will either survive or collapse in the final bill. Readers are reminded that Sanders H-1B bill is not a law.

02/07/2009: Stimulus Bill Initially Included EB-5 Regional Center Pilot Program Extension Bill

• The Stimulus Bill initially included the following proposal for EB-5 Pilot Program extension:

TITLE XVII--IMMIGRATION MATTERS
SEC. 1703. EXTENSION OF EB-5 REGIONAL CENTER PILOT PROGRAM.
Section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (Public Law 102-395; 8 U.S.C. 1153 note) is amended by striking ``annually for 15 years'' and inserting ``for each fiscal year through fiscal year 2016''.
SEC. 1703. EXTENSION OF PILOT PROGRAMS.
Section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208; 8 U.S.C. 1324a note) is amended by striking ``at the end of the 11-year period beginning on the first day the pilot program is in effect.'' and inserting ``on September 30, 2016.''

• It is unlear whether this amendment survived in the last night's final compromised version of the Senate version of the Stimulus Bill, even though there is a sign that it failed because it was part of SA 98 but SA 98 was withdrawn early this morning. In fact, Sanders amendment on H-1B was also part of SA 98. However, we are not certain at this point whether Sanders bill was in the same fate with the Leahy EB-5 bill because unlike Leahy amendment, Sanders bill was agreed to yesterday. Please stay tuned.

02/07/2009: H-2B Nonagricultural Temporary Worker Visa/Status Available Only for Certain Designated Nationals for Next One Year

• As people are aware, the Bush Administration reengineered the H-2B temporary worker rules (Nick Name: Guest Workers) towards the end of its government. The new rules of the Department of Homeland Security and the Department of Labor have brought substantial changes in many areas both in the procedural matters as well as in the substantive matters. One of the changes which has not been publicized but will deeply affect this visa category is to make the H-2B available only to certain nationals of counties which were designated by the DHS in consultation with the Department of State for the next one year. The list of the countries designated of participating in the H-2B program were published in December 2008 along with the H-2B Final Rule includes Mexico, Jamaica, and 26 others. However, the DHS may allow on a case-by-case basis a worker from a country not on the list to be eligible for the H-2B program if such participation is in the U.S. interest.
• The designation took effect on January 18, 2009 and will remain in effective for next one year from January 18, 2009. This rule does not affect those who are currently in H-2B nonimmigrant status. Since this rule took effect before the new Obama Administration moved in, this designation is not affected by the Obama Administration of freeze or revocation of certain rules by executive orders pending review.
• The published list of countries are as follows:
  • Argentina;
    Australia;
    Belize;
    Brazil;
    Bulgaria;
    Canada;
    Chile;
    Costa Rica;
    Dominican Republic;
    El Salvador;
    Guatemala;
    Honduras;
    Indonesia;
    Israel;
    Jamaica;
    Japan;
    Mexico;
    Moldova;
    New Zealand;
    Peru;
    Philippines;
    Poland;
    Romania;
    South Africa;
    South Korea;
    Turkey;
    Ukraine;
    United Kingdom.
• The nationals of these participating countries may want to review the USCIS summary on the reengineered H-2B rule.
  

02/06/2009: Senate Today Agreed by Voice Vote to Sen. Bernie Sanders Amendment to Economic Stimulus Bill With Compromise Amendment

• Senator Sanders of Vermont introduced an amendment to the Economic Stimulus Bill to prohibit financial institutions that received so-called TARP money from the government from hiring H-1B workers. Report indicates that today the Senate agreed to this bill with amendment by voice vote that will consider such financial institutions ourightly "H-1B Dependent Employer" in the Labor Condition Application proceeding mandating such financial institution to comply with the rules on recruitment attestations and no displament of U.S. workers attestations. Accordingly, the amended bill of Sen. Sanders no longer prohibit such employers from hiring H-1B foreign worker. Rather it requires the employers to engage in recruitment activities to look for qualified U.S. workers first and attest to the fact that they failed to locate a qualified U.S. worker through such recruitment process just like the foreign labor certification process. Additionally, such employers must attest to the fact that the employers did not and will not lay off U.S. worker employees before 90 and after 90 days of hiring H-1B foreign workers under the rule of labor condition application for H-1B petitions for the H-1B Dependent Employer. Indeed, this new rule which is likely to become law soon is consistent with the Durbin-Grassley H-1B Reform which was introduced during the 110th Congress except that the rule will apply only to the TARP receiving financial institutions. Once this bill becomes law, such financial institutions will be subject to the H-1B Dependent Employer restrictions for one year from the date of enactment of this law. Report also indicates that the Senate reached a compromise to the Stimulus bill today and would pass this bill day Monday. The Senate version of Stimulus bill and the House version of Stimulus bill will then go to the conference committee next week which will iron out the Senate-House compromise bill. Unless the Sanders bill as amended is removed during the conference committee process, it is definitely likely to become a law. For the details of the Sanders bill as amended, please stay tuned.
• Those professional foreign workers whose potential U.S. employers are these financial institutions will indeed find themselves restricted in their professional career development in the financial institutions. The timing is also very bad considering the fact that FY 2010 H-1B cap filing will start in about 50 days from now.

02/06/2009: USCIS Response to CIS Ombudsman's Recommendations on EAD Processing

• USCIS responded to the Ombudsman's recommendations without much help on the Ombudsman's recommendations in most cases, particularly the recommendation to consider EAD valid pending EAD extension application and to expand multiple-year EADs to those who do not meet the current requirement of the approved I-140 petitions. For the full text, please click here.

02/06/2009: AAO Appeal Processing Times 01/08/2009

I-129 F, Petition for Fiancée: Current
I-129 H1B, Nonimmigrant Specialty Occupation Worker: 14 Months
I-129 H2, H3, Temporary Nonimmigrant Worker, Current
I-129 L, Nonimmigrant Intracompany Transferee, Current
I-129 O, Nonimmigrant Extradordinary Ability Worker, 12 Months
I-129 P1, P2, P3, Athletes, Artists and Entertainers, Current
I-129 Q, Cultural Exchange Visitor, Current
I-131, Application for Travel Document, Current
I-140 EB1(A), Alien with Extraordinary Ability, 18 Months
I-140 EB1(B), Outstanding Professor or Researcher, Current
I-140 EB1(C), Multinational Manager or Executive, Current
I-140 EB2 (D), Advanced Degree Professional, 20 Months
I-140 EB2 (I), National Interest Waiver, Current
I-140 EB3 (E), (G) - Skilled, Professional, or Other Worker, 20 Months
I-212, Application to Reapply for Admission, 12 Months
I-360 EB4, Petition for Religious Worker, Current
I-360 J, Special Immigrant Juvenile, Current
I -360 VAWA, Violence Against Women Act Petition, 20 Months
I-485, Cuban Adjustment Act Application, Current
I-485, LIFE Act Adjustment Application, 14 Months
I-485, Section 13 Adjustment Application, Current
I-526 EB5, Alien Entrepreneur, Current
I-600 , Petition for Orphan, Current
I-601, Application for Waiver of Inadmissibility, 26 Months
I-612, Application for 212(e) Waiver, Current
I-687, Legalization Application for Temporary Residence, 18 Months
I-698, Legalization Adjustment Application, Current
I-700, Special Agricultural Worker, Current
I-821, Temporary Protected Status, Current
I-905, Application to Issue Cert for Health Care Workers, Current
I-914, Application for T Nonimmigrant Status, 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
(Source: www.uscis.gov)

02/06/2009: Senate Bill to Extend Returning H-2B Temporary Worker Extension Introduced on 02/05/2009

• This is one of very rare positive immigration bills in the 111th Congress thus far. On February 5, 2009, Senator Barbara Mikulski of Maryland introduced S.388 to extend the termination date for the exemption of returning workers from the numerical limitations for temporary workers. This bill was then referred to the Senate Judicary Committee. This bill is cosponsored by 19 other Senators.

02/06/2009: More Private Bills in the House

• H.R.458 Private Bill, introduced for Alejandro E. Gonzales by Rep Pastor, Ed [AZ-4] on 1/9/2009 and referred to House Judiciary Immigration Subcommittee on 2/5/2009
• H.R.459 Private Bill, introduced for Alfredo Ramirez Vasquez, by Rep Pastor, Ed [AZ-4] on 1/9/2009 and referred to House Judiciary Immigration Subcommittee on 2/5/2009
• H.R.492 Private Bill, introduced for Esther Karinge, by Rep Markey, Edward J. [MA-7] on 1/13/2009 and refeered to House Judiciary Immigration Subcommittee on 2/5/2009
• H.R.659 Private Bill, introduced for certain aliens who were aboard the Golden Venture by Rep Platts, Todd Russell [PA-19]on 1/22/2009 and referred to House Judiciary Immigration Subcommittee on 2/5/2009
• H.R.660 Private Bill, introduced for Carlos Espinal Castillo-Reynolds by Rep Wamp, Zach [TN-3] on 1/22/2009 and referred to House Judiciary Immigration Subcommittee on 2/5/2009
• H.R.733 Private Bill, introduced for Jayantibhai Desai and Indiraben Patel by Rep Napolitano, Grace F. [CA-38] on 1/27/2009 and referred to House Judiciary Immigration Subcommittee
• H.R.736 Private Bill, introduced for Aluisa Zace and Ledia Zace.by Rep Filner, Bob [CA-51] on 1/28/2009 and referred to House Judiciary Immigration Subcommittee on 2/5/2009
• H.R.742 Private Bill, introduced for Flavia Maboloc Cahoon.by Rep Filner, Bob [CA-51] on 1/28/2009 and referred to House Judiciary Immigration Subcommittee on 2/5/2009

02/05/2009: Score Zero for 111th Congress in Positive Immigration Legislation Proposals

• We reported the increasing trend of private bills introduced in the House reflecting in a way choked immigration system. Thus far, other than immigrant healthcare benefit legislation which was just passed, no positive immigration legislative bills have been introduced thus far. Meanwhile, negative immigration bills have popped up here and there in the Congress supported by anti-immigration forces to take advantage of the country's state in economic recession and rising unemployment rate. There are floods of amendments to H-R. 1, so called Stimulus Package, introduced and at no one's surprise, a few amendments or separate legislative bills involve anti-immigration legislative bills. Since the Stimulus Package legislation may be enacted in a week or so, the immigrant community should be alerted with the anti-immigration legislation activities.
• Here is one of those which was introduced in the House yesterday: H.R.878 , introduced by Rep. Phil Gingrey [GA-11], to amend the Immigration and Nationality Act to make changes related to family-sponsored immigrants and to reduce the number of such immigrants. Sounds familiar?! Believe it or not, unlike other bills with no cosponsors, this bill is cosponsored by 19 other Congress people. This bill has been referred to the House Judiciary Committee.
• There is a report that the new Republican Commerce Secreetary designee is a pro-H-1B politician who may work closely with the business community on the H-1B policies. But people should hold their breath! The anti-H-1B Senators in the Senate, Senator Dick Durbin [Il] and Senator Grassley [IA], may not take too long to introduce an anti-H-1B immigration bill. Dick Durbin is the second highest in rank in Demoratic majority in the Senate and one of the closest right ears to President Obama! But don't take it wrong. Senator Durbin is not anti-immigrationist. He supports immigration very strongly, as demonstrated by his ardent push for DREAM Act proposal over the years. It is just his stance on some employment-based immigration issues, particularly H-1B and L-1 visas, allegedly to protect American high tech workers.

02/05/2009: Distribution of Occupations for PERM Cases of 10/01/2008-12/31/2008 Period

• From the 10 top job titiles, we can also confirm a substantial numbers in professional occupations, mostly in H-1B status:
  • Software Engineer(632)
  • Systems Analyst(194)
  • IT Manager(135)
  • Financial Analyst(115)
  • Electronics Engineer(105)
  • Electrical Engineer(88)
  • Accountant(77)
  • Mechanical Engineer(76)
  • Cook(71)
  • Operational Research Analyst(70)
• Well, we are definitely living in a STEM and cyber space age!

02/05/2009: Distribution of Nationalities of Foreign Worker Beneficiaries for PERM Cases of 10/01/2008-12/31/2008 Period

• The same AILA statistics show the following top 10 countries:
  • India (1,219)
  • China(254)
  • Canada(174)
  • South Korea(120)
  • Philippines(113)
  • Mexico(99)
  • UK(79)
  • Colombia(54)
  • Venezueal(52)
  • France(46)
• These statistics reflect that majority of PERM cases were filed for the foreign workers from East and South Asisn countries and U.S. border countires. Obviously, the first two top countries of India and China include substantial EB-2 cases and high-tech and financial specialty occupations. Some way another statistics that 74% of the applications involved those foreign workers working in a H-1B nonimmigrant status also reflect that substantial number of the cases involved professional occupations.

02/05/2009: Pending PERM Labor Certification Applications as of 12/31/2008

• AILA reports as follows:
  • Total Numbers=53,200
  • Sponsorship Stage=2%
  • Final Review Stage=67%
  • Audit Cases=26%
  • Appeal or Reconsideration Request Cases=5%
• It reflect some reduction in audit cases, but there are a large number of regular track cases to be processed. Obviously this total number of 53,200 includes 18,863 new cases which were received during the period from October 1, 2008 through December 31, 2008. Accordingly, since it also reflects that 34,337 pending cases were those which were filed before October 1, 2008 and most of which were filed August through September 30, 2008 which are currently being processed and adjudicated. For these reasons, 18,863 cases which were filed during the period of October through December 2008 still have a long way to go.

02/05/2009: PERM Labor Certification Processing Times as of 12/31/2008

• AILA reports the OFLC statistics which reflect the following processing times:
  • Regular Track (Final Review) Cases= Cases Filed on June 2008
  • Audit Cases: Cases= Cases Filed on August 2007
  • Appeal or Reconsideration Cases=Cases Filed on April 2007
• The foregoing processing times appear to be continuing as of now.

02/04/2009: USCIS Urges H-2A and H-2B Petitioners to Use New Form I-129

• USCIS urges following: USCIS published the final rules for the H-2A classification and the H-2B classification in December 2008 with effective dates of Jan. 17, 2009, and Jan. 18, 2009, respectively. These final rules necessitated revising the H Classification Supplement to the Form I-129. The new Form I-129 with the Jan. 22, 2009 revision date incorporates all necessary changes on account of the H-2A and H-2B final rules and should be used in lieu of the older version. Petitioners who file using an older version of the form for the H-2A and H-2B classifications will experience delays because they will receive a request for the revised H Classification Supplement to the Form I-129. Although previous editions of the Form I-129 are still accepted, petitioners seeking H-2A and H-2B classifications are urged to use the most current version of the Form I-129 posted on the Web site. For the full text, please click here.

02/04/2009: USCIS Reminder of Sunsetting Nonminister Religious Worker Immigration Law and Its Actions

• With reference to the sunsetting law, USCIS announced that it continues to receive and process Petitions for Amerasian, Widow(er), or Special Immigrant (Form I-360) for those immigrant religious workers affected by the upcoming expiration date. USCIS is also, to the extent that it can, expeditiously processing Applications to Register Permanent Residence or Adjust Status (Form I-485), based on approved FormI-360 petitions for non-minister special immigrant religious workers. The applicant requesting ‘following to join’ on Application for Action on an Approved Application or Petition (I-824) whose basis for the adjustment was an approved I-360 petition for a non-minister category (SR) or who is requesting an approved I-360 SR petition to the Department of State’s National Visa Center (NVC), may request expedited processing of Form I-824.Absent a Congressional extension of the expiration date, USCIS will, beginning on March 6, 2009, suspend further processing of any pending Form I-360, Form I-485, and Form I-824 affected by the expiration date until further notice. Also, unless or until Congress extends the expiration date, USCIS will reject Form I-360 petitions, Form I-485 and Form I-824 applications filed on or after March 6, 2009 that are based on the expired provisions.
• For the full text, please click here.

02/04/2009: USCIS Releases Information for Naturalization Process for the Military

• Please click here for the full text.

02/04/2009: Alarming Latest PERM Application Denial Statistics

• AILA has reported that in the first quarter of FY 2009 (October 1, 2008 thru December 31, 2008), Atlanta National Processing Center processing record was as follows:
  • Total Completed During the Period: 4,571
  • Total Approved During the Period: 3,074
  • Total Denied During the Period: 1,328
  • Total Withdrawn During the Period: 169.
• The foregoing statistics represent that denial rate exceeded 30%. If we take out withdrawal cases, the denial rate will be somewhat higher. By any count, this rate is higher than what we have witnessed in the permanent labor certification processing history. Besides, the agency was processing the cases of June 2008 priority date. During the period, they received 18,863 new applications. This number may be considered not too high considering the fact that the system anticipated to receive over 100,000 cases a year. Hmmm.....................................

02/04/2009: Private Bills Introduced in the House on 02/03/2009

• H.R.798 Private Bill for Adrian Rodriguez, introduced by Rep Filner, Bob [CA-51], and referred to the House Judiciary Committee yesterday
• H.R.799 Private Bill for Francisco Rivera and Alfonso Calderon, introduced by Rep Filner, Bob [CA-51], and referred to the House Judiciary Committee yesterday

02/03/2009: Projected Launch Time of New ETA 9089 PERM Application Form

• AILA has reported that the OFLC projected time of receiving new ETA 9089 form is 07/01/2009 and the last date when they will accept the current form will be 07/31/2009. OFLC is offering the public briefings on use of the new form on 02/04/2009 and 02/09/2009.

02/03/2009: Projected Launch Time of New ETA 9035 Application Form

• AILA has reported that the OFLC projected time of receiving new ETA 9035 form is 04/15/2009 and the last date when they will accept the current form will be 05/14/ 2009. OFLC is offering the public briefings on use of the new form on 02/04/2009 and 02/09/2009.

02/03/2009: President Obama Revokes Certain Bush Executive Orders Concerning Rule Making and Review

• President Obama issues Executive Order revoking Executive Order 13258 of February 26, 2002, and Executive Order 13422 of January 18, 2007, issued by former President Bush, concerning regulatory
  planning and review, which amended Executive Order 12866 of September 30, 1993.

02/03/2009: Omnibus Federal Appropriation Legislation and Sunsetting Immigration Programs

• The majority Democrat leaders apparently strategically pushed off the legislation at the end of 110th Congress to wait until the Bush Administration moved out the White House so that its legislative agenda be accomplished in accordance with its national policies. This included the appropriation bills for federal departments and agencies. Currently, most of the federal departments and agencies stay open until March 6, 2009 under the continuing resolution which the 110th Congress passed toward the end of the year to fund the federal departments and agencies until March 6, 2009. There are a few laws that expired at the end of September 2008 and extension of these laws required funding legislation and for the reasons, the 110th Congress passed laws extending non-minister special immigration law and EB-5 regional center pilot program for investment immigration only until March 6, 2009. Accordingly, potential extension of these sunsetting immigration laws coming March 6, 2009 is somehow tied to the schedule of enactment of appropriation bills beyond March 6, 2009.
• Report indicates that the Democratic leaders initially intended to act on these approation bills for the federal departments and agencies this week, but because of the economic stimulus bill which needed a full attention of the Congress and acted upon within this week, the appropriation bills have been pushed off from this week's legislative agenda. However, the Congress may take up the appropriation legislation in the form of Omnibus bill next week and the sunsetting immigration laws may be incorporated in the Omnibus package or follow the passage of the Omnibus appropriation legislation. We realize that religious and investment immigration communities are nervous about running out of time for legislation to extend the sunsetting laws. We will closely monitor the Omnibus appropriation legislation process for the purpose of monitoring these sunsetting immigration programs. Please stay tuned.

02/03/2009: Failure of Congress and Administation to Act on Immigration Reform and Mounting Private Bills Introduced in Congress for Individual Legislative Relief

• The immigration system has been broken for a number of years and the Congress has failed to pass legislations to reform the choked immigration system. The DHS under the Bush Administration attempted a few administrative fix to the ailing immigration system, which was a tip of iceberg in the sea. The failure of the Congress has led individuals to seek legislative relief by introducing private bills to crack the mountain high ailing immigration sysem. Such desperate cry of the immigrants suffering from the ailing immigration system has been more visible since the curtain was up for the new Congress in January 6, 2009. Almost every once in a while, the legislators have introduced private bills in the Congress. Tthe following private bills have been inroduced and was pending as on 02/02/2009 before the House Judidicary Immigration Subcommittee :
  • H.R.287 for Enrique Soriano and Areli Soriano and referred to referred to House subcommittee. Status: Referred to the immigration subcommittee on 02/02/2009.
  • H.R.353 for Simeon Simeonov, Stela Simeonova, Stoyan Simeonov, and Vania Simeonova., introduced by Rep Gutierrez, Luis V. [IL-4] on 01/08/2009 and referred to the immigration subcommittee on 02/02/2009.
  • H.R.354 for Ayala Cuyuch, introduced by Rep Gutierrez, Luis V. [IL-4] on 01/08/2009 and referred to the immigration subcomittee on 02/02/2009.
  • H.R.355 for Francisca Lino, introduced by Rep Gutierrez, Luis V. [IL-4]
  • H.R.356 for Rebeca Rojas de Guzman, introduced by Rep Gutierrez, Luis V. [IL-4] on 0/08/2009 and referred to the immigration subcomittee on 02/02/2009.
  • H.R.357 for Jose de Jesus Ibarra, Monica Ibarra Rodriguez, and Cristina Gamez, introducced by Sponsor: Rep Johnson, Eddie Bernice [TX-30] on 01/08/2009 and referred to the immigration subcommittee on 02/02/2009.
  • H.R.358 for Alemseghed Mussie Tesfamical, introduced by Rep King, Peter T. [NY-3] on 01/08/2009 and referred to the immigration subcomittee on 02/02/2009.
  • H.R.359 for Geert Botzen, introduced by Rep Lee, Barbara [CA-9] on 01/08/2009 and referred to the immigration subcomittee on 02/02/2009.
• Hear, Hear, Mr. President Obama and Congress Leaders, the "Desperado" of Immigration Reform!

02/02/2009: USCIS Changes Posting Date of Processing Times Report from January 23, 2009 to January 27, 2009

• For the unknown reasons, the USCIS has changed the posting date from January 23 to January 27, 2009 for the processing times as of November 30, 2008. Since we did not keep a copy of their previous report dated January 23, 2009, we cannot determine any difference before and after the change in posting date. Those who kept the January 23, 2009 posting may email us its difference from the January 27 posting.

02/01/2009: DHS Secretary Napolitano Reports Her First Week as DHS Secretary in the DHS Leadership Journal

• As we reported the Secretary had issued Directives to the leaders of the Department and in the USCIS, the Directives focused on the status and cause of backlogs and required reforms. This Journal report indicates that she is currently waiting for the reports by the leaders of the Department. We hope that the upcoming USCIS reporrt to the new Secretary be released either by the Secretary or the USCIS Acting Director, Michael Aytes. Please stay tuned.

02/01/2009: CRS 01/51/2009 Report on U.S. Immigration Policy on Temporary Admissions

• This report updates admission of nonimmigrants to the U.S. by category and region in FY 2008. Read on.

01/31/2009: Service Center Action to Embrace I-485 Applicants Who May Face Another Sunset of Laws on March 6, 2009

• Facing sunset of non-minister religious worker special immigration law and EB-5 Regional Center Pilot Program investment immigrant law at the end of September 2008, Congress passed legislation to extend these laws, but only upto March 6, 2009. Accordingly, the beneficiaries of I-360 non-minister religious worker petition and I-526 pilot program investor immigration petition are destined to face the sunset of these laws. Accordingly, those who filed I-485 applications based on these petitions and EB-4 and EB-5 petitions will have to be approved before March 6, 2009. Otherwise, the applications will be denied, should the Congress fail to pass another legislation to extension these laws. In order to embrace the problems these I-485 applicants are facing, the Service Centers have released their action through the AILA that the legal representatives of such I-485 applicants should notify these pending I-485 applications through the AILA liaison committees as soon as possible. It appears, though, that the agencies may not entertain direct contacts with the Service Centers by the applicants themselves. Accordingly, those who fall under this category may want to contact their legal representatives or other lawyers to seek assistance. People are not allowed to make any phone calls to the agencies on this issue. AILA has referral phone lines or online referral services and those who are not represented may contact the AILA to seek assistance.

01/31/2009: Welcome Aboard, Mr. David A. Martin, New Principal Deputy General Counsel of the Department of Homeland Security

• The Honorable Napolitano, Secretary of Homeland Security, released a list to legal staff of the Department. Included in the list is Mr. David A. Martin who was a member of President Obama's DHS agency review and transition team, Warner-Booker Distinguished Professor of International Law at the University of Virginia School of Law, and former General Counsel for the Immigration and Naturalization Service (INS). Mr. Martin is an expert in the immigration law, issues, policies, and areas of needed reform of the immigration system. From the immigration law community and the immigrant community perspectives, it is the most welcome appointment in that the new Secretary will be offered legal counsel for immigration and management reform by an expert in the immigration law, history, and policies. Welcome aboard, Mr. Martin!

01/30/2009: USCIS Decision to Delay Amended I-9 Documentation Rule and AILA Contribution

• We reported earlier today that USCIS announced that implementation of this regulation would be delayed until April 3, 2009. In the report, we missed to add our report that the decision was apparently affected by the AILA request for such delay considering the White House directive to freeze any regulations pending review which have the effective date later than the White House announcement. Obviously, the USCIS announcement that the revised I-9 regulation would take effect on Monday, February 2, 2009 was not consistent with the White House policy. We commend the AILA for the job well done. The employers should also thank the AILA (American Immigration Lawyers Association) for its timely interception with the USCIS rule-making process. Here is the copy of AILA letter to the USCIS.

01/30/2009: Computerworld Tracks Layoffs in IT Industry

• Read on.

01/30/2009: Secretary Napolitano Issues Today Immigration and Border Security Action Directive

• The directive requires specific department offices and components to work together and with state and local partners to review and assess the plans and policies to address: criminal and fugitive aliens; legal immigration benefit backlogs; southbound gun smuggling; cooperation with the National Guard; widows and widowers of U.S. citizens; immigration detention centers; and electronic employee verification
• For the legal immigrtion benefit backlogs, the Directive requests the USCIS the following:
  • What progress has been made in reducing the significant backlogs that had developed in the adjudication of naturalization petitions and adjustment of status (green card) applications? Which regional offices still lag behind in making progress toward target processing times, and what specific steps are recommended for providing priority resources to those offices?
  • Please provide an assessment of information-sharing with the Department of State’s Bureau of Consular Affairs on projected adjustment caseloads, to be used by that Bureau in setting each month’s cutoff dates on waiting lists for immigration categories that are limited by a yearly quota. What steps have been taken and what further steps are recommended to make sure that the full quota of permanent immigration spaces is used each fiscal year? What regulatory or legislative changes (including a possible pre-application filing procedure for adjustment cases) are recommended to facilitate caseload planning and make optimum use of U.S. Citizenship and Immigration Services adjudication capacity?
• Stay tuned.

01/30/2009: USCIS Announcement of Delay of Implementation of Published Rule for I-9 Documentation List Change

• USCIS announced today it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification” published in the Federal Register on Dec. 17, 2008.

01/30/2009: OMB Publishes 2010 Standard Occupational Classification (SOC)

• This new occupational classfication document is a "key" documents for temporary and permanent labor certifications including the prevailing wage determination. The employers hiring foreign workers including H-1B, H-2A, H-2B, H-1B1, PERM, should print and keep a copy in their human resources department as an important reference material.
• Effective date of the revised SOC is January 1, 2010. Accordingly, it will not affect the current temporary and PERM proceedings until next year.

01/30/2009: Reduction of USCIS I-140 Petition Processing Time

• USCIS has been struggling with the backlog of I-140 petition processing. Ever since there was a crash of mountain of I-140 petition since summer of 2007, particularly during the period of July 2007 Visa Bulletin fiasco, they have struggled with the backlog of I-140 petitions exceeding 150,000 - 130,000. As affected by such backlog, I-140 petition processing time exceeded almost one year and a half. And then, there was a report that, Nebraska Service Center was scheduled to pick up the July 2007 Visa Bulletin fiasco I-140 cases in Novembe 2008.. This progress is reflected in the USCIS report of processing time of I-140 petitions at the end of Novvember 2008 showing the NSC I-140 processing time passing the Visa Bulletin fiasco valley and the TSC I-140 processing time reaching January 2008. According to the just released USCIS record, at the end of November 2008, the backlog of I-140 petitions dropped from 130,000 level to 95,401 cases. Accordingly, people can assume that the total backlog of I-140 petitition must have dropped substantially by now, much lower than 95,000 figures, and the processing time of I-140 petitions may be improved in the future substantially. This is partucularly true considering the fact that part of the I-140 petition backlog was probably affected by reallocation of adjudication resources over to the politically volitile N-400 naturalization backlogs and a subsequent substantial reduction of the N-400 backlog. Good news, indeed!
• This news may be a good news for prospecs for reinstatement of suspended I-140 petitions. Reportedly, USCIS suspended I-140 petitions because of huge backlogs as affected by July 2007 visa bulletin fiasco and elimination of substitution of labor certification applications during the same period. As the backlogs have substantially reduced both in I-140 petitions and N-400 citizenship applications, USCIS should consider reinstatement of premium processing services of I-140 petitions. Remember that the revenue from Premium Processing Services provides important sources for the USCIS funding. Unfortunately, they will have to face 85,000 FY 2010 H-1B cap filings and lotteries beginning April 1, 2009, but we understand that USCIS has been working on a plan to deal with such flood of cases for FY 2010 H-1B cap loads. One was achieved last year by extending closing date of fiscal year cap cases from April 1 to a later date and the other potential plan can include preregistration of the H-1B employers. We will have to wait and see. Stay tuned.

01/30/2009: USCIS Statistics of Processing of Petitions and Applications at the End of November 2008

• Volume of Pending Cases by Type:
  • I-130 family petitions: 1,444,453
  • I-485 green card applications: 658,680
  • I-765 EAD: 235,406
  • I-90 green card renewals/replacements: 183,975
  • I-751 remove conditions spouse jointly waiver: 153,302
  • I-140 immigrant worker petitions: 95,601
  • N-400 Naturalization Applications: 419,148
• New Receipts in November by Type:
  • I-765 EAD: 138,470
  • TPS: 66,211
  • I-130: 44,059
  • I-485: 34,869
  • I-131 reentry permits for green card holders and advance parole for nonimmigrants: 27,333
  • N-400: 30,864

01/29/2009: USCIS Announces FAR (Federal Contractors/Subconstractors) E-Verify Requirement Implementation Delay Until 05/21/2009

• Read on.

01/28/2009: EOIR to Publish Tomorrow EOIR-28, EOIR-31, and EOIR-40 Forms with 60-Day Comment Period

01/28/2009: AILA Reports VSC Transferring Substantial Number of I-539s, I-751s and I-130s to CSC

• If your case is one of these types pending with the VSC, you may want to inquiry your legal counsel of the details of these ongoing transfer of cases from VSC to CSC.
• This information should also be taken an alert for immigrants that because of the frequent changes in filing or adjudication locations of immigrant and nonimmigrant cases, people should always check with the USCIS form site before drafting and mailing out the petitions and applications.

01/28/2009: Microsoft Reportedly Included H-1B Foreign Worker as Part of Layoff Plan

• Microsoft Corp. reportedly said it is cutting a "significant number" of foreign workers as part of the layoff of 1,400 employees last week, a number that is due to reach 5,000 over the next 18 months. The company isn't detailing how many of the workers losing their jobs are in the U.S. on a visa, however.Microsoft has been urged by Sen. Charles Grassley (R-Iowa), a leading critic of the H-1B program, to protect the jobs of U.S. workers over foreign workers. In a letter last week to Microsoft CEO Steve Ballmer, Grassley demanded that U.S. workers get priority in keeping their jobs. Read on.
  

01/28/2009: USICE Updates SEVP Approved Schools

• One of the 29-month OPT requirements is the SEVP approved schools. F-1 students seeking such OPT extension should check this out.

01/28/2009: State Department Withdraws Proposed Changes to J-1 Exchange Visitor Program--Subpart A--General Provisions

• We reported on January 1, 2009 that the State Department reintroduced this proposed regulation which had previously been withdrawn. Guess what! This proposed rule was withdrawn yesterday under the rule-making freeze guideline of the Obama Administraiton. The rule was intended to restrict Exchange Visitor Program sponsorships and even attempted to regularlize the site-visit as part of the sponsorship approvals.

01/27/2009: Senate Passed Bill S. 328 to Postpone DTV Transition to June 12, 2009

• Yesterday, Senator John Rockefeller of West Virginia intoduced S.328 to postpone the DTV transition date to June 12, 2009. This bill was swiftly passed by the Senate by unanimous consent. The House is anticipated to consent to this bill today.

01/27/2009: Senate Bill S.321 to Expand U.S. Passport Cards to Travel on Air

• Yesterday, Senator George Voinovich of Ohio introduced S.321 in the Senate proposing to accept passport cards at air ports of entry and for other purposes. Currently U.S. passport cards only acceptable for Caribbean and border countries on land or sea. Please stay tuned. The text of the bill is as follows:
  • Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
  • SECTION 1. SHORT TITLE.
    • This Act may be cited as the ``Passport Card Travel Enhancement Act of 2009''.
  • SEC. 2. PASSPORT CARD DEFINED.
    • In this Act, the term ``passport card'' means the document--
    • (1) known as a passport card that is issued to a national of the United States on the same basis as a regular passport; and
    • (2) that the Secretary of State began issuing during 2008.
  • SEC. 3. PASSPORT CARDS FOR AIR TRAVEL.
    • (a) Requirement to Accept Passport Cards for Air Travel.--Notwithstanding any regulation issued by the Secretary of Homeland Security or the Secretary of State, the Secretary of Homeland Security and the Secretary of State shall permit a passport card issued to a citizen of the United States to serve as proof of identify and citizenship of such citizen if such citizen is departing from or entering the United States through an air port of entry for travel that terminates or originates in--
    • (1) Bermuda;
    • (2) Canada;
    • (3) a foreign country located in the Caribbean; or
    • (4) Mexico.
    • (b) Fees for Passport Cards.--Neither the Secretary of State or the Secretary of Homeland Security may increase, or propose an increase to, the fee for issuance of a passport card as a result of the requirements of subsection (a).
    • (c) Regulations.--Not later than 180 days after the date of the enactment of this Act, the Secretary of State and the Secretary of Homeland shall issue final regulations to implement this Act.
• His statement in support of this bill: Over the past several years, the Departments of State, State, and Homeland Security, DHS, have worked hard to implement the Western Hemisphere Travel Initiative, WHTI, as recommended by the National Commission on Terrorist Attacks Upon the United States. As part of those efforts, State has developed the United States passport card as a cheaper, more portable alternative to a United States passport book. The passport card is adjudicated to the exact same standards as the passport book and allows United States citizens to enter United States land and sea ports-of-entry from Canada, Mexico, the Caribbean and Bermuda, but the card does not allow for any air travel. In my mind, this discrepancy makes no sense, and the passport card should allow for air travel between the United States and Canada, Mexico, Bermuda and the Caribbean for several reasons. First, prior to 2007, United States citizens rarely needed a passport to enter the United States by air from Canada, Mexico, Bermuda or the Caribbean. Rather, United States citizens were only required to satisfy inspecting officers of their identities and citizenship. This practice changed in 2007, when WHTI went into effect for air travel. I think we all recall the events that occurred following WHTI air implementation, when State was deluged with passport applications, the time necessary to get a passport expanded from the typical four to six weeks to several months, and some Americans were forced to cancel trips. We need to avoid problems like that in the future by providing United States citizens with more documents that comply with WHTI. Further, State's ``Card Format Passport; Changes to Passport Fee Schedule'' final rule states that the passport card ``is not intended to be a globally interoperable travel document,'' and ``will not be designed to meet the International Civil Aviation Organization, ICAO, standards and recommendations for globally interoperable passports,'' but I do not believe that these facts mean that the passport card cannot be used for limited, western hemisphere air travel. In fact, I question whether globally interoperable passport standards and recommendations need be met in order to use passport cards for the limited flights allowed by the Passport Card Travel Enhancement Act of 2009 because DHS's NEXUS card, which does not meet ICAO standards, is currently accepted as an alternative to a passport for some air travel between the United States and Canada. Lastly, in today's current economic climate, I believe we must foster secure, legitimate trade and tourism between the United States and our allies. Providing additional, less expensive ways for our constituents to comply with WHTI is good government and makes sense for our Nation's security and economic prosperity.

01/27/2009: Estimate 2008 U.S. Population by State Released by Census Bureau

United States............................ 230,117,876
Alabama.................................. 3,540,023 Missouri......................... 4,490,136
Alaska................................... 506,417 Montana.......................... 747,082
Arizona.................................. 4,792,959 Nebraska......................... 1,336,437
Arkansas................................. 2,152,909 Nevada........................... 1,932,366
California............................... 27,392,136 New Hampshire.................... 1,022,451
Colorado................................. 3,732,321 New Jersey....................... 6,635,079
Connecticut.............................. 2,689,039 New Mexico....................... 1,481,906
Delaware................................. 666,863 New York......................... 15,082,281
District of Columbia..................... 479,817 North Carolina................... 6,978,737
Florida.................................. 14,324,069 North Dakota..................... 498,433
Georgia.................................. 7,136,903 Ohio............................. 8,755,533
Hawaii................................... 1,002,955 Oklahoma......................... 2,736,326
Idaho.................................... 1,111,176 Oregon........................... 2,922,485
Illinois................................. 9,722,303 Pennsylvania..................... 9,686,275
Indiana.................................. 4,792,111 Rhode Island..................... 822,248
Iowa..................................... 2,289,942 South Carolina................... 3,413,573
Kansas................................... 2,101,649 South Dakota..................... 605,885
Kentucky................................. 3,261,181 Tennessee........................ 4,736,294
Louisiana................................ 3,302,823 Texas............................ 17,601,203
Maine.................................... 1,041,589 Utah............................. 1,886,789
Maryland................................. 4,293,014 Vermont.......................... 492,340

Massachusetts............................ 5,070,934 Virginia......................... 5,945,888
Michigan................................. 7,613,224 Washington....................... 5,008,049
Minnesota................................ 3,965,749 West Virginia.................... 1,428,310
Mississippi.............................. 2,171,898 Wisconsin........................ 4,313,555
Wyoming.......................... 404,211

01/26/2009: White House Chief of Staff Issues Memorandum to Federal Agencies on Review of Regulations

• Rahm Emanuel, Assistant to the President and Chief of Staff, issued this memorandum with the following guidance for the review of regulations:
  • 1. Subject to any exceptions the Director or Acting Director of the OMB allows for emergency situations or other urgent circumstances relating to health, safety, environmental, financial, or national security matters, or otherwise, no proposed or final regulation should be sent to the Office of the Federal Register (the ``OFR'') for publication unless and until it has been reviewed and approved by a department or agency head appointed or designated by the President after noon on January 20, 2009, or in the case of the Department of Defense, the Secretary of Defense. The department or agency head may delegate this review and approval power to any other person so appointed or designated by the President, consistent with applicable law.
  • 2. Withdraw from the OFR all proposed or final regulations that have not been published in the Federal Register so that they can be reviewed and approved by a department or agency head as described in paragraph 1. This withdrawal is subject to the exceptions described in paragraph 1 and must be conducted consistent with OFR procedures.
  • 3. Consider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect, subject to the exceptions described in paragraph 1, for the purpose of reviewing questions of law and policy raised by those regulations. Where such an extension is made for this purpose, you should immediately reopen the notice-and-comment period for 30 days to allow interested parties to provide comments about issues of law and policy raised by those rules. Following the 60-day extension:
    a. For those rules that raise no substantial questions of law or
    policy, no further action needs to be taken; and
    b. For those rules that raise substantial questions of law or
    policy, agencies should notify the OMB Director and take appropriate
    further action.
  • 4. The requested actions set forth in paragraphs 1-3 do not apply to any regulations subject to statutory or judicial deadlines. Please immediately notify the OMB Director of any such regulations.
  • 5. Notify the OMB Director promptly of any regulations that you believe should not be subject to the directives in paragraphs 1-3 because they affect critical health, safety, environmental, financial, or national security functions of the department or agency, or for some other reason. The OMB Director will review all such notifications and determine whether an exception is appropriate.
  • 6. Continue in all instances to comply with any applicable Executive Orders concerning regulatory management.
    

01/26/2009: Overturning 'Midnight' Regulations of Bush Administration Reportedly Presents Challenges to Obama Administration

• According to a report, President George W. Bush ended his White House tenure by issuing a flurry of regulatory actions, many of which are considered questionable, if not offensive, by the left. While the Obama administration has already taken steps to freeze those rules still in the pipeline, the new president and Democratically-controlled Congress will have to decide how much time and effort they want to expend undoing what Bush has done and how they will go about rescinding rules they want to see wiped from the books. A report indicates that some steps taken by Bush's team were "unprecedented," in that they were designed specifically to make his regulations harder to overturn. Some of these un-doing actions of Bush rule-making may require a new rule-making to remove these regulations, but that will take several months. Congress must intervene to overturn the rule, or it must be suspended through litigation. All of these options will take time and resources to complete and, at a time when Obama and congressional Democrats already face huge threats on the domestic and international fronts, both are in short supply. Read on Government Executive. Immigration litigators are eager to see undoing of Matter of Compean, et. al, 24 I&N 710 (A.G. 2009), Interim Decision #3632 (A.G. January 7, 2009), literally the last minute decision of the former Attorney General to restrict the right to due process and right to legal counsel in appeal proceedings.

01/26/2009: Another Victim of Obama Administration's Review of Bush Rule-Making Scheme and Withdrawal - Department of Justice

• The Department of Justice approved for release at the end of 2008 a rule of EOIR that gives the Board of Immigration Appeals affirm without opinion, referral for Three-Board-Member review, and publication of decisions as precedents. Even though this rule was approved and was yet to take effect when the Bush administration moved out. Now, the new Department of Justice under the Obama administration is scapping this rule making by withdrawing it. Apparently, this is another victim of the Obama administration of the review of the pending or yet-to-take-effect rules. This is a clear victory for the due-process advocated by the immigration law community in the immigration appeal process in that rather than three members but full panel decision is required for the authoritative decisions in the appeal process. For the text of now-withdrawn rule, please refer back to our report on January 1, 2009.

01/26/2009: Apparent One of First Victims of USCIS Rule-Making Agenda of Bush Administration

• On October 17, 2008, OMB was requested to approve revision of list of acceptable documents for I-9 employment verification system in order to further secure integrity of the verfification system. This rule-making could not be completed before the Bush administration moved out. As we reported a few days ago, one of the first actions Obama administration took was to freeze release of the pending or yet-to-take-effect rules pending review. The report indicates that the USCIS withdrew this rule-making agenda on January 23, 2009.

01/25/2009: USCIS Announces Form Changes

• The following forms new versions to add specific features. Accordingly, those filing these forms not for the added specific features may continuously use the existing versions.
  • I-129, Petition for Nonimmigrant Worker. New version, dated 1/22/09, prior versions may be used. Reflects changes in filing location for H-2A and H-2B petitions.
  • I-485, Application to Register Permanent Residence or Adjust Status. New version, dated 12/16/08, prior versions may be used. Reflects changes in filing location for EB-5 (immigrant investor) applications.
  • I-526, Immigrant Petition by Alien Entrepreneur. New version, dated 12/16/08, prior versions may be used. Reflects change in filing location.
  • I-829, Petition by Entrepreneur to Remove conditions. New version, dated 12/16/08, prior versions may be used. Reflects change in filing location.
  • I-192, Application for Advance Permission to Enter as a Non-Immigrant. New version, dated 1/15/09. Reflects one year extension of the OMB control number and expanded instructions regarding various situations of an non-immigrant filing the application. The prior version, dated 7/30/07, may be used only through 2/20/09.
  • N-400, Application for Naturalization. New version, dated 1/22/09, reflects extension of the OMB control number and revisions of instructions regarding filing location of the form. Prior versions may be used
• Fo the USCIS form change announcements, please visit our home page.

01/24/2009: GAO Releases 01/23/2009 Study and Analysis of USCIS Filing Fee Increases in 2007 and Recommendations

• This Government Accounting Office release relfects that about the USCIS was run on the fees collected from the customers in 2008. Do you remember the whoppy fee increase in August 2007, immediately following the FY 2007 Visa Bulleting fiasco? How were these fee increased justified? Here is what the GAO study is saying: USCIS allocated $732 million of overhead costs (or 31 percent of total costs)--including information technology operations and maintenance--to offices based on the number of staff full-time equivalents (FTE) in each office. However, USCIS's documentation did not sufficiently justify (1) why cost allocation was used instead of other possible methods or (2) why it did not include about 6,100 contract workers and used only approximately 7,900 FTEs of the total federal FTEs of about 10,400 as the basis for allocation. USCIS also did not adequately justify the equal assignment of activity costs representing 51 percent of total costs to each application type. While such pro rata assignment of costs may be a reasonable method in some circumstances, USCIS did not document its justification for the assumptions made when deciding which costs to allocate on a prorated basis and how those costs should be allocated. Because of these inconsistencies with federal accounting standards and principles and other guidance, USCIS cannot support the reasonableness of cost assignments to the various application types. USCIS has implemented accountability mechanisms to track the use of both regular application fees as well as premium processing fees intended for specific projects. USCIS plans to use its premium processing fee collections to fund its transformation program to make long-term improvements to its business processes and technology. Through its monitoring of fee collection procedures, USCIS has identified some weaknesses at one of its service centers. It has taken actions to strengthen service center controls in the short term, and it is moving all fee receipt functions and the application processing done in preparation for adjudication to lockbox facilities to further strengthen control over collections.
• Read on for the summaries of two reports: (1) summmary of the report 1, and (2) summary of the report 2.

01/24/2009: Did You Try and Fail to Access Foreign Labor Certification Site Last Evening and Last Night?

• You were not alone. The OFLC announces that the system was shutdown for system maintenance from Friday, January 23, 2009, at 5:30 p.m., until 6:00 a.m. Saturday, January 24, 2009. Hmm........ Lot of things have been happening with access to the foreign labor certification application online systems lately. We hope that the newly reengineered temporary and permanent labor certification online filing systems do not experience the nightmare which the PERM program experienced when they first launched at the end of March 2005 and continued for six months because of the so-called decision matrix program. The OFLC has yet to announce the details of the schedules of the launch of newly reengineered PERM and H-2A/H-2B online filing programs. Probably, they may release it at the public briefings which are scheduled on the fourth and nineth of February in San Diego, California, and Baltimore, Maryland. For the details, please revisit our earlier report on 01/14/2009.

01/24/2009: Bill to Extend Basic Pilot Program for Employment Verification Requirement Reintroduced in the House

• H.R. 662 was reintroduced yesterday January 23, 2009 in the House.

01/24/2009: Shake-Ups Underway for DHS Top Posts

• The DHS announces the following nomination/appointments for the top posts:
  • Deputy Secretary: Jane Holl Lute
  • Chief of Staff for Policy: Noah Kroloff
  • Chief of Staff for Operations: Jan Lesher
• For their bios and announcement, please click here.

01/24/2009: Sen. Grassley Demands Microsoft U.S. Citizen Worker Priority over H-1B Workers in 5,000 Job Cuts

• Report indicates that U.S. Sen. Charles Grassley (R-Iowa) told Microsoft Corp. this week that U.S. citizens should get priority over H-1B visa holders as the software vendor moves forward on its plan to cut 5,000 jobs. Sen. Grassley, a vocal critic of the H-1B program, reportedly could have sent to any number of IT vendors that have announced layoffs recently, but Microsoft has been an outspoken proponent of increasing the annual cap on H-1B visas, and Sen. Grassley's action can be taken as a prelude to his upcoming campaign in the Congress to introduce legislation against the H-1B visa program and is probably taking advantage of rising unemployment in the country and the soon-to-be opened H-1B lottery for FY 2010 H-1B cap on April 1, 2009.

01/23/2009: USCIS Updates on 01/23/2009 Its Processing Times as of 11/30/2008

• Please visit our home page.

01/23/2009: OMB Memorandum of 01/21/2009 to Agencies Concerning Guidance for Implementation of Policy of Holding Regulations Pending Review

• This memorandum advises the agencies to consider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect, subject to certain exceptions, for the purpose of reviewing questions of law and policy raised by those regulations. Where such an extension is made for this purpose, the agencies should immediately reopen the notice-and-comment period for 30 days to allow interested parties to provide comments about issues of law and policy raised by those rules.
• In immigration areas, there may be a few rules that have been published with the effective date later than 01/20/2009. Obviously, some of these regulations may be delayed, should the regulations fall under this guideline. Please stay tuned.

01/23/2009: Plea for Compassionate Immigration Management Under Economic Crisis

• The country and the world are undergoing the worst economic recession since the 1920's Depression. Lay-off and unemployment are the everyday's news nowadays. Just released Microsoft 5000 layoff plan and similar layoff plan for Intel shocked the high-tech industry. Whether for good or bad, it has been the reality of our high-tech industry that the industry has been supported by high-tech foreign workers and the nation owes these high-tech foreign workers for their contribution to the nation's competitive edge in global cyber-space economy.
• We are inspired and live in hope for the future that we will eventually endure the economic recession and rebuild the nation as a leader of the global economy. Granted that the current rising unemployment will represent a thing of the past in certain future, sustaining reservoir and pool of foreign high-tech workers remain critically important. In order to keep these foreign worker's services, the U.S. businesses, particularly high-tech industry, have sponsored and filed immigrant petitions, I-140 petitions. The approval of I-140 petitions is very important for these foreign workers to survive under the economic crisis because of the benefits attached to such approval, including extension of H-1 B nonimmigrant worker status beyond six years in three-year increment, retention of priority date for the purpose of the immigrant visa or application for permanent residence, invocation of new employment opportunities under certain conditions pending green card application, extension of employment authorization document in two-year increment instead of one year increment, and other benefits. However, all of these benefits for these foreign workers are currently in siege because of the apparent current processing policy of the USCIS that prioritizes and places I-140 petitions in low priority because of the visa regrogression allegedly to achieve efficient and effective use of its processing and adjudication resources. Currently, the employment-based immigration visa numbers, particularly EB-3, are witnessing a severe retrogression and from the perspectives of the priortization policy of the leaders of the USCIS, the I-140 petitions for which the visa numbers are not current may be considered low priority in adjudication of cases. In normal circumstances, such prioritization policy is admittedly justified and must be supported by the community. However, we are currently in a different environment. The current processing backlog of I-140 petitions, particularly EB-3 petitions, for almost one year and a half, is producing harsh consequences to these foreign workers depriving these foreign workers of the forementioned benefits to surve during this unusual period of time. We trust that the harsh consequences of the current policy were not intended by these leaders. But whether inteneded or unintended, the leaders should look at the reality and realize that we are in an unusual environment, which demands adjustment of their policies to accomodate the given circumstances.
• Admittedly, kicking out all of these foreign workers at this time who may play a critical role in the economic recovery and in the future is not considered in the best interest of the nation. Additionally, doing nothing to alleviate hardships to these foreign workers cannot be considered a justice and a wise policy. Policy should be managed flexibly using compassion as the environment for the policy changes. WE STRONGLY URGE THE LEADERS OF THE IMMIGRATION POLICY TO REINSTATE PREMIUM PROCESSING SERVICES FOR I-140 PETITIONS AND RESOLVE THE CURRENT CRISIS OF UNACCEPTABLE BACKLOG IN I-140 PETITIONS.

01/23/2009: Annual Update of the HHS Poverty Guidelines 2009

01/23/2009: House Judiciary Committee Immigration Subcommittee Line-Up

• Here are the familiar faces.

01/23/2009: Senate Judiciary and Homeland Security Committees Members

• Senate passed resolution approving the following line-up of these two committees who will determine the immigration policies in the upper house:
  • HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS:
    • Majority Party:: Mr. Lieberman (Chairman), Mr. Levin, Mr. Akaka, Mr. Carper, Mr. Pryor, Ms. Landrieu, Mrs. McCaskill, Mr. Tester, Mr. Burris, and Majority Leader designee.
    • Minority Party: Ms. Collins, Republican Leader designee, Mr. Coburn, Mr. McCain, Mr. Voinovich, Mr. Ensign, and Mr. Graham.
      
  • JUDICIARY:
    • Majority Party: Mr. Leahy (Chairman), Mr. Kohl, Mrs. Feinstein, Mr. Feingold, Mr. Schumer Mr. Durbin, Mr. Cardin, Mr. Whitehouse, Mr. Wyden, Ms. Klobuchar, and Mr. Kaufman.
    • Minority Party: Mr. Specter, Mr. Hatch, Mr. Grassley, Mr. Kyl, Mr. Sessions, Mr. Graham, Mr. Cornyn, and Mr. Coburn
• In the Judiciary Committee, the name of our most passionate immigration supporter's name, Senator Edward Kennedy, is missing. Senator Kennedy has been undergoing the brain tumor treatment, and we would like to join the Judiciary Committee in sharing our heart being with him. Another prominent name that is missing is Senator McCain. However, it is expected that he will play a key role in the immigration reform legislation in a good partnership with the President Obama.
  

01/22/2009: AILA's Immigration Policy Blue Print for Obama Transition Team

• AILA worked out 34 web page blue print and submitted to the new Administration, President Obama and Vice President Biden. This document indeed hit all the issues and problems involved in the current immigration system and management. The issues raised are followed by its recommendations in a wide range of subjects. Without doubt, this document will serve as a very helpful road map for the new DHS Secretary Napolitano and Obama-Biden White House in reforming the current immigration management. This document should also give some point-by-point policy issues which the House and the Senate should address to as the oversight authorities and for the purpose of developing either piece-meal or comprehensive immigration reform legislation this year. We strongly recommend immigrants, immigration stakeholders, government stakeholders, and legislators to review this document. This document is also posted at www.change.gov.

01/22/2009: HHS 2009 Poverty Guideline

• HHS annually releases poverty income guidelines which are used by various government agencies for different purposes. For the immigration proceedings, DHS and DOS uses 125% of the HHS poverty guidelines for the purpose of determination for eligibility of immigrant visa or adjustment of status to a lawful permanent resident financial sponsorship (I-864) by the sponsor or co-sponsor or joint-sponsor. For the purpose of HHS, the following figues will take effect tomorrow when this is published, but for the USCIS and DOS, the new poverty guidelines do not take effect until each department releases the 125% poverty income guidelines separately. For the family-based immigration sponsors, they should wait until the USCIS or DOS releases their own adjusted 2009 poverty guidelines (125%) for the immigration proceedings around late February or early March 2009.

• For the full text, please click here.

01/22/2009: President Obama Order of Freeze of Release of New Rules Pending Review and Its Affect on Immigration-Related Rule Making

• The order includes those that were in the OMB vault which had yet to be approved or if approved, yet to be published in the federal register. The vault of the OMB reflects that the Bush Administration had practically completed the review and published practically all of the pending immigration-related rules of the DHS, DOL, and DOS before January 20, 2009, and the OMB vault is currently practically empty when it comes to the immigration-related rules other than two or three. There could have been a few rule-making agenda which these agencies had scheduled to be submitted to the OMB approval, but obviously these new rule-making agenda may be affected by the order.
• Since the new Secretary of Department of Homeland Security obtained the Senate consent and officially appointed, it is likely that most of the policies and issues relating to the management will go through a thorough review, and pending completion of such review, it is likely that the immigrant community may not see any policy or practice information flowing from the agency at least for a while.

01/22/2009: New Version of N-400 Form Takes Effect Today

• USCIS has released the revised N-400 form (01/22/2009) and instructions which took effect today. Certain prior versions are still acceptable but because of the filing location change instructions in the 01/22/2009, the naturalization applications may want to use the newest version (01/22/2009).

01/21/2009: List of Nominees and Appointees of Obama Administration

01/16/2009: Online Registration to Attend OFLC Public Briefing Sessions for New Labor Certification Forms in San Diego and D.C.

• The Office of Foreign Labor Certification Application is accepting registrations for those who want to attend one of the publis briefing sessions. We post this with the gratitude for AILA for making this information available swiftly for the public.

01/16/2009: The DHS Announces Upgraded Biometric Technology in Place at Major U.S. Ports of Eentry

• DHS announced on 01/15/2009 that upgraded biometric technology is in place at major U.S. ports of entry, and most international visitors should expect to use the new technology when they enter the United States. DHS's US-VISIT program began upgrading its biometric technology from a two- to a 10-fingerprint collection standard in 2007 to make the entry process faster and more accurate, enabling DHS officials to focus their attention on people who may pose a risk to the United States.
• The US-VISIT Procedures will also be expanded to additional non-U.S. citizen travelers effective 01/18/2009, Sunday. Collection of biometrics means that these travlers will be subject to digital fingerprints and a photograph upon entry or re-entry to the United States. The expanded non-U.S. citizens include:
  • Lawful permanent residents of the United States (LPRs);
  • Persons entering the United States who seek admission on immigrant visas;
  • Persons entering the United States who seek admission as refugees and asylees;
  • Canadian citizens who are currently required to obtain a Form I-94 (Arrival-Departure Record) upon entry or who require a waiver of inadmissibility to enter the United States (this excludes most Canadian citizens entering the
  • United States for purposes of shopping, visiting friends and family, vacation or short business trips);
  • Persons paroled into the United States; and
  • Persons applying for admission under the Guam VWP.
• Canadians:
  • Canadians applying for admission to the United States under a B-1 or B-2 nonimmigrant classification for business or pleasure, which represents most Canadian travelers to the United States, are not required to enroll in US-VISIT at this time.
  • Canadian citizens who must now enroll in US-VISIT are those issued a Form I-94 (Arrival Departure Record), including:
    • Canadians applying for admission in the following nonimmigrant classifications: C, D, F, H, I, J, L, M, O, P, Q 1, Q 3, R, S, T, TN; and
    • Canadians who are granted a waiver of inadmissibility to enter the United States.
    • Canadians requiring issuance of Form I-94 are already referred to secondary inspection. Therefore, no additional wait time will be added.
      
• Other International Travelers:
  • H-1B visa holders will follow existing protocols and will be screened through US-VISIT when applying for a new multiple entry Form I-94 or when referred to secondary inspection for other reasons.
  • At seaports, LPRs returning from a closed loop cruise (cruises that begin and end at the same port in the United States) will be exempt from US-VISIT processing. LPRs returning to the United States from an “open” cruise will be subject to US-VISIT processing.
  • Non-U.S. citizens entering or re-entering the United States at a land border port of entry will be processed somewhat differently, as follows, at the inspecting officer’s discretion:
    • LPRs will provide biometrics only if they are referred to secondary inspection.
    • All other non-U.S. citizens included in this final rule—unless specifically exempt—will experience US-VISIT procedures during secondary inspection, just as most non-U.S. citizens already subject to US-VISIT procedures currently do (e.g., those who require a Form I-94).
    • Non-U.S. citizens who seek admission with Border Crossing Cards and who do not have a Form I-94 will still go through US-VISIT procedures, at the discretion of CBP officers.
• For additional details, please check the announcement.
  

01/16/2009: Economic Recession, Its Impact on Immigration, and Perspectives of Immigration Reform Policy and Direction

• The country is now going through the steepest economic recession since the Great Depression in the 1920s with the ever rising unemployment rate. Such pinch is felt across the board. Without any second guessing, one can easily understand that it has been affecting the immigration in the country. This will likely to continue. More importantly, such change will give some perspectives and directions for the nation's immigration policy makers and legislators for reform of the immigration system.
• There are several studies coming out on this issue, but a study which has just been released by the Migration Policy Institute gives good glimps into the picture. This is a long week-end reading material, and we ask the readers to read this material during this weekend. Here is the report.

01/15/2009: DHS Announces Guam-Commonwealth of the Northern Mariana Islands Visa Waiver Program

01/15/2009: OFLC Posts New Forms for H-2A (agricultural) and H-2B (non-agricultural) Temporary Worker Labor Certification Applications

• The OFLC states that in conjunction with the regulations going into effect on January 17 and 18 for the H-2A and H-2B programs, the Department has created new forms to collect the necessary information from employers applying for labor certifications. Employers must begin using the Form ETA-9142 on the effective date of the new regulations. In addition, for the H-2A program employers must fill out and submit Appendix A.1 and Appendix A.2. For the H-2B program employers must fill out and submit Appendix B.1. For instructions on how to complete the form and appendices see the instructions. The H-2B Final Rule requires the use of the new Form ETA-9141 for prevailing wage determinations. However, the use of this form will only begin after the transition period outlined in the rule is completed. Therefore, Form ETA-9141 will be posted towards the end of the transition period.
• Here are the new form links:
  • ETA 9142
  • Appendix A.1
  • Appendix A.2
  • Appendix B.1
  • Instructions
• For the OFLC posting, please visit foreign labor certification site.
  

01/15/2009: USCIS Corrects Errors in Recently Published Rule on I-94 Verification Documents

• On December 17, 2008, the USCIS published an interim rule governing changes in the types of acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the Form I-9, Employment Eligibility Verification. The USCIS has learned that there was some errors with reference to the temporary I-551 stamp and related matters and wants to correct the errors by notice which will be published tomorrow. The correct reading of the relevant section of the rule should be as follows:
  • § 274a.2 Verification of identity and employment authorization.
    * * * * *
    (b) * * *
    (1) * * *
    (vi) * * *
    (B) * * *
    (1) Presents the arrival portion of Form I-94 or Form I-94A containing an unexpired “Temporary I-551” stamp and a photograph of the individual, which isdesignated for purposes of this section as a receipt for Form I-551; and
    (2) Presents the Form I-551 by the expiration date of the “Temporary I-551”stamp or, if the stamp has no expiration date, within one year from the issuance date of the arrival portion of the Form I-94 or Form I-94A; or
• For the explanation of the errors and corrections, please read the full text of the advance copy of this notice.

01/15/2009: State Department Published in Federal Register Exclusive Electronic Filing Requirement Rule for Diversity Immigration Applications

• Here it is.

01/15/2009: OFLC Publishes in Federal Register Announcement of Public Briefings on Using Redesigned Labor Certification Forms and Stakeholder Meeting

• Yesterday, we posted the advance copy, but here is the officially published notice.

01/14/2009: OFLC Releases FY 2007 Foreign Labor Certification Program Performance Report

• This is a very long file for downloading and needs patience for downloading.

01/14/2009: Office of Foreign Labor Certification Releases FAQs on Supervised Recruitment in PERM Labor Certification Application

• In PERM labor certification, supervised recruitment is a track of adjudication process that requires the employer's recruitment under the supervision of the OFLC. This FAQ answers some of the questions that both the practitioners and the employers have been seeking. Until now, the rate of decision of supervised recruitment has been fairly low and limited. However, the timing of release of this FAQ now raises some questions as to whether it is intended to signal any potential change of course of the OFLC under the upcoming new PERM program to increase its focus on the supervised recruitment as a means to scrutinize intensively credibility of the employer's claims of unavailability of U.S. workers in the recruitment areas that show higher unemployment rate under the environment of ever deteriorating economic downturn and increasing unemployment rate in the country. We just hope that the release of this FAQ is just a coincident to its recent release of policy for the adjudicators to go into internet sites for checking unemployment rates of diffeent areas and locations as part of their decision making process. Considering the fact that the OFLC has just initiated the move to launch the new PERM program that will focus on "integrity" of the applications in the near future and as part of such move, is scheduling the reengineered PERM program briefing sessions in the first part of February 2009, it may be entirely not coincident that this FAQ is released now. Whatever the motive is, the employers and practitioners should make themselves familiarized with the FAQs of supervised recruitment process.

01/14/2009: House Judiciary Chairman Conyers and Immigration Subcommitee Chairwoman Lofgren Condemns Outgoing Attorney General Mukasey for Slamming the Door on Immigrants on the Way Out

• On January 9, 2009, the House Judiciary Committee Chairman John Conyers, Jr. (D-MI) and Immigration, Citizenship, Refugees, Border Security, and International Law Subcommittee Chairwoman Zoe Lofgren (D-CA) released a statement condemning the decision issued on January 7 by Attorney General in Matter of Compean, 24 I & N Dec. 710 (A.G. 2009). The attorney general's decision overruled long-standing Board of Immigration Appeals (BIA) decisions on ineffective assistance of counsel in removal proceedings. The attorney general's ruling - which has the force of law - holds that immigrants do not have a right to receive new deportation hearings when their attorneys or representatives were acting incompetently or fraudulently, because (in the attorney general's opinion) they do not have a right to counsel. This ruling contradicts long-standing BIA practice and decisions of seven appellate courts by directing the BIA and immigration judges to "apply the [new] framework ... in toto, even in circuits that have previously held that there is a constitutional right to effective assistance of counsel." For the full text, please click here.
  

01/14/2009: State Department Rule on Requirement for Exclusive Electronic Filing of Diversity Immigrant Status

• This final rule will be published tomorrow, but it has no substantive change other than making the immigrant status electronic filing exclusive and mandatory. For the advance copy of this final rule, please click here.
  

01/14/2009: Full Text of H.R. 264 "Save America Comprehensive Immigration Act of 2009"

• We reported on the 18th that this bill was introduced by Rep. Shela Jackson-Lee of Texas. Here is the full-text of the bill. It is a shocker, highly prejudiced against the employment-based immigration. Another shocker is a proposal to increaase Diversity Visa from 55,000 to 110,000 when the general opinion in the Congress was even to eliminate the DV program. How interesting..........................................

01/14/2009: OFLC Schedules to Offer Briefings on New Forms ETA 9035 for Temporary Labor Certification Application and ETA 9089 PERM Application in February 2009

• AILA has reported that according to the advance copy of its upcoming notice of schedules of these briefings, the Office of Foreign Labor Certification is currently considering the following briefing sessions scheduled in February to educate stakeholders, program users, and other interested members of the public on using the re-engineered 9035 and 9089 application forms, and the online portal system
  
  • Stakeholder Meeting: 02/03/2009, San Diego
  • Public Meetings:
    • 02/04/2009, 9:30 am - 12:30 pm: Manchester Grand Hyatt, One Market Place, San Diego, CA 92101: Topics: New 9035 and New ETA 9089
    • 02/09/2009, 9:30 am - 12:30 pm: Baltimore Marriott Inner Harbor at Camden Yards, 110 South Eutaw Street, Baltimore, MD 21202: Topics: New 9035 and New ETA 9089
• Caveat: The foregoing information can change in the official release of the schedules and notice. Those who are interested in registering for the briefing sessions should wait for the release of official notice before making a travel plan.
• This notice will be officially published in the federal register tomorrow. For the advance copy, please click here.
  
  

01/14/2009: USCIS Reminder: Schedule of Close of Offices in Washington, D.C. Metropolitan Area

• As we reported earlier, the President issued an executive order to close the federal offices in the Washington D.C. and vicinity areas. On top of that, we have Martin Luther King, Jr. holiday on coming Monday. Accordingly, the following USCIS notice may apply to all the immigration-related other agencies including DOL, EOIR, DOS, etc.
• U.S. Citizenship and Immigration Services (USCIS) headquarters, field offices, asylum offices, and Application Support Centers (ASCs) in the Washington, D.C. metropolitan area will be closed January 17 through January 20, 2009 for two federal holidays. On Monday, January 19, all USCIS offices will be closed to observe the birthday of Martin Luther King, Jr. Because the federal holiday is on a Monday, all ASCs will also be closed on Saturday, January 17. In addition, all USCIS offices in the District of Columbia, Montgomery and Prince George’s Counties in Maryland, Arlington and Fairfax Counties in Virginia, and the cities of Alexandria and Falls Church in Virginia will be closed for the presidential inauguration on January 20.
• The following offices will be closed on Saturday, January 17 through Tuesday, January 20, 2009:
  • USCIS headquarters, Washington, D.C.
    Application Support Center, Glenmont, Md.
    Arlington Asylum Office, Arlington, Va.
    Application Support Center, Alexandria, Va.
    Washington Field Office, Fairfax, Va.
• USCIS offices in Baltimore, Md. and Norfolk, Va. are closed on Monday, Jan. 19, 2009, and open on Tuesday, Jan. 20, 2009.

01/13/2009: February 2009 Visa Bulletin

• Small good news for China and Indian EB-2, both approximately 6 months moving forward. For China and Mexico, EB-3 moved ahead about 5 month but all other countries witness no change from January cutoff dates.
• Real bummer is with retrogression of EW unskilled worker cut-off dates except the Phililippines which remains same.
• No prediction for the future movement.

01/13/2009: House Children Healthcare Bill Likely to Help Immigrant Children and Pregnant women

• Healthcare reform in general and particularly children's healthcare form are on the top agenda of Obama legislative agenda. According to the Wall Street Journal, the House will soon and quickly pick up and act on the healthcare reform bill. Reportedly, the bill will propose to restore healthcare benefits to immigrant children and pregnant women which are currently restricted.

01/13/2009: Senator Dianne Feinstein Proposes Changes to Requirement for Participation in Visa Waver Program

• Yesterday, Senator Feinstein introduced a bipartisan bill , cosponsored by Sen. Jon Kyl of Arizona (R), S.203 in the Senate to tighten up the requirements for participation in the visa waiver program. The “Strengthening the Visa Waiver Program to Secure America Act” would:
  • Set a maximum low visa overstay rate for all visa waiver program countries;
  • Require a reevaluation of visa waiver program countries within one year;
  • Mandate that the Administration will lose its authority to continue to expand the program if it does not track 97 percent of those exiting and departing U.S. airports – based on arrival data, not just departure data;
  • Require an audit of the electronic travel authorization system (ESTA); and
  • Require current visa waiver countries to report on lost or stolen visas in order to remain in the visa waiver program.
• For the details of the background and purpose of this bill, please click here.

01/12/2009: Delay of Requirement of E-Verify System for Federal Contractors and Subcontractors Till 02/20/2009

• USCIS announces on 01/12/2009 that implementation of the final rule requiring federal contractors and subcontractors to begin using USCIS’ E-Verify system has been delayed until 2/20/09. An amendment providing notice of this postponement will publish in the Federal Register on Wednesday, 01/14/09. The final rule will be legally final and effective on 01/19/09, but Federal contracting officers will not begin to insert the new E-Verify clause into federal contracts and solicitations until 2/20/09.
• This new rule will require federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States. Federal contracts awarded and solicitations issued after Feb. 20, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.
• For the announcement, please click here.

01/12/2009: USCIS Update: USCIS Changes Filing Location for EB-5 Related Items

01/12/2009: Visa Waiver Program Travelers: Effective Today, ESTA is Mandatory for Admission to the U.S!

• DHS has released a reminder today that travelers from all Visa Waiver Program (VWP) countries are now required to obtain approval through the Electronic System for Travel Authorization (ESTA) prior to traveling to the United States. This requirement, effective today, applies to all eligible citizens or nationals traveling under the VWP. For the full text of the reminder, please click here.
  

01/12/2009: Grim Outlook With Economic Crisis and Prediction for Immigration Reform Legislation in 2009 and Ahead

• Report indicates that even though the Senate introduced S.9, the Congress' sense on the nation's immigration issues and need for reform, the Obama himself and his transition team remain mute despite persistent questioning from both pro and con immigration forces. This leads to two predictions, among others. If the Congress takes the comprehensive immigration bill "at all," the earliest it can take place may not be before September 2009 or later and the chance for passage of any "comprehensive" immigration reform in 2009 will be slim. The second prediction also agrees to this prediction that there is no likelihood of any "comprehensive" immigration reform will be legislated this year. However, this second prediction relects that the Congress and Obama Administration may pick up potentially two piecemeal immigration legislations, if all, including DREAM bill for illegal youngsters and AgJOBS bill for farm workers. Fearing the backfire under the extremely volitile economic crisis, pro-immigration groups have kept, currently keep, and will continuously keep a low profile on immigration reform issues.
• The problem is: If these predictions turn out to be true, the "comprehensive" immigration reform may continuoulsy remain a backburner even after 2009 because 2010 is another national election year, midterm national election. Since 2009 is a leap-year for the national election, the year 2009 has been considered the most promising year for comprehensive immigration reform, one of the most ailing problems for the nation. For the nation's future, the people in this nation and for that matter, even the people in the world as a whole, started the year 2009 with "hope," albeit for the future, but the immigration in the country may continuously remain a toll of the times and the nation's and world's struggle to achieve such hope and return to normalcy in economy, politics, peace, harmony, and life in general.

01/11/2009: USCIS Releases Form Changes Relating to Recent T and U Visa Rule Release

• USCIS announces on 01/09/2009 that the following changed forms have been released to reflect the T and U rule changes:
  • I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant
  • I-485, Supplement E - providing additional instructions for filing of adjustment of status based on T or U nonimmigrant visas.
  • I-131, Application for Travel Document
  • I-601, Application for Waiver of Ground of Inadmissibility
  • I-765, Application for Employment Authorization
• For the details, please visit USCIS form site.
  

01/11/2009: House Committee Members Relevant to Immigration

• Committee on Homeland Security: Representatives Smith (TX), Souder, Daniel E. Lungren (CA), Rogers (AL), McCaul, Dent, Bilirakis, Broun (GA), Miller (MI), Olson, Cao, and Austria.
• Committee on Judiciary: Representatives Sensenbrenner, Coble, Gallegly, Goodlatte, Daniel E. Lungren (CA), Issa, Forbes, King (IA), Franks (AZ), Gohmert, Jordan (OH), Poe (TX), Chaffetz, Rooney, and Harper.
• Committee on Oversight and Government Reform: Representatives Burton (IN), McHugh, Mica, Souder, Platts, Duncan, Turner, Westmoreland, McHenry, Foxx, Bilbray, Jordan (OH), Flake, Fortenberry, and Chaffetz.
• Committee on Science and Technology: Representatives Sensenbrenner, Smith (TX), Rohrabacher, Bartlett, Ehlers, Lucas, Biggert, Akin, Neugebauer, Inglis, McCaul, Mario Diaz-Balart (FL), Bilbray, Broun (GA), and Olson.
• Committee on Education and Labor: Representatives Petri, Hoekstra, Castle, Souder, Ehlers, Biggert, Platts, Wilson (SC), Kline (MN), McMorris Rodgers, Price (GA), Foxx, Bishop (UT), Guthrie, Cassidy, McClintock, Hunter, and Roe (TN).

01/10/2009: Bill Introduced Yesterday to Treat Harsh Aliens Convicted of Drunk Driving

• Rep. Jeff Flake of Arizona introduced yesterday in the House H.R.373 to amend the Immigration and Nationality Act to render inadmissible and deportable certain aliens convicted of drunk driving, and for other purposes.

01/09/2009: Foreign Workers, Are You Unemployed? Visit Our Matthew Oh Blogs Site

01/09/2009: February 17, 2009 Digital TV Conversion Extension Bill Introduced

• Rep. Todd Russell Platts (PA) introduced H.R.339 to extend the expiration date of coupons issued under the digital television converter box program. As free converter coupons fund has run out, this program is stirring controversy for lower middle class population and the President-Elect has come forward to support extension of this program. Please stay tuned.

01/09/2009: USCIS Publishes EB-5 Filing Address Change in Federal Register

01/08/2009: Sen. Sherrod Brown [OH] Joined Yesterday the List of Co-Sponsors for S.9 Immigration Bill, Changing Co-Sponsors to 13 Senators

01/08/2009: USCIS Announces That Over 100,000 Employers Use E-Verify

01/08/2009: USCIS Releases Fact Sheet on E-Verify Strengthening the Employment Eligibility Document Review Process for the Nation’s Employers

01/08/2009: USCIS Announcement of Reach of H-2B Cap for FY 2009

01/08/2009: Bill Introduced in the House for Comprehensive Immigration Reform

• Rep> Sheila Jackson-Lee of Texas introduced H.R.264 yesterday to amend the Immigration and Nationality Act to comprehensively reform immigration law, and for other purposes. For the full text of the bill, please stay tuned.
  

01/08/2009: Bill Introduced in the House to Exempt Filing Fees for Elementary/Secondary School H-1B Foreign Workers

• Rep. Gene Green of Texas introduced yester a bill, H.R.246 to amend the Immigration and Nationality Act to exempt elementary and secondary schools from the fee imposed on employers filing petitions with respect to non-immigration workers under the H-1B program.
  

01/08/2009: Advance Copy of USCIS Notice to Change Filing Locations for EB-5 Related Documents

• This notice will be published in the federal register tomorrow.

01/08/2009: EOIR Seeks 30-Day Comment for Form EOIR 44 For Complaints Against the Immigration Practitioner before EOIR

• EOIR will publish this notice tomorrow to extend this form. We posted yesterday the EOIR Form 45 Extension Notice by EOIR. which is a form for notice of appeal by immigration practitioners who faced a decision of discipline. Again, yesterterday, the U.S. Attorney General handed down a decision, Matter of Compean, et. al, 24 I&N 710 (A.G. 2009), Interim Decision #3632 (A.G. January 7, 2009), that overruled the two precedent decisions of the Board of Immigration Appeals, Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003), restricting scope of right to counsel in removal proceedings. U.S. Department of Justice appears to make the immigration practitioners ever harder to practice law in the environment when immigration practitioners have increasingly shifted their law practice from the national-scope employment-based practice to local-scope practices including enforcement and immigration court practices because of the shrinking law practice market in the area of the employment-based immigration laws as affected by (1) ongoing serious economic recession and massive layoffs and (2) ever delaying the labor certification and employment-based petition/application processes at the Service Center level and DOL level for the alleged need for integrity of the immigration process. Hmm...........................................................

01/08/2009: FY 2009 Second Half H-2B Cap Reached 01/07/2009!

• As we predicted, the H-2B cap numbers for FY 2009 Second Half were running very fast. Yesterday, the numbers completely ran out and all the H-2B cap numbers for FY 2009 have been exhausted.

01/08/2009: Line-Up of House Leaders for 111th Congress With Power to Impact Immigration Legislations

• Election of Majority and Minority Leaders:
  • Majority Leader: Representative Steny H. Hoyer
  • Minority Leader: Representative John A. Boehner
• Election of Majority and Minority Whips:
  • Majority Whip: Representative James E. Clyburn
  • Minority Whip: Representative Eric Cantor
• Election of Chairmen of Key Immigration-Related Standing Committees:
  • Committee on Education and Labor: Representative George Miller (CA)
  • Committee on Homeland Security: Representative Thompson (MS
  • Committee on the Judiciary: Representative Conyers
  • Committee on Oversight and Government Reform: Representative Towns
  • Committee on Science and Technology: Representative Gordon (TN)
    

01/08/2009: Text of Senate Bill S.9 and Judiciary Chairman Leahy Supporting Statement on the Floor

• S. 9 Bill Text:
  • Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
  • SECTION 1. SHORT TITLE.
  • This Act may be cited as the ``Stronger Economy, Stronger Borders Act of 2009''.
  • SEC. 2. SENSE OF CONGRESS.
  • It is the sense of Congress that Congress should enact, and the President should sign, legislation to strengthen the economy, recognize the heritage of the United States as a nation of immigrants, and amend the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) by--
  • (1) providing more effective border and employment enforcement;
  • (2) preventing illegal immigration; and
  • (3) reforming and rationalizing avenues for legal immigration.
• Senator Leahy Supporting Statement on the Senate Floor: .
  • Mr. Presdient, as we begin the 111th Congress, we will try, once again, to enact comprehensive immigration reforms that have eluded us in the past several years. With an administration that understands the critical necessity of meaningful reform and that understands the policy failures of the last 8 years, I am hopeful that the new Congress can finally enact legislation consistent with our history as a nation of immigrants. The majority leader has included immigration reform as among the legislative priorities for the new Congress. I look forward to working with him, Senator Kennedy, Senator McCain, and others interested in working toward the goal of immigration reform.
  • In 2006 and 2007, Congress attempted to pass practical and effective reforms to our immigration system. In 2006, the Senate did its part and passed legislation, only to be thwarted by those in the House of Representatives who opposed dealing with the issue in a meaningful way. In 2007, the House passed legislation only to have it blocked in the Senate by Republican Members opposed to effective reform. If our immigration policies are to be effective and play a role in restoring America's image around the world, we must reject the failed policies of the last 8 years. We cannot continue to deny asylum seekers because they have been forced at the point of a gun to provide assistance to those engaged in terrorist acts. We cannot continue to label as terrorist organizations those who have stood by the United States in armed conflict. We must not tolerate the tragic and needless death of a person in our custody for lack of basic medical care. We must ensure that children are not needlessly separated from their parents and that family unity is respected. We must move beyond the current policy that is focused on detaining and deporting those undocumented workers who have been abused and exploited by American employers but does nothing to change an environment that remains ripe for these abuses. We must protect the rights and opportunities of American workers and, at the same time, ensure that our Nation's farmers and employers have the help they need. We should improve the opportunities and make more efficient the processes for those who seek to come to America with the goal of becoming new Americans, whether to invest in our communities and create jobs, to be reunited with loved ones, or to seek freedom and opportunity and a better life. We must also live up to the goal of family reunification in our immigration policy and join at least 19 other nations that provide immigration equality to same-sex partners of different nationalities. And I believe we would be wise to reconsider the effectiveness and cost of a wall along our southern border, which has adversely affected the fragile environment and vibrant cross-border culture of an entire region. Such a wall stands as a symbol of fear and intolerance. This is not what America is about and we can do better. Those who oppose a realistic solution to address the estimated millions of people currently living and working in the United States without proper documentation have offered no alternative solution other than harsh penalties and more enforcement. The policies of the last 8 years, which have served only to appease the most extreme ideologues, must be replaced with sensible solutions. I am confident that our country and our economy will be far more secure when those who are currently living in the shadows of our society are recognized and provided the means to become lawful residents, if not a path to citizenship. As President-elect Obama's administration considers immigration issues, I look forward to working closely with them and with the Senate's leadership to find the best solutions. President-elect Obama's nominees to lead the Department of Homeland Security and the Department of Labor understand very well the importance of sensible border policies and the importance of workers' rights. The American people look to all of us to forge a consensus for immigration reform that rejects the extreme ideology that has attended this issue and prevented real progress.

01/08/2009: EB-5 Immigrant Investor Filing Address

• AILA has reported that all new EB-5 petitions and regional center application materials to:
  • U.S. Postal Mail Filing: U.S. Citizenship and Immigration Services California Service Center, ATTN: EB-5 Processing Unit, P.O. Box 10526, Laguna Niguel, CA 92607-0526
  • Commercial Deliveries: U. S. Citizenship and Immigration Services California Service Center, ATTN: EB-5 Processing Unit, 24000 Avila Road, Room, 2nd Floor, Laguna Niguel, CA 92677
    

01/08/2009: USCIS Reminder: End of TPS Re-registration Period for Nationals of Honduras, Nicaragua and El Salvador on December 30, 2008

01/07/2009: EOIR is Seeking 30-Day Comment for the Form EOIR 45, Notice of Appeal from a Decision of an Adjudicating Official in a Practitioner Disciplinary Case.

• This proposed form ETA 45 Notice of Appeal to BIA for the Practitioner Disciplinary Decision will be published tomorrow. Under the rule, once the adjudicating official issues a practitioner disciplinary decision, either party or both parties may appeal the decision to the Board for de novo review of the record, pursuant to 8 C.F.R. ' 1003.106(c).

01/07/2009: Bill Introduced for Improvement of SS Card and Employment Verify System Against Employment by Unauthorized Aliens

• Rep. David Dreier of California introduced H.R.98 to amend the Immigration and Nationality Act to enforce restrictions on employment in the United States of unauthorized aliens through the use of improved Social Security cards and an Employment Eligibility Database, and for other purposes.

01/07/2009: Bill Introduced to Legislate U.S. Citizenship Restriction to Child Born in the U.S. of Foreign Parents

• Rep. Elton Gallebly of California introduced H.R.126 to amend the Immigration and Nationality Act to limit citizenship at birth, merely by virtue of birth in the United States, to persons with citizen or legal resident mothers. Wow, here it goes again!

01/07/2009: Bill Introduced to Legislate E-Verify Pilot Program Requirement for Federal Contractors

• Rep. Elton Gallegly of California introduced H.R.138 yesterday to require Federal contractors to participate in the basic pilot program for employment eligibility verification. Please stay tuned.

01/07/2009: Bill Introduced to TPS of Haitians

• Rep. Alcee Hastings of Florida introduced H.R. 144 yesterday to designate Haiti under section 244 of the Immigration and Nationality Act in order to render nationals of Haiti eligible for temporary protected status (TPS) under such section. Please stay tuned.
  

01/07/2009: Bill Introduced to Waive Citizenship Proof for Children Born in the U.S. for Certain Social Security Benefits

• Rep. Jose Serrano of New Yrok introduced H.R. 180 yesterday to amend title XIX of the Social Security Act to waive the requirement for proof of citizenship during first year of life for children born in the United States to a Medicaid-eligible mother. Please stay tuned.
  

01/07/2009: Bill Introduced in the House to Protect Certain Parents of U.S. Citizen Child from Deportation

• Rep. Jose Serrano of New York introduced H.R. 182 yesterday to provide discretionary authority to an immigration judge to determine that an alien parent of a United States citizen child should not be ordered removed, deported, or excluded from the United States. For details, please stay tuned to this website.
  

01/07/2009: The Oh Law Firm Confirms Accuracy of Yesterday's Report of The First Ten Senate Bills Introduced by Sen. Harry Reid Yesterday in the Senate

• Yes, indeed, the Senate Majority Leader, Harry Reid introduced these bills yesterday. S.9 includes comprehensive immigration reform. As soon as we get the details, we will report it. This bill is co-sponsored by 12 other Senators. The co-sponsors are: Sen Begich, Mark [AK] , Sen Bingaman, Jeff [NM] , Sen Boxer, Barbara [CA] , Sen Durbin, Richard [IL] , Sen Kennedy, Edward M. [MA] , Sen Kerry, John F. [MA], Sen Klobuchar, Amy [MN] , Sen Leahy, Patrick J. [VT] , Sen Levin, Carl [MI] , Sen Lieberman, Joseph I. [CT] , Sen McCaskill, Claire [MO] , Sen Schumer, Charles E. [NY].
  

01/06/2009: The First Ten (10) Senate Bills for 111th Congress First Session of the Senate?

• A blog in DC area citing unconfirmed sources reports the following ten(10) bills as the first ten Senate bills of the Senate Majority Leader Harry Reid:
  • S.1 -- American Recovery and Reinvestment Act of 2009. "To create jobs, restore economic growth, and strengthen America’s middle class through measures that modernize the nation’s infrastructure, enhance America’s energy independence, expand educational opportunities, preserve and improve affordable health care, provide tax relief, and protect those in greatest need, and for other purposes." The stimulus bill; no surprises here.
  • S.2 -- Middle Class Opportunity Act of 2009. Sound familiar? This is a retread of a bill sponsored by Senator Chuck Schumer in the last Congress that has a variety of tax reform goals; the additional descriptions in this bill include hints at union support ("ensuring workers can exercise their rights to freely choose to form a union without employer interference") and perhaps another go at the Ledbetter law ("removing barriers to fair pay for all workers").
  • S.3 -- Homeowner Protection and Wall Street Accountability Act of 2009. This bill will include a moratorium on foreclosures, Senator Dick Durbin's plan to allow for easier reworking of troubled mortgages by bankruptcy judges, new regulations for the credit card and financial industry, and investment in the Small Business Administration to provide loans for small businesses in need. It also makes TARP -- the Wall Street bailout -- a larger part of foreclosure reduction.
  • S.4 -- Comprehensive Health Reform Act of 2009. "It is the sense of Congress that Congress should enact, and the President should sign, legislation to guarantee health coverage, improve health care quality and disease prevention, and reduce health care costs for all Americans and the health care system." Paging Ezra!
  • S.5 -- Cleaner, Greener, and Smarter Act of 2009. This is a bill that focuses mainly on green investment and updating infrastructure to be more efficient and less polluting. But since a lot of those priorities are expected to be rolled into the stimulus package, one wonders if this is a vehicle for cap-and-trade and the Kyoto Protocols, given this provision: "requiring reductions in emissions of greenhouse gases in the United States and achieving reductions in emissions of greenhouse gases abroad."
  • S.6. -- Restoring America’s Power Act of 2009. This is basically the Democrats' '08 foreign policy consensus: Refocus on Afghanistan, transition in Iraq, strengthen alliances, WMD non-proliferation in Iran and North Korea... you get the idea. Most of this is in the executive branch's bailiwick so this legislation may just be a supportive resolution indicating that if Obama needs new authorities or resources to accomplish these goals, he'll get them. The bill also includes goals of providing proper training and equipment to the Armed Forces, and medical care when they return from duty.
  • S.7 -- Education Opportunity Act of 2009. "To expand educational opportunities for all Americans by increasing access to high-quality early childhood education and after school programs, advancing reform in elementary and secondary education, strengthening mathematics and science instruction, and ensuring that higher education is more affordable." An education omnibus bill that will no doubt be split up into separate pieces of legislation.
  • S.8 -- Returning Government to the American People Act. "To return the Government to the people by reviewing controversial 'midnight regulations' issued in the waning days of the Bush Administration." A sentiment we can all get behind, which promises to provide the new administration legislative authority, if it doesn't have it already, to review (and presumably deny) the last administration's late regulations.
  • S.9 -- Stronger Economy, Stronger Borders Act of 2009. Seems to be a placeholder for comprehensive immigration reform, including stronger border and employment security to crackdown on illegal immigration while "reforming and rationalizing avenues for legal immigration."
  • S.10 -- Fiscal Responsibility Act of 2009. Gosh, this one is interesting. It's one part congressional hand-wringing over the fact that "the Federal budget is on an unsustainable path of rising deficits and debt," and it calls for a study of this. It's one part fiscal hawkery, supporting "strong pay-as-you-go rules, to help block the approval of measures that would increase the deficit." And it's one part ... populist? "A review of the current system of taxation of the United States to ensure that burdens are borne fairly and equitably." That could be the justification for the Bush tax cut rollback in 2010.

01/06/2009: USCIS Supplemental Q&A: Final Religious Worker Rule Effective November 26, 2008

• This release answers a number of questions on the immigrant and nonimmigrant religious worker petitions.

01/06/2009: January 20, 2009 Presidential Inauguration Day and Extra Holiday for Federal Workers in the Designated Inauguration Area and Vicinities

• January 20, 2009 is a Tuesday but OPM sources indicate that Inauguration Day will be a holiday for federal employees in the immediate Washington area, and outgoing political appointees will receive a half day's pay, according to two recent Office of Personnel Management notices. The day off on Jan. 20 will apply to most nonemergency federal workers in the District of Columbia; Montgomery and Prince George's counties in Maryland; Arlington and Fairfax counties in Virginia; and the Virginia cities of Alexandria, Falls Church and Fairfax. Officials who resign on that day will be compensated for four hours of work because they will leave around noon, Nancy Kichak, associate director for the human resources policy division at OPM, wrote in a Dec. 30 memorandum. OPM acting Director Michael Hager noted in a Dec. 20 memorandum that Inauguration Day is a traditional holiday for local federal employees, regardless of attendance levels. "The legislative history states that the holiday was established to allow employees working in the Inauguration Day area to attend the nearby inaugural ceremonies and to avoid the traffic problems and work disruptions that would occur if employees were required to report for duty," he wrote. Employees on flexible work schedules will get eight hours worth of pay for the Inauguration Day holiday. If they ordinarily would have worked more than eight hours on that day, they must make up the difference on another day to meet the requirement that they work 80 hours every two weeks. Employees on compressed work schedules, who cannot choose their hours, will get credit for all non-overtime hours they would have worked. For instance, they will get a nine-hour holiday if they were scheduled to work nine hours on Jan. 20. Teleworkers who work within the area affected by the inauguration will have the day off. Read on.
• USCIS, DOS and DOL Headquarters in Washington D.C. offices have yet to release their own announcements, but those who need filings or contact with the Washington D.C. area federal offices should keep in mind this information so that they do not miss the filing deadline with the federal offices in these areas that falls on the Inaugural Day.
  

01/06/2009: Watch How Many Immigration Reform Bills Will Be Newly or Re-Introduced Between January and February 2009

• Here comes another season for flora of comprehensive immigration reform bills in the Congress. Reports indicate that quite a few familiar-name members of Congress in both Houses are refurbishing their grinding mills for introduction of comprehensive immigration reform bills in the same formats or revised formats regardless of the majority leaders' specific agenda for immigration reform legislation. Stay tuned.

01/05/2009: U.S. Government Accounting Office (GAO) December 2008 Demands USCIS to Increase Actions for Integrity of Permanent Resident Petitions/Applications Procedures

• This latest GAO report to the Congress dated December 2008 thoroughly reviews current procedure of processing and adjudication of permanent resident applications, identified frauds and potential terrorists, and vulnerability of current system of processing and adjudication of green card applications, and recommends the USCIS actions to reinforce agency procedures to assure integrity of the green card processing and adjudication system. The USCIS has generally agreed to the report and its willingness and commitment to work on devices that can enhance integrity of its processing procedures.
• It is interesting to note that in the past, immigration benefits system focused on the issues involving frauds and other issues that had affected integrity of the applications of the alien beneficiaries, but this report raises serious loopholes in adjudication of petitions filed by the employers without sufficient mechanisms including site visits that can enhance the integrity of the processing system against the vulnerability of frauds and terrorists. Sounds familiar?
  Visits of employment sites? The year 2009 may be marked as the year of integrity for both labor certification and USCIS green card processing and adjudication process. This is contrasted to the focus and attention one time given to the immigration system improvement towards elimination of "backlogs" leading to enactment of AC-21 legislation in the late 1990s and early 2000s. No wonder why I-140 is crawling in a snail pace.
• Readers, read the full text of this report!

01/05/2009: FY-2009 H-2B Cap Number Running Out Fast

• As of January 2, 2009, a total of 36,319 out of estimate 50,000 needed to reach the cap have been received or approved. With this rate, the cap is likely to reach in the very near future!

01/01/2009: State Department Proposes Changes to J-1 Exchange Visitor Program--Subpart A--General Provisions

• This proposed regulation was published and withdrawan in December 2008, but the State Department is reintroducing this proposed rule seeking the OMB approval on the New Year's Eve, 12/31/2008, assumedly with some changes to the intitally released proposal. This amendment will impose some restrictions on the sponsorship and the program managers as well as site visit for approval of the sponsorship.

01/01/2009: Department of Justice Final rule to Implement BIA Rule Change Allowing Affirmance Without Opinion, Referral for Three-Board-Member Review, and Publication of Decisions as Precedents

• This rule was initially planned as Interim Fianl Rule but afterwards changed to Final Rule, which was approved by the OMB on 12/20/2008. The rule will thus be released in the federal register register soon.These revisions implement, in part, the Attorney General's August 9, 2006, Memorandum for Immigration Judges and Members of the Board of Immigration Appeal and will not bring any changes that will affect the pratitioners' practice before the BIA. This final rule establishes that the Board may issue an affirmance without opinion (AWO) in the exercise of its discretion when it is satisfied that certain regulatory criteria are met. This provision also permits the Board to better manage its docket, budget its resources, and balance its competing adjudicatory responsibilities by allowing the Board to determine what type of decision to issue in a particular case. This regulation clarifies that the Board's decision to issue an AWO, or any other type of decision, depends on the Board's internal judgment regarding its resources and does not create personal rights and is not independently reviewable. In addition, this rule permits three-Board-member review of a small class of particularly complex cases. The rule provides the Board with the discretion to assess its resources, and where it deems appropriate, devote more of its resources to address complex or unusual issues of law or fact by referring a case for review by a three-member panel. Finally, this rule amends the regulations relating to precedent decisions of the Board, by authorizing publication of decisions either by a majority of Board Members in a panel or by a majority of permanent Board Members at the Board.

12/31/2008: The First Day of New Congress (111th Congress) on January 3, 2009 and Events in January 2009

• In odd years of a new Congress, it legally starts on January 3 of the new year. Accordingly, the new 111th Congress will legally start from January 3, 2009. However, both Houses will convene on January 6, 2009, Monday, to start their business activities. To understand the first major activities of the new Congress in January 2009, please please click here. There may be a host of the unfinished 110th Congress bills which are likely to be reintroduced even in January, but major legislative actions may not take place until after the new President is sworn in on January 20, 2009, meaning that major legislative activities will start taking place beginning from February 2009. Please stay tuned.
• When there is a change of ruling party in both White House and Congress, new Administration (federal agencies) unsually witnesses an avalanche of changes in leadership in each federal department and agency trickling down from the top leader to lower level leaders. Such changes will obviously affect the agenda of the previous Administration. Considering the fact that the new Administration has been advised to initiate a sweeping reform with reference to accountability and performance standards for federal agency employees to restore ethics, establish efficiency and effectiveness of management, and clean up irregularity and even corruptions, the public may notice some new air blowing into the federal government agencies.
• Readers, don't drink too much at midnight today! The New Year will start with a lot of hopes and people can get quite emotional on the New Year's Eve!

12/30/2008: USCIS 12/30/2008 Notice of Unavailability of E-Filing System Today

12/30/2008: Here is Malta VWP Designation Final Rule Published Today!

12/29/2008: Citizens of Malta Eligible for VWP Admission Beginning from 12/30/2008

• Apparently there was a typo in the DHS previous announcement (it should have been 2008 instead of 2009). The notice which will be published tomorrow states that beginning 12/30/2008, citizens and eligible nationals from Malta may apply for admission to the United States at U.S. portsof entry as nonimmigrant aliens for a period of 90 days or less for business or pleasurewithout first obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements. Malta has agreed that its citizens must obtain an approved travel authorization from CBP via the Electronic System for Travel Authorization and must possess a valid electronic passport. For the advance copy of the notice, please click here.

12/29/2008: H-2B Cap Count 12/26/2008: 29,702

12/28/2008: Three-Year Bachelor's Degree, "Single Bachelor's Degree Requirement" for EB-2, and Recent Development and Variations as Reflected in AAO Decisions

• As we posted yesterday, I, Matthew Oh, will start blogging beginning from January 1, 2009 to discuss any issues or events or topics that come up, no matter whether it is legal or non-legal or personal or otherwise. The blogging will be distinguished from "reporting" in that reporting requires "facts" while blogging can discuss "opinions" or "views" of the blogger. I intend to discuss even personal matters along the way but will try not to lose sight of the need for discussion on the immigration law issues. The first topic that comes up to me is the puzzling EB-2 practice of the USCIS choking the throat of foreign professionals who earned three-year bachelor's degree and to review how the agency has changed their views that allow bypassing the deadly requuirement of "single four-year" bachelor degree without compromising their stance that a single four-year degree is required for EB-2 petition. I will blog on this topic on the New Year's Day, 2009. I am excited about the Year 2009 because for some unknown mysterious reasons, I am elevated to an emotion full of hope and happiness for the year ahead! I see a light peaking through a tiny hole in the window which gradually touch my heart with warmth and serenity, which makes me to feel more "alive!" I can breath better and the air smells cleaner and sweeter. I take the year 2009 as MY YEAR!
• Wait a minute. Am I already blogging?

12/27/1008: MATTHEW OH BLOGS

• Now the Chistmas is over, and in the next few few days, the year 2008 will sunset. With the dawn of the new year, this reporter wants to start a page on this web site where this reporter can freely express his views, opinions, and any things and any events, which may or may not interest the readers. With the start of a new site named "MATTHEW OH BLOG," our Breaking News will limit the report to the news without this reporter injecting his own views or opinions or comments. Those who may be interested in this reporter's individual views, opinions, comments, or discussion of any events related to immigration matters or not related immigration matters may want to visit our new site. The link to the blog site will be found on the left side of the home page. Whatever that comes up in this reporter's thought, including some questions presented by the readers will be discussed there. This reporter looks forward to seeing our visitors on that site soon.

12/25/2008: Nonimmigrant Visa Application Form Change in American Consulate in Ciudad Juarez, Mexico

• The Consulate assnounces that for interviews scheduled on January 20, 2009 or later, visa applicants must use the online DS-160 electronic application form, available at https://ceac.state.gov/genniv. This form will take the place of the DS-156, DS-157, and DS-158 paper and electronic application forms. All non-immigrant visa applicants, regardless of what class of visa they are applying for, will be required to fill out this form online prior to their appointment at the Consulate General. Applicants must print the Confirmation Page that appears after the form is complete and bring it with them to the Consulate for their appointment. Please note that all questions on the DS-160 form must be completely and accurately filled out or the applicant will be refused and required to return for a new interview with a properly completed form. For other details, please click here.

12/24/2008: Impact of the Reengineered H-2A and H-2B Final Rules on PERM and H-1B Labor Condition Application Proceedings

• Here is the statement in the final rules: H-1B and PERM Programs: As proposed in the NPRM, for consistency and greater efficiency ac ross non-agricultural programs, this Final Rule extends the new prevailing wage request processing model to the permanent labor certification program, as well as to the H-1B, H-1B1, H-1C and E-3 specialty occupation nonimmigrant programs. As stated in the NPRM, the new process will not alter the substantive requirements of foreign labor certification programs, and we anticipate that, at least in the foreseeable future, the methodology for determining appropriate wage rates will remain much the same as it stands today. Our intent is to modernize, centralize, and make the mechanics and analysis behind wage determination more consistent. Much as the SWAs do now, the NPCs will evaluate the particulars of the employer's job offer, such as the job duties and requirements for the position and the geographic area in which the job is located, to arrive at the correct PWD based on OES data, CBA rates, employer-provided surveys, or other appropriate information. The Department's current prevailing wage guidance for non-
  agricultural foreign labor certification programs has been in effect since 2005 and is posted in the form of a memorandum on the OFLC Web site. In the near term, the Department will update and formalize its guidance for making prevailing wage determinations to maintain some existing procedures and revise others such as to conform to these regulations. As program experience administering the PWD process grows, the Department may revise its guidance to
  explain and assist employers in navigating the process. To implement and standardize the new process, ETA has developed a new standard Prevailing Wage Determination Request (PWDR) form for employers to use in requesting the applicable wage regardless of program or job classification. As stated in the NPRM, the Department is considering means by which evenkeeping PWD activities with the SWAs for PERM, H-1B and related programs until January 2010 tually such requests could be submitted, and a prevailing wage provided, electronically For purposes of the permanent labor certification (PERM) program, this rule amends the regulations at 20 CFR part 656 to reflect the transfer of prevailing wage determination functions from the SWAs to the NPCs and makes final the technical changes described in the proposed rule. For purposes of the H-1B program, this rule amends the regulations at 20 CFR part 655 to reflect the transfer of PWD functions from the SWAs to the NPCs and makes final the technical changes described in the proposed rule. Department regulations covering the H-1B program also govern the H-1B1 and E-3 programs, which both require the filing and approval of a ``Labor Condition Application,'' or LCA, rather than a ``labor certification application.'' The Final Rule also amends Sec. 655.1112 governing the H-1C program, to provide for the federalization of prevailing wage determinations.As described in the NPRM and included in the Final Rule, under the new process, for purposes of H-2B job classifications, NPC staff will follow the requirements outlined under new Sec. Sec. 655.10 and 655.11 when reviewing each position and determining the appropriate wage rate. These new regulatory sections are consistent with existing provisions at 20 CFR 656.40 and the Department's May 2005 Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs, but would supersede current regulations and guidance for the H-2B program to the extent there are any perceived inconsistencies.These new regulatory sections supersede current regulations and guidelines for all prevailing wage requests in the H-1B, H-1B1, E-3 and PERM programs made on or after January 1, 2010, and for H-1C prevailing wage requests made on or after the effective date of this Final Rule. The Department appreciates that employers will require some time to become accustomed to the new method of securing a prevailing wage determination. The SWAs will also need a time of transition to complete pending prevailing wage determination requests, just as the NPC will require a corresponding time to fully implement the new form and process. The Department believes will facilitate the transition of Federal staff and program users to complete federalization of prevailing wage determinations. Therefore, the Chicago NPC will begin to provide prevailing wage determinations in programs other than H-2B and H-1C on January 1, 2010. Given the limited size of the H-1C program, and the possibility it may sunset in 2009, the Department believes it can begin processing prevailing wage determination requests shortly after this Final Rule takes effect. Prevailing wage requests under the H-1C program made prior to the effective date of this Final Rule will be governed by the Department's current procedures and its 2005 guidance. Any prevailing wage requests for other non-H-2B programs governed by this regulation made prior to January 1, 2010, must be submitted to the SWA having jurisdiction over the area of intended employment and will be valid for the period listed on the determination issued by the SWA. Prevailing wage determinations issued prior to January 1, 2010, by a SWA will be valid after October 1, 2010, if so determined by the SWA issuing them, and fully enforceable as determined by the applicable regulation (H-1B, H-1B1, E-)
• There was an errata in our previous posting.
  

12/23/2008: Immigration Benefits Applications Receipts and Backlog Statistics at the End of October 2008

• Major receipt volumes in October 2008 include: 128,841 I-765 employment authorizations; 54,304 I-130 immediate/all other petitions; 44,120 I-485 applications to adjust status; 39,677 I-131 reentry permit/advance parole; 28,134 I-90 green card renewals/replacements; 22,357 I-129 forms filed..
• Major volumes of pending applications at the end of October 2008 include: 1,443,593 I-130 immediate/all other petitions; 673,694 I-485 applications to adjust status; 196,777 I-765 employment authorizations; 175,214 I-90 green card renewals/replacements; 150,025 I-751 remove conditions spouse jointly/waiver; 100,048 I-140 immigrant worker.
• Applications and petitions for immigration benefits in October 2008 decreased 23 percent compared to the number received in October 2007. October 2008 approvals decreased by 44 percent, denials decreased by 16 percent, and pending decreased by 15 percent compared to October 2007. For the full report, please click here.

12/23/2008: Naturalization Applications Receipts and Backlogs at the end of October 2008

• The number of pending N-400 cases reached 459,337 in October 2008, a decrease of 59 percent compared to the same month in fiscal year 2008.
• Naturalization receipts in October 2008 increased 120 percent when compared to October 2007, while approvals/oaths increased by 59 percent and denials increased 72 percent. For the full report, please click here.

12/23/2008: H-2B Cap Count Update as of 12/19/2008: 27,111

• Since the total estimate number of beneficiaries the USCIS should receive to reach the cap is 50,000, by December 19, 2008, over 50% of the cap have already been exhausted. Accordingly, as usual, the cap may reach in the middle (or even the first 10 days) of January 2009, unless there occurs unusual rush of filings by the employers during the next ten days.

12/23/2008: DHS Announcement of VWP Designation of Malta

• The U.S. Department of Homeland Security (DHS) will designate Malta as a Visa Waiver Program (VWP) country on Dec. 30, 2008. Maltese nationals will be able to travel visa-free to the United States effective Dec. 30th of 2009.

12/23/2008: USCIS Update on N-400: "USCIS Revises Direct Mail Program for the Application for Naturalization (Form N-400)

• As the change was released in the federal register this morning, the USCIS released the N-400 filing jurisdiction update today on its website.

12/23/2008: Here Are Details of N-400 Direct Mailing Beginning From 01/22/2009

• Where should I send my Form N-400 and all supporting documentation?
  • Armed Forces Applicants and Spouses of Current Members of the Armed Forces
    • Nebraska Service Center, P.O. Box 87426, Lincoln, NE 68501-7426: If you are a member of the Armed Forces or a veteran, and you are eligible to apply for naturalization under sections 328 or 329 of INA
      
    • Nebraska Service Center, 850 S. Street, Lincoln, NE 68508: If you are the spouse of a current member of the Armed Forces.
  • Non-Armed Forces Applicants
    
    • Residents in the follong states to: USCIS, P.Ol. Box 21251, Phoenix, AZ 85036 by mail or USCIS, Attn: N400, 1820 E Skyharbor Circle S, Floor 1, Phoenix, AZ 85034 by Courier and Express Mail Deliveries:
      Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming, Territory of Guam, Northern Mariana Islands
    • Residents in the following states to: USCIS, P.O. Box 299026, Lewisville, TX 75029 by mail or USCIS, Attn: N400, 2501 S State Hwy 121, Bldg. 4, Lewisville, TX 75067
      Alabama, Arkansas, Connecticut, Delaware, DC, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia, U.S. Virgin Islands.
      
• What happens if I file a Form N-400 covered by this notice at the wrong location?
  • During the first 30 days after this notice takes affect, USCIS will forward incorrectly addressed Form N-400s to the proper address, rather than reject it. USCIS will forward any improperly addressed Form N-400s covered by this notice as follows:
    *Any Form N-400 from non-Armed Forces applicants will be forwarded to either the Dallas or Phoenix lockbox facilities.
    *Any Form N-400 from Armed Forces applicants and the spouses of current members of the Armed Forces will be forwarded to the Nebraska Service Center.
  • Any applications forwarded within this time period will be considered properly filed when received at either the Dallas or Phoenix lockbox facilities, or the Nebraska Service Center. After this 30-day transition period, any Form N-400 covered by this notice, which is received at a location other than the appropriate location as defined in the updated Form N-400 filing instructions provided in this notice, will be returned with an explanation directing the applicant to mail it to the appropriate processing facility.
• Read full text of federal register notice.

12/22/2008: Natulization Direct Mailing to Lock Box Starts on 01/22/2009

• Applicants for naturalization will be required to filing N-400 applications directly by mail to designated lock boxes beginning from 30 days from December 23, 2008. For the details of the mailing log boxes and other details, please read the notice which will be published tomorrow.

12/21/2008: CIS Ombudsman Study and Recommendations on Naturalization Oath Ceremonies

12/20/2008: USCIS Dallas Field Office Moving to New Location

• Dallas field office will move to the following new address and the customer services will be provided at the new location beginning from January 12, 2009. People of the jurisdiction should make a note of the new address.
  • USCIS Dallas Field Office, 6500 East Campus Circle Drive, Irving, TX 75063.
• Dallas field office covers: The cities of Dallas, Fort Worth, and Irving and the following counties: Anderson, Andrews, Archer, Armstrong, Baily, Baylor, Borden, Bosque, Bowie, Briscoe, Callahan, Camp, Carson, Cass, Castro, Cherokee, Childress, Clay, Cochran, Collin, Collingsworth, Comanche, Cooke, Cottle, Crosby, Dallam, Dallas, Dawson, Deaf Smith, Delta, Denton, Dickens, Donley, Eastland, Ellis, Erath, Fannin, Fisher, Floyd, Foard, Franklin, Freestone, Gaines, Garza, Gray, Grayson, Gregg, Hale, Hall, Hamilton, Hansford, Hardeman, Harison, Hartley, Haskell, Hemphill, Henderson, Hill, Hockley, Hood, Hopkins, Houston, Howard, Hunt, Hutchison, Jack, Johnson, Jones, Kaufman, Kent, King, Knox, Lamar, Lamb, Leon, Limestone, Lipscomb, Lubbock, Lynn, Marion, Martin, Mitchell, Montague, Moore, Morris, Motley, Navarro, Nolan, Ochiltree, Oldham, Palo Pinto, Panola, Parker, Parmer, Potter, Rains, Randall, Red River, Roberts, Rockwall, Rusk, Scurry, Shackelford, Sherman, Smith, Somervell, Stephens, Stonewall, Swisher, Tarrant, Taylor, Terry, Throckmorton, Titus, Upshur, Van Zandt, Wheeler, Wichita, Willbarger, Wise, Wood, Yoakum, and Young.

12/19/2008: OFLC Statement of 12/18/2008 Concerning the Released H-2A Reengineered Final Rule

• The statement: On December 18, 2008, the Office of the Federal Register published the Department’s Final Rule on H-2A Temporary Agricultural Employment. Click here for the Final Rule. The Final Rule is effective January 17, 2009, although certain aspects of the Rule will be subject to transition provisions. The application form published with the rule is not official. Click here for the final ETA Form 9142, Appendix A.1, Appendix A.2 and accompanying instructions, which include the expiration date. The Department will shortly post an ETA Form 9142 that is fillable on line. We strongly encourage program users to complete the fillable form. Employers with questions are encouraged to submit those questions to OFLC at H-2A.Regulation@dol.gov. Due to a high volume of calls, we will be unable to respond individually to inquiries.
• It states that the application form published with the rule is not official!? Hmm.....................
• Here are the link the new form ETA 9142 and related documents:
  • ETA 9142 Application for Temporary Labor Certification Application
  • Attachment A.1
  • Attachment A.2
  • Accompanying Instructions

12/19/2008: USCIS Offices to Remain Closed on 12/26/2008, Friday

• USCIS has announced that eue to the Christmas holiday, and to an Executive Order excusing executive branch non-Postal Service employees from duty on Friday, December 26, 2008, all USCIS offices and Application Support Centers will be closed on Thursday, December 25 and Friday, December 26. Those with appointments for biometrics at an Application Support Center for December 26 will be rescheduled for the next available appointment; those appointments will usually be two to four weeks in the future.

12/19/2008: DHS Notice of ”US-VISIT” Expansion of Enrollment of Additional Aliens in US-VISIT: Collection of Biometric Data from Additional Travelers and Expansion to the 50 Most Highly Trafficked Land Border Ports of Entry

• Read also Homeland Security Secretary's statement.
  

12/19/2008: Federal Register Release 12/19/2008 of DS-3035 Form (J-1 Waiver) Online Filing Requirement Rule

12/19/2008: Federal Register Release 12/19/2008 of the H-2B Change Regulations

• DHS Notice of Changes
• DHS Eligible Country List
• USCIS Notice
• USCBP Notice
• DOL/ETA Notice

12/18/2008: DHS 12/18/2008 Fact Sheet: DHS End-of-Year Accomplishments

• This fact sheet focuses on its achievements in enforcement and border security functions and noticeably misses its achievements in immigration benefits management function.

12/18/2008: USCIS Q&A on Streamlined New H-2B Final Rule and Procedure

12/18/2008:USCIS Announcement of H-2B Streamlining Procedure Under the New Final Rule to be Released Tomorrow

12/18/2008: Effective 02/01/2009, DS-3035 Form of State Department for J-1 Waiver Application Can be Filed "Only Online"

• According to the State Department notice which will be published tomorrow, effective February 1, 2009, applicants will be required to type and complete the DS 3035 form online.

12/18/2008: Advance Copies of H-2B Final Rules of DHS and DOL Scheduled to be Published 12/19/2008 With Effective Date of 01/18/2009

• Similar to the recently published H-2A final rules, the DHS and DOL will simultaneously release H-2B final rules of the DHS and DOL tomorrow. However, these final rules will not take effect until 01/18/2009. The following are the advance copies of these final rules:
  • DHS
  • USCIS
    • Notice
    • Eligible Country List
  • USCBP
  • DOL

12/18/2008: H-2A Online Filing Site is Currently Up and Running

• As the reengineered H-2A system is launched today, the OFLC has set up the online H-2A filing site. It is www.h2a.doleta.gov.

12/18/2008: Prediction of Shifts of U.S. Firms from Hiring H-1B Workers to Outsourcing of IT Service Needs Under Increasing/Predicted Hostile Environment Against H-1B Visas

• ComputerWorld reports that in the SEC filing, the largest consumers of the IT foreign workers such as Wipro, Infosys, and others warned their cutback of H-1B workers under the downturn economy of the U.S. and anticipated hostility of Obama Administration against the H-1B visa. Additionally, the IT consulting firms have faced USCIS' literally incredible hostility against the H-1B petitions filed by the IT consulting firms demanding "mountain" of documents, which have also discouraged smaller IT consulting firms to use H-1B workers and outsourcing the consulting works offshore. Part of the ongoing disincentive and discouragement of hiring H-1B workers is triggered by the USCIS recent report of massive frauds and violations in H-1B visa and growing hostility against the H-1 visas in the Hill and in the government agencies.
• Hmm..............................................................

12/18/2008: Federal Register Release 12/18/2008 of H-2A Reengineering Final Rules of Relevant DHS and DOL Agencies

• DOL
  • ETA/OFLC (Certifications)
  • ESA (Enforcement)
• DHS
  • DHS (Changes to Requirement)
  • USCIS (Petition Adjudication)
    • Notice
    • Eligible Country List
  • USCBP (Admission)
    • Exit Program Pilot
    • Notice
  • USICE (Enfocement)
• Wow, it is dizzy!

12/17/2008: President Issues Executive Order Giving Extra Holiday on 12/26/2008

• On 12/12/2008, the President issued an Executive Order to give an extra day off duirng the Christmas weekend, specifically on 12/26/2008. The Christmas Day falls on Thursday, 12/25/2008 and this extra Holiday order will give a long holidays. It thus appears that because of weekends and holidays, the government workings days in December after this week will be very limited. Those who face critical deadlines or needs for filings or actions within this year should pay attention to these government working schedule.

12/17/2008: Advance Copy of USCIS Notice of Identification of Foreign Countries Whose Nationals Are Eligible to Participate in the H-2A Visa Program

• This notice will also be published tomorrow, 12/18/2008

12/17/2008: Advance Copy of Wage and Hour Division of DOL on Final Rule on Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement

• This rule will be published tomorrow, 12/18/2008 and take effect on 01/17/2009.

12/17/2008: Advance Copy of USICE Notice of H-2A Petitioner's Employment-Related or Fee-Related Notification

• This notice will be published tomorrow, 12/18/2008.

12/17/2008: Advance Copy of USCBP Notice of H-2A Petitioner's Employment-Related or Fee-Related Notification

• This notice will be published tomorrow, 12/18/2008. The notice including fee will remain valid only for one year from 01/17/2009.

12/17/2008: Advance Copy of USCBP Notice of H-2A Temporary Worker Visa Exit Program Pilot

• This notrice will be published tomorrow, 12/18/2008. The notice will however take effect on 08/01/2009.

12/17/2008: Advance Copy of USCIS H-2A Final Rule Scheduled to be Published in the Federal Register Tomorrow, 12/18/2008

• This final rule will also take effect on 01/17/2009.

12/17/2008: Advance Copy of H-2A Final Rule Scheduled to be Published in the Federal Register Tomorrow, 12/18/2008

• This final rule will take effect on 01/17/2009.

12/17/2008: State Department Officially Withdrew as of Today its Published Proposed Regulation to Change Exchange Visitor Program

12/17/2008: USCIS Officially Published in Federal Register Today I-9 Documentary Requirement Change to Take Effect on 02/01/2009

12/17/2008: Importance of O*Net in Foreign Labor Certification Process and Tools and Technology Feedback to Suggest Changes or Improvement

• Ever since the DOL launched the PERM permanent labor certification program on March 28, 2008, the occupational classification changes from the old DOT system to O*Net/SOC/OES system have affected tremendously the way the U.S. employers had to present the cases for a successful certification of applications. Not only the change has reduced the number of occupations from approximately 10,000 to less than 1,000 by merging several occupations under the old system into one single occupation under the new system but the change also included the level of education or experience which each of the occupation can require not to exceed the requirement under the job zone concept and to avoid challenges and denials of the application by the certifying officers. The weight of the O*Net system is expected to increase tremendously under the upcoming PERM program change in the coming Spring 2009 because of narrowing-down of definition of requirement of an occupation from the current standardard of the open-ended "normal" in the industry to the specific SVP under the job zone for each occupation under the O*Net System. Until now, because of the open-ended "normal in the industry" standard, the employers could have persuaded the certifying officers that even if the specific job requirement exceeded the SVP under the O*Net job zone, the requirement should be considered "normal." This flexibility is likely to change when the DOL launches new ETA 9089 PERM applications in the coming Spring.
• It is thus critically important that DOL O*Net System should reflect reality of the occupations and their requirements including specific tools and technologies that constitute the "core" duties to each occupation under the constantly changing occupations in the cyber-space world. Unfortunately, the DOL O*Net occupational classification reduced the number of occupations rather than increased the numbers inducing some complaints in the foreign labor certification stakeholder employers for failure of the new policy to reflect the real world occupational requirement for occupations. It is time for the employers to voice their opinion to influence the O*Net system through the O*Net system's Tools and Technology Feedback channel. Employers may review this tool and send in their comments so that the O*Net system can improve the system to reflect the reality. Review of this material will also assist the employers to learn the acceptable tools and technologies for requirement for each of occupation in the labor certification applications not to face a challenge by the certifying officers.

12/16/2008: State Department Withdraws the Proposed Amendment to Exchange Visitor Program Dated 12/10/2008

• On December 10, 2008 the State Department published in the Federal Register a proposed rule titled Exchange Visitor Program. The Department amended the General Provisions of the existing Exchange Visitor Program regulations set forth at 22 CFR Part 62. The State Department will withdraw this proposed rule as of tomorrow for the reported reason that it was submitted prior to a formal significance designation being made by OMB. The proposed rule is withdrawn in its entirety. They proposed to require site visit and background investigation of ROs of the Exchange Visitor Program sponsors. For the withdrawn proposed regulation, please refer to our report on 12/09/2008.

12/16/2008: Employers, Beware: Effective 02/01/2009, DHS Will Require New I-9 Form and Other Changes in Documents Acceptable for Employment Eligibility Verification

• Tomorrow, DHS will publish Interim Rule to announce the changes. This amended rule will take effect 45 days from 12/17/2008. Employers and their legal counsels should carefully read and review this changed rule. Here is the advance copy of the interim rule.

12/16/2008: USCIS Updates H-2B Cap Count as of 12/12/2008

12/15/2008: TPS Salvadoran EAD Automatic 6-Month Extension Notice Published in Federal Register Today

• This notice is effective December 15, 2008. The automatic extension of EADs will begin on March 10, 2009, and will remain in effect until September 9, 2009. For the full text, please click here.

12/14/2008: OMB Clears Both USCIS and DOL H-2B Reengineering Final Rules

• On 12/12/2008, the OMB approved and cleared the final rule of both USCIS and DOL to reengineer and streamline H-2B non-agricultural worker temporary worker nonimmigrant visa process. By this approval, the Bush Administration is completing the final rule-making process for both H-2A Agricultural Temporary Worker and H-2B Non-Agricultural Termporary Worker visa requirement and application process for the employers and employees. Both agencies state that the purpose of the reengineering is to streamline and reinforce integrity of these temporary worker programs. These rule-making programs have been controvertial owing to their potential negative impacts on comprehensive immigration form legislation. As was true with the H-2A final rules, the H-2B final rules are likely to take effect before January 20, 2009 before the new Administration comes in.
• The USCIS final rule of H-2B states that: This rule relaxes the current limitations on the ability of U.S. employers to petition unnamed nonagricultural workers to come to the United States. In addition, this rule creates a process that will allow for issuance of a partial approval notice in the event that a security check generates adverse information on one beneficiary who is part of a multiple beneficiary petition. Finally, this rule provides for employer notification to USCIS within 30 days of the date that the employee leaves employment or is terminated. This rule eliminates the “extraordinary circumstances” restriction on periods of temporary need longer than one year and provides that such a period could last up to three years. This change will greatly benefit employers that utilize the H-2B program and that often need workers for specific long-term, but temporary projects. The final rule also addresses concerns regarding the integrity of the H-2B program and sets forth several conditions to prevent fraud and protect laborers’ rights. Only those petitions received before the maximum annual number is reached are adjudicated. Petitions not received before the maximum annual number is reached are rejected.
• Please stay tuned.

12/13/2008: Out of Three Immigration-Related Leaders in DHS, Two Heads Have Left the Political Posts

• As we all know it, the former Acting Director of USCIS left the post on 12/02/2008. Wihtout much publicity, the head of ICE, Ms. Julie Myers, also left on 11/16/2008. These two Directorates of the DHS are currently managed by acting deputy directors. The in-coming new DHS Secretary is likely to bring some additional changes down the road. The new Obama team is pressured to bring a change in the government towards achievement of accountability and performance as critical goals for government in the Executive Departments. For the current ICE leadership chart, please click here.

12/13/2008: Recent Seven-Country Visa Waiver Program Expansion by DHS Reportedly Under Fire in Congress

• Read on.

12/12/2008: USCIS Announcement and Q&A of Revision of I-9 Form

• As we reported earlier, the OMB has been under review the DHS I-9 revision notice. According to the today's USCIS announcement, the current I-9 form will become not acceptable 45 days from the date of publication of the pending rule in the federal register. Watch out,employers!

12/12/2008: USCIS H-2A Reportedly Scheduled to be Published in Federal Register on 12/18/2008 with the Effective Date of 01/19/2009

• NY Times reports that this regulation is scheduled to be published on Thursday, 12/18/2008 with effective date of 01/19/2009. The report indicates that the farm workers and their supporters are also strongly opposing this regulation. Reportedly this regulation is intended to lay a roadblock against the long term solutions to the farm worker issues. Hmm.......... This regulation appears to be sandwitched both from the far rights and the far left. Ouch!

12/12/2008: TPS Salvadoran EAD Automatic Extension for Six Months from March 10, 2009 to September 9, 2009

• See advance copy of this notice which will be published next Monday, 12/15/2008.
• See also USCIS Q&A

12/12/2008: USCIS Memorandum Recognizes “Taiwan” as Country of Former Nationality on Certificates of Naturalization or as Country of Birth on Certificates of Citizenship

• USCIS releases a memorandum in consistent with the Department of State policy. Taiwanese readers should read this memorandum.

12/12/2008: EOIR Rule Due to Publish - Voluntary Departure and Effect of a Motion to Reopen of Reconsider or a Petition for Review

• OMB cleared this final rule on 12/09/2008 and DOJ is expected to publish this rule soon.
• Summary of the rule at the "proposed" rule stage was as follows: "The immigration laws provide that an alien may request and receive a grant of voluntary departure in certain cases; such a grant allows an alien to depart voluntarily during a specified period of time after the order is issued, in lieu of being removed under an order of removal. Voluntary departure is an agreed upon exchange of benefits between the alien and the Government, which provides tangible benefits for aliens who do depart during the time allowed, but there are severe statutory penalties for aliens who voluntarily fail to depart during the time allowed for voluntary departure. This proposed rule would amend the Department of Justice (Department) regulations regarding voluntary departure to protect the alien’s statutory right to file a motion to reopen or reconsider, but also to provide that the alien’s filing of a motion to reopen or reconsider prior to the expiration of the voluntary departure period will have the effect of automatically terminating the grant of voluntary departure. Similarly, the rule also provides that the alien’s filing of a petition for judicial review shall automatically terminate the grant of voluntary departure. This means that the alien will be subject to the alternate order of removal that was issued in conjunction with the grant of voluntary departure, similar to other aliens who were found to be removable, but this approach also means he or she will not be subject to the penalties for failure to depart voluntarily. However, aliens who do depart the United States during the period allowed for voluntary departure will be deemed to have departed voluntarily notwithstanding the prior filing of a motion or petition for review. The rule also amends the bond provisions for voluntary departure to make clear that an alien’s failure to post a voluntary departure bond as required will not have the effect of exempting the alien from the penalties for failure to depart under the grant of voluntary departure. Aliens accepting a grant of voluntary departure remain liable for the amount of the voluntary departure bond (in an amount not less than $500) if they do not depart as they had agreed, but they will be able to get a refund of the bond amount upon proof of their departure within the time allowed. In addition, the rule provides for setting, at the time the immigration judge issues a grant of voluntary departure, a specific dollar amount of not less than $3,000 as a civil money penalty if the alien voluntarily fails to depart within the time allowed."
• Please stay tuned.
  

12/12/2008: USCIS Justification Statement for H-2A Reengineering

• USCIS funds the cost of processing applications and petitions for immigration and naturalization benefits and services, and USCIS’ associated operating costs, by charging and collecting fees. For each Form I-129 USCIS charges a filing fee of $320. This rule does not change that fee, thus, the fee impacts of this rule on each petitioning firm are neutral. The enhancements in this rule are expected to increase the number of H-2A petitions per year by an estimated 3,600. Thus aggregate petition fees for H-2A employees as a result of this rule are expected to increase by $1,152,000. This rule will benefit applicants by: -- Reducing delays caused by IBIS checks holding up the petition application process. -- Reducing disruption of the life and affairs of H-2A workers in the United States. -- Protecting laborers’ rights by precluding payment of fees by the alien. -- Preventing the filing of requests for more workers than needed, visa selling, coercion of alien workers and their family members, or other practices that exploit workers and stigmatize the H-2A program. -- Encouraging employers who currently hire seasonal agricultural workers who are not properly authorized to work in the United States to replace those workers with legal workers. -- Minimizing immigration fraud and human trafficking.

12/12/2008: T & U Visa Holder Green Card Application Interim Rule Published in Federal Register This Morning With Effective Date of 01/12/2009

• Finaally this rule is published this morning, but to our surprise, the effective date of the interim rule not 12/12/2008 but 01/12/2009. Well, people will have to wait 30 more days to apply for green card based on this rule.
• Under this rule, T nonimmigrant status is available to aliens who are victims of a severe form of trafficking in persons and who are assisting law enforcement in the investigation or prosecution of the acts of trafficking. U nonimmigrant status is available to aliens who are victims of certain crimes and are being helpful to the investigation or prosecution of those crimes. This rule provides that family members of a principal T or U nonimmigrant granted or seeking adjustment of status may also apply for adjustment of status to lawful permanent resident. This rule also provides for adjustment of status or approval of an immigrant petition for certain family members of U applicants who were never
  admitted to the United States in U nonimmigrant status.
  

12/12/2008: Auto Bailout Bill Died in Senate

• Read on. Congress is over for this year.

12/12/2008: State Department Advisory of 12/11/2008 for Land and Sea Border Travelers: Western Hemisphere Travel Initiative Deadline Approaches

• This is a reminder from the Sate Department that effective 06/01/2009, passport book or card will be mandatory for teveling in and our of Western Hemisphere.

12/11/2008: USCIS Q&A on Changes in H-2A Program

12/11/2008: USCIS Finalizes Streamlining Procedures for H-2A Program

• In this release, the USCIS outlines key points of changes in this regulation.
  

12/11/2008: OFLC Special Announcement on Some Changes to the Recently Released Advance Copy in the Upcoming Federal Register

• The OFLC announced today that "H-2A Final Rule: On December 5, 2008, the Office of Management and Budget (OMB) cleared for publication the Department’s H-2A Final Rule. Click here for the preamble to the Final Rule and click here for the Final Rule. Please note this document has not yet received final approval from the Office of the Federal Register, which may make minor changes prior to publication. The official version of the rule, as published, may differ from that cleared by OMB.
• Based on the OFLC release, we also posted the advance copy on 12/08/2008. People should wait for the copy which will actually be published in the federal register!

12/11/2008: Electronization of USCIS Processing Continues to be Hurdle for USCIS Efficient Services for Customers

• On December 9, 2008, DHS Secretary Chertoff had a meeting with the Blogger Rountable on the State and Future of DHS answering questions from the floor. With reference to the USCIS issue, he stated that "we have a reengineering and an upgrading of our CIS information systems. We're creating, of course, a second backup system for all of our systems, which is a project that's underway, as part of our larger cyber security initiative, obviously, reducing the number of trusted internet connections, deploying the next generations of Einstein. All of these are part of what I believe is important. In general, IT investment tends to get less attention because it's not glamorous, it doesn't make a good press release. But as we saw with CIS, without getting the money and beginning the upgrading, it just makes it harder to provide customer service."
• It appears he was probably referring to the transformation program. Hmm.......................

12/11/2008: DHS is Scheduled to Publish T & U Visa Holder Permanent Residence Application Regulation Tomorrow

• The DHS and USCIS have been actively publicizing enactment of this rule which was cleared by the OMB quite some times back and awaiting publication in the federal register. Now, it will be published tomorrow in the federal register. We are reposting the advance copy of this rule.
• For the USCIS Fact Sheet including Q&A, guidance, and other relevant information, please visit this site.

12/11/2008: U.S. Customs & Border Protrection (CBP) Notice of Proposed Complaint Management System

• CBP is creating the Complaint Management System (CMS) in order to allow anybody who has interacted with CBP, either as a result of importing or exporting goods, traveling to or from the U.S., seeking a job, or simply living in an area where CBP conducts operations such as border patrol checkpoints, to file a complaint or comment about their CBP experience through an on-line portal. Those who may be interested in the proposal pro or con should check this notice. Hmm............... Very interesting move considering the fact that a group of organizations proposed to the Obama transition team to develop "Performance Government" concept and standards that can determine "pay" scale of the officials.

12/11/2008: Permanent Labor Certification Applications Still Clogged Since June 2008

• The OFLC has been experiencing backlogs in PERM application processing and there is no report since the end of May 2008 that any PERM cases which were filed in June or thereafter have been adjudicated. The electronic filing and ajudication program of PERM one time led the agency to resolve the tremendously clogged permanent labor certification program very successfully by adjudicating the electronically filed new application as short as in two or three days in some cases. Now, it has turned into a history. Currently it takes more than six months for new applications. The cases in the audit tracks are even clogged since August 2007. The OFLC leaders remain "mute" on the causes of the present problem, but it is obvious that the current problem stemmed from its bold move of auditing all the cases of the nation's largest immigration law firm which led the agency in lawsuit tangle and its aftermath as well as the agency's decision to scrutinize sagging job markets before adjudicating any pending applications. The lawsuit settlement had released some cases in the audit track into the queue of non-audit regular PERM application track which are specularted to be not a small number and which had earlier priority dates. Since the agency is processing cases in the order of the priority date, obviously these cases must have affected later priority date cases. There is some clue that most of these cases may all be adjudicated in the very near future. Accordingly, we anticipate that the processing times of PERM cases may not take as long as what it takes now which is six months.
• The current backlog presents two problems. One and the foremost problem involves those alien beneficiaries who are not eligible for their post 6-year limit H-1B extension under AC 21 Section 104(c) in the three-year increment and not eligible for the one-year extension under the different AC 21 rule because the applications were filed less than 365 days. Since the DOL is not extending its "expedite" policy to such situation, they are and will be facing a serious problem in remaining in H-1B status pending adjudication of the labor certification application. The second problem appears to be more serious in that once PERM applications are denied after nine(9) months (3 months for recruitment plus 6 months for PERM processing backlog), restarting labor certification application will cause a tremendous long journey for the alien workers along with the accompanying host of problems for maintaining nonimmigrant status. Before PERM program came into scene, the labor certification program took a two-tier system (state-federal) and practically the decision was made at the level of the State agencies in a fairly short period of time in most states. Since the uncertifiable issues were sifted out and resolved at the State level, denial of the labor certification applications did not bring such a devastating consequence as the aliens are facing under the current backlogged PERM program which takes a single tier system.
• We hope that the PERM program returns to the normal process as soon as possible in line with the original intent of the reengineering strategy of the agency which had caused them tons of government funds. The unnecessary move leading to a big lawsuit turned out to be a disaster.

12/11/2008: House Goes Back to the Year-End Recess After Passing 14 Billion Dollar Auto Industry Bail Out Bill

• Yesterday, the House passed this bill and without any actions on immigration bills it went into recess again. The auto industry bail out bill is likely to bring some ripple effect on sagging employment in engineering and technician job markets opening some job opportunities in "related" businesses. This may include some foreign engineers and R&D researchers. However, the Senate has yet to pass this bill.

12/11/2008: OMB Clears USCIS H-2A Reengineering Rule Yesterday

• The companion DOL H-2A reengineering was approved by the OMB earlier and DOL has been getting ready to implement the new H-2A program, scheduling briefing sessions and other campaign. However, there has been some delay in the companion USCIS H-2A reengineering rule. Now by the yesterday's OMB clearance, both USCIS and DOL are likely to publish the reeneineering H-2A program and rules soon. Please stay tuned.
• Anti-immigrationists have initiated a campaign against the new H-2A program because there is no quota for the number of temporary agricultural workers that the farm industry can bring in.

12/11/2008: USCIS Questions and Answers: Qualifying Family Members of U Visa Beneficiaries May Obtain Lawful Permanent Residence

• In Spanish.

12/10/2008: Schedule A Nurse Immigration Proceeding: CIS Ombudsman Reivew and Recommendation of 12/05/2008 to Process Expeditiously

• Schedule A immigrations, you should read this report!

12/10/2008: Official January 2009 Visa Bulletin

• Every country in the world, including China, Philippines, and Mexico, and Diversity Visa categories. State Department has made no prediction for the upcoming future visa allocations or movement.

12/10/2008: State Department Proposed Rule on Change to Exchange Visitors Program Published in the Federal Register

• Please refer to our report yesterday on this rule.

12/10/2008: USCIS Releases Special Immigration Benefits Q & A for U.S. Military Family Member as of 12/09/2008

• Members and their family members should read this questions and answers.

12/09/2008: January 2009 Visa Bulletin (Unofficial)

• ROW:
  • Employment-Based: EB-1=C, EB-2=C, EB-3=05/01/2005, EW=03/15/2003, EB-4=C, EB-4 Religious=C
  • Family-Based: F-1=06/15/2002, F-2A=05/15/2004, F-2B=03/22/2000, F-3=08/01/2000, F-4=02/08/1998
• INDIA:
  • Employment-Based: EB-1=C, EB-2=07/01/2003, EB-3=10/15/2001, EW=03/15/2003, EB-4 Religious=C
  • Family-Based: FB-1=06/15/2002, F-2A=05/15/2004, F-2B=03/22/2000, F-3=08/01/2000, F-4=11/01/1997
• For Employment-Based categories, rest of the world countries witnessed no change for EB-1, EB-2, and EB-3 but EW progressed two months. For India, there are no changes other than one month progress for EB-2, 14 days progress for EB-3, and two months progress for unskilled worker (EW) categories. Very frustrating Visa Bulletin considering this is the first month report for 2nd Quarter of FY 2009 visa allocations.
• For Family-Based categories, rest of the world countries witnessed, FB-4 witnessed backward movement for two months, while other categories showed some progress. For India, the movement of all categories is same with ROW, except FB-4 that showed progress of one month and 15 days unlike ROW countries. Hm....... Interesting.
  

12/09/2008: Department of State Proposed Site Visit and Criminal Background Check of ROs for Exchange Visitor Sponsors

• Departmernt of state is proposing to amend the current Exchange Visitor program regulation to require site visit for the sponsor designation and check criminal backgrounds for Responsible Officers or Alternative Responsible Officers of the Sponsors plus tightening up of SEVIS reporting requirement. For advance copy of this proposed rule, please click here.

12/08/2008: USCIS Releases Revised I-360 Form of 11/26/2008 Version with Religious Worker Petitioner Attestation Section

• Other version is accetable but there is no reason why old version should be used since it should trigger RFE for the attestation.

12/08/2008: State Department Expanded Visa Services at Embassy Baghdad

12/08/2008: H-2B H-2B Cap Count as of 12/05/2008

12/08/2008: Government Attempt to End Litigation and Accelerate Implementation of No-Match Letter Rule Defeated in Court

• Immigration Policy Center reports that a federal judge in San Francisco has denied a government request to quickly issue a final decision on whether the Bush Administration may implement its new Social Security Administration (SSA) "no match" rules. The lawsuit brought by labor unions and employers seeking to block the rule will move forward under a standard schedule, and a decision will not come until late February or March of 2009.

12/08/2008: T and U Nonimmigrants and I-485 Green Card Application Requirement and Procedures

• Today, the USCIS released its announcement on upcoming release of this Interim Final Rule in the federal register, implying that the release of this rule which has been long awaited by the qualified T or U visa holders is likely to take place soon. Please check the following information:
  • Announcement
  • Advance copy of the Interim Final Rule
• Please stay tuned.

12/08/2008: House Returns to Session Tomorrow, 12/09/2008 11:00 a.m.

• The House will return to session tomorrow. Obviously, primary purpose to take care of auto industry bailout legislation. However, it is not certain what other bills they will be able to take care of while they are in session. Please stay tuned.

12/08/2008: USCIS Corrects Recent Religious Worker Revised Regulation

• The revised regulation should specify the edition dates of I-129R and I-360. The correction of the revised regulation will add the edition dates for these forms "11/26/2008." Correction of the regulation will take effective on 12/09/2008.
• Currently, I-129R form has been revised reflecting the revised regulation but I-360 has yet to be revised. It is uncertain whether the USCIS will also accept prior version after tomorrow. The new form I-360 should incorporate the "attestation" portion of the form. Please stay tuned.

12/08/2008: DHS is Expected to Release Revised I-9 Form and Changed Documentation List Soon

• The OMB cleared this change on 12/05/2008. Once this is published in the federal register by the DHS, employers are likely required to use use I-9 form and verify employment authorization using revised documentation. Please stay tuned.

12/08/2008: OMB Cleared DOL H-2A Reengineering Final Rule But Yet to Clear Matching USCIS H-2A Interim Final Rule

• On 12/05/2008, Friday, the OMB approved DOL H-2A final rule changing the current H-2A rule. DOL has already scheduled the briefings in anticipation of the reengineered H-2A rule. However, the counterpart H-2A rule has to be finalized. Following are the Preamble and Final Rule Advance Copy:
  • Preamble
  • Final Rule Advance Copy

12/06/2008: Obama Transition Team Seeks Your Ideas for the New Administration Immigration Agenda

• If you want your voice heard on immigration issues and reform, please send your ideas to this site.

12/05/2008: Office of Foreign Labor Certification Notice of Temporary Extension of LCA Form Extension That Was Due to Expired on 11/30/2008 Pending OMB Approval of Extension Form

• The LCA form (ETA 9035 OMB control number 1205-0310) which was due to expire November 30, 2008 had previously been submitted to OMB for an extension. The 30 day Federal Register Notice was published on November 7, 2008 (72 FR 66259) as required by the Paperwork Reduction Act of 1995. The publication of the 30 day notice automatically extends the form while it is under review. The public should continue to use the current form until further notice.

12/05/2008: Circumstances Permitting Use of Certified ETA 750 or ETA 9089 Permanent Labor Certification Application for New or Revised I-140 Petition After Expiration of Permanent Application

• AILA has reported that the I-140 petition employers are allowed to file a new or amended I-140 petitions using the same certified but expired permanent labor certification after the I-140 petition is denied or revoked or withdrawn unless the petition was denied or revoked by the USCIS or DOL for misrepresentation or fraud in the labor certification application. Accordingly, once the I-140 petition is timely filed within 180 days or the period which is stipulated in the DOL fraud prevention regulation of 2007, for the purpose of the subsequent legitimate new or amended I-140 petition based on the same certified labor certification application , such expired ETA 750 or ETA 9089 will remain permanently valid until it is revoked by the agencies for any misrepresentation or fraud in the applications. For the purpose of this policy, the successor-in-interest entity to the employer is considered the same employer that can file amended or new I-140 petition using the same and expired labor certification application. Obviously, such new or amended I-140 petition is available only for the same alien beneficiary. Very good to remember the policy.

12/05/2008: USCIS Released Revised I-129R Form Incorporating Attestation and Other Sections

• The new religious worker regulation requires attestation for I-360 petition and I-129R petition. The USCIS has just released the revised I-129R form with attestation feature, while the revised I-360 form has yet to be released. AILA has reported that the USCIS will not reject either nonimmigrant R-1 petition or special immigrant petition using the current forms until they announce its procedural notice.

12/04/2008: IT Jobs Reportedly Drops Sharply

• Report indicates that IT jobs have dropped sharply, probably reflecting the ongoing economic recession. We have also been receiving increasing number of inquiries from high tech foreign workers who have been laid off and seeking answers to the pending green card process. High tech foreign workers, beware! As we reported earlier, such trend affects the adjudicators of the foreign labor certification applications and the USCIS Service Centers. They are going into the commercial website data as part of their adjudication of applications and petitions to determine the status in change in labor markets for occupations and lay-offs.

12/04/2008: Vacuum in USCIS Release of Policy and Procedural Memorandum for Consecutive Two Months

• The agency's policy and procedural memorandums help tremendously the immigration benefits customers and stakeholders to fille the gap between the regulation or laws and its interpretation by the field adjudicators. These memorandums have served as important guidances for field adjudicators to assure uniformity in interpretation and application of the rules and laws by field offices.
• The agency has made a substantial number of these memorandums available to the public. The recent record reflects that the agency released at least one or more memorandums a month, but no memorandums were released in October and November 2008. Obviously this does not necessarily imply that the USCIS headquarter leaders experienced a vacuum in guidance policy making activities. Probably it could be a matter of timing of release of the memorandums. For the forthcoming release of any memorandums, please stay tuned to this website.

12/04/2008: FY 2009 Second Half H-2B Cap Count As of December 1, 2008

• This cap count includes the shortfall in the 1st half FY 2009 cap. It indicates that out of the estimated numbers of beneficiary applications (50,000) needed to reach a cap,of 33,000 for the 2nd half with an allowance for withdrawals, denials and revocations, it reached a total of 12,371, including 6,276 approvals and 6,095 pending beneficiaries.

12/04/2008: USCIS Adopts and Requires Use of Unique Mailstop and Zip Codes for Mail Delivery to National Capital Region Offices

• Announcement
• Mailstop and zip codes

12/03/2008: USCIS Confirms Michael Aytes, Acting Deputy Director, as the Highest Officer in the USCIS

• This announcement confirms our earlier report today that the USCIS is currently de facto under the command of Mr. Aytes as Acting Duty Director.

12/03/2008: Reportedly Obama's DHS Pick May Find Support for Raising H-1B Cap at Confirmation Hearing

• Read on.

12/03/2008: State Department Cables to Visa Posts on Nonminister Special Immigrant Program Extension & Changes to Nonimmigrant Religious Worker Program

• The State Department has just issued a cable to the visa posts world-wide to give guidance relating to the changes in religious worker program under the recently reauthorized law.
• With reference to the USCIS processing of nonminister religious worker I-485 applications, we have been receiving a positive news from the applicants that the USCIS has been expeditiously scheduling the site visits and as soon as the site visit was completed, the pending I-485 applications have been swiftly approved. Good news!

12/03/2008: Employers, List of Acceptable Documents for I-9 is Likely to Change Soon

• The USCIS interim rule to change the list of I-9 verification documents was just approved by the OMB yesterday. The agency is amending its regulations listing the identity and employment authorization documents and receipts that individuals may present to their employers for completion of Form I-9,“Employment Eligibility Verification.” This rule changes the list of documents by: requiring that acceptable documents be unexpired, and eliminating several identity (List B) and employment authorization (List C) documents. A copy of the amended Form I-9 reflecting these changes will be published as an attachment to this rule. The affect of this rule is to improve the integrity of the employment eligibility verification process by simplifying the list of acceptable documents for ease of use by employers, ensuring that the list contains secure and fraud-resistant documents, and adding safeguards to the verification process.
• The USCIS may publish this rule soon. Stay tuned.

12/03/2008: Office of Foreign Labor Certification is Scheduling Briefings for the Upcoming Re-Engineered H-2A Certification Program

• The time and places are as follows:
  • Atlanta: Friday, December 12, 2008, Marriott Marquis, 265 Peachtree Center Avenue, NE, Atlanta, Georgia 30303.
  • Denver: Monday, December 15, 2008 ,Hyatt Regency Denver, 650 15th Street, Denver, Colorado, 80202.
• For details, please visit:
  • Federal Register Notice [This is an advance copy. The reengineered H-2A rules of USCIS and DOL have yet to be approved by the OMB. The OMB is likely to approve in the near future and these rules may be published early next week in all likelihood.]
  • Time and Place

12/03/2008: Mr. Jonathan Jock Scharfen, Acting USCIS Director Resigned as of Yesterday

• DHS announced yesterday that Mr. Scharfen, Acting Director, resigned as of yesterday. No replacement has been announced. Mr. Scharfen was nominated by President Bush and has been awaiting the Senate confirmation.
• The next in line in the current organization of the USCIS is Mr. Michael Aytes, Acting Deputy Director. Unless the Acting Director position is nominated, Mr. Aytes is assumedly filling the vacuum in the USCIS leadership. Please stay tuned to this website for the development of USCIS leadership reshuffle. There may or may not have further changes in the DHS structure once the Obama Administration steps in on January 20, 2009 and the new DHS Secretary, Janet Napolitano, takes the DHS leadership. Madam Napolitano is knwon to be pro-immigration politician with a number of years of experience dealing with immigration issues.

11/27/2008: Approaching Deadline of DV-2010 Immigration Lottery

• The deadline is "Noon" of Eastern Standard Time, December 1, 2008, Monday. Eligible registrants should not miss this opportunity and the next opportunity will not come until one year later.

11/26/2008: USCIS Offices Closed Tomorrow, Thanksgiving Day Holiday

11/26/2008: USCIS National Stakeholder Meeting Q&A of November 13, 2008

11/26/2008: State Department Cable to Visa Posts on CDC Update of Medical Examinations for Alien

11/26/2008: Religious Worker New Regulation Published in the Federal Register Today and Took Effect

• Published final rule
• Published notice: This notice is issued in compliance with section (2)(b)(2) of Public Law 110-391( Non-Minister Religious Worker Special Immigration Reauthorization Law Through March 6, 2009) to certify that the regulations have been published and are in effect. However, since Thanksgiving holidays starts from tomorrow, for all intent and practical purposes, people may not see the effect of this new rule until next Monday, December 1, 2008. The USCIS may or may not announce the update on advisory relating to filing of new petitions/applications as well as adjudication of pending petitions and applications. When it comes to the nonminister immigrant visa numbers, effective Monday, 12/01/2008, the visa numbers will become "current," and the eligible nonmiinister religious workers who have obtained I-360 approvals may be eligible to file I-485 applications. The USCIS will also be able to adjudicate the related pending I-485 applications from next Monday, even though it is not clear whether the agency will require any additional evidence relating to the new regulation. It may not be legal to reopen and readjudicate the already-approved I-360 petitions applying the new regulation retroactively. Please stay tuned.

11/25/2008: USCIS Releases FY 2009 Second Half H-2B Cap Count as of 11/21/2008

11/25/2008: Thanksgiving Day Gift? Religious Worker Final Rule Will Be At Last Published Tomorrow in Federal Register!

• This rule will then take effect tomorrow.

11/24/2008: Honduran/Nicaraguan TPS Registration Extension Rule Published Today

• For the text, please read our previous posting.

11/24/2008: Fall 2008 Rule-Making Agenda of DHS, DOL, DOS

• The following rule-making agenda was prepared on 09/12/2008 and part of the agenda was released in the federal register today. This is each agency's semi-annual rule-making agenda that covers their proposed rules, final rules, and long-term plans for the next one year from the perspectives of September 2008. Readers will learn from the following agenda that some rules were enacted earlier than planned (i.e. elimination of labor certification substitution) or some has been delayed or some has been even abandoned. Accordingly, readers should not take the following information as the fixed agenda of the agencies which can change in terms of enactment time or specific rules. This will be particularly true with this semi-annual agenda because of the changing Administration from Bush to Obama on January 20, 2009. Depending upon the new Administration's of direction, some of them will be delayed or abandoned or accelerated. To get each agency's agenda, please pull down "Select Agency" and select the agency for the detailed agenda of the agency.
  • DHS Agenda [USCIS, USCBP, USICE]
  • DOL/ETA Agenda
  • DOS
• For moe up-to-date status of rules under enactment, check also GPO release.

11/22/2008: USCIS Announcement of Imminent Release of the Religious Worker Final Rule in Federal Register

• The USCIS has released announcement, advance copy, fact-sheet, and Q&A regarding the religious worker final rule. However, the rule has yet to be published in the federal register. Accordingly, until it is published in the federal register, the final rule does not take effect and religious entities and religious workers will not be able to submit new petitions or applications.
• This final rule is currently not, repeat not, scheduled to be published on Monday, 11/24/2008. Thursday is a Thanksgiving Day federal holiday and next Monday is December 1, 2008.

11/22/2008: USCIS Releases Advance Copy of Final Rule of Religous Worker Regulation

• Two changes, among others, that will bring a far-reaching impact on the religious worker petitions and immigration journey:
  • Removes current procedure to apply for a R-1 or R-2 visa directly through the visa posts abroad. Under the final rule, filing of I-129(R) petition and its approval are mandatory, without which no religious worker can apply for a R-1 or R-2 visa.
  • While a nonimmigrant must maintain the intent to depart the U.S., a nonimmigrant petition, application for initial admission, change of status, or extension of stay in R classification may not be denied solely on the basis of a filed or an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.
• Interesting.

11/22/2008: USCIS Releases Q&A of Religious Worker Regulation Final Rule

11/22/2008: USCIS Releases Fact Sheet of Religious Worker Regulation Final Rule

11/22/2008: Likely Next DHS Secretary in Obama Administration an Advocate of High-Tech Foreign Worker Immigration

• News report indicates that Gov. Janet Napolitano is the likely next Secretary of Department of Homeland Security. Report also indicates that she has a strong record of support for not only H-1B program, but also high-tech foreign worker program in general. Read on.
• Oh, Ho Ho!!

11/21/2008: USCIS Announcement on Temporary Protected Status Re-Registration Period Extended for Honduran and Nicaraguan Nationals

11/21/2008: USCIS Will Extend Re-Registration Period and Automatic Extension of Nicaraguan TPS

• The USCIS will release a notice on Monday, 11/24/2008 that effective 11/24/2008, the re-registration period will be extended through December 30, 2008 and the automatic extension of EADs will begin on January 6, 2009, and will remain in effect until July 5, 2009. For the full text, please read advance copy of this upcoming notice.

11/21/2008: USCIS Will Extend Re-Registration Period and Automatic Extension of Honduran TPS

• The USCIS will release a notice on Monday, 11/24/2008 that effective 11/24/2008, the re-registration period will be extended through December 30, 2008 and the automatic extension of EADs will begin on January 6, 2009, and will remain in effect until July 5, 2009. For the full text, please read advance copy of this upcoming notice.
  

11/20/2008: After All, Lame-Duck Session is Likely to End This Week as Initially Scheduled!

• However, they may return again on 12/08/2008 just for Automobile three bail out legislation only. We will cease monitoring lame-duck Congress as there is absolutely no opportunity for the Congress to take up immigration issues within this year.

11/20/2008: Non-Minister Religious Workers Awaiting Release of Amended Regulation

• There will be no release of this regulation this week. The earliest this rule can be published will be next week. Currently, their I-360 and related I-485 proceedings are at hostage pending release of the amended regulation. We share their frustration. We will post it as soon as it is released, hopefully, next week.

11/20/2008: USCIS Announces Awards of Contracts for Training Services for its Newly Hired Employees

11/20/2008: GAO Rule-Making Resources and Recommendations for Transition Team - H-1B Program

• The Obama transition team includes a team of regulation reviews and issues. In order to assist such transition process, the GAO has organized its reports and recommendations in its library which are made available for the transition of the government. We will review some of these resources in the area of immigration and visa.
• H-1B Visa Program: Labor Could Improve Its Oversight and Increase Information Sharing with Homeland Security: Obviously, the study and recommendation of GAO is focused on the issues of integrity of the H-1B program management and recommendation of sharing the H-1B related database between the USCIS and the DOL. Without doubt, the Obama Administration is likely to push ahead these recommendations coming year.

11/19/2008: Well, Senate Failed to Vote Auto-Bailout Bill Resulting in Extended Lame-Duck Session Beyond the End of This Week

• As scheduled, the House opened the lame-duck session at 1:00 p.m. today. The original scenario was the Senate would pass the auto-bailout bill today or tomorrow, which would then be picked up and quickly passed by the House within the week. Additionally, the Congress was also planned to act on another stimulus bill quickly so that they could end the lame-duck session quickly. Obviously the event that evolved today will force the Congress to stay in a longer lame-duck session.
• Readers should understand that when the Congress is in a session, they also take in introduction of new legislative bills and vote on some of the pending bills. By any stretch, the pending immigration bills can not be at the top of the priority in the session, particularly considering the fact that immigration bills had yet to be taken up by the House floor before they could be presented to the Senate. In the legislative process, it is a long road. But who knows? Still lots of things can happen before the Congress wraps up its lame-duck session. Stay tuned.

11/19/2008: Increase in Student and Exchange Visitor Visa Issuances

• State Department reports that in FY 2008, DOS issued 9.1% more student and exchange visitor visas than FY 2007. Reportedly, this is the third fiscal year in a row the State Department has broken records in the student and exchange visitor visas, issuing student and exchange visas well above highs before 9/11. The State Department issued almost 40 percent more student and exchange visitor visas to Chinese nationals than in fiscal year 2007, and that is after an increase of 40 percent from fiscal year 2006. The State Department is also continuing to see significant increases in student and exchange visitor visa issuances from the Middle East, where we issued 26.2 percent more student and exchange visitor visas in fiscal year 2008 than in fiscal year 2007. Hmm..... Ain't that interesting?
  

11/19/2008: OFLC Notice of Continuing Difficulty Experienced in PERM Online Filing System

• "We are experiencing some residual issues from our latest system upgrade. These pertain to Job Addenda numbering and some data being displayed in the Adobe PDF. Case data are being saved properly; the only issues are with displaying the data. We are addressing these issues as quickly as we can."

11/19/2008: Proposed Revision of Form G-28

• USCIS is proposing to revise the form G-28 Notice of Appearance as Representative. This form will be shared by ICE and CBP. There are no big changes except that the form requires attorney's license number. Obviously this requirement is related to the agency's ongoing transformation program development. It is analogous to SSN for individuals. Hmm.............. For the proposed form, please click here.

11/18/2008: USCIS Releases the Goal of Processing Times for Each Type of Petitions or Applications by 09/30/2009

• The release also includes information on (1) the initial goas which was set at the time of fee increase in August 2007, (2) the current processing times, and (3) the goal at the end of September 2009, for each type of petitions and applications.

11/18/2008: USCIS Releases Today Processing Times as of 09/30/2008

• USCIS has just released the latest processing times report. The cut-off date for the data is September 30, 2008. This report now states that those whose receipt dates passed the reported date may call 800 number to inquire of the status of each individual case. For this monthly report, please visit our home page and click the links.
  • EB-485: NSC=07/05/2007, TSC=06/27/2007
  • I-140: NSC=08/02/2007, TSC=08/15/2007(Nurses, EB-2, EB-3, EW), 08/01/2007 (EB-1, NIW EB-2). Note that EB-2 for NSC moved backward from March 2008 to August 2007! March 2008 could have been typos?
• Ouch!!

11/18/2008: Sen. Reid Introduced Automobile Industry Bail-Out Bill Yesterday

• The bill number is S.3688. We will monitor the progress of this bill.

11/18/2008: House Scheduled to Open Lame-Duck Session at 1:00 P.M. Tomorrow, 11/19/2008

• The Senate returned and started the lame-duck session yesterday. The House will also come back to the session at 1:00 p.m. tomorrow. It appears that unless something unusual takes place, the Congress is likely to end the lame-duck session earlier than predicted, as early as the end of this week. Since the Congress passed the Continuing Resolution to fund the federal government until March 6, 2009, the appropriation legislation is out of picture for the necessity of dragged lame-duck session of the Congress. The economic bail-out is the only key issue for the lame-duck session of the Congress, but the political landscape appears to direct the legislators to hand it over to the Obama Administration.
• We reported earlier that when the regime changed hand from one party to another party in power, the departing party tended to be very active in legislation and rule-making to leave their ideological footage firm after their departure. However, the 110th Congress was controlled by the Democratic party and only Whie House was occupied by the Republican party. Besides, the departing President appears to have decided to turn the Administration into a "literally" lame-duck including White House itself in a mood of collaboration between the incoming and departing Presidents for the rest of this Administration, and the Congress and the federal government are likely to remain in low key without noticeable legislative or rule-making activities.
• It all boils down to the conclusion that the immigrant community may not witness any noticeable immigration reform or fixes at the level of Congress or at the level of the White House until next year. Zz.............................................

11/17/2008: DHS Updates Visa Waiver Program Guidance Reflecting New Seven Countries, Admission Requirement and Procedure

11/17/2008: Congress Returns This Week for Lame-Duck Session

• As we reported quite earlier, the Congress is scheduled to return to the Hill for the lame-duck sessions. The Senate will come back to the session first today to take up automobile industry bailout bill which they are scheduled to vote out on Wednesday. The House lame-duck session is likely to follow the Senate floor action on or immediately after Wednesday to take up this bill.
• The lame-duck Congress will focus on the economy issue but before it returns to the year-end recess for this calendar year, some other bills may or may not have a chance to be taken up as attachments or unanimous consent format. There is a rumor that President-elect Obama is meeting with Sen. McCain today possibly for the Senator's leadership role in the Congress for the President-elect's bi-partisan immigration legislative initiatives. We will watch how it will unfold.

11/17/2008: Seven New Visa Waiver Program Countries Effective Today, Official Notice, and Visa Posts Announcements

• Official federal register notice 11/17/2008
• Visa Posts Announcements:
  • Czech Republic
  • Estonia
  • Hungary
  • Latvia
  • Lithuania
  • Slovakia
  • South Korea
• Before embarking on the visa-free trip, please refer to the State Department's Quick Reference and make it sure to complete all the steps which are listed in the Reference and which we reported on 11/142008.

11/15/2008: Nose-Diving Economy, Shrinking Businesses, PERM Processing Delays, I-140 Processing Delays, and Risk on I-140 Approvals

• We reported a few days back the OFLC current practice to scrutinize PERM applications relating to its impact on employers' businesses, layoffs, and downsizing, causing delays in processing of applications. On top of such delays in the labor certification applications, currently the USCIS is witnessing a tremendous delay in adjudication of I-140 petitions. The delays in labor certification applications and I-140 petition processing adjudication have been posing a serious risk of denials of I-140 petitions because of the current economy's impact on the employer's financial ability to pay the labor certification wage at the time of filing (priority date) of labor certification applications as well as at the time of adjudication of I-140 petitions after a long delay at the level of labor certification application and at the level of I-140 petition. Under the current immigration rule, approval of the I-140 petitions is conditioned upon the employer's proof of its financial ability to pay the proffered salay (labor certification salary) at the time of labor certification filing through the time of adjudication of I-140 petition. When employers receive I-140 RFEs with the issue of financial ability to pay, because of the changing business environment of the employers, more and more employers tend to face a problem in meeting this requirement in response to the RFE. When I-140 processing times were relative short or when I-140 premium processing was available, the risks were somewhat limited. But now, because of the two factors (ongoing deterioration of economy and business and ever deterioratiing processing times of labor certification and I-140 petitions), I-140 approvals are growingly an challenging issue because of such RFEs. We just hope that at least one of the two factors shows some improvement such that the I-140 employers and their alien beneficiaries face less challenge and risk of denial of I-140 petitions after overcoming ever-challenging labor certification process.

11/14/2008: OFLC Notice on Recent Problems in PERM Online Filing

• OFLC had PERM site system maintenance work on 11/07/2008. Since then, the PERM online filing had experienced two serious problems. One was inability to printout the Item K part in the form which specified the alien beneficiaries' qualifying experieces. More importantantly, the PERM online filers got "C" case numbers which were no longer existing nor valid for the PERM applications since the specialization of the foreign labor certification programs and the phase-out of the Chicago National Processing Center from the PERM program. For fear of the potential problems, the employers had to withdraw the filings and attemted new filing.
• Now, OFLC announces that online cases now submitted will display the proper "A" designation in the case number. The previous cases submitted with a "C" number will be modified to an A case number (the digits will remain the same). Also, the Section K (Job Experience) information in the PDF version of the Form ETA 9089 is now being displayed properly. Good news, indeed.
• However, there is one lingering problem relating to the aftermath of the fix. There is a report that the employer just refiled after the system had been fixed. Even though the problematic initial filing was withdrawn, the system reportedly showed both applications pending. Since both applications involved same employer, same beneficiary, and same job, these employers remain freaky about the potential denial of the applications for duplicate filing of the same cases! What do you know! It is hoped that OFLC incorporates this issue in the anticipated upcoming release of the next round of PERM FAQ. We understand that the OFLC will release the next round of PERM FAQ in the near future.

11/14/2008: Official Designation of Seven New Visa Waiver Program Countries on Monday

• On Monday, 11/17/1008, the DHS will release the final rule designating and admitting the nationals of the seven new member countries that we reported a few days ago. The visitors from these countries without a visa, just like any other VWP nationals situation, must comply with the following:
  • Must:
    (1) be seeking entry as a tourist for 90 days or less,
    (2) bea national of a program country,
    (3) present an electronic passport or a machine readable passport issued by a designated VWP participant country to the air or vessel carrier before departure;
    (4) execute the required immigration forms,
    (5) if arriving by air or sea, arrive on an authorized carrier,
    (6) not represent a threat to the welfare, health, safety or security of the United States,
    (7) have not violated U.S. immigration law during a previous admission under the visa waiver program,
    (8) possess a round trip ticket; and
    (9) waive the right to review or appeal a decision regarding admissibility or to contest other than on the basis of an application for asylum, any action for removal. See Section 217(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1187(a). See also 8 CFR
• Welcome to the nationals of these seven countries. Please enjoy your visa-free visit to the United Sates! For the final rule which will be published in the federal register on Monday, November 17, 2008, please click here.

11/13/2008: USCIS Announces That Federal Contractors Need E-Verify

11/13/2008: FAQ on Requirement of E-Verify for Federal Contractors

11/13/2008: ESTA Mandatory 01/12/2009 Notice Published in Federal Register

11/13/2008: H-1B Labor Condition Application Filing Changes on 01/01/2009 and Delays in Certifications

• We have reported this upcoming changes in the New Year. There will be no more instant certification in online filing. It will take up to one week to get the LCA certifications. The employers and H-1B professionals should keep this in mind in recruitment and H-1B extension filing policies.

11/13/2008: Ongoing Economic Crisis, Lay-Offs, Business Down-Sizing, and its Impact on Foreign Labor Certification Applications

• DOL indicates that they are closely checking impact of current downturn economy and its impact on the integrity of foreign labor certification applications. It appears that they are looking into the impact of the economic situation at three levels.
  • Employer's record of lay-offs or down-sizing of the business
  • Industries that are hit hard, producing lay-offs
  • Area where such layoffs take place at a higher rate
• If the PERM application fits into one of the foregoing categories, the OFLC appears to extend intensive scrutiny leading to audit or even supervised recruitment decisions in some cases. There is no official policy release as to its impact on scale or scope of potential increase in numbers of audits or supervised recruitment decisions, but without doubt, the employers will see increase number of audits or supervised recruitment decisions ahead and should be prepared to deal with the changes in environment for foreign labor certification applications as affected by the hardly hit country's economy. Nothing is easy nowadays in both the labor certification process and the USCIS petition/application process owing to the ongoing shrinkage of the labor market and high rate of lay-offs.

11/12/2008: PERM Processing Times in October 2008

• Clean cases: Receipt date (priority date) of March 2008
• Audit cases: Receipt date of July 2007 (32% cases are in audit queue)
• Appeal cases: Receipt date of December 2006

11/12/2008: OFLC Intends to Post Online PERM Processing Times as Planned

• This is a very good news. Dr. William Carlson disclosed that the OFLC would post the periodic processing time report on the foreign labor certification website. We do not know exactly when the office will put it up, but it may not take too long.
• As we posted earlier, when the PERM applications were adjudicated in a short period of time, there was no need for online periodic report. However, the environment has changed and foreign labor certification applications take months and months. In audit cases, it even takes more than a year. Under the circumstances, online periodic report will serve mutual interest for the agency as well as the customers. Agency will be benefited from reduced number of contacts and inquiries by the customers and the customers will be able to better plan for their path. Hats-off to Dr. Carlson!

11/12/2008: Advance Copy of Mandatory Requirement of ESTA for VWP Travelers Effective 01/12/2009

• USCBP will publish tomorrow a notice that effective 01/12/2009, the Visa Waiver Program travelers entering the U.S. without a visa is "required" to obtain ESTA. Currently ESTA is voluntary but will become mandatory effective 01/12/2009.

11/10/2008: Reported Technical Problems in PERM Online Filing

• The OFLC performed system maintenance throughout the day on Friday. Since then there have been reports by the customers of PERM program that the system was not performing normally. Obviously, the OFLC is aware of the technical problem and working on the fix. It is thus general opinion that the employers should wait filing of PERM applications until the problem is fixed.
• We urge the OFLC to release the alert immediately on the current technical problem and announce, when it is completely fixed, that it is working normally on its web site. The official announcement should include not only recognition and acknowledgement of the current problem but also advice for the customers to hold filing of applications until it is fixed. Without such announcement, the customers will have to exprience unnecessary confusion and need for withdrawal of the applications not to face any negative decisions by the agency. We are aware that tomorrow is the federal holiday and the problem may continue throughout the day. Please release the advisory immediately!

11/10/2008: Naturalization Processing Times of Each USCIS Field Office as of 09/30/2008

• Longest: Over 14 Months	Shortest: About 5 to 6 Months
  Hartford Charlott Los Angeles New Orleans Orlando	Cincinatti Columbus Detroit Agana Albany Virgin Islands Denver Detroit Honolulu Manchester Lousville Mount Laurel Oklahoma City Pittsburgh Portland (ME) Portland (OR) Reno Salt Lake City San Antonio San Francisco Spokane Yakima

11/10/2008: Veterans Day - Federal Holidy

• Tomorrow is a Veterans Day which is a federal holiday. There will be no mail and federal offices will be closed. All the offices of USCIS will also be closed.
• Because of the holiday, the earliest day when the non-minister worker immigration regulation can be released can be not earlier than 11/13/2008, meaning that the chance of release of this regulation within this week is less than 50/50. For various purposes, the following week will mark an exciting week in that the Congress will come back for the Lame Duck session, the visitors from the seven new VWP countries may(?) be admitted without a visitor's visa, and the religious worker regulation may(?) be published, if any, in that week as well. Now, since the national election is behind us, the activities of government agencies involved in immigration and visa may slow down substantially, particularly the policy and rule-making activities., in order to offer due respect to the incoming Administration on January 20, 2009. Reportedly, the highest level of government agencies is already coordinating with the Obama Administration preparation team for important policy making and rule-making decisions. However, we will keep monitoring the legislative and agencies' activities. Please stay tuned.

11/09/2008: Statistical Monthly and Annual Report of Receipts and Pending Naturalization Applications in September 2008 and 2007

11/09/2008: Statistical Monthly and Annual Report of Receipts and Pending Immigration Benefit Applications in September 2008 and 2007

11/09/2008: IBM Mission of Designing Electronic Immigration Benefits Processing System and Need for Organizational Restructure in Parallel

• Transformation Program was apparently initiated to develop devices to achieve the dual goals simultaneously. One goal is to reduce and prevent backlogs in immigration and naturalization benefits processing and the other goals is to achieve homeland security through assurance of integrity of processing system in the form of efficient security clearance for detection of loopholes in processing system and detection of frauds and violations. Obviously the transformation was intended to achieve these dual goals by devising two legs that will support the immigration and naturalization processing system. One leg is electronization of the process including filing and processing of petitions and applications. The other leg is development and management of electronic database based on account system by immigration benefit customers, to wit, by each petitioner (employer or petitioning USC or LPR), by each representative (primarily lawyers), by each alien beneficiary or applicant. Such "account" database can reduce processing times through automatic retrieval of information and data from the account for each customer (petitioner, lawyer, and alien) such that repetitive filing and processing of the basic data and information can be abated. The accounty system will also help in detecting frauds and violation easily as all the data and information for each customer will be stored in one account database.
• Design and implementation of the transformation program of the immigration and naturalization management has witnessed delays after delays creating political backfires in the Hill because of continuing vulnerability of homeland security in the immigration and naturalization management and continuing and mounting backlogs. The last week's announcement of DHS Secretary and USCIS Acting Director on contracting of electronic immigration and naturalization processing to the IBM consortium signifies speeding up of the transformation process. Along with the IBM processing contract announcement, the Acting Director of USCIS announced a bold goal of processing backlogs and processing times in 2009. He announced that the USCIS would process naturalization applications in five months and I-140 and I-485 in four monhs by the end of FY 2009 (09/30/2009). We commend Mr. Scharfen for the leadership.
• The IBM IT processing project will without doubt help tremendously to speed up achieving the goals of the transformation program. However, it is our opinion that along with the technical reengineering of the processing and management system, the Congress and the agency should look into the needs for structural reform. Broadly, the benefis management involves nonimmigrant petitions and applications, immigrant petitions and applications, services for permanent residents, and naturalization and citizenship applications. Even if the technical reengineering of the processing system will help tremendously in achieving the goals, eventually the applications and petitions must be adjudicated by hurman resources. Again, the current problem lies with paper processing of benefits applications and security cleerance. Lately, backlogs have been caused mostly by its need for achievement of integrity of applications and petitions and security clearance. From the stand point of the extent of fraud-prone nature of applications and petitions, obviously as it moves from nonimmigrant processing and immigrant benefit processing program to the services for permanent residents and naturalization and citizenship processing, it is speculated that the services for permanent residents such as processing of I-90 and N-400 naturalization applications may be considered less fraud-prone and security risk, albeit there is a task of sorting out permanent residents who do not deverse citizenship for crimes and other moral character issues. For these reasons, assumedly the latter two benefit services should demand less amount of human resources in the agency. However, currently, I-90 and N-400 involve inproportionally large volume of cases and the agency had to struggle shifting around its limited resources from non-immigrant and immigrant application processes to I-90 and N-400 processes, affecting backlogs in the former two programs.
• We are not specialists in the management areas. But we strongly believe that the agency should consider structural reform toward further specialization. The agency not too long ago initiated specialization program based on the type of petitions/applications and geographical locations of the customers, but we suggest that the agency further specialize the internal divisions when it comes to the adjudicators minimizing need for training/retraining of adjudicators to switch around adjudicators among various specialty functions.

11/09/2008: DHS is Scheduled to Formally Admit Seven Countries to VWP on November 17, 2008

• DHS disclosed on 11/07/2008 that the Visa Waiver Program will be officially expanded to the recently announced seven countries on November 17, 2008. The expanded seven countries are:
  • Czech Republic
  • Estonia
  • Hungary
  • Latvia
  • Lithuania
  • Slovakia
  • South Korea
• The number of the VWP countries will thus increase from current 27 to 34. Accordingly, the nationals of these seven coutries are likely to be admitted to the U.S. for a visit without a visa from the date of the official admission, November 17, 2008 inasmuch as they will complete all the steps which are required to all the nationals of VWP including the current 27 countries. Please stay tuned for the official announcement by the DHS.

11/08/2008: Traveling on Advance Parole and CBP Procedure for Admission at the Airport

• There has been some confusion for the travelers concerning handling of Advance Parole documents by the CBP officials at the airport. CBP office explains that when the travelers travel with Advance Parole documents issued in 2-3 copies, it is the CBP procedure that travelers using the AP the first-time, CBP officer stamps all copies, keeps one copy for the office, and returns the remaining copy or copies to the traveler for future use. For subsequent travel using the same parole document, the officer should stamp and return the document to the traveler. The travelers can use the Advance Parole document for multiple travels even if it was stamped for previous travel until the document expires. Accordingly, travelers should keep original copy of Advance Parole safe, no matter whether it is stamped or not.

11/08/2008: USCIS Releases on 11/07/2008 the Q&A of its Meeting with AILA on 10/28/2008 as Part of Stakeholder Meeting Information

• At this meeting, a number of important and up-to-date issues were discussed, including late massive issuance of RFEs and denials without NOID, training issues of newly hired officials, forthcoming lockbox centralization of filing of all petitions and applications, combined single EAD-Advance Parole document, 2-year EAD for IMGs, status of ongoing rule-making for AC21, CSPA, EB-5 invest immigrants, religious workers, and replacement of Forms I-551 without an expiration date (I-90s), issues relating expansion of H-1B and I-140 PPS for people in the green card track, etc.. AILA liason minutes and other information are available only to the members, but apparently USCIS is releasing this information to the public to improve its public relations. You can't miss reading this Q&A!

11/08/2008: USCIS Petitions and Applications Backlog as of 09/30/2008

• I-140: 106,367
• I-485: 697,144 (incl NSC EB-485: approx 172,000)
• I-765 EAD: 194,561
• I-130: 1,445,802
• N-400: 480,251

11/08/2008: USCIS Petitions and Applications Receipts in September 2008

• I-485: 40,326
• I-765 EAD: 85,854
• I-129: 24,317
• I-130: 54,191
• N-400: 44,576

11/07/2008: December 2008 Official Visa Bulletin

• Non-Minister Religious Worker Visas: Current. It states that the Certain Religious Worker category has been listed as “current” for December in anticipation of the publication of DHS regulations regarding this category. Once those regulations have been published processing in this category can resume immediately.
• No changes for any employment-based visas except the certain religious worker category!

11/07/2008: Sorry, Non-Minister I-360 and I-485 Filing Waiters, No Good News Yet Until Next Tuesday or Thereafter

• Once the OMB clears a regualtion of an agency, the agency goes through certain internal produces which usually takes some time before such regulation is published in the federal register. According to the GPO report, this regulation will not be published on Monday, 11/10/2008 and we will have to wait and see the agency will be able to complete the internal process to order actual publication in the federal register soon. Please stay tuned.

11/07/2008: Obama President Elect Immigration Agenda

• The country's top priority is set at controlling the forest fires in economy that spread wildly in the nation and throughout the world. However, economy is just a part of a whole system and the nation as a system can not achieve a progress unless other subsystems of the society move along with it and sustain the direction of economy. The nation needs a vision for the future of the nation in a comprehensive way and in this regard, we welcome the President-elect's on-going development of a comprehensive agenda to shake not just one sector but all the critical sectors in parallel to redirect our nation to the global leadership in every sectors in the world.
• Short-sighted view may take the immigration issues contracting the nation's need for a full attention and focus on economic recession. However, a country's economy cannot move ahead unless other critical sectors sustain such move. Economy does not stand alone. This country is built on immigration and we are country of immigrants. Continuing flow of immigrants forms a backbone and blood of the system supporting and sustaining the system unlike other countries in the world. A country's economy cannot sustain unless a fresh new blood is supplied in all sectors including high tech industry as well as the first industry. Country's culture cannot be enriched unless new talented artists, athletes, writers contiue to flow in. The strength for this nation and its sustaining leadership have been founded on such flow of new fresh bloods from all over the world.
• We understand that the incoming Obama administration and the new Congress will take up comprehensive immigration reform as one of the first, albeit not the top, agenda early next year. We will wait and watch how things will unfold.

11/07/2008: Naturalization Process For The Military - Requirement, Procedures, and Processing Statistics

• USCIS has released this information putting together the information for application and processing statistics. As for the processing statistics through FY 2008 (September 2008), USCIS has naturalized 42,981 members of the U.S. armed forces since the beginning of the War on Terrorism (September 2001) – 37,193 in the United States and 5,788 in ceremonies overseas. In FY 2008, USCIS naturalized 7,854 members of the military, 6,345 of those were naturalized in the United States and 1,509 of those were naturalized overseas. USCIS has granted posthumous citizenship to 118 members of the U.S. armed forces stemming from the War on Terrorism. Historically, the U.S. government has conducted overseas military naturalization ceremonies during times of war. During World War II, 20,011 service members were naturalized overseas. During the Korean War, 7,756 service members were naturalized overseas. Although authorized, no overseas military naturalization ceremonies were held during the Vietnam War. For the full report, please click here.
  

11/07/2008: Massive Overhaul of Immigration Services Planned

• Washington Post reports that the Bush administration has launched a massive overhaul of the nation's long-troubled immigration services agency, tapping an IBM-led industry consortium to re-invent the way government workers help immigrants obtain visas, seek citizenship and get approval to work in the United States. USCIS announced that it has asked IBM to be its "solutions architect" to change the technology and processes used by its 16,000 government and 6,000 contract workers at 280 locations nationwide. The contract, awarded this week and the largest federal homeland security bid on the market, includes a $14.5 million, 90-day assessment period with options over five years worth $491.1 million, and a ceiling value of up to $3.5 billion if Congress approves a broad overhaul of the nation's immigration laws that unleashes a flood of applications for legal status or other actions. Read on.
• The USCIS earlier release of its target to reduce processing times of N-400 to five months, I-140 to four months, and I-485 to four months must be related to this initiative hiring an IBM-led industry consortium to reengineer the immigration benefits processing system. Hmm.................................................

11/06/2008: Reminder - PERM Online Filing System Down Tomorrow All Day from 7:00 a.m. to 5:00 p.m.

• We posted this earlier, but this is a reminder. The site warns (1) that the employers should not attempt to submit any cases electronically during this time period, and (2) the agency will not be responsible for the consequences of failure to file timely. For other details, please visit PERM online site and read "Alert."

11/06/2008: USCIS Released Revised Form N-648, Medical Certification for Disability Exceptions

• USCIS announces that the current version will be not acceptable effective 12/15/2008. People should start using the new version of N-648 form. Important. For the USCIS advisory, please click here.
  

11/06/2008: Fact Sheet: USCIS Makes Major Strides During 2008 

• This Fact Sheet goes into the details of its achievements in FY 2008.

11/06/2008: USCIS Reports its Achievements in FY 2008 and its Backlog Reduction Goals in FY 2009

• During FY09, USCIS’ goal is to achieve a 20 percent reduction in processing times for the majority of key petitions and applications, in spite of having to work through an unexpected surge of applications received during FY07. The agency plans a five-month processing time for naturalization applications (N-400s) and a four-month processing time for both adjustment of status applications (I-485s) and petitions for alien workers (I-140s). Sounds like a dream considering the current backlogs of I-140 and EB-485? For the full text, click here.
• We hope these goals are achieved not at the end of FY 2009 (09/30/2009) but sometime early in FY 2009. We also hope that the goal to reduce the processing times from current way over one year to four (4) months for I-140 petitions includes expansion of I-140 Premium Processing Program as soon as possible.

11/06/2008: Fragomen Lawsuit Stipulation of Settlement and Order Reportedly Signed by the Court

• Reliable sources indicates that the court issued the order on 11/04/2008 approving the stipulation of settlement between the lawfirm and U.S. Department of Labor. We welcome resolution of the lawsuit.

11/06/2008: Chief of Immigration Enforcement to Resign as of 11/15/2008

• Julie Myers, Assistant Secretary of Immigration Customs and Enforcement, DHS will leave the post on 11/15/2008. After eight years of Bush Administration, there is likely to occur a substantial shake-up in federal departments and agencies by the incoming Obama Administration, not to mention some structural changes. Most of top posts of these departments and agencies are "political posts" without employment security who can be removed at the whim of their politial bosses including President. It is uncertain to what extent the Obama Administration will bring a change in the USCIS leadership. For the DHS announcement of departure of Ms. Julie Myers, please click here.

11/06/2008: Congress May Return for Lame-Duck Session in the Week of November 16, 2008

• Unconfirmed sources indicate that the Congress is scheduled to return to the Hill for the Lame-Duck session mostly likely in the week of November 16, 2008. Considering the nation's biggest holidays of Thanks Giving and Christmas, the Lame-Duck session may be able to handled only a limited number of pending and new bills including another economic stimulus package. It is uncertain whether the employment-based immigration bills including the nursing emergency relief legislative bills will be taken up during the short session. Please stay tuned.

11/06/2008: Outsourcing Industry Assessment of Impact of Obama Presidency and Landslide Democrat Win in Congressional Election on Outsourcing

• Reportedly, the impact of the result of the American national election on November 4, 2008 is closely assessed by the outsourcing industry, and the impact is being assessed from the points of ongoing economic recession, recent H-1B issue development, and other angles. Read on.

11/05/2008: OFLC Launch of Centralized Electronic Mailbox for H-2A Amendments and Extensions

• The Office of Foreign Labor Certification (OFLC) has introduced an electronic mailbox at the Chicago National Processing Center specifically for processing employer’s requests for extending or amending certified H-2A applications. Now, all H-2A amendment and extension requests will go through this centralized mailbox in order to ensure greater consistency and efficiency in processing employer’s requests for extending or amending their H-2A applications. The electronic mailbox can be found at: H2a.amend&extend.chicago@dol.gov.
• Please see H-2A Amend and Extend Mailbox Fact Sheet

11/05/2008: Dawn of New Day in America: Time to Build One Nation and One World

• The nation and the world started 21st century with divisiveness in the nation and in the world. In America, the nation witnessed extreme level of divisiveness and polarization during the national election process. The process has produced new leaders in the White House and the Congress. It is now time to heal the wounds and build one nation and one world.

11/05/2008: Good News for Non-Religious Worker Immigrants

• The White House OMB at last approved the religious worker immigration final rule yesterday, clearing the way for USCIS release in the federal register and report to the Congress. It is not going to be published today, but without doubt, the USCIS will speed up the process to release this final rule in the federal register so that they can resume the process of processing and adjudication of non-religious worker immigration petitions and green card application. As soon as the the final rule is published, we will report the full text. Please stay tuned.

11/04/2008: Visa Application for Third Country Nationals (TCN) Available for Certain Nonimmigrants in the United States

• For the details concerning eligible nationals, nonimmigrant types, and steps to follow for the visa applications, please visit the American Embassy in Mexico and the American Consulate in Ciudad Juarez.

11/04/2008: Did You Hear Sen. Joe Biden Speech Yesterday About Upcoming Lame-Duck Session of Congress?

• No one will argue against the fact that he should be one of the most powerful insider in the Congress at this time. He said Congress would return to the Hill after the election for a lame-duck session for another stimuls package legislation. However, the dynamics of the lame-duck session will vary tremendously depending on the two wild cards: One is who will be elected to the new President today, and the other is whether the Democrats will be able to win the 60 seats in the Senate after the election. No matter what, though, it is obvious that the Republicans will attempt to push their bills or introduce their bills en masse in line with their political agenda before they lose the power further either in the White House or in the Congress. The result of the election will also affect the effectiveness of the Congress in terms of gridlock which have turned it into a notorious "doing nothing Congress" label for the past several years.
• Well, I'd better rush to the voting booth. Readers, do not expect anything will move in nomarl pace today. Voters will have to spent a lot of time for voting line today and will remain absent, including the government offices. See ya!

11/04/2008: Oh, Boy, Religious Worker Special Immigration Regulation Still Trapped!

• The non-minister special immigration petitions and green card applications are currently trapped despite the Congress' "generous?" reauthorization law valid until March 6, 2009 because of the pending regulation in the OMB. It appears that there is a slim chance that this regulation will be published in the federal register AND DHS Secretary's report to the Congress of implementation of the regulation is filed, which are the condition for the effective of the reauthorization legislation, within this week. Those whose I-485 is pending based on the already approved I-360 suffer less from the delay in implementation of this law as no visa number in the November Visa Bulletin is available anyway during the month of November, 2008. However, those who have been awaiting adjudication of pending I-360 and about to file new I-360 and new I-485 feel very frustrated, not to mention those spouse and children I-485 applicants whose cases have been trapped because of the RFE and failed to be adjudicated before the end of September 2008. Whew!!!!

11/03/2008: CRS Warns of Potential Developments During Period of Presidential Transition Between National Election and January 20 of New Year (Lame-Duck Regime)

• Readers may remember our earlier report on this issue. The Presidential election produces power swift from one party to another party or retain of power by the same party. When the election results in change of power from one party to another party, the lame-duck regime understandably engage in flurry of activities to leave roots and seeds of their influence and their political agenda to a maximum during the period of Presidential transition (11/05/2008 - 01/20/2009 in the present case), including legislative activities, rule-making, switch of politital appointment position to non-political appointment, judicial appointments, etc. etc., YOU NAME IT! The Congressional Research Service (CRS) reported their study on October 23, 2008 alerting floods of such activities during the Presidential transition. Our readers should read the full text of this report. If the readers do not have time, they can just read a news report.
• After the election tomorrow, we will learn whether the country will elect a President of opposite party or the same party. The lame-duck activities during the lame-duck period will turn totally different depending on the outcome of the tomorrow's election. Beware!!

11/03/2008: Immigration Bulletin Reports Lawsuit Settlement Between Fragoman Lawfirm and DOL

• Immigration Bulletin has reported on its website, www.bibdaily.com that the lawsuit has been settled and the stipulation for settlement was submitted to the court today. Good news for the lawfirm clients. For a copy of the stipulation as reported on the bibdaily.com, please click here.

11/03/2008: DHS Signs Visa Waiver Program Interim Declaration with Romania

• U.S. Department of Homeland Security Secretary Michael Chertoff signed today a Visa Waiver Program (VWP) declaration with Romanian Ambassador Adrian Vierita. The security enhancements outlined in the declaration continues Romania's progress on the path toward visa-free travel to the U.S., and possible designation as a VWP member. Signing the declaration is the first step to clear for consideration of VWP membership. Accordingly, there is an additional step to complete before designation into a membership. As we reported earlier, the President announced that seven countries that completed the second step would be admitted to the membership in the middle of November 2008.
• For the joint press conference of the DHS Secretary and the Romanian ambassador, please click here.
  

11/02/2008: State Department Notice of U.S. Passport Security Breach, Potential Identity Theft, and Remedy Offered by the State Department

• Stae Department releases an important information for U.S. citizens, including naturtalized U.S. citizens who have obtained U.S. passports that the State Department’s database containing the citizens' passport record has been breached. This database contains a copy of passport applications that the citizens submitted when they applied for a passport. Investigation to date has identified several accomplices working together to steal identifying information for the sole purpose of committing credit card fraud.
• Information about what to do and what compansation will offer to such victims by the State Department, please click here.
• For the Q&A, please click here.

10/31/2008: PERM Filing Alert for IT Occupations and Certain Professional Occupations

• When the permanent labor certification system used DOT system, there were a number of IT occupations that fell under SVP 8. When the DOL changed the permanent labor certification system, it abandoned DOT system which focused on SVP concept. Since then OFLC has been using O*Net Job Zone concept and applied Job Zone 4 as equivalent to SVP 7 that can require from two years to maximum four years of preparation time (education, training, and experience). The Job Zone 5 is practically equivalent to SVP 8 that can require from four years to 10 years of preparation time (education, training, and experience). During the DOT era which ended on March 27, 2005, some IT occupations fell under SVP 7 and some IT occupations fell under SVP 8. Accordingly, EB-2 labor certifications for IT occupations were filed and approved when the occupations fell under SVP 8. Software Engineer, DBA, Science/Engineering Application Programmer, etc. illustrate these IT occupations.
• When the O*Net Job Zones replaced the DOT, the system downgraded all the IT occupations into Job Zone 4 except Computer Information and System Manager occupation (IT Manager) which remained at Job Zone 5. Since all the IT occupations other than IT manager belonged to the Job Zone 4, had the DOL strictly adhered to Job Zone system as they interpreted, any applications for IT occupations that required more than a bachelor's degree plus two years of experience should have faced a business necessity challenge and denials in most of such applications. However, from March 28, 2005 until June 2007, the DOL de facto adhered to their previous practice under the DOT system and most of the EB-2 IT occupations such as Software Engineer, DBA, etc., which belonged to SVP 8 under DOT system, have been approved without much challenge.
• The landscape changed beginning from July 2007 when they started focusing on the integrity of labor certification system. The agency started challenging such EB-2 requirement even for the SVP 8 IT occupations under DOT if it belonged to the Job Zone 4. The challenge took a form of "audit." Such EB-2 requirements have faced a massive challenge and audits. However, the former SVP 8 IT cases have been approved after the audits in a large number of cases. This practice is expected to change once the new form ETA 9089 PERM application program is launched next year since the new form will automatically consider such EB-2 requirement for IT occupations as the business necessity cases for exceeding the Job Zone 4 requirement. Initinally, DOL was scheduled to launch the new ETA 9089 form beginning from January 1, 2009, but luckily they pushed off the starting date to late Spring of 2009. That was a good news.
• Bad news is a further change in O*Net Job Zone for IT manager occupations. They just changed the O*Net data into version 13.0 which down graded IT manager job zone from 5 to 4! The last vestige of Job Zone 5 in IT occupations has been cruelly crushed to death. Since EB-2 occupation must require either a master's degree or Bachelor's degree plus five years of progressive experience, now all the IT occupations exceed the Job Zone 4 allowed preparation time. We will have to wait and see how this change in Job Zone for IT manager occupation will be managed in actual adjudication of PERM applications hereon, but it is certainly not a positive news.
• The recent downgrading of professional occupations from Job Zone 5 to Job 4 does not end with the IT occupations. There are a number of professional occupations that have been downgraded practically to nonprofessional occupations in some cases. Company General Manager is downgraded to Job Zone 3!! Employers who start PERM recruitment should review the attached Job Zone changes and seek legal advice. Believe me, there are a lot of surprises.

10/31/2008: IT Firm Settles With DOL to Pay $1.7 Million Backwage Payment to H-1B Workers

• DOL has announced that GlobalCynex Inc., a Sterling information technology company, has agreed to pay $1,683,584 to 343 non-immigrant workers after a U.S. Labor Department investigation found the company violated the H-1B visa provisions of the Immigration and Nationality Act. An investigation by the department's Wage and Hour Division found that employees hired under the H-1B program were not paid required wages from March 2005 through March 2007. Wage and Hour Division investigators also found that the company charged new H-1B workers training fees ranging from $1,000 to $2,500 that were in violation of the law. Globalcynex reportedly runs operations in Hyderabad, India, and provides offshore services. For the announcement, click here. Reportedly, if the settlement were split evenly among all 343 employees, they would get nearly $5,000 each, and the settlement is one of the largest of its kind involving the H-1B program.
  

10/29/2008: USCIS Issues TPS Registration Reminder to Eligible Hondurans, Nicaraguans and Salvadorans

• U.S. Citizenship and Immigration Services (USCIS) yesterday reminded Hondurans, Nicaraguans and Salvadorans, who are eligible for Temporary Protected Status (TPS), to file a re-registration application for TPS before the end of the re-registration period, (Dec. 1, 2008 for Hondurans and Nicaraguans, and Dec. 30, 2008 for Salvadorans). The reminder was published in both English and Spanish languages.
  • In English
  • In Spanish

10/29/2008: USICE Temporary Suspension of OPT 180 Day Job for Foreign Students

• NAFSA has reported SEVIS notice that as a result of the CLAIMS interface failing to consistently update the status of OPT requests, SEVP has decided to temporarily suspend the 180 day OPT job. For the full text of the SEVIS Notice, please click here.

10/29/2008: State Department Notice for Travelers of Seven Expanded VWP Countries

• On October 17, President Bush announced the imminent expansion of the Visa Waiver Program to include the Czech Republic, Estonia, Latvia, Lithuania, Hungary, the Republic of Korea and the Slovak Republic. However, the United States must still complete certain internal steps required by statute before we can complete VWP expansion. Nationals of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, the Republic of Korea and the Slovak Republic continue to require visas to travel to the United States during that period. Nationals of these countries are expected to be able to travel without obtaining a visa for tourist and business travel of 90 days or less beginning in mid- November provided they possess a biometric passport and register on-line through the Electronic System for Travel Authorization (ESTA).For the full text of the President’s statement see the Press Release.
• The Department of Homeland Security (DHS) announces implementation of the Electronic System for Travel Authorization (ESTA), which began to accept voluntary ESTA applications starting on August 1, 2008. ESTA is a new fully automated, electronic system for screening passengers before they begin travel to the United States under the Visa Waiver Program. ESTA applications may be submitted at any time prior to travel to the United States, and VWP travelers are encouraged to apply for authorization as soon as they begin to plan a trip to the United States. It is anticipated that ESTA will become mandatory for VWP travelers from current VWP member countries on January 12, 2009and for VWP travelers from newly admitted VWP countries in mid-November 2008. Learn more about ESTA on the DHS Customs and Border Protection (CBP) website. Review the Interim Final Rule on the DHS main website.
• For other details, please click here.

10/28/2008: Foreign Labor Certification Program FY 2008 Third Quarter Performance Report

• The DOL has just updated the its performance report for the foreign labor certification program for the third quarter ending June 30, 2008. This report indicates that despite continuing backlogs, 2008 performance has improved over that of 2007. We commend the team of DOL Performance Evaluation Office for the job well done.

10/28/2008: DHS Website Statement on Current Move on Immigration Policy on Employment-Based Immigration

• The DHS lists the following four moves as the primary policy in the employment-based immigration reform:
  • H-2A Agricultural Seasonal Worker Program Reform
  • H-2B Non-agricultural Seasonal Worker Program Reform
  • Three-Year TN Visa Program Reform
  • Administrative Reforms for Highly Skilled Workers
• Out of the foregoing four major policy program, the Three-Year TN has been implemented since October 16, 2008, and the first two temporary worker program of H-2A and H-2B program reforms are poised to be launched and implemented in the near future because the "final rules" for these two temporary worker programs are currently under review by the OMB for the USCIS and the DOL. These two federal Departments are pursuing the reform of these visa programs in parallel. As for the last program on reform of highly skilled worker administrative reform program, the site states that the Department of Homeland Security and The Department of Labor will study and report it by the departments. One wonders what administrative reforms the site is alluding to. We hope that it does not refer to the Department of Labor's ongoing change in the PERM and H-1B filing sysems which will be launched early next year (H-1B in January 2009 and PERM in late spring 2009). We would look forward to more substantive benefit program reforms for these highly skilled workers other than the foregoing foreign labor certification filing procedure changes. For instance, should the DHS and DOL expand the Schedule A type of labor certification application precertification program, it will benefit the highly skilled foreign workers tremendously. Just curious what the Administrative Reforms in their cards for the highly skilled workers. Please stay tuned.
  

10/28/2008: Non-Minister Religious Worker Amendment Regulation Still in Limbo

• Non-minister religious workers and their religious entities have been going through an emotional rollercoaster because of the sunset of the special immigration provision in the immigration statute on September 30, 2008. The Congress revealed a high-level of resistance to the extension of this law, but eventually passed a legislation to extend until March 6, 2009 with two strings attached. One string was to make this extension taking effect only if the new regulation is enacted and implemented to their satisfaction to control frauds. The other string was that once the Congress is satisfied with the results of reform in management of the religious worker special immigration by the involved agencies, they will further extend the special immigration legislation beyond March 6, 2009.
• The amendment regulation was submitted to the White House OMB on September 11, 2008 and by October 11, 2008, it passed 30 days meeting the threshold under the Executive Order for Rule Making to complete the review. Since then days have gone by with no news from the White House, pushing up the body temperature of the involved workers and employer higher every single day. This anxiously awaited final rule will not be published in the federal register today. Nor will it be published tomorrow or day after tomorrow (Thursday), meaning the special immigration law will remain in dormant stage during the whole one month of October 2008. We keep getting calls from these frustrated religious workers and their family members seeking any information on rule making activities. We share their frustration. Good news is that the DHS appears to be ready to act on pending cases as soon as the regulation is enacted.

10/27/2008: PERM Processing Date by Priority Date

• Processing Date as reported by the OFLC
  • Final Review Stage cases: March 2008 (Ouch!)
  • Audit Track cases: July 2007
  • Standard Appeal cases: December 2006
  • Government Error Appeal cases: Current
  • (Courtesy of AILA)
• The foregoing information officially released by OFLC appears to be conservative. There have been reports by the customers that their cases were approved for May 2008 and even June 2008 cases. It thus appears that the foregoing prioritydate may represent not the first cases that were adjudicated on that period but the last cases that remained and being adjudicated at the time of report of this statistics. Otherwise, it would not make any sense.

10/27/2008: PERM Pending Cases as of 09/30/2008

• Total Pending: 40,200
• Cases in Final Review Stage: 57%
• Cases in Audit Track: 32%
• Cases on Reconsideration or Appeals: 8%
• Cases in Sponsorship State: 3%
• (Courtesy of AILA)

10/27/2008: PERM Application Statistics (10/01/2007-09/30/2008)

• Total Received: 90,039
• Total Completed: 61,997
  • Certified: 49,205
  • Denied: 10,729
  • Withdrawan: 2,063
• (Courtesy of AILA)

10/27/2008: DOL Notice of PERM System Outage on November 7, 2008 from 7:00 a.m. to 5:00 p.m., EST

• For the full text of the notice, please see the previous posting on this site.

10/27/2008: New PERM ETA 9089 Starting Date Delayed from 01/01/2009 to Late Spring 2009

• The DOL was scheduled to launch the new PERM 9089 form effective January 1, 2009. The new form incorporates a number of changes that focus on the integrity of PERM program. Howerver, the DOL has released a notice as part of its scheduled PERM site system outage on November 7, 2008 from 7:00 A.M. to 5:00 P.M. Estern Stardard Time, that this system outage will have no bearing with the new PERM form launch in the late Spring 2009. Huh? Please see the following full text:
  • On Friday, November 7, 2008, the Permanent Online System will be unavailable from 7:00AM to 5:00PM EST. The Department will be performing routine system upgrades that will make your experience on this site more productive and efficient. Please do not attempt to submit any cases electronically during this time period. Thank you for your patience.
  • The Department urges all filers to review applications currently being prepared for filing to ensure the above interruption does not interfere with timely filing. The Department will not take responsibility for the untimely filing of applications as a result of this shutdown or any electronic filing problems encountered over the weekend thereafter. The Department is willing, however, to make the following temporary accommodation for those filers who can only file on November 7th, as well as for those filers who are unsure of whether an electronic submission was successful over the weekend following the upgrade (November 7 - 9, 2009): The Department will use as the filing date, on applications accepted for processing, the postmark/mailing date on applications submitted by mail Friday, November 7, 2008, Saturday, November 8, 2008, and Sunday, November 9, 2008. While we do not anticipate filing problems after the shutdown, it is recognized that filers may have questions as to whether a submission was, in fact, successful. In such situations, the filer may mail in a paper copy of the electronically submitted application along with a cover page indicating that the application in question is a duplicate of one for which an electronic online filing was attempted. This will assist in determining whether that the paper copy is merely the duplicate, where the electronic filing was successful, of an electronic version.
  • Important Note: The above notwithstanding, the Department continues to encourage electronic filing of applications and to warn that the mail-in process is, by its nature, a slower process. The use of the postmark/mailing date as the filing date applies only to filings from November 7, to November 9, 2008, and cannot be construed as a broader policy consideration. This is routine maintenance and is NOT to be associated in any manner with the implementation of the new ETA Form 9089 currently scheduled to take place in late spring 2009. [This information has been confirmed]
• Hmm....... Interesting. January 1 is certainly not late spring!
  

10/27/2008: Two Important Developments for Employers Receiving No-Match Letters

• Tomorrow, the Homeland Security Departmernt and Justice Department will publish the following two rules that need the ermployer's close attention. The Homeland Security Department Rule lays out its version of Safe-Haven rule, while the Department of Justice lays out the risk of employers' violation of discrimination in complying with the DHS unless they read and follow very meticulously the DOJ's rule. In other words, employers can sometimes walk a fine line between the compliance of DHS no-match letter rule and the compliance of DOJ's anti-discrimination rule. The advance copy of the DHS was released by the DHS yesterday, but in order to call the employers' attention to these rules together, we are posting these rules here which will be officially published in the federal register tomorrow:
  • DHS Rule: Safe Harbor Procedures for Employers Who Receive a No-Match Letter: Clarification; Final Regulatory Flexibility Analysis
  • DOJ Rule: Office of Special Counsel's Antidiscrimination Guidance for Employers Following the Department of Homeland Security's Safe-Harbor Procedures
    

10/27/2008: DOL Notable Results Summary in Foreign Labor Certification Program

• DOL has posted the notable results summary achieved by the agency. In the foreign labor certification program, it cited two achievements: One is PERM online filing and elimination of backlogs. The other is combating with the frauds in the labor certification applications. We commend the agency for the achievement.
• At the same time, we cannot close our eyes to agency's returning to the old disease of processing delays owing to its policy focus on fraud detection and prevention in the labor certification program beginning from mid-2007. When the DOL launched the PERM program, the agency completed applications from one day to one month or two months. However, currently, the PERM applications are taking several months at best and audit cases are reportedly even taking for one year and six months in some cases. This delay is more astonishing considering the fact that the agency has been witnessing a substantial reduction in the workloads due to the elimination of backlog applications and reduced PERM applications filed by the employers for the last two years probably as affected by declining country's economy and job market. We agree that the agency must carry out its mission to reduce or eliminate frauds in the foreign labor certification program. One thing we do not understand is why the two goals of reduction of application backlogs and control of fraud had to be implemented as two separate programs and in two different phases. Had the Five-Year Strategic Plan which produced PERM program and Backlog Elimination Program incorporated the fraud control program, the agency could have abated the contradition and irony of spending tons of money to launch the processing time reduction program on the one hand, followed by creation of delays in the processing time and backlogs in the PERM applications by subsequent launch of fraud control program. In hindsight, the two goals could have been devised and launched at the same time such that the agency does not repeat vicious cycle of backlogs.
• We hope the agency looks at the management of the program in a broad perspectives and works out solutions to reduce the processing times of the PERM applications soon.

10/25/2008: USCIS Monthly Processing Time Report and Fallacy of Telephonical Inquiry Available Solely Based on the Receipt Date of I-485

• It appears that there are some immigrants in the immigrant community who follow religiously USCIS processing time report and start calling USCIS solely based on the fact that I-485 processing time report had reached or passed his/her I-485 Receipt Date. Most of the I-485 applicants are very much infromed and knowledgeable of the USCIS I-485 processing procedures. Unfortunately, there are still some, not necessarily a small number, who are still not well informed.
• The fact that his/her Receipt Date is reached in the USCIS processing time report does not translate into the fact that his/her I-485 is ready for adjudication. The other critical information is his/her priority date in the Visa Bulletin. When his priority date is not current in the Visa Bulletin, no matter what processing cut-off date the USCIS processing time report reflects, the agency cannot adjudicate such I-485 application. Accordingly, it is important that people check three dates before they pickup telephone to call 800 number or schedule Inforpass appointment to appear and address their inquiries at the local offices. (1) First and foremost important date is Visa Bulletin. If his/her priority date is not current, such hasty telephonical inquiry will result in not only waste of his/her time, but also waste of the agency's and tax payers' valuable time and money, not to mention clogging of the 800 phone lines. (2) Second important date is the USCIS monthly processing time report. If his/her priority date is current in the Visa Bulletin and the processing time report also reflects his I-485 Receipt Date is earlier than the reported time, he/she should question himself/herself why his/her case has not been adjudicated. However, he/she will still not be ready to pick up the phone because of the USCIS practice. (3) The current USCIS practice requires that the I-485 waiters wait for 30 days after his/her I-485 Receipt Date reached or passed in the monthly processing time report before calling 800 number or even try Infopass personal appearance and inquiry. We urge people to check the foregoing three dates before they call 800 numbers. We post this message because without doubt the USCIS can waste a lot of resources and energy turning everyone into losers, including the callers, the agency, and the tax payers. No wonder why the agency pushed back the cut-off date of the processing time report.

10/24/2008: USCIS Monthly Newsletter of October 2008

10/24/2008: DHS Secretary Releases Timeline for Starting Date of Visa Waiver Entries for the Seven Expanded VWP Countries

• At the VWP Rountables, the Secretary dislosed yesterday the following: "I’m planning next week to be able to visit six of the seven new countries that will be admitted to the Visa Waiver Program in the middle of November, not necessarily -- I know I’m going to start in the Czech Republic. I think the trip details are finally being nailed down, but it’s going to be the Czech Republic, Hungary, Slovakia, Estonia, Latvia, Lithuania. I will not unfortunately be able to make it over to South Korea. They, of course, -- South Korea, of course, will also be in the program. For the full text, please click here.

10/24/2008: AAO Processing Times 10/24/2008

I – 140 EB1(A
I – 140 EB1(Aetition for Religious Worker: 9 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: 11 Months
I – 601 Application for Waiver of Inadmissibility: 26 Months
I – 131 Application for Travel Document: Current
I – 485 LIFE Act Adjustment Application: 14 Months
I--485 Cuban and Section 13 Adjustment: Current
I – 905 Application to Issue Cert for Health Care Workers: Current
I – 914 Application for T Nonimmigrant Status: Current

[Courtesy of AILA]

10/24/2008: Reminder: New Fees Take Effect Next Monday, 10/27/2008, for Foreign Students, Exchange Visitors, and Schools Sponsoring Foreign Students

• The following fee increases will take effect beginning from next Monday:
  • SEVIS I-901 Fees for F or M Students and J Exchange Visitors:
    • I-901 F-1/M-1 visa applicants (full payment) $200
    • I-901 J-1 visa applicants (full payment) $180
    • I-901 Special J-visa categories (subsidized payment) $35
    • I-901 Government visitor (no payment) $0
  • SEVP Certification Fees for Schools:
    • For schools petitioning for initial SEVP certification:
      Petition fees will increase from $230 to $1,700.
      Site visit fees will increase from $350 to $655 per campus.
    • For schools that are already SEVP-certified:
      Petition fees for change of ownership will increase from $230 to $1,700.
      Site visit fees for addition of a campus will increase from $350 to $655.
      There is no fee for recertification.
• For the details, plese see USICE site.
  

10/23/2008: DHS Releases Advance Copy of No-Match Letter Final Rule

• The OMB cleared this final rule on 10/21/2008 and the DHS released the advance copy of this rule. For the background information on this final rule, please click here.

10/23/2008: Increasing Customer Reports of Denial of AC-21 Ported I-485 Applications Without NOID by USCIS Upon Petitioner's Withdrawal of Approved I-140 Petitions

• USCIS Adjudicator Field Manual (AFM) Section 20.2(c) which incorporated the so-called AC-21 Memorandums released by Yates, Ayes, and Neufeld indicates that AC-21 ported I-485 must be denied if the petitioning employer withdraws the approved underlying I-140 petition if the alien ports before 180 days of I-485 filing, but if the employer withdraws the approved I-140 petition for the alien beneficiary who ports after 180 days of filing of I-485 application, such I-485 application should not be denied. The Memorandums and the AFM further provide that when the agency has no record of the ported alien's proactive report of AC-21 portability report in the file when the petitioner's withdrawal is received, the agency "must" issue Notice of Intent to Deny (NOID) pending I-485 applications rather than outright denial of I-485 applications.
• At the outset, we must clarify one key point here. The memorandums and AFM are neither rules nor laws and have no legally binding force. No one will dispute on this point. However, the memorandums and AFM provide guidance and internal processing standards for the adjudicators, which the petitioners and the beneficiaries of petitions and applicants rely on as the guidance, policy, and practice of the agency. For these reasons, even though the menrandums and AFM are not legally binding, the adjudicators should adhere to the guidance to meet the expectation of the customers.
• We have no detailed information on the reasons for reported denials of the ported I-485 applications. At this point, all we can discuss are the potential causes and reasons for denials.
  • Issue of Employer's Intent of Continuing Offer of Employment or Alien Employees' Retaining Continuing Intent to Work for the Petitioning Employer at the Time of Approval of I-140 Petitions: The Memorandums and AFM provide that "throughout" the process, the petitioning employer and the alien employee must retain this "intent" at least "at the time of approval of I-140 petitions." Employer's statement of withdrawal and accompanying materials may offer some evidence for the agency to reviisit the approved I-140 petition and revoke the approved I-140 petition on these issues. Such decision comes within the authority of the agency as inerpreted by the agency in the form of Memorandums and AFM. We cannot dispute with such decision.
  • Issue of Failure to Issue NOID Before Denial of I-485 Applications: As we discussed earlier, the alien beneficiary may rely on the Memorandums and AFM and expect to receive a NOID and an opportunity to provide the evidence that establish the eligibility for the portability. The problem is a narrow reading of NOID obligation for the agency under the Memorandums. Arguably, the Memorandums mandate the adjudicators to issue a NOID to collect the evidence of the beneficiary's porting and evidence of eligibility for the porting. However, the foregoing issue of "intent" of the employer and the employee for the petitioned employment appears to fall outside of the AC-21 portability rules. It is more or less the fundamental rule and law of the employment-based immigration petitions and applications.
  • Issue of Revocation of I-140 Petition for "Good Cause" By the Agency Rather Than Employer's Withdrawal: It is clear that the agency cannot deny I-485 for revocation of the approved I-140 petition simply based on the employer's "withdrawal" of petition. However, the agency is authorized to revoke the approved I-140 petition based on "good cause" including frauds, misrepresentation, and belatedly detected facts that would have caused the adjucators to deny I-140 petitions, had the adjudicators have the information at the time of adjudication of I-140 petition. Again, if the agency denied I-485 applications on such grounds, it appears that the Memorandums and AFM do not mandate the agency to issue NOID before revocation of the petition and/or denial of accompanying I-485 applications.
• The real concern involves a question as to whether or not recent denials of ported I-485 applications have been caused by the newly hired adjudicators who are still in training stage. If it turns out that it is a training issue, the USCIS should quickly come forward to correct such problems which unjustly cause the consumers expensive and time-consuming remedial action in the form of motion to reopen or motion to reconsider or even appeal.

10/23/2008: USCIS National Stakeholder Meeting Report of 09/30/2008 as Revised on 10/21/2008

10/23/2008: USCIS Delays 800 Call Service Inquiry or Request Timeline

• USCIS released earlier in two different occasions that the customers would be able to call 800 number when the receipt date passes the USCIS processing dates reported in the monthly reports. The revised National Community Stakeholder Meeting Report of October 21, 2008 states that 'Currently SRMT (Service Request Management Tool) will not allow a service request to be taken until 30 days have elapsed from the processing time listed on the website. This is being addressed in our next system update which is tentatively scheduled to be released in mid November. Once this update is completed, we will be able to take a request one day after the listed processing date.' It does appear that no-wait-of-30 day policy will be on hold until the November update is released. Readers, please do not call the National Customer Service for now unless your receipt date passed 30 days of the August 31, 2008 processing times report!

10/23/2008: Non-Minister Religious Workers, Are You Anxiously Waiting for Adjudication of Your Cases? Here is Your Surprise!

• We reported that processing and adjudication of these cases are currently witnessing delays for two reasons. One is release of the revised regulation and the other is unavailability of visa numbers in the November 2008 Visa Bulletin. Guess what, the USCIS indicates in its revised National Community Stakeholders Meeting Report of October 21, 2008, the USCIS will the regulation retroactively and once the revised regulation is released and they will be authorized to resume processing of pending cases, they will start issuing Request for Evidence (RFE) to collect evidence which were not required under the current regulation but will be required in the upcoming revised regulation. Nothing comes easy. Prepare for anticipated further delays for these RFEs!

10/22/2008: Three-Year TN Update

• AILA has reported that it is the current USCIS practice that those TN applications which were pending before October 16, 2008 will be granted the period of stay which the TN employer asked or maximum one-year, whichever is less, and those applications which have been filed on or after October 16, 2008 will be given the period of stay the TN employer asked or maximum three years, whichever is less. Accordingly, if the employer filed the application before 10/16/2008 seeking less than one-year, the alien will be given a TN status for that period and not one-year which was the maxium under the rule before 10/16/2008. In the same token, if the employer filed the application on or after 10/16/2008 seeking less than three years, i.e. one year, the alien will be given a TN status valid for that period (one year in the illustration) and not three years. The three-year TN will be available only when the TN employer seeks the three-year employment and not less. In other words, the three-year TN is not, repeat not, automatic. It will depend on the employer's need as requested in the employer's letter.

10/22/2008: Will There be a Lame Duck Session of Congress After the Election?

• Report indicates that the Senate is set to return Nov. 17, 2008 but the length of the Senate's Lame-duck session remains unclear. However, whether the House will have a lame-duck session reportedly remains unclear. Considering the fact that most of the immigration bills are pending in the House, including the Nursing Relief bill, the immigration community wants to see that the House also returns for a lame-duck session. The House Speaker Nancy Pelosi and the rest of the Democratic leadership reportedly made clear last week that they would also like to see a second economic stimulus package approved in the near term. But the details of such a package remain up in the air and House Democratic lawmakers have not gotten any indication that they will be expected back in Washington before next year. Senior House Democratic aides said the biggest variable in whether they return for a lame duck is if Sen. Barack Obama, D-Ill., wins the presidential election. Other political variables include the number of seats picked up in the House and Senate by Democrats and the Bush White House's willingness to come to terms on another stimulus package. If Obama is elected president and Democrats make a major gain of 20 or more seats in the House while achieving a filibuster-proof majority of 60 in the Senate, they could avoid compromising with Republicans on the measure until January. Alternatively, they could also put up a bigger fight on a stimulus package under an administration led by GOP presidential nominee Sen. John McCain of Arizona with major seat gains. For the full report, click here.
  

10/22/2008: Non-Minister Religious Worker Special Immigration Under Siege Owing to Delay in OMB Completion of USCIS Final Rule for Changes to Existing Rules

• These foreign workers in and ouside of the country have gone through a breath-taking process during the final legislative process in the Congress immediately prior to its recess at the end of August 2008. The law for these religious workers immigration program expired on September 30, 2008. The Congress passed a bill reauthorizing and extending the current law only for six months from October 1, 2008, specifically until March 6, 2009. The problem is that the Congress attached strings to this law making this law to take effect only after the final rule is published by the DHS in the federal register. This final rule has been under the OMB review since September 11, 2008 and is currently experiencing a delay at the level of OMB. Pending completing of the rule-making process, this reauthorization law remains in limbo and the USCIS is unable to adjudicate pending I-360 petitions and related I-485 applications for these religious workers and their immediate family members and the qualified religious entities and their religious workers are unable to submit new I-360 petitions nor I-485 applications facing two hurdles - one is the delay in the rule-making process and the other is November 2008 visa bulletin making visa numbers unavailable for these non-minister religious worker special immigrants. Because of the visa number problem, completion of the rule-making process will not be able to give immediate benefits to the pending or new I-485 filers of this classification, but it will at least allow filing of new I-360 petitions or adjudication of pending I-360 petitions by the USCIS. Considering the fact that these religious entities and religious workers will have only a short time remaining before the law will sunset again on March 6, 2009 unless the new Congress passes another reauthorization bill, this is a dark era for the religious community in the American immigration history. We wish them well.

10/22/2008: Processing of New Three-Year TN Admisssion for Canadian and Mexical Professionals at Border Ports of Entry in Normal Operation

• The three-year TN program regulation was published in the federal register on October 16, 2008. The rule took effect and legally bound the agencies the same date. However, the rule was enacted by the USCIS and implementation of the new rule witnessed some confusions with the CBP officials at the border POE because of the lack of guidance. Report indicates that the USCBP HQ released the guidance to the POEs on 10/20/2008, allowing the CBP officials to admit the TN travels for the duration of three-year period. The CBP officials will charge a same fee and there will be no changes in the fees. Hats-up to the USCBP leaders!

10/22/2008: OMB Approved Yesterday USCIS Interim Final Rule on I-485 for Aliens in T and U Nonimmigrant Status

• This rule sets forth measures by which certain victims of severe forms of trafficking who have been granted T nonimmigrant status and victims of certain criminal activity who have been granted U nonimmigrant status may apply for adjustment to permanent resident status in accordance with Public Law 106-386, Victims of Trafficking and Violence Protection Act of 2000, and Public Law 109-162, Violence Against Women and Department of Justice Reauthorization Act of 2005. This rule will be enacted in the form of Interim Final Rule, mearning that the rule will take effect upon release of the rule in the federal register but will receive comments to eventually enact it into a final rule. This rule will provide the regulatory details of the procedure and standards for processing and adjudicating the green card applications by these special aliens in T and U nonimmigrants. Please stay tuned to this website for its release in the federal register.

10/22/2008: The Final Rule for Changes to H-2B Program Under OMB Review

• Yesterday, the USCIS submitted the final rule for this important change to the H-2B program to the OMB for review and approval. The proposed rule was published last year receiving 115 comments. After reviewing all of these comments, the USCIS drafted the final rule and has just initiated the rule making process for the final rule. Normal rule making process takes from 30 days to 90 days for the OMB to complete the review and approval.
• The USCIS is amending its regulations affecting temporary nonagricultural workers within the H-2B nonimmigrant category and their U.S. employers. The changes are designed to improve the efficiency and effectiveness of the H-2B nonimmigrant classification. This rule relaxes the current limitations on the ability of U.S. employers to petition unnamed nonagricultural workers to come to the United States. In addition, this rule creates a process that will allow for issuance of a partial approval notice in the event that a security check generates adverse information on one beneficiary who is part of a multiple beneficiary petition. Finally, this rule provides for employer notification to USCIS within 30 days of the date that the employee leaves employment or is terminated. The rule will increase the efficiency of the program by eliminating certain regulatory barriers. Please stay tuned.
• H-2A reform has also been undergoing the rule making process at the level of both DHS and DOL. This H-2A rule amending the current H-2A program will also be finalized in the near future for the procedural changes both in the USCIS and the Foreign Labor Certification Division of the U.S. Department of Labor.

10/21/2008: 29-Month OPT Program Update

• The litigation to challenge this rule by the anti-immigration groups in the federal district court in New Jersey is still pending and it is expected that the court will hand down its final decision in the very near future. As readers are aware, the preliminary injunction against this rule was denied by the court on a procedural question of the plaintiff's "standing" to sue, but the court was expected to rule on the lawsuit itself sometime next month after reviewing the briefs filed by the parties in compliance with the judge's order. Even though the future of this lawsuit is of suspect at best, we cannot ignore the need for monitoring of the upcoming decision of the court. We will monitor and report the decision as soon as the court makes a final decision.
• Another development is USICE release of the revised list of STEM Designated Degree Program on September 25, 2008. OPT applicants should check the latest version of the STEM list of the USICE to see whether they will be eligible for 29-month OPT or 12-month OPT.

10/20/2008: USCIS' September 30, 2008 Response to the Ombudsman's 2008 Annual Report to Congress

10/20/2008: USCIS October 19, 2008 Report of Processing Times as of August 31, 2008

• 	NSC	TSC
  I-140 (EB-2)	03/13/2008	08/01/2007 (incl EB-3)
  I-140 (All Others)	07/24/2007	07/25/2007 (EB-1 only)
  EB-485	07/04/2007	06/24/2007
  EAD Advance Parole	3 Months 3 Months	3 Months 3 Months

• Remember that this is a report of processing times as of August 31, 2008 prepared on October 19, 2008. This report thus fails to show the processing times as of today or as of September 2008.
• If the receipt date shown on your receipt notice is prior to the processing date shown, people may call 800 number. There have been some incidents that 800 number customer services refused to process the telephonical inquiries based on their understanding of the practice that people should wait for 30 days or 45 days from the posted date, but their refusal is wrong. In fact, the people who will make a call are more than 45 days behind of the actual processing time report date. It is our understanding that the USCIS HQ has been contacting and advising National Customer Service to correct such problems.
• With reference to our yesterday's posting on the religious worker immigrant petitions(I-360), please note the extent of backlog, six months or much longer!

10/19/2008: Challenges for Non-Minister Religious Worker Special Immigration Program Ahead

• The non-minister religious worker special immigration program reauthorization law, S. 3606, has imposed a number of conditions for effective date of this program as well as futher extension of the law beyond March 6, 2009. We will look at the issues for pending I-360 petitions and I-485 application vs. new I-360 petitions and I-485 applications which will be filed after the reauthorization law take effect. Additionally, we will also look at the issue for extension of law after expiration of the law on March 6, 2009.
• Issues for Pending I-360 Petitions and I-485 Applications: Currently there are a number of I-360 petitions and I-485 applications pending which were filed before October 1, 2008 and are being held in abeyance of effective date of the extended program under the reauthorization law. The program will take effect when the DHS completes two steps: (1) Release of the final rule on non-minister religious worker special immigration amendment and (2) DHS Secretary's written certification to Congress of such enactment of the final rule. We reported earlier that the USCIS/DHS submitted the final rule to the OMB for its clearance and is currently awaiting the OMB approval. This final rule-making process will affect the involved religious entities and beneficiary religious workers differently between those who are in the I-360 petition stage and those who are in the I-485 stage after obtaining the approval of I-360 petitions.
  • Issues for I-360 petition: The final rule which is explected to be enacted in the near future introduces both substantive and procedural changes for the I-360 petitions which are intended to assure the integrity of the non-minister religious worker special immigration program. Should this final rule be applied to the pending I-360 petitions retroactively, most of the pending petitions may encounter denial or experience protracted process to receive adjudication of the petitions. General rule is that the laws and ruleseo not apply retroactively with some exceptions. In the instant case, it is expected that the final rule may not be retroactively applied to the pending cases, but we will have to wait and see. Since the petitions will have to be adjudicated under the reauthorization law, there still remain some issues that will have to be resolved by the USCIS.
  • Issues for I-485 Applicants: Despite the sunset of the law, the State Department released the October 2008 Visa Bulletin allocating the visa numbers for EB-4 for certain religious workers immigrations. In the October 2008 Visa Bulletin, the visa number is current for every country in the world including the oversubscribed countries. Accordingly, should the final rule be enacted by publishing the rule in the federal register after obtaining the OMB approval and the DHS Secretary submits the certification of enactment of the final rule to the Congress before the end of October 2008, at least legally the visa numbers will be available for the pending religious worker I-485 applicants during October 2008, albeit that practically and logistically this is not likely to happen. The problem lies with the November 2008 Visa Bulletin in that the State Department has allocated visa numbers for different types of employment-based immigration categories and determined that no visa numbers for EB-4 will be available in November 2008. We are uncertain whether the State Department will have authority to revise the Visa Bulletin after the final rule is published and DHS certification is filed with the Congress. Unless the November 2008 Visa Bulletin is amended, the USCIS will not be able to adjudicate the pending I-485 applications until the end of November 2008. Without doubt, the State Department will release the December 2008 Visa Bulletin with the EB-4 visa numbers "current" and the USCIS will be able to adjudicate these pending religious worker I-485 applications beginning from December 1, 2008.
• Issues for I-360 Petitions and I-485 Applications Which Will be Filed After the Effective Date of the Reauthorization Law: It appears that they will have approximately four months to file either I-360 petitions or I-485 applications before the reauthorization law sunsets on March 6, 2009. Again the parties will be affected differently depending on what stage they will be in.
  • Issues for Future I-360 Petitions: The final rule has yet to be released and no information is available about at this time other than the proposed version of this rule which was published earlier. However, as the proposed rule reflects, the final rule will make a number of substantial changes in the substantive as well as the procedural matters. The prospective petitioners should review the proposed rule thoroughly until the final rule is published in the federal register. The first thing the prospective petitioners will learn from the information is that adjudication of I-360 petitions will take a substantial amount of time in the future because of the mandatory onsite visit procedure incorporated in the rule and other changes. Some prospective petitioners may not be able to file the petitions on the revised eligibility standards. Documentation will also take a substantial amount of time to meet the new requirement. On top of all that, these petitioners should face another sunset of the law on March 6, 2009 and uncertainty of another reauthorization bill because of the conditions which are imposed under the current reauthorization law which we will describe later.
  • Issues for Future I-485 Applicants: There will be practically no I-485 applications which will be filed before March 6, 2009 on the basis of I-360 petitions which will be filed after the forthcoming effective date of the reauthorization law considering the fact that I-360 adjudication will take a substantial amount of time. Since the law will sunset again on March 6, 2009, we do not anticipate that there will be too many newly approved I-360 petitions which will be filed under the reauthorization law. Most likely, these new I-485 applicants may turn out to be those I-360 cases which are currently pending and will be approved under the reauthorization law. These new I-485 applicants will face a serious challenge from another sunset of the law on March 6, 2009 in that unless their I-485 applications are approved by March 6, 2009, their applications will be denied, should the law sunsets without reauthorization on March 6, 2009. The chance of such approval of I-485 within such a short time is practically nil.
• Issues for Reauthorization of the Program Beyond March 6, 2009: The current reauthorization law requires that for the Congress to consider further reauthorization beyond March 6, 2009, the Inspector General of DHS must submit a report to the Congress that the final rule was effective in achieving the integrity of the special immigration program. The investigation period for the Inspector General is likely shorter than four months altogether,and there are likely intensive investigation during the next four months for any new I-360 petitions which will be filed under the new final fule by the DHS and the Office of Inspector General of the DHS. Should the report of the Inspector General be negative, the chance of further extension of this special immigration law will evaporate. Interesting to watch?!............................................

10/18/2008: Reform for "New Immigration System" vs Relief From Injustice of Wasted Visa Numbers/Immigration Opportunities Within "Existing Immigration System"

• For the past few years, the Congress and the country have repeated and gone through a chronic cycle of debates and legislative activities for comprehensive immigration reform with no fruits. Obviously, the comprehensive immigration reform is intended to bring a "change"of current immigration system into a new direction of future immigration system from broad national policies on the nation's future economic, social, cultural, and international strategic perspectives. Understandably such legislation is something which should not be handled lightly in that it will profoundly affect shaping of the future of this country as a whole. For these reasons, we agree that such legislative change in the immigration system requires a "comprehensive" approach to the reform of existing system based on the nation's concensus on a broad "national" immigration policies rather than piece by piece or piecemeal immigration reform legislations.
• However, it is one thing that the country needs a change or reform in existing immigration system, and it is the other that the country needs a corrective action within the existing immigration system relating to the injustice which has been more or less brought about by backlogs and the resultant waste of immigration visa numbers for many and many years.With reference to the cause of the waste of visa numbers and resulting injustice, the answers to the root of the cause must be handled within the context of the reform of the immigration management system and comprehensive immigration reform legislation. However, here we are talking about a remedial action for the injustice in the system in the name of "waste of legally mandated visa numbers," no matter where the primary sources of the cause lied. Our job is not to look for the sources of problems but to correct any problems that exist in the immigration system. Obviously, the remedy for unjustily wasted visa numbers which the existing law mandates must find from the legislative action to recapture the wasted visa numbers. Since it is a remedical action, it should not have anything to do with the ongoing discussion of immigration reform either in comprehensive manner or piecemeal manner. The remedial legislative action should belong neither to comprehensive immigration reform nor piecemeal immigration reform because it has nothing to do with any "reform" of the existing legal system. It is a legal action to give a relief from any injustice which has been brought about by whatever sources and needs correction.
• This brings back us to the memory lane of the 109th Congress that killed S. 1932 which had been introduced by Sen. Specter and the Senate passed but the House killed under the misguided dispute over comprehensive or piecemeal immigration reform legislation. It was misguided because the bill was not related to any "reform" of the existing immigration system. We hope that the Congress does not get into a same confusion when they return to the lame duck session in November. The pending recapture bill is not, repeat not, a reform legislation but a remedial legislation to correct injustice which has been caused by the government during the past several years. When it comes to a remedial action, there should not be any politics or disputes involved between the Republicans and the Democrats and between the Hispanics and the other immigrants. Justice must be done as quickly as possible. Justice cannot be sacrified by waiting until next year when the nation and the Congress will be buried in the reform legislation.

10/17/2008: Three-Year NAFTA TN Visa Program in Low Key in Websites of Visa Posts and USCBP

• Uunconfirmed reports indicate that some CBP officials at the ports of entry refused to issue three-year TN I-94 yesterday and some of these Canadian travelers had to enter the U.S. only in one-year duration TN I-94 despite their employer's application for the three-year program. Allegedly there are three problems associated with the incidents. One was that allegedly these CBP officials had not been given a clear new guidance on the three-year TN processing at the ports of entry. The second problem was allegedly related to the IT system which the CBP officials had to handle at the ports of entry that had yet to be adjusted for these officials to process the three-year TN admission process. The third problem was allegedly related to the TN admission fee. Apparently, some of these officials were reportedly confused as to whether they should charge triple of the traditional one-year TN admission fee. We just hope that the foregoing alleged problems be corrected as soon as possible such that the Canadian and Mexian professional travelers do not experience any inconvenience. We also recommend the USCBP leaders to reissue the TN I-94 which was erroneously issued for a duration of only one year rather than three years when the travelers applied for the three-year I-94 yesterday. No additional fee should be charge for the newly issued I-94.

10/17/2008: Important Visa Waiver Program Expansion Update

• The following seven countries have met the requirements for their admission to the VWP list (currently 27) and the DHS has notified the Congress that the U.S. will implement the expanded VWP. The report indicates that the nationals of the following seven countries will be admitted visa-free for visit to the U.S. under the VWP in about one month from now. The list of these seven countries are:
  • Czech Republic
  • Estonia
  • Hungary
  • Latvia
  • Lithuania
  • Slovakia
  • South Korea
• Please stay tuned to this website for the upconing announcemeent of the implementation of the expanded visa waiver program to these seven countries by the State Department and the Homeland Security Department.

10/17/2008: I-140 Delays and USCIS Answers to Discrepancy in Processing Times Between Stand-alone I-140 and Concurrent Filing Cases

• The I-140 petitions have been experiencing a significant dely and witnessed a irregular pattern in processing times between the stand-alone I-140 filing cases and the I-140/I-485 concurrently filed cases. Here are some questions and answered which are revealed in the USCIS National Stakeholder Meeting on September 30, 2008:
  • Question: In TSC and NSC, there is dramatic delay for last July/August concurrently filed I-140. At the same time, TSC quickly approved many non-concurrently filed I-140 with application mailing dates later than last August and even in 2008. So far, the average waiting time for concurrent filers > 300 days and for non-concurrent is around 80 days, according to some voluntary tracking data. Is that delay caused by the Plus Pilot program installed in TSC in Feb 2008, under which the entire I-140 and I-485 package is reviewed by one officer? If so, does that mean I-140s won't be processed and approved until the petitioner's Priority Date becomes Current? A delay of processing, and then denial, in I-140 adjudication could cause serious could cause serious problems for I-485 portability.
  • Response: Visa availability has been the primary focus at the Texas Service Center and the Nebraska Service Center for concurrent filings and stand alone I-485s. In recent weeks, we have identified I-140 petitions that have been held up because of visas are not available. These filings are placed in the workflow by I-140 processing date within the range of those that were processed after having been filed independent of an adjustment application. The instance of delayed I-140 adjudication should decrease significantly. Petitions that are outside of the posted processing dates can be raised to our attention through the 1 800 customer service number. Officers in the Call Centers will issue a service request if a call about the status of an application is received one day beyond the processing time listed on the website.
• We will see what and when "significant" decrease in reduction will take place. We still feel that the reinstatement of premium processing services should hold an answer to part of the problems. However, the USCIS answer to this question is as follows: "USCIS expects that adding other classifications to Premium Processing Service at this time would exceed USCIS’ capacity to provide timely Premium Process Service. USCIS will continue to evaluate whether it is able to process other groups of cases beyond this limited classification of petitions and will provide notification of any further availability of Premium Processing Service for Form I-140.
  The link to the USCIS FactSheetis:http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7e3355fe4a37a110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD"

10/17/2008: USCIS Statement on Religious Worker Special Immigration Case Status

• USCIS has released the status of peding cases, which is consistent with our assessment and report on October 13, 2008. The USCIS statement which is released in a stakeholder meeting on 09/30/2008 is as follows:
• "Congress authorized a 6-month extension of this provision, but the extension will not take effect until publication of a Federal Register notice confirming issuance of related (fraud) regulations.
  Both the notice and the regulations are pending final clearance. Please rest assured that USCIS is making every effort to ensure prompt action related to this important information. Meanwhile, USCIS has suspended the adjudication of applications made on the Form I-360 (Petitions for Amerasian, Widow(er), or Special Immigrant), as well as the Form I-485 (Applications to Register Permanent Residence or Adjust Status), where the latter is based on an approved Form I-360. As soon as the notice and regulations are released, all pending applications will be adjudicated accordingly. USCIS will issue Requests for Evidence (RFE) for any necessary information not required under the original regulations. Until the new regulation is adopted, USCIS will reject all Form I-360s and Form I-485s filed for non-ministers."

10/17/2008: USCIS Questions and Answers in National Stakeholder Meeting of 09/30/2008

10/16/2008: SEVIS Quarterly Report, October 2008

• This NAFSA Report gives an eyeview of schools and foreign students (F and M) data as of the end of September 2008.

10/16/2008: Vietnamese Adoption Will Not Resume Without a New Bilateral Agreement

• The following announcement indicates that Vietnamese adoption will not resume until a new bilaterial agreement is signed between the United States and the Vietnam:
  • USCIS Announcement
  • State Department Announcement
  • Frequently Asked Questions

10/16/2008: Congressional Hispanic Caucus CHC) and Immigration Task Force Priorities

• As was usual, the Hispanic group is likely to play an important role in shaping the direction of the immigration legislation when the 111th Congress opens a new chapter in January 2009. The following appear to be the priorities the Hispanic community may focus on as elaborated in the CHC site:
  • Comprehensive Immigration Reform
  • Immigration Enforcement/Border Security
  • Holding Employers Accountable and Workplace Enforcement
  • A Tough, Fair and Workable Path to Legalization for the Undocumented
  • The DREAM Act
  • AgJobs
  • New Worker Program for the Future Flow of Low-Skilled Workers
  • Immigrant Integration and Citizenship
  • Defense of Latinos and Immigrants Against Misguided Attacks
• The reform of broken immigration system including family-based immigration and employment-based immigration including visa number recaptures, adjustment of annual visa allocations, numerical limitation and other realignment of the total immigration system is likely to be incorporated as part of the Comprehensive Immigration Reform agenda. Without doubt, Rep. Gutierrez from Illinois, who chairs the Immigration Task Force of the CHS may push ahead or support the CIR in the form of his STRIVE Act. Depending on who will take over the White House, point-system may resurface to readjust ethnic mixture of the population of this country in the long haul under the disguise of family-based immigration system and employment-based immigration system reform and to control overall number of immigrants. Struggle and battle will be ahead for the immigration reform. Please stay tuned.

10/16/2008: President Signed into Law House Resolution on New 111th Congress Session

• The President signed into law H.J.Res. 100 on October 15, 2008, which provides that the first regular session of the 111th Congress will begin at noon on Tuesday, January 6, 2009, and that electoral votes for President and Vice President will be counted on Thursday, January 8, 2009. Reintroduction of some of the unresolved 110th Congress legislative bills including immigration bills or introduction of new immigration bills including comprehensive immigration reform legislation are expected to be fired up beginning from the later part of January through February 2009 at the earliest.
• As the recent 700 billion financial bail-out legislation is failing to calm down economic crisis in the country and throughout the world, the Congress is sure to return to the lame duck session in November after the election to act on the addtitional economic stimulus bill and other emergency legislations, but the chance for any immigration bills being taken up during the lame duck session is very slim because of the need for total legislative and political attention in Congress directed to the country's economic turmoil heading for "Depression."

10/16/2008: ESTA Web Site Available in 13 Additional Languages

• The U.S. Department of Homeland Security (DHS) announced today the Electronic System for Travel Authorization (ESTA) Web site has been enhanced to better facilitate travel by nationals of Visa Waiver Program (VWP) countries to the U.S. Instructions on how to obtain an electronic travel authorization are now available in 13 additional languages: Danish, Dutch, Finnish, French, German, Icelandic, Italian, Japanese, Norwegian, Portuguese, Slovene, Spanish and Swedish. "Over 200,000 travelers have sought electronic travel authorization in the weeks since the site went live, and 99.6 percent of them have been approved – the vast majority in under one minute," said DHS Assistant Secretary for Policy Stewart Baker. "Obtaining this advance information makes visa-free travel more secure, an enhancement that allows us to expand the valuable Visa Waiver Program. Making the site easier to navigate is one of the many steps we'll be taking in the coming months to prepare for Jan. 12, 2009, when all visa-free travelers will be using this system."

10/16/2008: Federal Register Release of Three-Year TN Visa Final Rule for Canadian & Mexican Professionals

10/15/2008: Advance Copy of Three-Year TN Visa Program Final Rule

• This long awaited final rule is scheduled to be published in the federal register tomorrow, 10/16/2008. This rule will take effect tomorrow. Congratulations to Canadian and Mexican professionals!

10/15/2008: Canadian and Mexican Professionals, Here Are Your Long-Awaited USCIS Announcement of New Three-Year TN Visa Program and Frequently Asked Questions

• Announcement
• FAQ

10/14/2008: Official November 2008 Visa Bulletin

• DOS Prediction: The level of demand being received from Citizenship and Immigration Services (CIS) Offices indicates that they have a significant amount of cases with priority dates that are earlier than the established cut-offs. This is likely to result in slow forward movement of the cut-off dates for most Employment categories during the next few months. Sudden changes in the CIS demand patterns could result in fluctuations in the monthly cut-off dates, and retrogressions cannot be ruled during FY-2009.
• Certain Religious Worker Special Immigrant visa will be "unavailable" in every country during November 2008.

10/14/2008: Confusion on I-765 EAD Application Form Expiration Date

• Current form shows that it expired on August 31, 2008. There have been some reports that relying on this information, some confused USCIS mail room staff rejected filing of I-765 with the expiration date of 08/31/2008. However, the reality is that this form has been extended until 09/30/2011 by the OMB and remains still valid. We have received a number of inquiry on this expiration date issue. Until new print comes out, it is safe to use and file this form with revised date 05/27/2008 and expiration date of 08/31/2008 until the revised form is released.

10/13/2008: November 2008 Unofficial Visa Bulletin

• Family-Based Categories:
  • ROW: F-1=05/01/2002, F-2A=02/08/2004, F-2B=01/15/2000, F-3=07/01/2000, F-4=11/15/1997
  • INDIA: F1=05/01/2002, F-2A=02/08/2004, F-2B=01/15/2000, F-3=07/01/2000, F-4=07/22/1997
• Employment-Based Categories:
  • ROW: EB-1=C, EB-2=C, EB-3=05/01/2005, EW=01/15/2003, EB-4=C, EB-5=C
  • INDIA: EB-1=C, EB-2=06/01/2003, EB-3=10/01/2001, EW=01/15/2003, EB-4=C, EB-5=C
• For India EB-2 and EB-3, only two months moved ahead from October 2008 Visa Bulletin. Very disappointing!!
• For family based categories, the Rest of World shows a snail pace movement. In fact, FB-3 (adult married children of USC) and FB-4 (siblings of USC) have even moved backward.
  
  

10/13/2008: Status of Non-Minister Religious Worker Special Immigration Law Reauthorization Bill, S.3606 [Correction]

• This bill passed the Congress and was signed by the President on October 10, 2008. Even if the Present signed the bill into law, because of the effective date the bill has imposed, the bill will not take effect until the following two conditions are satisfied by the DHS. One is DHS publishing "final" rule of the religious worker special immigration restriction regulation to control frauds within 30 days of the President's signature and submission of the certification of such federal register publication by the DHS, again within 30 days of the President's signature. As for the DHS job, the DHS (USCIS) already submitted the "final rule" to the White House OMB on September 11, 2008 for its review and approval. Under the President's Executive Order on the rule-making procedure, the OMB is authorized to complete the review of regular (not emergency) rules from 30 days to 90 days. Indeed, it has just passed 30 days and the OMB approval and release of the final rule in the federal register may remain a matter of time.
• Pending completion of the foregoing two steps, it is likely that the USCIS will continue to hold in abeyance the I-360 petitions and related I-485 applications which were filed before October 1, 2008 because this reauthorization law deletes the sunset date of the current law from September 30 2008 to March 6, 2009. For these reasons, once the foregoing steps are completed timely persuant to the reauthorization bill instructions to the DHS, the current law will retroactively apply and make all the pending petitions and applications eligible under the reauthorization law. We hope that this posting give some emotional relief to those who live in anxiety and distress because of the uncertainty of their pending I-360 petitions and particularly pending I-485 applications since October 1, 2008. Please stay tuned to this website for further development of this news.

10/13/2008: USCIS Statistics on Applications and Petitions for Immigration Benefits in August 2008

10/13/2008: USCIS Statistics on Naturalization Applications in August 2008

10/11/2008: Bush Announces Today Removing North Korea from a list of State Sponsors of Terrorism

• Report indicates that the President has announced today that the U.S. has removed North Korea from the list of State Sponsors of Terrorism. There are currently six state sponsors of terrorism in the immigration rules that restrict their travel in and out of the U.S. It is unclear at this point whether this decision will remove North Korea from the immigration rule not allowing "automatic revalidation" of nonimmigrant visas for a trip to the border countries of Canada and Mexiso for less than 30 days using a valid I-94. It is expected that the State Department and the DHS will make certain announcement based on the President's today decision. Please stay tuned.

10/11/2008: USCIS Opened a New Full-Service "Field Office" Facility in Orlando, Florida on 10/10/2008

• The field office in Orlando provides full-service immigration processing – from fingerprints to naturalization -- to the people of Central Florida from a location close to the airport. The new officeis based on a national model for new USCIS office locations throughout the country, and includes resources necessary to accommodate more than 450 customers daily. The Orlando Field office is part of USCIS’ Southeast Region, responsible for district and field office operations including the management of more than 900 government and contract employees in the southeast region of the U.S. The region covers a geographic area from North Carolina south to Florida, west to Louisiana and also to the Virgin Islands and Puerto Rico.

10/11/2008: USCIS Reportedly Weighs H-1B Reform Against Frauds and Technical Violations

• As we reported earlier today, the alleged pervasive frauds and technical violations in the H-1B petitions as reflected in the released USCIS report will lead to increased scrutiny in the H-1B petition adjudications, causing delays in the H-1B petition adjudications in the future. The report indicates that the USCIS is considering various reforms in H-1B. Some of the reported reforms include (1) use of independent open-source data to obtain information about the alien beneficiaries or the employers that file the H-1B petitions, checking petitioning companies against commercially available records to make sure that they are legitimate businesses; (2) implementation of a risk assessment program for applications based on objective criteria relating to fraud indicators to enable the agency to give greater scrutiny to H-1B petitions that raise flags during the review process; (3) modification of the H-1B evidentiary requirements and revision of the forms that employers use when filing applications.
• On top of the foregoing USCIS plan of reform against the frauds in the H-1B petitions, the DOL is also scheduled to launch a new H-1B Labor Condition Application form, ETA 9035E, focusing on the 'employer' and 'representative' accounts that are capable of cross-check of records among not only all the H-1B Labor Condition Applications filed by the same employer and the same representatives but also the PERM application data filed by the same employer and the same representatives. The DOL has been working on the technical system and process to develop such system which is reportedly taking eight (8) months. After the complicated techical system development, the DOL is scheduled to launch "new" forms for both ETA 9035E for H-1B and ETA 9089 PERM application forms on January 1, 2009. There is no known information available about as to whether the USCIS and the DOL will be able to share the information on filing of petitions and applications by the same employer, representative, and the alien with the USCIS based on the "account" system. It appears that currently there is no such agreement between the two federal agencies, but as the USCIS' ongoing Transformation Program is completed at the end of 2009 or later, anything can happen as the Transformation Program is also focusing on the electronic filing of petitions and applications using account systems for each employer, each representaitve, and each alien beneficiary.
• Tough time ahead!

10/10/2008: President Signed into Law Conrad 30 Program Reauthorization Act on 10/08/2008

• By signing this bill, the President signed into law all the Congress passed immigration reauthorization bills. Unfortunately, these laws will sunset again on March 6, 2009 and unless the Congress passes another bills reauthorizing these laws, these laws are destined to expire on March 6, 2009.

10/10/2008: President Signed into Law S.3606, Non-Minister Religious Worker Special Immigration Reauthorization Bill.

10/10/2008: All USCIS Offices Will Remain Closed on Monday, Columbus Day

10/10/2008: Here is USCIS Federal Register Notice of Delay of N-400 Direct Lock Box Filing Procedure

10/10/2008: USCIS H-1B Fraud Report Leads H-1B to Political Hot Spot

• Following release of an internal report by USCIS that outlines serious fraud in the H-1B visa program, Senator Chuck Grassley of Iowa sent a letter to the agency asking for additional details about how the government is enforcing the H-1B visa laws. The H-1B initial and extension petitions have lately been experiencing increased number of RFEs and it is likely that the release of the report and the Congressional oversight action may further cause delays in H-1B petition adjudication process . The agency has lately been demanding in the RFEs literally "tons" of documents and photographs, particularly when foreign consulting businesses were involved. For the full text of the Sen. Grassley's letter to the USCIS Acting Director, please click here.
  

10/10/2008: DOL's Requirement for Consideration Rule in PERM Recruitment Under 08/29/2008 Restatement in Full Swing

• On 09/17/2008, the DOL released announcement that the requirement for consideration rule as enunciated in the 08/29/2008 Restatement would not be applied retroactively and any pending audit cases which initiated the recruitment prior to 08/29/2008 would be released from the audit track. The lawfirm of Fragoman was relieved from the trap by this announcement. The employers and the practitioners should notice that the DOL has just removed this announcement from its website under the premise that the Reinstatement of 08/29/2008 is currently in full force and effect since the PERM applications which will be filed hereon would have initiated recruitment on or after 08/29/2008. Removal of the 09/17/2008 message from the websiter can also be taken as the DOL's reminders to the PERM filers that the Restatement is in full force. Accordingly, the employers and the practitioners who are currently conducting the recruitment to file the PERM application in the future should review and familiarize themselves with the DOL's 08/29/2008 Restatement in order not to experience any difficulty with the agency. Here is the Restatement.

10/09/2008: USCIS 09/30/2008 Responses to CIS Ombusman's FY 2008 Recommendations

10/09/2008: USCIS Official Announcement to Delay Implementation of Direct Mail Program for N-400

• As we reported earlier today, this announcement will also be published in the federal register tomorrow.

10/09/2009: H-1B Benefit Fraud and Compliance Assessment Report of USCIS, September 2008

• This report is prepared by the Office of Fraud Detection and National Security based on its investigations including onsite visitation of H-1B employers and alien beneficiaries. This report is made available by Senator Grassley of Iowa on his website. Senator Grassley has been leading the H-1B fraud issues and advocating legislation to cotrol and prevent the H-1B frauds. This report is an eye-opener for the business community hiring H-1B foreign workers. Read on. See also ComputerWorld report.

10/09/2009: President Signed Into Law Today Military Personnel Citizenship Processing Act, S.2840

• The Military Personnel Citizenship Processing Act requires the USCIS to process and adjudicate naturalization applications, N-400, filed by members of the Armed Forces within 6 months of receipt; and establish an Office of the FBI Liaison to monitor and assist the FBI in the expeditious completion of background checks pertaining to these applications.

10/09/2009: USCIS Scheduled to Withdraw Tomorrow Its 09/12/2008 Notice of Revision of Direct Filing Jurisdictions

• On September 12, 2008, USCIS published a notice in the Federal Register revising the Direct Mail Program for the filing of Form N-400, Application for Naturalization. The Notice announced that in certain instances Form N-400 would be filed at a USCIS lockbox facility rather than at the USCIS Service Center. The Notice was to take effect on October 14, 2008. USCIS has decided to delay implementation while technical issues are resolved. Accordingly, the Notice published on September 12, 2008, at 73 FR 53034 is withdrawn. Applicants should continue to file their Form N-400 according to the instructions on the form.
• This notice is scheduled to be published in the federal register tomorrow.
  

10/09/2009: Closely-Kept Information on FY 2008 Employment-Based Visa Number Exhaustion Timing

• Beginning three or four months back, a rumor started surfacing on the cyberspace in the immigration community that the FY 2008 EB-visa numbers would be exhausted in July or August despite the State Department's release of Visa Bulletin for August and September 2008 with cut-off dates for some EB visa numbers. The information which was made available yesterday in the immigrant community indicates that at the end of April 2008, the Nebraska Service Center alone had 190,000 employment-based I-485 applications pending that included enough priority date eligible numbers for FY 2008 EB visa limit. No wonder why this information was not made available until yesterday. Hmm................................

10/09/2009: Estonia and Slovak One Step Closer to the Expanded Visa Waiver Program List Countries

• The anti-crime agreement is the final substantive step by the candidates of expanded Visa Waiver Program countries to fulfilltheir requirements for designation as a member of the VWP. They include better information sharing about international travel and border screening, improvements in information exchange on known and suspected terrorists, timely and comprehensive reporting of lost and stolen passports, and enhancement to airport and aviation security. Estonia signed agreement in September 2008 and Szech signed it on October 8, 2008.
• The improvement of VWP for expansion has been lately demanded by the GAO's report to the Congress and the Senate hearning last month. Initially, the DHS was targeting at admitting the expanded countries around end of the year or early next year. Please stay tuned to this web site for development of expansion of VWP.

10/08/2008: I-140 Processing in Four Months by April 2009?

• This is a five-month old information which has just been released. This source of information indicates that the USCIS was hiring and training new employees and by April 2009, I-140 petitions might be processed in four months. It is a good news in a way.

10/07/2008: FY 2009 Refugee Admissions Numbers And Authorizations of In-country Refugee Status

• Presidential Order: Total: 80,000
• Africa.... .......................................... 12,000
  East Asia..........................................19,000
  Europe and Central Asia.................2,500
  Latin America/Caribbean............... 4,500
  Near East/South Asia....................37,000
  Unallocated Reserve.......................5,000

10/05/2008: DOL FY 2006-FY 2011 Goal of Processing Times for PERM and Temporary Labor Certification Applications

• As people are aware, the DOL completed streamlining of permanent labor certification applications based on onlie filing and processing system. It is followed by the current move of streamlining of termporary labor certification applications of H-1B, H-2A and H-2B online filing systems. The PERM online system and the temporary labor certification online systems will eventually be integrated into one account system from the perspectives of the agency's management of the labor certification application programs.
• Currently, these programs have been developed on the basis of FY 2006-FY 2011 (Five-Year) Strategic Plan. The Plan shows that the target of processing rate of PERM applications "within six (6) months" in 2011 is only 78%. Go figure. The ongoing processing delays in clearn and straightforward PERM applications and tremendous delays in processing of a large number of "audit" cases may be more or less probably anticipated (?) in the five-year strategic plan in the years back! The employment-based immigration may have to learn to live with a frustrating journey ahead from all accounts, including the continuing visa number retrogressions, protracted labor certification process, potential elimination of concurrent filing procedures, protracted employment-based immigration reform buried in the comprehensive immigration reform legislation process, mounting backlogs in petitions and application of the immigration agencies, and increasing hostility in the political community against "import(?)" (as alleged by unionists and anti-immigrationists) of foreign workers under the environment of mounting unemployment and developing country's economic recession, etc. In less than three months, we will move into the new year of 2009 with a new administration. Supposedly, a leap-year should be a good year for legislations and refrom movements, but it may not turn out to be as bright as one might expect when it comes to "employment-based" immigration legislation. We missed a good leap-year in 2007. Amen...................................

10/05/2008: Conrad 30 IMG NIW Program Reauthorization Extension Bill, H.R. 5571, Presented to the President for His Signature into Law on 09/30/2008

• This bill is expected to be signed by the President by October 10, 2008. Under the U.S. Constitution, if the Congress passed bills are not signed by the President within ten days while the Congress is in session, they automatically become law, while should such bills be not signed by the President within ten days during the period of Congress' recess, such bills are considered vetoed by the President under the Constitutional concept of pocket veto. Please stay tuned.

10/05/2008: DV-2010 Lottery Instructions (10/02/2008 - 12/01/2008)

• This immigration lottery is currently in progress. We are reposting this Instruction link because the State Department changed its previous URL and some of the participants were unable to get access to this important instruction.

10/05/2008: House Adjourned Until Reconvened on January 3, 2009

• The House adjuourned with a schedule to reconvene on January 3, 2009. Senate will return on Monday for a Pro Forma session and is anticipated to adjurn shortly. However, under the resolution, the Congress can be reconvened, probably after the election for a lame duck session, which reads that The Speaker of the House and the Majority Leader of the Senate, or their respective designees, acting jointly after consultation with the Minority Leader of the House and the Minority Leader of the Senate, shall notify the Members of the House and the Senate, respectively, to reassemble at such place and respective time as they may designate if, in their opinion, the public interest shall warrant it.
• Since the Congress passed a continuing appropriation resolution through March 6, 2009, the Congress may have to find other public interest issues to call for a lame duck session. It is likely that the Congress may come back after the election, even though there is no guaranty at this point. Should the Congress decide not to reconvene for a lame duck session, all the pending bills in the House and the Senate will be destined to expire. We will see the development after the national election in November.
• Year 2008 was indeed a devastating year for the immigrant community.

10/04/2008: EAD Backlog and Advisory for I-485 Waiters and Employers

• As the new EAD receipt volume in August 2008 reflects, the EAD applications surged tremendously in August 2008 reflecting the anniversary of FY 2007 Visa Bulletin fiasco related I-485/EAD/AP filing surge in July/August 2007. The record also reflects that almost 50% of current total backlog of EAD in August 2008 were those which were received in one month in August 2008. This surge of new filing has obviously caused the processing delays of the USCIS for the EADs. The delays include not only the renewal EAD cards but also issuance of Inerim EAD cards for those who have filed longer than 90 days. Under the circumstances, people should pay attention to the following advisories:
  • File at least either 100 days or 119 days before the current EAD expires. The current USCIS policy still does not allow filing of EAD renewal before 120 days of the current EAD expiration. The agency has been considering abandoning this policy because of the EAD backlogs but it has not been formally adopted. Accordingly people should not file it earlier than 120 days of the current EAD expiration. What it means is that people may want to file it at least from 119 days to 100 days before their current EAD expires in order not to experience a crisis of EAD gap.
  • It is current law and policy of the DHS that I-485 waiters are NOT(Oops! Typo) allowed to work "without a valid EAD" if they have been working on an EAD pending I-485. Status of "pending EAD" does not give employment authorization. Employment during the gap of EAD will constitute an unauthorized employment, resulting in various consequences. The consequences for the I-485 waiters includes: (1) Even though USICE is unable to detect all the violators and even though they appear to excertise some level of discretion in this situation, legally the ICE can enforce the law and arrest and commence the deportation proceeding. (3) With reference to the impact of the unauthorized employment during the gap on the pending I-485 application, 485 waiters should keep in mind two points. Firstly, 245(k) provision makes I-485 applicants still eligible for I-485 approval inasmuch as the following conditions are met: (a) Since last admission to the U.S. before filing of I-485 application (b) they should have accumulated an "aggregate" of less than 180 days (c) of unlawful stay and/or unauthorized employment, during the period either before or after filing of I-485 application. In calculating 180 days, they should aggregate both the days of unlawful stays and the days of unauthorized employment. Conseuqnently, even if the unauthorized employment has lasted less than 180 days, the alien can be ineligible for I-485 application approval if the total period of unlawful stay AND unauthorized employment add up to 180 days or longer. (3) For the three reasons, 485 waiters with the expired EAD should immediately stop working after the date of expiration of current EAD card until the new EAD card is approved and issued: Firstly, even though their I-485 application may not be affected under 245(k), ICE may still be able to enforce the law, should they opt to do it. Secondly, they may not be able to determine the exact period of unalwful stays and unauthorized employment in the U.S. since the last admission to the U.S. as they lack the knowledge of complicated rules and laws in the areas. Thirdly, assuming that they are qualified for 245(k), the employer will still be subject to the sanctions and punishments for hiring employment unauthorized alien, not to mention violation of I-9 compliance. Such employer is harmed in two ways. One is sanction and punishment including monetary fines and debarment. More importantly, the employer can be subject to the "audit" which will lead such employer to literally a hell. For the reasons, the employer should immediately cease employment of such alien employees during the period of EAD gap. The Ombudsman's recommondation to the USCIS which was posted on our site yesterday is in this regard considered critical and important not only for the alien employees but also for the employers. This will be particularly important for those who traveled and returned on Advance Parole since any violations after returning to the U.S. on an Advance Parole is not covered by 245(k) protection. Only entry as a "nonimmigrant" is covered under 245(k) relief when it comes to counting of violations that are eligible for 245(k) benefits.
• All in all, best policy is to apply for EAD early enough and if one fails to receive the EAD renewal timely before the current card expires, he/she stops work until the card is issued. The unemployment during the period of gap will not affect the pending I-485 applications. Conservative employers and alien employees should not take chance. Liberal employers, alien employees, and their representatives can take whatever course of action they want "at their own risk."

10/04/2008: New Receipts of Petitions/Applications by USCIS in August 2008

• Compared to August 2007, it showed 49% decrease. The volumes by types of petitions/applications are as follows:
  • I-485: 39,953
  • I-130: 50,851
  • I-765 EAD: 102,437
  • I-130: 50,851
  • I-131 Reentry permit/Advance parole: 44,603
  • I-129 Nonimmigrant Visa Petitions: 26,191
  • I-90 Green Card Renewals/Replacements: 25,466
  • N-400 Naturalization: 46,061

10/04/2008: USCIS Petitions/Applications Backlog on 08/31/2008

• I-140: 114,514
• I-765 EAD: 220,302
• I-485: 711,193
• N-400 Naturalization: 587,315
• I-751 Condition Removal: 142,932
• I-130: 1,437,105
• I-90 Green Card Renewals/Replacements:165,542
• I-131 Reintry Permit/Advance Parole:108,904

10/03/2008: OFLC Revised PERM Debarment List Removing Employers Other than LawLogix

10/03/2008: President Signed Emergency Economic Stabilization Act of 2008 H.R. 1424 (Bailout Bill) Into Law

10/03/2008: USCIS Delays in EAD Processing and Ombudsman Recommendation

• Lately, the USCIS has been experiencing delays in EAD application processing, presenting serious problems to the immigrants. No one knows what causes such delays. The Ombudsman is recommending some options to resolve the problem. Read on.

10/03/2008: House Passed the "Bail-Out" Bill and the Congress is Now Likely to Go Into Recess

• The House passed, signed , and sent this bill to the President for his signature today. The President announced that he would sign this bill into law today. Accordingly, the Congress is now likely to go into recess, leaving all of the unresolved legislative bills behind.

10/03/2008: Non-Minister Special Immigration Law Reauthorization Bill, S. 3606, Presented to the President for His Signature

• Yesterday, this bill was presented to the President for his signature. This bill reauthorizes the law that sunset on 09/30/2008 until March 6, 2000 on various conditions which require the DHS actions to make this reauthorization to take effect. The following is the full text of the bill which will soon become law upon the President's signature:
• An Act To extend the special immigrant nonminister religious worker program and for other purposes.
  • SECTION 1. SHORT TITLE.
    • This Act may be cited as `Special Immigrant Nonminister Religious Worker Program Act'.
  • SEC. 2. SPECIAL IMMIGRANT NONMINISTER RELIGIOUS WORKER PROGRAM.
    • (a) Extension- Subclause (II) and subclause (III) of section 101(a)(27)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(C)(ii)) are amended by striking `October 1, 2008,' both places such term appears and inserting `March 6, 2009,'.
    • (b) Regulations- Not later than 30 days after the date of the enactment of this Act, the Secretary of Homeland Security shall--
      • (1) issue final regulations to eliminate or reduce fraud related to the granting of special immigrant status for special immigrants described in subclause (II) or (III) of section 101(a)(27)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(C)(ii)); and
      • (2) submit a certification to Congress and publish notice in the Federal Register that such regulations have been issued and are in effect.
    • (c) Report- Not later than March 6, 2009, the Inspector General of the Department of Homeland Security shall submit to Congress a report on the effectiveness of the regulations required by subsection (b)(1).
    • (d) Effective Date- The amendments made by subsection (a) shall take effect on the date that the Secretary of Homeland Security submits the certification described in subsection (b)(2) stating that the final regulations required by subsection (b)(1) have been issued and are in effect.
• The future of this law beyond March 6, 2009 is uncertain.
  

10/02/2008: Twelve-Month Intern Work and Travel Pilot Program for Irish Students or Young People

• The U.S. Department of State Spokesperson released that U.S. Deputy Secretary of State John D. Negroponte and Ireland Foreign Minister Micheal Martin signed a Memorandum of Understanding on an Intern Work and Travel Pilot Program on September 24 in Washington, D.C. The United States and Ireland soon will begin to implement a Twelve-Month Intern Work and Travel Pilot Program for post-secondary students or young people within twelve months of graduation. The new program is an innovative exchange program that will allow thousands of young people from Ireland to enter the United States for a period of twelve months on a J-1 exchange visitor visa. There also will be reciprocal opportunities for
  young people from the United States to travel to Ireland. This will allow students from both countries to participate in a variety of internships, and to travel independently within the United States and Ireland. The program will be coordinated by the private sector under the auspices of the U.S. Department of State’s Bureau of Education and Cultural Affairs, and falls under the Intern Category of the Exchange Visitor Program. This program is set to be launched in late 2008 or early 2009. Further details and prerequisites on the program will be available from the U.S. Embassy in Dublin and Ireland’s Embassy in Washington, DC. The people of the United States and Ireland have deep and abiding traditional and historical links. Today’s signing is designed to cultivate further mutual understanding between the people of the United States and Ireland, and to strengthen the connections between young people from our two countries. By enacting this agreement, the United States government hopes to broaden the international internship and travel experience for those who may not otherwise have an opportunity to do so. Authority for the Exchange Visitor Program derives from the Mutual Educational and Cultural Exchange Act of 1961, also known as the Fulbright-Hays Act. The Act’s intent is to increase mutual understanding between the peoples of the United States and other countries through educational and cultural exchanges.

10/02/2008: Today USCIS Releases Fact Sheet:"Overseas Naturalization Eligibility for Certain Children of U.S. Armed Forces Members"

10/02/2008: Today USCIS Releases Fact Sheet: "Requirements for Naturalization Abroad by Spouses of Members of the U.S. Armed Forces"

10/02/2008: Full Text of Emergency Economic Stabilization Act of 2008 Which the Senate Passed on 10/01/2008, H.R. 1424.EAS

10/02/2008: Congress Currently Undertaking Passage of Pending Bills en Masse!!

• Both the House and the Senate are currently in the process of taking up and passing en masse the pending bills using the short-cut legislation tools of voice votes or unanimous consent, taking advantage of its continuing session to take care of the bail-out legislation on Friday. Unfortunately, the immigration bills which the employment-based immigrants are anxiously awaiting have not been taken up. Both the full House and the full Senate can take up any bills pending in the committees rescinding referral to the committees and pass the bills on the full House or Senate floor. Members of the immigrant community may bombard the members of the House and the Senate with the phone calls to try the "last chance" for these bills. For the floor proceedings of the House, please click here.

10/02/2008: President Bush Nominated Mr. Jonathan Scharten to be USCIS Director

• The President intends to nominate Jonathan R. Scharfen, of Virginia, to be Director of the United States Citizenship and Immigration Service at the Department of Homeland Security. Mr. Scharfen currently serves as the Acting Director and Deputy Director of the United States Citizenship and Immigration Service. Prior to this, he served as the Chief Counsel and Deputy Staff Director of the House International Relations Committee. He retired as a United States Marine Colonel in 2003 after 25 years of Military service. Mr. Scharfen received his bachelor's degree from the University of Virginia, his JD from the University of Notre Dame, and his LLM from the University of San Diego.
• Yesterday, Senate received the nomination from the White House.

10/01/2008: Official Federal Register Notices of TPS Extension

• Honduras
• Nicaragua
• El Salvador

10/01/2008: Registration Requirement in Effect for H-1B, H-1B1, and E-3 Labor Condition Application Filing From Today

• As we advised earlier, the DOL requires online registration for the employers and their representatives to file the LCA effective today.
• Hiring employers, please go to the LCA site and register as soon as possible.

10/01/2008: Yesterday President Signs H.R. 2638 Consolidated Continuing Appropriation Legislation

• The relevant immigration reauthorization sections are as follows:
  • SEC. 143. Section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) shall be applied by substituting the date specified in section 106(3) of this joint resolution for `the 11-year period beginning on the first day the pilot program is in effect'.
  • SEC. 144. The requirement set forth in section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) shall continue through the date specified in section 106(3) of this joint resolution.
    

10/01/2008: Federal Register Notice of DV-2010 Immigration Lottery

For Pre-October 1, 2008 Breaking News, please click here.