.

THE OH LAW FIRM

Dedicated Professionals in Immigration Law for Over 25 Years@

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

Current Page[07/01/2010 - Present]/Archive XXI[03/01/2010-06/30/2010]/Archive XX[05/01/2009-02/28/2010/Archive XIX[10/01/2008-04/30/2009]/Archive XVII[03/31/2008 - 09/30/2008]Archive XVI[08/01/2007 - 03/31/2008/Archive XV [04/30/2007 - 07/31/2007]/Archive XIV[06/15/2006 - 03/31/2007]Archive XIII [12/01/05 - 06/1/06. ]

09/30/2008: DHS Statistics of Nonimmigrant Admissions in 2007

09/30/2008: Advance Copy of Federal Register Release of TPS Extensions for El Salvador, Honduras, and Nicaragua

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

09/30/2008: Last Day for Filing H-1B Labor Condition Application Online Without Registration of Employer and Representatives

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

09/30/2008: State Department Official Notice of DV-2010 Registration in Federal Register

09/30/2008: USCIS Database Consolidation

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

09/29/2008: State Department DV-2010 Instructions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

09/26/2008: 18-Month TPS Extensions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

09/17/2008: Top 500 InformationWeek List Companies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

09/11/2008: Official October 2008 Visa Bulletin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

08/29/2008: USCIS August 2008 Monthly Newsletter

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

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

• The announcement in Spanish language, click here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Courtesy of USCIS]

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

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

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

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

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

• For the online payment option, please click here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

08/13/2008: September 2008 Visa Bulletin

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

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

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

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

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

08/12/2008: OFLC Publishes PERM Debarment List

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• A flood of foreign workers and their family members filed around this time last year the employment-based EB-485 applications along with or followed by filing of their ancillary applications of EAD and/or Advance Parole. Since the initial EAD was valid only for one year. these applicants are currently filing the EAD renewals en masse. However, some of these applicants are likely to face failure of receiving the renewed cards timely before the initial card expires for either the USCIS backlogs or security check issues. Those who face such gap should remember that the unauthorized employment will make them ineligible for I-485 approval unless they are eligible for the 245(K) relief. In this regard, the recently released 245(K) Memorandum was "very timely" particularly for the July 2007 VB fiasco filers of I-485 applications in that any period of unauthorized employment "after" filing of their I-485 applications is added and tacked on any period of their violation of nonimmigrant status and/or unauthorized employment which had been aggregated within six months "immediately prior to" filing of their I-485 applications since their "last admission to the U.S." For instance, if one filed I-485 applications with the record of less than six months of violation of nonimmigrant status and/or unauthorized employment immediately prior to filing I-485 application since the last admission to the U.S., he or she was eligible for I-485 application filing deespite their violation of the law. However, should the same applicant engage in unauthorized employment while they wait for the I-485 applications, he or she could exceed total of six months of violations when they aggregate the total period of violation prior to I-485 filing and "post" filing of I-485 application. Assuming the same individual accumulated overstay of I-94 for two months and unauthorized employment for two months resulting in total violation for a period of four months immediately before he or she submitted I-485 application, any unauthorized employment "after" filing and while waiting for I-485 application that exceeds two months will make him or her ineligible for I-485 approval. Close reading of the 245(K) Memorandum will tell such applicant that any employment between expiration of the current EAD and the renewed EAD is considered unauhorized employment for the purpose of 245(K) eligibility. Pending renewal application does not give the alien any employment authorization. Accordingly, should the extension of EAD be not received aftre the expiration of the initial EAD, he or she should immediately stop the work until the renewed EAD card is received to toll the running of click of clock of unauthorized employment and potential deadly consequences of ineligibility of the I-485 approval. This advisory applies only to those who work solely on the EAD rather than on a valid H-1B or L visa status.
• This reminder is also very important for their employers in that continuing employment of these foreign workers after expiration of current EAD and before receipt of the renewed EAD will be considered the employer's practice of hiring unauthorized aliens in violation of I-9 rule. Consequently, we urge the employers and their I-485 applicant employees working on EAD to revisit and read carefully the 245(K) Memorandum to protect their interests and rights under the immigration laws. Enjoy your weekend!

08/08/2008: DV-2009 Immigration Lottery Results and Importance of Timely Processing of Application of Immigration Visas or I-485 Applications for the Winners

• Those who participated and won in the DV-2009 regislation should already have received notification from the Kentucky Consular Center of the State Department by now as they had sent out the notification by the end of July 2008. If no notifications are received within the next few days, obvisously they failed to make it in the lottery. However, those who have been selected in the lottery should process their immigrant visas or I-485 applications very promptly as the immigrant visa or I-485 applications must be granted by September 30, 2009. Time is thus of essence if the dependent immediate family members are located outside of the country and the winners and their family members must process the green card applications separately. These winners may start checking with the following sites to follow the detailed instructions carefully such that they do not miss their golden opportunity to complete the green card process timely. As the State Department has repeatedly reminded the people, there are ongoing fraudulent activities out there to take advantage of the winners' vulnerability relating to their infamiliarity with the rules and procedures charging and colleting a large sum of money. They should watch against such fraudulent individuals and groups. We suggest the winners to visit the following sites and contact with either USCIS or the visa posts to obtain the detailed application procedures and requirements:
  • DV-2009 Results Announcement
  • DV-2009 Instructions
  • Monthly Visa Bulletin
  • USCIS Website (For I-485 filers in the U.S.)
  • Visa Posts of Home Country (For Immigrant Visa filers outside of the U.S.)
• Good luck.

08/07/2008: Good News for 29-Month OPT Students: Federal District Court in New Jersey Rejected Anti-Immigration Organizations' Preliminary Injunction Order to 29-Month OPT Extension Rule

• Report indicates that the U.S. district court judge in New Jersey this week rejected an attempt by H-1B visa opponents to halt (preliminary injuncction) the Bush administration's extension of student visas from one year to 29 months based on the legal standing of the plaintiffs rather than on the merits. The plaintiffs have a right to appeal the decision but it is unclear whether they will do that. The court will decide the dismissal of the lawsuit in November 2008.

08/07/2008: USCIS Immigration & Naturalization Petition/Application Processing Statistical Report

• Immigration statistics as of June 30, 2007 and 2008
• Naturalization statistics as of June 30, 2007 and 2008

08/06/2008: USCIS Pending (Backlog) Cases as of 06/30/2008

• I-485: 740,969 (new applications received in June 2008: 46,024)
• I-140: 130,790
• I-765(EAD): 234,156 (new EAD application received in June 2008: 123,215)
• I-129: 92,210
• I-130: 1,428,158 (new petitions received in June 2008: 40,174)
• N-400: 743,259 (new applications received in June 2008, 152,240, show decrease of 70% and backlog decreased 12% over the same period in 2007)

08/05/2008: Senator Arlen Spector (R. Penn) Asks the President to Call Back the Congress into Session

• As we reported earlier at the time the Congress passed the resolution to go into recess on August 1, 2008, the Republicans opposed and fumed over the decision of the Democrats decision. The battle involved was the hot political issue of energy. We have also been reporting that the Congressional Democrat leaders strategy was to wear-out the 110th Congress pushing off politically confrontational legislation into the new 111th Congress that convenes in January 2009 under the presumption that the Democrats will occupy both the Congress and the White House after the national election in November 2008. For the reasons, from the perspectives of the immigration legislations, it is now taken granted that the comprehensive immigration reform legislation is the agenda for the next Congress in 2009 even though the CIR supporters are expected to call into the rallies and demonstration soon towards the end of this month through early September 2008. Contrasted to this strategy of the comprehensive immigration reform supporters, the piecemeal immigration supporters which are primarily employment-based immigration reform legislations backed by the Republicans and leading business community have been trying to bring forward such issues to the forefront for the political reasons and to some extent to pass such legislations as separate from the comprehensive immigration reform proposal which primarily focuses on illegal immigration relief which they strongly oppose.
• The August recess of the Congress has affected the piecemeal immigration legislation in two ways. One is the delays in extension of certain sunsetting employment-based immigration laws such as Conrad 30 NIW law, Regional Center Pilot Program for foreign investors, Nonministerial Religious Workers nonimmigrant and special immigration law. The other impact involves the legislative fix proposals to fix the broken employment-based immigration systems on a piecemeal basis. The piecemeal legislation has been pushed forward in two formats. One was to fix the problem indirectly within the current employment-based immigration quota system through recapture of unused immigrant visas or limited exemption of annual numerical limit to certain employmen-based immigration issues. Second piecemeal proposal involved more "drastic and confrontational" approach of proposing adjustment of the current immigration quota system either through increase of quota of employment-based immigration or otherwise. Because of the election-year politics as well as the opposition from the comprehensvie immigration reform supporters including the Hispanic groups, the latter approach has been considered "unrealistic" and practically meaningless other than the attempted politcal motives and agenda of sponsors of such legislative bills, primarily Republicans. Believe it or not, anti-immigration forces have been indirectly participating in this process with the pretense of their support of such bills with the hidden agenda of blocking enire immigration reforms either in the form of piecemeal approach or comprehensive approach. For this reason, some of these anti-immigration forces came forward pretending their support of such piecemeal employment-based immigration fix wtith the full knowledge that such drastic piecemeal legistive approach was unrealistic because of strong resistance and opposition from the comprehensive immigration reform strategists and the Hispanic community. Accordingly, the first piecemeal approach has been considered more realistic and may have a better chance to make it within this Congress, to wit, extension of certain current employment-based immigration laws and practical adjustment of the employment-based immigration visa numbers without changing the total employment-based immigrant visa quota system and numbers. The so-called Rep. Lofgren "trio" bills in the House, another trio bills to extend the currently sunsetting employment-based immigration laws, and nursing shortage emergency relief proposal have been receiving some "bi-partisan" support for the foregoing reasons inducing less resistance from the comprehensive reform supporters and the Hispanic groups. The Congress' current decision of early recess beginniing from August has created quite unexpected block to the chances for these "realistic" piecemeal employment-based immigration legislation because of the "time" factors. The Senator Specter's call for return of the Congress now may or may not help much for the immigration legislation during the August session as he proposes such return only for energy legislation purposes. However, emotionally, the level of frustration on the part of the foregoing "mild" piecemeal immigration legislation supporters may be substantially alleviated. Again the current event involving August recess of Congress demonstrates the reasons why people get to hate and ironically, at the same time, love the politics.

08/05/2008: Aging Population, Nursing Shortage, National Election, and H.R. 5924 Emergency Nursing Supply Relief Act Bill

• Aging group in America has been gaining a growing power in the American politics over the years as the baby-boomers move into the aging group. As we reported earlier, the House Judiciary Immigration Subcommittee cleared the bill at the last minute before the Congress went into the recess. The bill will wait for the House full Judiciary Committee action when the Congress returns after the summer recess in the first week of September 2008. Currently, the shortage of the nurses and physical therapists are admittedly presenting a crisis for the allied healthcare services providers (the hospitals and nursing homes), affecting the supply of healthcare services particularly for the aged group. No wonder why this bill is introduced by a Congressman Waxler from Florida and in the form of bi-partisan sponsorship including 19 Congreemen and women.
• When the Congress returns in September, it will have only a short session before the election, but it appears that this bill is gaining a momentem and an increased attention and political support as the national Presidential election moves into the final stage. The bill proposes to set aside Schedule A immigrants exempt from the annu numerical limitation of the employment-based immigrant quotas at the rate of 20,000 per year for three years (FY 2009, FY 2010, FY 2011). Accordingly, once this bill is enacted, over 60,000 nurses and physical therapists will be able to apply for concurrent I-140/I-485 application regardless of the employment-based immigration visa number retrogression based on the Scheule A precertification. However, the total numbers of immigrants who will benefit from this legislation will far exceed 60,000 considering the fact that 60,000 number counts only the nurses and physical therapists and not their spouses and dependent children who will also be exempt from the numerical limitationduring the three-year period. The political environment indicates that this bill has a fairly good chance to pass the Congress before the national election as an independent bill. Additionally, even if it fails to make it before the election, the bills has a good prospect for passage in the Congress either in the form of an independent bill or an attachment to other bills such as national defense or omnibus spending bill before the end of this calendar year. Please stay tuned to this website for development of this legislative bill.

08/03/2008: ICE Announces Arrest for Filing 1,000 Fraudulent Labor Certifications/Immigrant Petitions Charging from $7,000 to $12,000 Per Filing

• Federal authorities arrested a man in Riverside, California yesterday on charges of filing nearly a 1,000 fraudulent labor certifications/petitions with U.S. immigration and labor authorities for more than 550 aliens over a period of 10 years making nearly $5 million by charging the aliens between $7,000 and $12,000. Wow! Read on.

08/02/2008: Congress in Five-Week Summer Recess and Extension Immigration Bills at Siege

• It was a total surprise that the Congress shut down for the summer recess that early in August.....for FIVE WEEKS. Immediately before the Congress went into the recess, a huge number of legislative bills were introduced in the Congress. Any success for passage of these bills looks dubious at best and probably just politically motivated to please their constitutents. But who knows? Anything can happen since 95% of bills are reportedly passed in Congress without votes in the form of so-called "unanimous consent." Something to watch carefully after the Congress returns on September 8, 2008. They will have a very short session as they will have to return to their neighborhoods in October for the election campaigns.
• There are three bills which the House passed and forwarded to the Senate quite sometime back. One is Conrad 30 national interest waiver law extension for five years for the foreign medical doctors. The second is Regional Center Pilot Program extension for five years for the foreign investor immigrants. The third is the "notorious(?)" nonministerial Religious Worker nonimmigrant and immigrant law extension. As we reported earlier, the Senate, rather than acting on the House bills, witnessed its own consolidated bill introduced by Senator Specter of Pennsylvania. As far as the House bills are concerned, believe it or not, the Senate floor referred the bills to the Senate Judiciary Committee right only just before the Senate passed a resolution to go into the long summer recess! Every one thought these sunsetting laws deserved a special attention in the Congress, but it appears that Congress is operating on its own agenda and priorities.
• Out of the three bills, the religious worker immigration law extension currently faces a serious crisis since the law will just evaporate on October 1, 2008! There are a huge number of nonimmigrant and immigrant cases pending in the USCIS for religious workers who are not in "Minister" level religious occupations. Addtionally, there are a huge number of these workers whose nonimmigrant visa status (R-1) will expire soon but will not be able to extend it because the law will sunset at the end of September 2008. Facing the crisis, the religous entities and the immigration stakeholders involved in the religious communities are pressuring the USCIS to take an emergency step, at least for the pending "special immigration green card applications." They are asking to "expedite" such special immigrant petitions and I-485 applications such that all of these pending religious green card applications be approved before September 30, 2008. As usual, the Catholic community has the most stake in the religious worker immigration for the obvious reasons.
• When the Congress failed in the "legislative fix" for the religious worker immigration system, we agree that the USCIS should take "expedite" action as an "administrative fix" to fill the gap. Additionally, the USCIS may repeat its traditional practice of holding off the decision of denial of the applications in the pipeline pending the final action on the extension bills in the Congress for the cases which the USCIS will not be able to adjudicate timely before the end of September 2008. The religious community deserves such administrative fix on the part of the DHS/USCIS under the given circumstances.

08/01/2008: Congress Passes Concurrent Resolution on Conditional Adjournment or Recess, H. CON. RES. 398

• What an emotional roller coaster riding exciting news of passage of two employment-based piecemeal immigration bills in the House Judiciary Immigration Subcommittee today, followed by the news that the Senate agreed to the House concurrent resolution to recess until September 8, 2008 by the decision of the Democratic legislative leaders. Republicans are blasting the resolution as a scheme to block the Republican strategic energy legislation and are currently fuming. Well, there is a news that Senator Mernendez introduced the visa recapture bill tacked on the E-Verify legislation in the Senate, S. 3414, but one wonders what the chances will be for these bills to survice the election year Congress. One just wish that bills do not represent "wearing out Congress" strategy. As the Congress approached the summer recess, piecemeal immigration bills have flourished in both Chambers with the anti-immigration groups dancing all around jumping here and there. Hmm...............................................

08/01/2008: H.R. 5882 and H.R. 5924 Both Obtain Green Light From House Judiciary Immigration Subcommittee Today

• Reportedly, the Subcommittee voted for both of these bills "yes" by 7:2 in H.R. 5924, Emergency Nursing Supply Relief Act of Rep. Waxler of Florida, and 8;1 in H.R. 5882, Visa Number Recapture bill of Rep. Zoe Lofgren of California. The full Judiciary Committee will act on these two bills considering the Subcommittee recommendations. Good news, indeed.

08/01/2008: ESTA (Electronic System for Travel Authorization) Available on Voluntary Basis Beginning from Today

• ESTA applications are accepted on a voluntary basis starting August 1st and will be mandatory for all individuals traveling under the Visa Waiver Program on January 12, 2009. DHS Leadership Journal encourages these travelers to use the ESTA.

08/01/2008: First Day of August 2008 VB EB-2 485 Application Approval Mills Running for Indians and Chinese

• Today marks the first day when the approval notice production machines in Nebraska Service Center and Texas Service Center will start running producing and printing the eligible EB-2 green card approvals. California Service Center and Vermont Service and local field offices may also have some EB-485 cases of these priority dates for Indians and Chinese and they are likely to pump out approvals beginning from today. There are also a large number of immigrant visa application cases pending in the visa posts in India, China, and other parts of the world fot these Indians and Chinese waiting for the immigrant visa scheduling or issuance of immigrant visas for these priority dates. We take this opportunity to extend congratulations to these new permanent residents for enduring the ordeals and painful journey.
• The USCIS and visa posts will also start receiving new EB-2 I-485 applications from another group of Indians and Chinese who have been desperately waiting for these dates to get into the door of I-485 track so that they can take advantage of EAD, Advance Parole, potential change of employment under AC 21 portability provision, etc. Indeed, reaching I-485 stage allows these foreign workers some level of freedom in their lives unlike those who are strictly in nonimmigrant status. We also take this opportunity to extend contratulations to these new EB-485 filers for their new freedom in a state of practical semi-permanent resident privilege under the immigration laws and policies. They will start a new journey which are distinguished from their prior journey strictly in nonimmigrant status.

08/01/2008: What Does FY 2009 First Half H-2B Cap Reach Mean for Essential Worker Employers?

• It appears that there is some confusion about H-2B cap filing. For FY 2009 that commences with October 1, 2008, the half (33,000) of annual cap of 66,000 is allocated during the first semiannual period (10/01/2008-03/31/2009) and the remaining half(33,000) of annual cap of 66,000 is allocated during the second semiannual period (04/01/2009-09/30/2009). The fact that the first Half H-2B cap of FY 2009 reached on 07/29/2008 means that the H-2B cap number for the first semiannual priod has been exhausted and no additional cap numbers for the FY 2009 will be made available until April 1, 2009. On the surface, it appears as though that the employers may be able to file the second half cap numbers beginning from October 1, 2008 since the immigration rules permit filing of H nonimmigrant petitions beginning from six months ahead of the first date when the cap numbers become available. However, unlike the H-1B cap filing, it does not work that way in the H-2B filings because the DOL rule permits filing of temporary labor certification application only four months before the first date when the cap numbers employees are available, and the second semiannual cap filing will not be available until or after December 1, 2008 and not October 1, 2008. Since it is August 1, 2008 today, such employers will have to wait until December 1, 2008 to "file" FY 2009 Second Half H-2B cap petitions for the cap numbers which will be "available" beginning from April 1, 2009 and the employers can bring in the Second Half H-2B cap temporary workers from April 1, 2009. April 1 2009 is eight (8) months away from now. Those employers who were successful in filing the FY 2009 First Half H-2B cap petitions before the numbers ran out on July 29, 2008 will bring these H-2B temporary workers beginning from October 1, 2008 using the First Half FY 2009 H-2B cap numbers. For the last two months, the employers and their representatives had to go throuh a very stressful process in order to obtain the required prevailing wage determination from the State Workforce Agencies and approval of the temporary labor certification applications from the National Processing Centers timely such that they could file the H-2B petitions before the cap numbers ran out. Obviously, the SWAs and National Processing Center of DOL experienced some backlogs in processing of the prevailing wage determinations in some states and some of these employers had to face a frustration of facing the cap-reach announcement of the USCIS on July 30, 2008. Hew...............

08/01/2008: House Judiciary Immigration Subcommittee to Continue Markup Hearing of H.R. 5882 Visa Recapture Bill and H.R. 5924 Emergency Nursing Supply Relief Bill Today

• There will be a continuing debate and hearing of the two important piecemeal employment-based immigration bills today. These bills like any other legislative proposals are currently racing the clock facing the August recess of the Congress. Please stay tuned.

07/31/2008: Projected Surge in Demand for Visas and Passports in Mexico and State Department Pilot Project of Outsourcing Visa Processing and Risk of Frauds

• According to the GAO, in fiscal year 2007, the U.S. Mission in Mexico (Mission Mexico) processed 1.5 million of the 8 million nonimmigrant visas (NIV) that the Department of State (State) handled worldwide. This workload is expected to increase dramatically in the coming years as millions of NIV Border Crossing Cards issued in Mexico during fiscal years 1998 to 2002 expire and need to be renewed. Consulates will also face increased workloads due to implementation of the Western Hemisphere Travel Initiative (WHTI), which will require U.S. citizens to carry passports, or other approved documentation, when traveling between the United States and Mexico, including by land.The State Department projection indicates that Mission Mexico’s NIV demand will likely peak at slightly less than 3 million applications in fiscal year 2011, almost twice the number in fiscal year 2007. Though State acknowledges there are uncertainties regarding the number of Border Crossing Card holders who will renew their cards and the number of first-time NIV applicants, the forecasts provide a reasonable basis for planning for the anticipated surge in NIV demand. In addition to its increase in NIV workload, Mission Mexico will be facing increases in its passport workload due to the implementation of WHTI. The magnitude of the increase in passport workload is more difficult to forecast than for NIVs because there is a great deal of uncertainty as to how many U.S. citizens live in Mexico and the number of these citizens likely to apply for a passport. Mission Mexico has already seen a significant increase in its passport workload as U.S. citizens living in Mexico have begun to apply for passports in response to the new documentary requirements. State forecasts that passport workload will peak in fiscal year 2009 with WHTI’s anticipated implementation at land ports of entry. State is taking steps to help ensure U.S. consulates in Mexico keep pace with anticipated demand for NIVs and U.S. passports, including adding interviewing windows to several high-demand posts and planning to hire about 100 temporary adjudicating officers. Consular officials at several posts generally agreed these efforts to expand resources should be adequate for Mission Mexico to keep pace with expected workload increases, and GAO’s analysis indicates the mission will generally have enough interviewing windows during the surge. Several posts will rely on additional temporary adjudicators to keep pace with increased demand. State is confident it has an adequate pool of potential applicants. Mission Mexico may also gain additional capacity from a pilot program, under way at two posts, outsourcing a portion of the NIV application process to off-site facilities. State has said it intends to evaluate the pilot program but has not indicated if its evaluation plans include an assessment of risks related to fraud and security. See GAO report.

07/31/2008: House Judiciary Immigration Subcommittee Scheduled to Take Up H.R. 5882 To Recapture EB Visa Numbers at 2:30 P.M. EST Today

• The Subcommittee is scheduled to debate Rep. Zoe Lofgren's bill to recapture employment-based immigrant visas lost to bureaucratic delays and to prevent losses of family- and employment-based immigrant visas in the future. The House and committees have been quite on piecemeal immigration legislation for quiet a while and today's hearing is considered significant in this regard, regardless of its prospect for passage in the both Houses ahead. Please stay tuned.

07/30/2008: House Passes H.R. 6633 E-Verify Program Extension Bill Today by Voice Vote

• House passed this bill today which has been stalled because of financial burden issues between the DHS and the Social Security Administration. Extension of this program is one of the four extension bills in the Senator Specter's bill in the Senate to extend Conrad 30, Nonreligious Worker Visa Program, EB-5 Regional Center Pilot Program, and E-Verify Program. Today's passage of E-Verify program extension bill in the House will help for the Senate to act the pending legislative bills to extend certain current immigration programs. Please stay tuned.

07/30/2008: PERM Application Processing Update as of 07/15/2008

• The following are the reports from the OFLC in the DOL Stakeholders Meeting of 07/15/2008.
• The current processing times are as follows:
  • Clean cases: PD of April 2008 and soon to advance to May 2008. Approximately 70% of all cases are decided within 60 days to 90 days, but 120 days are considered the cut-off date.
  • Cases in audit: PD of March 2007. They are processed in the order of priority date, and all audit cases are worked in priroty date order. People should be patient once case is audited.
  • Cases of supervised recruitment: There are 50 cases. These cases are handled by the national office in DC and not NPC until the end of 2008. No processing time information is available.
• OFLC has been recruiting contractor service bids. It is expected that the NPC staff will include two-thirds by contractors and one-third by government employees.

07/30/2008: USCIS Releases 245(k) Memorandum

• Section 245(K) is a very imporatant provision in the immigration statute for those who overstayed and engaged in unauthorized employment for less than 180 days since the last admission to the U.S. because this provision gives a relief to those I-485 filers based on EB-1 through EB-4 petitions. Unlike 245(i) relief, people do not even have to pay $1,000 penalty to seek a relief. The regulation to implement this law has been delayed for years. Considering the fact that such regulation may not be enacted until 2009, the USCIS is releasing a guidance for the adjudicators in the field offices through this memorandum. Current or future employment-based I-485 filers should review this memorandum carefully.

07/30/2008: FY 2009 First Half H-2B Cap Reached on 07/29/2008

07/29/2008: USCIS-Community Stakeholder Meeting Q&A of July 29, 2008

07/29/2008: Immigration Program Extension Bills Stalled

• The House passed and forwarded to the Senate three bills to extend sunsetting immigration programs of Conrad 30 for IMGs National Interest Waiver, Nonministerial Religious Workers Visa and Immigration, and EB-5 Regional Center Pilot program of investment immigration. In the Senate, as we reporter earlier, Senator Spector introduced a bill combining these three programs into a single bill with the addition of E-Verify Extension proposal. Thus the Senate bill covers extension of four programs. The last program, E-Verify program extension, is also pending in the House. The House is racing the clock to pass the E-Verify program quickly, but this part of extension bills has been stalled because of the financial burden of the E-Verify program on the Social Security Administration. Additionally, EB-5 Regional Center extension is also stalled in the Senate at the last minute reportedly because of the opposition of the bill by anonymous Senator. Consequently, these urgent bills to extend the current laws face unexpected uphill battle. Hmmm..................................

07/29/2008: Los Angeles Earthquake This Afternoon and USCIS/LA Announcement of Priority Rescheduling of Appointments for Those Affected by the Earthquake

• USCIS in Los Angeles is taking several proactive measures to reach customers and employees affected by the earthquake and aftershocks. All applicants who missed appointments due to the earthquake will receive priority rescheduling for a new appointment. USCIS will call applicants to reschedule an appointment at a convenient time. As of this afternoon (July 29, 2008) at 1 p.m. (PDT) USCIS offices remain open. USCIS will closely monitor the effects of the earthquake and aftershocks and the impact on our employees and customers.

07/29/2008: China Surpasses the U.S. in the Number of Users of Internet and Mobile Communications: 210+ Million Internet Users & 560 Million Mobile Users

• Report indicates that China now has the larget number of Internet users and mobile communication users in the world taking over the U.S. in the total number of users. Hmm.............................................Sleeping tigers are waking up in the cyber space?

07/28/2008: Only About 5,000 or Less to Reach FY 2009 First Half H-2B Cap

• As we reported earlier, H-2B cap number has been running out in an accelerated pace as it approaches the cap number. As of yesterday, the cap number count was 34,677 out of the estimate beneciary total of 40,000. During the last four days that included weekend holidays and two working days, the USCIS received about 3,000! If this pace continues, the cap may reach before this Saturday.

07/28/2008: AAO Appeal Processing Times of July 21, 2008

• I-140 EB1 (A) Alien with Extraordinary Ability 13 Months
• I-140 EB1 (B) Outstanding Professor or Researcher Current
• I-140 EB1 (C) Multinational Manager or Executive Current
• I-140 EB2 (D) - National Interest Waiver 17 Months
• I-140 EB3 (E), (G) - Skilled, Professional, or Other Worker 14 Months
• I-687 Legalization Application for Temporary Residence 20 Months
• I-698 Legalization Adjustment Application Current
• I-700 Special Agricultural Worker Current
• I-526 EB5 Alien Entrepreneur Current
• I-129 L Nonimmigrant Intracompany Transferee Current
• I-129 H1B Nonimmigrant Specialty Occupation Worker Current
• I-129 H2, H3 Temporary Nonimmigrant Worker Current
• I-129 O Nonimmigrant Extraordinary Ability Worker 12 Months
• I-129 F Petition for Fiancée Current
• I-129 P1, P2, P3 Athletes, Artists and Entertainers 17 Months
• I-129 Q Cultural Exchange Visitor Current
• I-360 EB-4 Petition for Religious Worker 10 Months
• I-360 VAWA Violence Against Women Act Petition 15 Months
• I-360 J Special Immigrant Juvenile Current
• N-470 Application to Preserve Residence Current
• N-565 Replacement Naturalization/Citizenship Document Current
• N-600 Certificate of Citizenship Current
• N-643 Certificate of Citizenship for Adopted Child Current
• I-600 Petition for Orphan Current
• I-485 Cuban Adjustment Certification Current
• I-612 Application for Waiver Current
• I-821 Temporary Protected Status Current
• I-212 Application to Reapply for Admission 10 Months
• I-601 Application for Waiver of Inadmissibility 24 Months
• I-131 Application for Travel Document Current
• I-485 LIFE Act Adjustment Application 20 Months
• I-905 Application to Issue Cert for Health Care Workers Current
• I-914 Application for T Nonimmigrant Status Current

07/27/2008: AC-21 I-140/I-485 Portability and Aytes Memorandum of December 27, 2005 Listed in "Significant Guidance" Inititatives of the USCIS

• AC-21 portability of I-140 petitions and 485 waiters' change of employment are likely to grow significantly as affected by the faltering economy and increasing unemployment. Obviously, the USCIS and the adjudicators are also likely to notice and pay an increating attention to change of employment by these 485 waiters in violation of the AC 21 Act. Facing such changing environment, the USCIS leaders can move in one of the two directions. One is to move towards the direction of reinforcement and scrutiny of compliance with the AC 21 law in adjudication of the pending I-485 applications considering likely increase of change of employment by them in violation of the laws. The other potential direction is to exercise discretion to interprete the AC 21 Act broadly to assist with the adjustment applicants. At this time, there is no information available about which direction the leaders in the USCIS Headquarters in Washington, D.C. are likely to move to. This direction should have been clearly laid out in a regulation to implement this law, but the enactment of this regulation has been delayed for years and the available information indicates that this regulation will not be enacted until after the national election, not until 2009. Under the circumstances, the only guidance the adjudicators in the USCIS field offices have is the USCIS AC 21 Memorandums.
• People should notice that the USCIS website has initiated so-called "Significant Guidance" listing selected past memorandums to solicit from the customers feed-backs and report of deviation from the guidances by field adjudicators. Aytes AC 21 Memorandum is listed as one of the significant guidances. Legally, a memorandum is not a biling law, but without such a guidance from the top of the agency, immigration benefits applications can not be managed and adjudicated in the field offices in a uniformed manner. In this regard, the memorandum is different from letters of the USCIS officials which are written in an individual capacity in response to the inquiry or speeaches in conferences or meetings with the immigration stakeholders. For these reasons, the memorandums have been practically binding "internally" adjudications of applications.
• Under the changing environment, we urge the I-485 waiters to revisit the USCIS guidance on the requirement for change of employment under Aytes AC-21 Memorandum dated December 27, 2005. Changing environment includes an increased pressure from political leaders to implement and enforce the laws strictly and crack down violations of the immigration laws by the employers and aliens. The agencies have been under the pressure to enhance integrity of the immigration benefits management and adjudications and detect and prevent frauds. AC 21 does not give an alien any free hand to change jobs that do not comfort with the intent of the laws and rules. The agency has been under an increased microscope of the Congress and anti-immigration groups.

07/27/2008: Senate Judiciary Committee Chairman Leahy Expresses Frustration with Stalled Bills in Senate Including EB-5 Regional Center Pilot Program Extension Legislation

• On the floor of the Senate on July 24, 2008, Senator Leahy expressed his frustration with the bills which were passed by the House and Senate Democrats agreed to the bills but currently remained stalled because of opposition by certain anonimous Republican Senators. This list of these bills include H.R. 5569 to extend EB-5 Regional Center Pilot Program extension.

07/26/2008: Trend of Continuing Drop of PERM Applications

• The DOL has yet to release its 3rd Quarter Performance report ending at the end of June 2008, but the second quarter report indicates that the foreign labor certification applications continuously dropped from the same period in FY 2007 including permanent as well as temporary labor certification applications. PERM applications dropped 46% from the statistics of the second quarter of FY 2007. The report indicates that despite increased audits (over 45%) and related work, the processing times remain steady. Obviously, it must have been affected more by decreased number of new applications than any drastic improvement in processing times in each application. In fact, from the perspectives of each PERM application, the processing times have witnessed a substantial delay over the last one year. The delay which was associated with the massive audit and related activities could have been offset by the substantial drop in the PERM applications in the overall statistical figure in the report. The DOL report did not report the details of the causes for continuing decrease in PERM applications, but this should be taken as an alert to the U.S. businesses as an indication of reduced incentives for the needed foreign workers to remain in the U.S. and potential reduced availability of the talented foreign workers to support the U.S. businesses' competition in the world. Considering the fact that the supply and demand of resources at the international level are not something which can be rebalanced over a night or a short period of time, the political leaders should start paying attention to the urgency of the reform in the employment-based immigration system before it gets too late.

07/25/2008: Full Text of Nonimmigrant Religious Worker Visa Reciprocity Requirement Bill, H.R. 6590

07/25/2008: Report of American Embassy Announcement of Iraqi Visa Program Expansion

• The New York Times reports that the American Embassy in Baghdad announced yesterday that it had expanded tenfold its program to help Iraqi employees of the American government here, who faced threats for their work, to obtain visas and ultimately citizenship in the United States. The U.S. government has been pushing on the acceptance and resettlement of certain Iraqis. However, this program has encountered a number of problems including the total annual quota which are fixed and some delays in processing the applications in the past. Indeed, this visa program will present a challenging issue as the U.S. considers eventual withdrawal because of a number of Iraqis who need to seek a safe haven in this country because of their involvement in the war one way or another. We often hear the two Presidential candidates' debates on the timeline of the withdrawal, but lay people often do not see these invisible human issues behind the veil of this political debate.
  

07/25/2008: A Long and Tedious Summer for Legislation and Administrative Rule Making Activities in Presidential Election Year

• We have a Democratic majority Congress and a lame-duck Republican executive branch, with the prospect for a Democratic Congress and a Democratic Executive ahead in 2009. The current situation is contrasted to an electrion year when we have a majority Republican or Democratic Congress with a prospect for the opposite party majority Congress or Executive ahead after the national Presidential election. In the latter situation, both the Congress and the Executive Branch including federal departments tend to be very active to pass legislations and to make administrative rules before the power changes. However, it appears that this year is different. There is a sign that the Democratic majoriy in the Congress appears to take a strategy to wear out of this year in legislation until the "guest" leaves the White House. That may push off a number of politically volatile legislation until the next year. The federal bureaucracy appears to take a similar approach in a year such as this year. As this reporter reported in Vancouver, most of the important immigration rulemaking activities may be held off until next year. Because of the more-or-less inactive legislative and administrative rulemaking activities in the Beltway, this Summer tends to be more tedious and boring than other years with no excitement generated by the power mills in the nation's Capital. Zzzz...................................................................

07/25/2008: Sen. Specter Bill to Extend Conrad, Religous Worker, & EB-5 May Be on the Floor as Early as Sometime Next Week or Following Week

• The House passed these bills separately and the immigrant community has been waiting for the Senate action. As we reported earlier, Senator Specter of Pennsylvania introduced these extension bills in a single Senate bill on the Senate floor on July 11, 2008 and placed on the floor calendar bypassing the committee proceedings on July 14, 2008. According to the Senate floor calendar, this bill may come up on the floor not too far away in the future. Please stay tuned to this website for the development of this news.

07/24/2008: Advisory for August VB I-485 Filers: USCIS Changes Vaccination Requirements To Adjust Status To Legal Permanent Resident

• USCIS announced today a revised list of vaccines required for applicants seeking to adjust status to become legal permanent residents. This revision follows guidance from the Department of Health and Human Services, Centers for Disease Control and Prevention (CDC). The requirements for these new vaccines went into effect on July 1, 2008, however CDC approved a 30-day grace period for any medical exam conducted before August 1, 2008. At that time the new vaccinations, if appropriate, must be administered in order for USCIS to approve the applicant for adjustment of status. USCIS has revised the Report of Medical Examination and Vaccination Record (Form I-693) to include these new vaccination requirements. The June 5, 2008 edition of Form I-693 must be used for any medical examination completed on or after August 1, 2008.
• For the full text of announcement, please click here.
• For the Questions & Answers, please click here.
  

07/24/2008: "Comprehensive" Immigration Reform Movement Heating Up

• A group of the leading immigration stakeholder groups start a movement sending out sign-on letters to both the Democratic and Republican National Committee Platform Committees to act on the comprehensive immigration reform. As the immigration legislations have remained a backburner and this Congress has done practically nothing in the immigration reform legislation, the community is standing up, apparently to put a pressure on the political leaders to pay attention to the immigration reform. The following groups are sending out a joint letter to both parties:
  • Deepak Bhargava
    Executive Director
    Center for Community Change/Fair Immigration Reform Movement
  • Jeanne A. Butterfield
    Executive Director
    American Immigration Lawyers Association
  • Joseph T. Hansen
    International President
    United Food and Commercial Workers International Union
  • Wade Henderson
    President and Chief Executive Officer
    Leadership Conference on Civil Rights
  • Angela Maria Kelley
    Director, Immigration Policy Center
    American Immigration Law Foundation
  • Eliseo Medina
    Executive Vice President
    Service Employees International Union
  • Cecilia Muñoz
    Senior Vice President, Office of Research, Advocacy, and Legislation
    National Council of La Raza
  • Janet Murguía
    President and Chief Executive Officer
    National Council of La Raza
  • Ali Noorani
    Executive Director
    National Immigration Forum
  • Andres Ramirez
    Vice President for Hispanic Programs
    NDN
  • Arturo S. Rodriguez
    President
    United Farm Workers
• The movement is expected to add heat hotter and hotter as we approach middle of August 2008.

07/24/2008: FY 2009 First Half H-2B Cap Count (31,619=07/23/08)

• The cap number is running out in an accelerated pace as it approaches the target beneficiary figure of 40,000. Once the number runs out, the employers will not be able to file H-2B cap petitions until the FY 2009 Second Half cap number filing is available, probably on December 1, 2008.

07/24/2008: House Bill Introduced To Require Reciprocity of Nonimmigrant Worker Visa from the Alien's Country of Origin

• The R-1 religious worker nonimmigrant visa program has been assaulted intensively at the administrative level as well as legislative level. For the alleged fraud involved in this program, the USCIS has suspended the premium processing services and the onsite visit has been adopted as part of the processing and adjudication. At the legislative level, there are bills in both the House and the Senate to extend the law that will sunset at the end of September 2008 but both of these bills propose to extend the current law for a limited period of time imposing conditions upon further extension of this law. On July 23, 2008, a conservative Republican member of the House, Rep. Myrick, introduced a bill to require the alien's country of orign to give reciprocal immigrant treatment to the U.S. nationals as a condition for the extension of nonimmigrant worker visa status. The details have yet to be published, but the treatment of foreign religious workers in this country is likely to undergo a continuous assault from all levels and kept under a microscope. For the details of this bill, please stay tuned to this web site.

07/23/2008: State Department Starts Issuing Passport Card for "Sea" or "Land" Travelers for Travel to Border and Caribbean Countries

• The U.S. Department of State and the U.S. Department of Homeland Security (DHS) announced on July 22, 2008 that the new U.S. Passport Card is in full production and is now being distributed. The Passport Card is a convenient, wallet-sized document for land and sea travel between the United States and Mexico, Canada, the Caribbean, and Bermuda. It is not valid for international travel by air. Read on.
  

07/23/2008: H-2B Cap Count as of 07/21/2008=29,234

07/22/2008: USCIS Publishes Domestic Violence Guidance Pamphlet for K Nonimmigrants

• For the Guidance Pamphlet, the readers should read the attached pamphlet at the end of the notice.

07/21/2008: USCIS Clarifies Fee Exemption Eligibility for the Application for Waiver of Grounds of Inadmissibility (Form I-601)

• USCIS reminds its customers that the fee for an Application for Waiver of Grounds of Inadmissibility (Form I-601) is always required. The applicable statute currently applies only to applications from certain Vietnamese, Laotian and Cambodian parolees filed by October 28, 1983, even though USCIS, even though USCIS routinely reviews its fee waiver and exemption policy to ensure that it is not only fair to all applicants, but also reasonable to administer. Read on.

07/21/2008: Goldman Sachs Study Predicts Drop of IT Jobs in 2009

• Even though it may not surprise anyone considering the faltering country's economy and increasing unemployment, this study may be taken as a warning for employment-based nonimmigrant and immigrant proceedings ahead in 2009, not to mention difficult time for foreign IT workers to keep IT employment to finish the immigration proceedings. Remember that the DOL will launch new H-1B and PERM forms and account system to reinforce the integrity of foreign worker recruitment and applications accompanied by the delay of processing in H-1B labor condition applications as well as PERM applications. Read on.

07/20/2008: USICE Updates List of SEVP Approved Schools as of 07/16/2008

• This list is important for the foreign students in F-1 or OPT who considers 29-month post-completion OPT application.
• Those students who will apply for OPT or Extension under the new rule may also review the resources of information which are offered and updated by the NAFSA website.

07/19/2008: Definition of "Concurrent Filing" of I-140 and EB-485 for the Purpose of 2-Year EAD

• As we reported yesterday, it appears that the USCIS will issue one-year EAD card for the concurrently filed I-485 applications where the concurrently filed I-140 petition is still pending even if the visa number is retrogressed. The term "concurrent filing" includes two groups: One is those whose stand-alone I-140 petition was filed and pending and who filed or is about to file in August I-485 applications based on the pending I-140 petitions. Under the rule, this is also considered "concurrent filing." The second group is those who filed or will file I-140 petition and I-485 application "together" in one packet when the visa number became or will become available.
• There is an unanswered question as to how and when the USCIS will determine the requirement of "approved I-140 petition." However, considering the fact that the USCIS will keep it as a matter of discretion to consider the visa number situation at the time of filing and at the time of adjudication of EAD appliction, they may adopt a similar policy. Accordingly, those who will file EAD application at the time whenI-140 petition is still pending may still receive a two-year EAD if the I-140 petition is approved afterwards pending EAD application and USCIS exercise its discretion to issue a two-year EAD in such situation. People should remember that it is the USCIS that will determine whether one-year or two-year EAD will be issued at its own discretion even though the EAD extension applicants are required to submit the proof of visa number unavailability or retrogression and the approved I-140 petition in order for the agency to consider issuance of a two-year EAD.
• Such policy of discretion will cut both ways. The winners will be those whose visa number will be retrogressed and I-140 petition will be approved at the time EAD application is adjudicated. Losers will be those whose visa number will become current for his/her priority date and/or I-140 petition will remain pending at the time of adjudication of EAD application. However, from the perspectives of the EAD applicants, it may be prudent to submit the evidence of their priority date (labor certification approval notice) and copy of pending I-140 petition proactively as part of the supporting documentation for EAD applications so that the adjudicator can consider such evidence at the time of adjudication of EAD application for the purpose of issuance of a two-year EAD card.

07/18/2008: Single EAD/AP Issued in Error and Invalid for AP Purpose

• There have been some reports on the internet that people received EAD card with AP on it. According to the AILA, the USCIS issued such card in error. The EAD will be valid but AP note on the card is invalid. The USCIS advises them to contact the agency for instructions to obtain replacement card. Isn't there a saying that when one gets something which is too hard to believe to be true, then it is not true. Single EAD/A P card will not be issued until they announce such in the future!

07/18/2008: I-140 Premium Processing Update

• AILA is actively seeking expansive and broader standards on the following issues and the USCIS may change any of the following issues in the future, but AILA reports that "as of now," the following people are not, repeat not, eligible for I-140 premium processing services:
  • EB-1C multinational corporate executive/manager petition case
  • National Interest Waiver case
  • Not in the U.S. in H-1B status
  • Ran out of H-1B limit already
  • Changed nonimmigrant status to other classifications
  • Currently in the 7th year or 8th year of H-1B.
• AILA is working hard to persuade the agency to change policy on these issues. Our site also urges the leaders of the USCIS to loosen up the standards so that increased number of people who have been suffering from the I-140 backlogs obtain the relief.

07/18/2008: Two-Year EAD Requirement for Concurrently Filed I-485

• AILA reports that the two-year EAD requires approved I-140 in the concurrently filed cases. Thus, if the concurrently filed I-140 petition is still pending, the USCIS will issue only one-year valid card. This policy will substantially limit the number of concurrent I-140/485 filers, particularly July 2007 VB fiasco cases, who will be eligible for the two-year valid card considering the current I-140 processing backlogs. Hmm.......................

07/18/2008: Two-Year EAD Requirement Update

• There are two time-point involved in determining when the visa number should be unavailable for the two-year EAD issuance. One could be at the time of filing of EAD application and the other is at the time of adjudication. AILA has reported that the USCIS will exercise its own discretion to consider both points of time. If PD was current at the time of filing but later retrogresses pending I-765, they will review the case again at its own discretion and may issue two-year EAD. If the PD was backlogged at the time of filing but becomes current pending I-765, again the USCIS will review the case again at its own discretion and may issue only a one-year EAD. Accordingly, people should not take it for granted when these changes are involved in their cases.

07/18/2008: House Homeland Security Committee Hearing on Enhancing Visa Waiver Program per 9/11 Mandates

• On July 16, 2008, the House Homeland Security Committee had a hearing on this issue to review the government's US-VISIT exit proposal and the Electronic System for Travel Authorization (ESTA) implementation. The testimonies of the witnesses shed some light on the issues and direction of these two recent initiatives of the Homeland Security Department. This is a good reading material for the weekend, particularly those that have a stake on the expansion of the Visa Waiver Program.
  • Prepared Statement - Chairwoman Sanchez
    Prepared Statement - Chairman Thompson
    Testimony Barth and Mocny
    Testimony Edson
    Testimony Lavin
    Testimony Principato
    Testimony Sales
    

07/17/2008: Do You Still Have a Problem in Getting July 15, 2008 USCIS Processing Times Report?

• Here is what you will have to do. Click and open July 15, 2008. Roll up or down to get the Service Center you want to learn about. Then click "Processing Dates." If it shows June 15, 2008 report, move your cursor to "Refresh" botton at the top of your computer (browser) and click a couple of times. VIOLA! You will see July 15, 2008 processing times report. Good luck.

07/17/2008: USCIS Processing Times of July 15, 2008

• As usual, this report is blinking back and forth (weird behavior) between June 15 and July 15 reports. Please keep clicking back and forth. People will get to the July 15, 2008 report.
• EB 485 processing times:
  • Nebraska Service Center: 08/10/2007 (It thus appears that July 2007 VB fiasco cases whose priority date will become available in August 2008 are likely to come into the processing queue.)
  • Texas Service Center: 07/16/2007 (Not much progress for July 2007 VB fiasco cases, but TSC is also likely to process those cases wtih PD of August VB in August 2008.)
• I-129:
  • California Service Center: 05/16/2008, except extension of H-1B 05/01/2008
  • Vermont Service Center: 04/01/2008 H-1B, except exgtension of H-1B 12/24/2007
• I-539:
  • California Service Center: 04/16/2008
  • Vermont Service Center: 10/08/2007
• I-129F
  • California Service Center: 01/17/2008
  • Vermont Service Center: 01/17/2008

07/17/2008: EB-5, Conrad 30, and Religious Worker Extension Bill of Senate Version

• The House passed legislative bills on the extension of these laws earlier. The community has been waiting for the action on the Senate side. On July 11, 2008, The Senator Specter of Pennsylvania introduced S. 3257 to extend these laws. It is a sort of consolidated version of the House bills. This Senate bill was placed on the Senate calendar on July 14, 2008. The relevant provisions are as follows:
• SECTION 1. SHORT TITLE.
  • This Act may be cited as the `Legal Immigration Extension Act of 2008'.
• SEC. 2. EXTENSION OF EB-5 REGIONAL CENTER PILOT PROGRAM.
  • Subsection (b) of section 610 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 `shall set aside' and all that follows through `eligible for admission' and inserting `shall set aside 3,000 visas annually for 20 years to include such aliens as are eligible for admission'.
• SEC. 3. EXTENSION OF CONRAD STATE 30 PROGRAM.
  • Subsection (c) of section 220 of the Immigration and Nationality Technical Corrections Act of 1994 (Public Law 103-416; 8 U.S.C. 1182 note) is amended by striking `June 1, 2008' and inserting `June 1, 2013'.
• SEC. 4. SPECIAL IMMIGRANT NONMINISTER RELIGIOUS WORKER PROGRAM.
  • (a) Regulations- Not later than December 31, 2008, the Secretary of Homeland Security shall 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)).
  • (b) 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 `October 1, 2011,'.
  • (c) Report- Not later than September 30, 2010, the Inspector General of the Department of Homeland Security shall submit to Congress a report on the effectiveness of the regulations described in subsection (a).
• Please stay tuned to this webside for the development of this bill.
  

07/16/2008: USCIS Releases Fact Sheet: Iraqi Refugee Processing

• USCIS has admitted about 7,000 Iraqi refugees as of July 1, 2008. It is anticipated that the number will grow in the future. Read on.

07/15/2008: USCIS Local Offices Processing Backlogs and New Hires, Training, Placement of New Hire Adjudication Officials Underway

• As reported by the USCIS, there was a huge surge of naturalization applications last year creating a huge backlog and processing delays. In fact, this fiasco turned into a big political issue in the Hill. Under the circumstances, the USCIS has been working on a plan to reduce processing backlog in the local field offices including naturaalization applications by realigning of processing and recruiting new adjudication officials. Based on such plan, the USCIS recenly announced its goal of reduction of backlogs from over 18 months to less than six months over a period of time.
• For the realigning and streamlining of processing, the USCIS announced "centralization of initial processing of naturalization applications" into the National Benefits Center in Lee's Summit, Missouri. As a consequence, currently the naturalization applications go through the three steps. The applicants initially file N-400 applications with the one of the four Service Centers of their residential jurisdiction. These four Service Centers are however acting as filing "windows" without the function of processing or adjudication of the applications. The applications are thus forwarded to the National Benefits Center for receipting and initial processing of the applications. Lastly, once the initial processing is completed, the NBC then schedules an interview at the local field offices. Accordingly, the naturalization will be eventually "adjudicated" at the local field offices after the interviews.
• For the recruitment and training of new officials, report indicates that the USCIS has been actively recruiting, training, and placing the trained officials at the local offices. Apparently, the new hires are trained at the training school in Dallas, Texas. Reportedly, since October, the agency has added 830 adjudication officers to its ranks, bringing the total working at immigration offices nationwide to 3,775. Another 590 are expected to be trained by the end of the year. Reportedly, The Dallas training center has graduated 479 adjudicators since opening in January. About 285 are enrolled in classes now under way in Dallas, and another 290 are registered for future sessions. Most of the future adjudicators have college degrees in such fields as communications, prelaw, sociology, psychology and international studies. Some are naturalized citizens and many speak a language in addition to English. They spend each eight-hour day digesting immigration statutes, understanding naturalization and learning the various classifications for immigrants. As part of their coursework, students also take the same citizenship test that their future customers must pass in order to become citizens. After graduation, each class travels to the National Benefits Center in Missouri, and the graduates get at least a week of on-the-job training under the supervision of seasoned adjudicators before taking up cases on their own at he local USCIS offices. At the local offices, they tend to perform the adjudication duties under the close supervision of a supervisor.
• Obviously, the recruitment and training must be a very time-consuming process, but it is good to know that the backlog reduction process is actively underway and we wish all the luck with the USCIS to achieve the mission as planned.

07/15/2008: H-2B Cap Count as of July 13, 2008 = 23,589

07/14/2008: Pending I-140 Petition and August 2008 Indians/Chinese I-485 Filing Jurisdiction

• Come August 1, 2008, a large number of Indians and Chinese EB-2 immigrants are expected to file their I-485 applications based on the August 2008 Visa Bulletin. There will be two groups: (1) Group I: Those who have filed I-140 petition and their petitions are approved. (2) Group II: Those who have yet to file the I-140 petition or whose I-140 is pending or who will file I-140 and I-485 application concurrently in the same packet.
• Those in Group I should pay attention to the Direct Filing Chart for I-485 applications to learn whether they should file their I-485 applications with the Nebraska Service Center or Texas Service Center. They should read and follow the instructions in the Direct Filing Chart of I-485 and the instructions sheet of I-485 application form to avoid filing with a wrong jurisdiction. Direct filing chart for the employment-based I-485 is determined by where they live and not where they work or where the job is. So is the EAD applications and Advance Parole applications that will be filed with the I-485 applications. Please read the instructions carefully. It is very confusing, but people should just follow the instructions.
• Those in Group II should pay attention to the Direct Filing Chart for I-140 and I-485 Concurrent Filing jurisdiction which they will find in the I-140 petition instructions.

07/14/2008: Obama, McCain Court Rising Latino Vote

• Here we go! No surprising news. Comprehensive immigration reform forces are gaining momentum for 2009 legislative agenda, while the piece-meal employment-based immigration reform forces will gradually lose a momentum for 2008 legislative agenda.

07/13/2008: USCIS Changes Old Medical Form, I-693, Invalid Date from 07/14/2008 to 08/01/2008

• Medical form which the USCIS designated civil surgeon is required to use was initially revised on 04/08/2008, followed by the USCIS announcement that any I-693 form version earlier than 04/08/2008 should not be used by the civil surgens from May 1, 2008. In the middle of June, the USCIS released again new version form dated 06/05/2008 and announced that the old version other than 06/05/2008 should not be used effective 07/14/2008. July 14, 2008 is tomorrow. However, without a news release, the USCIS form site extended invalid date of forms earlier than 06/05/2008 to 08/01/2008. Please now note that "Previous editions will be accepted only for medical exams conducted before August 1, 2008. Medical exams conducted on or after August 1, 2008, require use of the 06/05/08 edition," according to the form site instruction.
• There was a confusion in June 2008 on the validity of older version form I-9 because the USCIS form site instructed that the older version was not acceptable from certain date. In Vancouver, the USCIS authority confirmed that the form instruction was an error and the USCIS form instruction has since been corrected. It will help tremendously if the USCIS releases an announcement that the current I-693 form instruction is indeed correct and the civil surgeons can use the I-693 forms which are older than 06/05/2008 version can still be used. In the meantime, the civil surgeons and the immigrants should check on the date of the medical examination with the I-693 form site to protect themselves from any changes. The form site indicates that the information was updated on June 26, 2008. One wonders whether the civil surgeons may be better off to start using the 06/05/2008 version form from even now just to avoid any confusion in the future. For the new form instruction as of today, please click here.
• There was a report one time that the USCIS was experiencing a problem in notifying all the USCIS certified civil surgeons on the form changes by email or other means because some civil surgeons did not have email addresses or proper means to receive such notices quickly. When the 2008 Tuberculosis Technical Instructions for Civil Surgeons was implemented by the Center for Disease Control and Prevension of HHS in such a notice on May 1, 2008, it could have been practically impossible for the USCIS to notify such medical form changes timely to every single USCIS certified civil surgeons. Well, doctors, you now have until August 1, 2008 to comply with the new medical form!
• This change can be important that because of the EB-2 visa number progression for the Chinese and Indians, a large number of these foreign professionals must have already scheduled or even completed a medical examination for themselves and their family members using the older versions. Under the new instruction, these medical report should be valid and filed with the I-485 coming August 2008. However, those who schedule their 485 medical examination on or after August 1, 2008 should make it sure that the doctor uses the new version dated 06/05/2008.
  

07/13/2008: CIS Ombudsman Recommendation of USCIS Website Resources Increase for Sharing Information with Customers Effectively and Efficiently

• The USCIS website has served the agency and the customers remarkably well and the team deserves the highest commend for the job well done. This is particularly true considering the fact that according to the Ombudsman's report of FY 2008 Report to the Congress dated 06/30/2008, a team of four members in the USCIS Office of Information Technology manages the site that is visited by an average of 6 million visitors a month. The report also indicates that the number even surged to 8 million a month. To persons of reasonable mind, it is almost incomprehensible that only four people manages the information on such website. As our readers must have noticed, the USCIS has expreienced from time to time some inconsistencies or outdated information or other problems. It is indeed close to a miracle that only four persons manage such a huge task and we agree with the Ombudsman's recommendation that the Office needs additional resources. One of the problems is known to be inability of major units of the USCIS to post information and communication directly on the USCIS website.
• We ask the leaders of the DHS to consider this recommendation seriously in the upcoming budget appropriations for this function and help out the overloaded and overworked members of the IT management team for the USCIS website. This reporter was astonished to learn the limited resouces for this important website and literally incompehensible task of the four-staff members team to undertake the mammoth. Members of the team, you really deserve a BIG HAT's OFF!!! Our site is managed by this reporter alone as well due to the nature and type of information that needs expertise and understanstanding of the broad legal and political environments that define the founation for formation of the policies and practices of the immigration stakeholder agencies in days in and days out because this reporter is reporting not as a legal "technician" with narrow and limited task of reading language of laws and rules without understanding of the foundation of such policies, rules, and laws (policy does not operate in vacuum!), but we are handling only more or less of three million visitors a year and manage a very limited information. Agan, on behalf of the immigrants, we extend our gratitude to the members of the USCIS website management team for their hard work. From six to eight million visitors click your site every month but you remain "invisible." You deserve a recognition.

07/12/2008: Reminder: Infopass Online Appointment System Will be Down from 01:00 AM to 7:00 AM Tomorrow

• This reporter suspects there may be not too many people who will try to schedule the Infopass appointment after mid-night of a day. Particularly this may be true considering the fact that the time zone appears to be Estern Standard Time. Besides, we are talking about a Sunday! Most of the readers will have a good night sleep tonight. But who knows there may be someone who will sit before the computer that early in the morning and experience a frustration for not being able to linked to the Infopass site over and over during that early in the morning of a Sunday. This report may give some advance notice to such readers so that no one should even dare to sit before the computer that late in the night for the Infopass access!

07/12/2008: Do You Know How Many Legislative Bills Are Pending in the House and Senate and Why August is Considered a Dead Valley for the Fate of the Bills?

• In the House, over 6,273 bills have been introduced in this 110th Congress, and in the Senate, over 3,221 bills have been introducted during the same period. Most of these bills are still pending vieing each other for earlier mark-ups and Congressional actions. It is one thing that a bill gets introduced, and it is the other whether the bill receives a sufficient political support to receive a mark-up and floor actions. As Lou Dobbs reported in CNN, there are only 35 scheduled working days for ths Congress and after the August break, the legislators have practically no time to focus on legislation and they return to the community in October for the national election. After the national election in November, the Congress has a very limited period of time before and after Thanksgiving Holiday break and until the new Congress opens in January 2009. August has a different meaning in the leap years when there are no national elections. National election is scheduled every two years (one is mid-term national election and the next one is Presidential election in the period of four years). Therefore, the leap year and national election year alternates each year. The list of introduced or pending legislative bills will speak for itself why the pending employment-based piecemeal bills will face a difficulty after August 2008.

07/12/2008: Do You Know What Happens if Your Immigrant Petition is Revoked and Returned by the Visa Posts in Consular Proceeding to the USCIS?

• Read Mr. Jonahan Schafen, USCIS Acting Director's Response to #33, Recommendation on Processing of Petitions That Are Returned by the U.S. Department of State for Revocation/Revalidation, dated May 23, 2008.

07/12/2008: Advisory for Indian and Chinese EB-2 in I-485 Queue with Priority Date earlier than 06/01/2006

• Even though the USCIS will accelerate processing of some of these cases, these I-485 waiters and their family members may want to take care of following three relief within this month:
  • I-140 Premium Processing: The first condition of present limited I-140 premium processing is the unavailability of the visa numbers for you. If your H-1B six-year limit will reach within the next two months and one-year increment extension is not available in your situation, please make it sure that you file the premium processing of I-140 petition before the end of July, 2008 for the three reasons: (1) Without the approval of I-140 petition, I-485 cannot be adjudicated. Since the premium processing will not be available from August 1, 2008, you should not fail to file premium processing services. (2) If the circumstances are such that you may have to change employment using approved I-140 petition, approval of I-140 petition by premium processing will be particularly critical. (3) As explained below, approval of I-140 is one condition for the H-1B three-year increment extension. If such extension is critical for you, you should seek premium processing services as quickly as possible within this month.
  • 104(c) Three-Year H-1B Extension Petition: If you filed I-140 and I-485 concurrently during the period of July 2007 Visa Bulletin fiasco, some of you may have obtained the I-140 petition and are just waiting for the adjudication of I-485 application. Again, some of you who fit this description may not be eligible for one-year increment H-1B extension because of specific situation in each case. You may then have to file the three-year increment H-1B petition within this month as the 104(c) petition can be filed only during the visa number is not available for you.
  • Two-Year EAD Extension Application: If your EAD will expire within the next four months (120 days), you should file the EAD application within this month since the first condition for the two-year EAD is unavailability of visa number for the applicant.
• The foregoing actions will be particularly important for the late I-485 receipt date filers. Since the USCIS is likely to adjudicate the I-485 applications in processing queue which is generally determined by the date of receipt of I-485 applications, the later the filing date is, the longer the adjudication will take in general, and the earlier the filing date is, the shorter the adjudication will take unless some issues are involved. Good luck.

07/11/2008: DHS Responses to the SHRM Opposition to DHS E-Verify Program

• The Society for Human Resouce Management (SHRM) is an important organization for the corporate recruitment. This key group is opposing the DHS taking role of e-verify management and enfocement, asking why not leaving it to the Social Security Administration or any other alternatives which they propose. Mr. Stewart Baker, Assistant Secretary for Policy of DHS responds to this opposition in the today's DHS Homland Security Leadership Journal advancing the issues of unavailable resources for the SSA to undertake immigration enforcement function or time factor which demands a longer period of time to initiate. Hmm.............. Read on.
• We had a SSA offical in Vancouver who was in charge of so-called "no-match" letter function. His report astonished the conference attendants for the number of no-match letters they issue a year: Over nine (9) million to individuals and about 150,000 employers!!!

07/11/2008: USCIS Announces Today Extension of EAD for Refugees from Current One-Year to Two-Year

• This announcement reaffirms its policy change that the USCIS will issue EAD valid for a period of two years. It also confirms that the initial EAD will be good for two years upon admission to the U.S. This is also consistent with the two-year EAD that has been issued to the asylees beginning from 2006. Read the announcement.
• The USCIS is changing the policy to achieve two goals. One is to give a relief to the refugees, and the other is to switch the resources to other immigration benefits processing and adjudication to reduce the backlogs. Usually, any government action produces one winner group and other loser group. However, this policy produces winners for all the immigrants! Hats-up to the USCIS!!

07/11/2008: Silent Piecemeal Employment-Based Immigration Bills in the Hill

• Unlike the so-called leap-year when there is no national election, in the election years legislative strategiests take August as the breaking point, meaning that unless any bills are passed by August, the bills have no chance to make it in the year. Bill opponents take advantage of this unspoken rule to drag out and practically kill the bill. On the other hand, bill prononents work hard to mark up and pass the bill before the end of August.
• Now we are approaching the middle of July and there are no signs in both Houses that any of these bills will mark up on the floor in the near future. On the other hand, there is a report that the pro-comprehensive immigration reform supporters are charging their batteries to mobilize their forces targeting passage of the comprehensive immigration reform legislation when the Congress returns next year with a new President. Hispanic groups are reportedly scheduling a massive rally in August through the Labor Day holidays in the first week of September. They are considered to be the anti-piecemeal employment-based immigration legislation forces. As time passes, any glimmer of hope for the piecemeal employment-based legislation within the year is slowly fading away. Not only the hope for this year, but also the hope for the coming year. They should be prepared to live with the comprehensive immigration reform strategy to achieve any level of employment-based immigration system reform.

07/11/2008: Official August 2008 Visa Bulletin

• EB-2 for China and India progressed to June 1, 2006. EW (other workers) is unavailable in August but will return to January 1, 2003 in the October Visa Bulletin. Without doubt, there will be some visa number movement in other categories as well in the first month of new fiscal year of 2009 (October 1, 2008). EB-3 has two categories. One is professionals with a bachlor's degree or skilled worker (coded as EB-3) and the other is the unkilled worker (coded as EB-3EW or EW Other Workers). Those jobs that require two year of experience or training is labeled as "Skilled Worker" and those job that requires neither bachelor's degree nor two years experience nor training are labelled as "Other Workers" which is synonimous with "unskilled workers." The prediction that the cut off date will return to January 1, 2003 in October refers to "Unskilled Workers" category only. Readers are reminded of this reporter's report from Vancouver last month that the State Department sources confirmed the EB-3 would remain unavailable until September 30, 2008. The August 2008 Visa Bulletin probably implies this prediction may include EW Other Worker category as well.
• Family based visa numbers remain very much in stand-still except some movement for Mexico.

07/11/2008: Indian & Chinese EB-2 Visa Number in Visa Bulletin August 2008 and Anticipated Expedited Adjudication of Their I-485 Applications to Prevent EB 2008 Visa Number Waste

• The movement of the EB-2 visa numbers for Indians and Chinese is indeed a very good news in that it sounds that the USCIS intends to take out the visa numbers for them before the end of September 2008 as best as they can and attempt to adjudicate the applications before the new fiscal year starts on October 1, 2008. Obviously, there must be a large number of EB-2 cases which were filed during the July 2007 Visa Bulletin fiasco whose priority date is earlier than June 1, 2006. It appears that the USCIS has been working hard to get these cases ready for adjudication while their visa numbers are availalbe so that the agency prevents the visa number for FY 2008 from being wasted. Please stay tuned to this web site for this remarkable turn of the events.

07/11/2008: Naturalization Interview Process Changes Memorandum of USCIS

• This memorandum was released by Mr. Donald Newfeld, Acting Associate Director of Domestic Opertions to change the processing of naturalization application in order to deal with the naturalization backlogs. This memorandum will help the applicants to understand the changes in the internal procedure within the USCIS. Read on.

07/10/2008: Unofficial August 2008 Visa Bulletin

• Employment-Based:
  • Row: EB-1=C, EB-2=C, EB-3=Unavailable, EW=Unavilable, EB-5=C, EB-4 Reliious=C
  • India: EB-1= C, EB-2=06/01/2006, EB-3=Unavailable, EW=Unavailable, EB5=C, EB -4 Religous=C
• Family-Based:
  • Row: FB-1=03/15/2002, FB-2A=10/01/2003, FB-2B=11/01/1999, FB-3=06/08/2000, FB-4=09/08/1997
  • India: FB-1=03/15/2002, FB-2A=10/01/2003, FB-2B=11/01/1999, FB-3=06/08/2000, EB-4=02/22/1997
    
    
    

07/10/2008: USCIS Extends Suspension of R-1 PPS at Least Until January 7, 2009

07/09/2008: FY 2009 First Half H-2B Cap Count Update as of 07/07/2008: 20,390

07/09/2008: USCIS Announces New Special Immigrant Visa for Certain Iraqi Nationals Who Worked for the U.S. Government

07/09/2008: USCIS Biometric Changes For Re-Entry Permits and Refugee Travel Documents 07/08/2008

• USCIS has issued revised instructions for USCIS Form I-131, Application for Travel Document. The instructions include changes effective March 5, 2008 that require applicants for re-entry permits and refugee travel documents to provide biometrics (e.g., fingerprints and photographs) at a USCIS Application Support Center (ASC) for background and security checks and to meet requirements for secure travel and entry documents containing biometric identifiers.
• Q. May an I-131 applicant for a re-entry permit or refugee travel document complete biometrics outside of the United States?
  A. Form I-131 instructions provide guidance for certain persons who are abroad at the time of filing to visit a U.S. Embassy or consulate for fingerprinting, although all applicants are urged to file before leaving the United States. Since certain overseas offices have the discretion to accept and adjudicate applications for refugee travel documents, although it is not mandatory that they do so, an applicant for a refugee travel document may complete biometrics outside of the United States, but is encouraged to wait to travel until his or her biometrics have been collected and the document delivered. As discussed earlier, certain overseas USCIS offices may, in their discretion, adjudicate Form I-131 filed for a refugee travel document (but not re-entry permits), where the applicant has failed to apply while in the U.S. (see 8 C.F.R. § 223.2(b)(2)(ii)). However, applicants for refugee travel documents should not count on the overseas offices necessarily agreeing to adjudicate Form I-131 in all cases, particularly where it is evident that the individual could have applied while in the U.S. and attended his or her biometrics appointment. Applicants for reentry permits should attend their biometric appointment at the designated ASC. If the applicant departs the United States before the biometrics are collected, the application may be denied.
  Q. Will Form I-131 re-entry permit or refugee travel document be denied if the applicant leaves the U.S. after the application has been filed and receipted but before biometrics are completed?
  A. Form I-131 form instructions state, “Departure from the United States before a decision is made on an application for a Re-entry Permit usually does not affect the application. However, where biometric collection is required and the applicant departs the United States before the biometrics are collected, the application may be denied.” Travel is not advisable. If an applicant leaves and comes back, his or her application may be denied while abroad, and he or she may not be able to get back into the country. Even though an overseas USCIS office may, in its discretion, take the biometrics of an applicant for a refugee travel document, there is no guarantee that the office will necessarily exercise its discretion to do so. Therefore, USCIS again urges all I-131 applicants for whom biometrics will be required to file their applications well in advance of their scheduled departure dates. USCIS suggests applicants apply for a travel document at least 60 days prior to the date of travel.

07/08/2008: U.S. Department of Labor Initiates Supervised Recruitment of Permanent Labor Certification Applications Filed by Immigration Law Firm

• This announcement indicates that the DOL will initiate "supervised recruitment" for PERM applications which are filed by certain immigration law firm. Previously, the DOL announced that it had decided to "audit" of all the PERM applications filed by another immigration law firm in the country. The supervised recruitment is a sort of the front-end restriction imposed on the PERM applications which is more or less analogous to the traditional regular labor certification process,while the audit approach is a sort of back-end restriction imposed on the PERM applications. In both cases, the PERM applications will experience a substantial delay. Read on.
  

07/08/2008: Special Immigrant Visas for Certain Iraqis and Neufeld Memorandum of 07/07/2008 to Revise Adjudicator's Field Manual

• Donald Neufeld, Acting Associate Director of Domestic Operations of USCIS, issued a memorandum for the USCIS field offices to lay out the guidance and revise the AFM to reflect the guidance in adjudication of these eligible Iraqis under a legislation which the Congress passed this year.

07/07/2008: DHS Inspector General Review of USCIS Benefit Fraud Referral Process

• The Inspector General reviews the USCIS' fraud referral processes of applications and petitions. Read on.

07/06/2008: Reminder: Confirm EAD Application Form Version 05/27/2008!

• This is a reminder that the 04/08/08 and 07/30/07 editions will be accepted by the USCIS only until 07/08/2008, and after the date, only 05/27/2008 edition form will be acceptable and no previous editions will be accepted. If outdated edition form is filed, the USCIS is likely to "reject" and "return" the filing. Since it is not unusual that return of such rejected filing is delivered after several weeks, refiling may cause a substantial delay in obtaining EAD and received after the expiration of current EAD. Please double check the form edition date before the applications are shipped out. People should also read the filing jurisdiction chart carefully. In the past, we have received reports from the EB-485 waiters who filed the EAD applications with the Chicago Lockbox. Additionally, some people filed EAD applications with the Service Center where their EB-485 was pending rather than the Service Center that has jurisdiction over their "residence." The filing jurisdictions of EAD and Advance Parole are extremely complex and confusing, and people should read the filing chart very carefully in order not to file with the wrong Service Center with the resultant rejection of the filing.

07/05/2008: CIS Ombudsman Annual Report 2008 Dated 06/30/2008

• There are a number of issues analyzed and interesting recommendations to the USCIS and the Congress. This is about 17 mb document and the readers should keep patience in downloading this document.

07/04/2008: Proposed New Labor Condition Application Form, ETA 9035, for H-1B, H-1B1 (Singapore & Chile), and E-3 (Australian)

• As we reported earlier, the DOL Foreign Labor Certification System is proposing to reengineer a wide range of temporary and permanent labor certification programs, primarily for dual goals: One is achievement of "integrity" in the foreign labor certification process, and the other, which is related to the first goal, is to launch an "account" system for the entire foreign labor certification programs, temporary labor certification applications as well as permanent labor certification application per each account (employer). Additionally, in order to achieve the foregoing goals in the wage determination process, they are also proposing to nationalize the prevailing wage determination function in the National Processing Centers for both temporary labor certification applications as well as PERM application. There is an ongoing confrontaation between the immigration practitioner community and the DOL which is developed by the DOL's decision to audit all the PERM applications filed by a largest immigration law firm in the country and the client's right to legal representation and legal counsel in general are at stake, but the employer communitity and the foreign worker community should be aware of and prepared for the the government's efforts to initiate and launch a reengineered system ahead with the accompanying wide-ranging impact on the employment-based immigration management on the part of the U.S. Department of Labor. Behind this reform is the hostile Congressional leaders over the H-1B and Permanent Labor Certification programs which are allegedly vulnerable to the frauds. The immigrant community should look at the ongoing developments from a broader perspective and underlying shakers in the political community.
• The following are the proposed form and instructions which are currently undergoing a 60-day comment period. The new ETA 9035 is not scheduled to be implemented until January 1, 2009, just like the new PERM form, ETA 9089.
  • Proposed revised ETA 9035 form
  • Instructions for the revised ETA 9035 form
• Happy Fourth of July, readers!!

07/03/2008: Three-Year TN Visa Proposed Rule - Status of Rule-Making

• This "proposed" rule was submitted to the OMB on 04/09/2008 and after a quick approval, it was published in the federal register on 05/09/2008 with the comment period. The comment period is about to be over. The USCIS has received 83 comments from individuals, businesses, stakeholders such as AILA, U.S. Chamber of Commerce, etc. The agency is currently reviewing the comments. Once the process is completed, the USCIS is expected to send in either Interim Final Rule or Final Rule back to the OMB for the finalization of the rule-making.
• Accoring to the USCIS, in fiscal year 2006, 74,098 NAFTA professionals with TN status and 17,321 individuals with TD derivative status were allowed entry into the United States through the borders. In fiscal years 2005 and 2004, TN entrants numbered 65,010 and 66,219, and TD recipients numbered 14,222 and 12,635, respectively. Nationals of Mexico, having been granted a TN or TD visa by the U.S. Department of State (DOS) and nationals of Canada who are outside the United
  States apply for initial TN admission at a U.S. port of entry with U.S. Customsand Border Protection (USCBP) Inspectors. An employer wishing to employ a NAFTA professional who is present in the United States must use Form I-129 to petition for the employee to receive TN classification. Only about 10 percent of NAFTA professionals receive TN status through the filing of a petition with USCIS. Table 1 below summarizes the number of petitions for TN workers received by USCIS and the number approved during the most recent 3 fiscal years (October 1 to September 30).
  
  • Table 1. TN PETITION FILINGS AND APPROVALS
    Filings Canada Mexico Approvals Canada Mexico
    FY 2005 5664 672 5653 638
    FY 2006 6871 1133 4579 817
    FY2007 7687 1518 8909 1553
    AVERAGE 6741 1108 6381 1003
  • Table 2 below summarizes the number of petitions for TD status submitted for relatives of TN professionals received by USCIS and the number approved during fiscal year 2007. As shown in the table, only about 11 percent of the annual
    requests for TD status are to change status. The remainder are from those in TD status requesting another year.
    Table 2. TD PETITIONS AND APPROVALS
    Applications TD approvals
    Extension of stay 1,350 2186
    Change of status 145 252
    Total 1,495 2,438
• As we reported earlier, the three-year TN will one way or another affect the current nonimmigrant visa options for the sources of professional foreign workers, particularly when the visas such as H-1B are not available. According to the USCIS, it is difficult to accurately estimate the volume impacts of this proposed rule, however, it is reasonable to assume that the number of petitions submitted or approved will increase somewhat. This analysis estimates a moderate 5 percent increase in the number of persons wanting to enter the United States in TN status after this rule is finalized and the benefits it entails become well known in NAFTA countries. Based on recent nonimmigrant employee statistics, a 5 percent increase would add 3,500 TN nonimmigrants and 720 TD nonimmigrants entering the United States per year.

07/03/2008: Homeland Security Department's US-VISIT Program Faces Funding Challenge in the Senate

• Report indicates that the Senate Appropriations Committee significantly cut the budget for the Homeland Security Department's program to electronically track when foreign travelers enter and leave the United States, fearing the system might not work as planned. The committee's fiscal 2009 spending bill for DHS would provide $181.3 million for the U.S. Visitor and Immigrant Status Indicator Technology program, a 62 percent cut from the program's $475 million fiscal 2008 budget and 54 percent less than the $390 million that President Bush requested. The bill now heads to the Senate floor for a vote. In the previous fiscal 2008 appropriations bill, the Senate initially allocated $362 million to US VISIT, a 22 percent reduction from the president's request. During conference, the budget request was restored and the conference added $13 million to expedite the development of an exit solution. DHS delayed the publication of a notice of proposed rule-making for the exit portion of the system for use in airports until April 22, 2008. Read on.
  

07/03/2008: H-2B Cap Count Jumps Almost 2,000 in a Week!

• Between June 24, 2008 and July 1, 2008, H-2B FY 2009 First Half cap number was reduced at a rate of approximately 2,000. Even though the First Half cap total cap number is 33,000, the USCIS is targeting at 40,000 in the number of inidividual beneficiaries that include multiple beneficiary petitions. The cap is thus likely to run out very fast, should this rate continue.

07/03/2008: Advisory on Certain I-140 Premium Processing Request Filing Procedures and Requirements

• As we reported from Vancouver, the USCIS reported that ever since the USCIS had started receiving I-907 premium processing requrests for certain I-140 cases beginning from June 16, 2008, they had to reject the PPS request in almost 60% of cases for failure of the filers to follow the requirements, procedures, and other up-to-date instructions relating to the qualification for PPS in the announcements. It thus appears that the qualified I-140 PPS filers should read carefully the instructions beyond the announcement.
• People are reminded that the USCIS website has updated the PPS filing requirement and instructions for I-140 petitions for the reinstated type of I-140 petitions. For the updated instructions, please click here. Please note the list of supporting documentation required for filing and ineligible I-140 petitions including EB-1C Multinational Corporate Executive and Manager I-140 and EB-2 National Interest Waiver I-140, the I-140 petitions pending another I-140 petitions, and I-140 petitions that require the agency's requrest for a duplicate labor certification approval from the U.S. Department of Labor or any other proceedings that require agency's extra special actions to complete the adjudication of the petition such as the labor certificaton substitution I-140 etc.

07/02/2008: Memorandum of Joseph Langlois, Chief of Asylum Division of USCIS on Information Guide for Prospective Asylum Applicatnts Publication

• The purpose of this memorandum is to announce the release of the Asylum Division’s new pamphlet entitled, Information Guide for Prospective Asylum Applicants. In the next few days, each of the eight Asylum Offices will receive approximately 500 copies of the pamphlet. While this initial distribution includes copies of the English language version of the pamphlet only, we are finalizing the translation of the pamphlet into each of the Asylum Division’s ten most commonly encountered languages for future distribution as well. The pamphlet, which is intended to serve as a practical resource for potential asylum applicants, contains an overview of the affirmative asylum program and a list of frequently asked questions about asylum eligibility and application procedures.

07/02/2008: USCIS Cap Count for H-1B and H-2B Workers for Fiscal Year 2009

07/01/2008: Foreign Labor Certification Prevailing Wage Online OES Wage Data Updated to 2008-2009 Data Effective July 1, 2008

• Beginning from July 1, 2008, the State Workforce Agencies or other wage determination sources must use the new wage data that was updated and released today on July 1, 2008. This wage data will remain effective through June 30, 2009. Those employers who file H-1B petitions using SOC/OES wage or PERM application using the SWA wage determination must meet the new prevailing wage as reflected in the new 2008-2009 wage data. It is somewhat striking that the SOC/OES was updated so quickly this year. In the past, there was some time lag in releasing the new wage data for the next year wage data for a period of one week or two weeks, and consequently the new data did not go into effect until the middle of July. Please visit the foreign labor certification wage data center web site for these changes. Those who search the OES Online Wage Library will notice the DOL advice that the wage data has been changed effective today.

07/01/2008: USCIS Answers Stakeholders Questions 06/24/2008

• This is the record of questions and answers in the USCIS-National Stakeholders Meeting which was held on June 24, 2008, which has just been released. The meeting touched on various issues including biometric problem for Re-Entry Permit Applications, Naturalization Test issues, etc. Read on.

07/01/2008: President Signs on 07/01/2008 H.R. 5690

• The President signed the H.R. 5690 bill today, which authorizes the Departments of State and Homeland Security to determine that provisions in the Immigration and Nationality Act that render aliens inadmissible due to terrorist or criminal activities would not apply with respect to activities undertaken in association with the African National Congress in opposition to apartheid rule in South Africa. For the press release, please click here.

07/01/2008: President Issues Certification of Rescission of North Korea's Designation as a State Sponsor of Terrorism Effective 06/26/2008

• This certification authorizes the agencies to publish the rescission in the federal register. It is unclear at this point whether this rescission will also affect the rule of restrictions that have been imposed on the nationals of the North Korea for visa applications and immigration proceedings. Please state tuned to this website for the development of this visa and immigration related development of this rescission of North Korea's designation as a state sponsor of terrorism by the Executive Order.

07/01/2008: USCIS Launches Online Status Checks of FOIA Requests

• USCIS reports that it receives more than 110,000 requests annually for access to immigration records. In order for the customers to have a quick and secure way to check the status of their Freedom of Information Act requests, they are launching the online status check services. For the announcement, please click here.

07/01/2008: Massive July 2007 Visa Bulletin EB-485 Filing and Anticipated Surge of EAD Renewal and Advance Parole Filings During July 2008

• We are approaching the first anniversary of July 2007 Visa Bulletin Employment-Based I-485 filing fiasco. Most of these fiasco cases were filed towards the end of July 2007 stretching out to August 16, 2007 for the qualified people. The statisctics reflect that there were approximately 300,000 I-485 filing during this time. People should remember that along with the I-485 filing, these applicants also filed the ancillary applications of EAD and Advance Parole, particularly by the late filers and these ancillary filings of EAD and AP surged tremendously particularly from late July through November 2007. People will also remember that once the USCIS decided to open up the July 2007 VB fiasco I-485 filing in the middle of July 2007, they took an action to process the EAD applications more or less expeditiously and as a consequence of such action, a large number of applicants starting receiving EAD as early as September and October 2007 and as late as November and December 2007.
• Because of the following reasons, it is anticipated that the USCIS may see a huge surge of EAD applications beginning from this month. Or even already late June 2008. (1) Currently, the USCIS does not allow to file EAD extension earlier than 120 days before the date of expiration of the EAD. (2) Because of the anticipated surge, a large number of these I-485 filers may file EAD extensiona particularly first part of July 2007 as it is anticipated that there may develop some backlogs in processing of EAD extension applications as affected by the flood of these extension applications that will pour into the system. (3) These extension applicants may also want to take advantage of two-year EAD extension by not only filing but obtaining approval of the EAD before the end of FY 2008 (09/30/2008) during when the EB-3 visa numbers may remain "unavailable" and they will be eligible for the two-year EAD. The State Department predicts as latest as the Vancouver AILA conference last week that the EB-3 might be continuously unavailable through the end of September 2008. As the FY 2009 starts on October 1, 2008, we will see a new visa number movement including EB-3 and those who file an EAD extension beginning from October may not be eligible for the two-year extension because of the visa number changes for some of the EB-3 applicants at least during the first quarter of FY 2009. (4) There was one time a policy in place during when the USCIS issued an extension of EAD valid retroactively to the date of expiration of the current EAD inasmuch as the extension was filed timely, but there is no such policy in place at this time. Since the EAD is issued valid from approval of the applications, some people may experience a crisis unless the renewed EAD is issued before the current EAD expires as they will have no employment authorization during the period of gap. For these reasons, the USCIS appears to take a position that the EAD renewal application should be filed no earlier than 120 days before the current EAD will expire but at the same time not too short period of time before their current EAD will expire. Indeed, they suggest that the EAD renewal be filed during the earlier stage of the 120-day window to assure that the EAD is issued before the current EAD expires and people do not experience a gap in the employment authorization. For the reasons, the USCIS leaders disclosed sometime ago that they had been considering removal of 120-day filing period restriction against the situation of potential backlogs in the EAD applications. Since then, there has been no such announcement from the USCIS and the current policy of 120-day cut-off date remains in place for the filing of EAD renewal application.
• For the foregoing reasons, these July 2007 VB fiaso filers may want to file EAD applications as early as possible inasmuch as they are within the 120-day window period of time before expiration of their current EAD. They should also remember that in order to receive a two-year EAD, they should enclose a proof of priority date to assist the agency to make a two-year EAD issuance. The July 2007 VB filers should also remember that they are required to pay the filing fee of $340 for the renewal unless they are the I-485 filers with a priority date later than the July 2007 VB fiasco period and paid one-time package fee of $1,020 with accompanying benefit of fee waiver for EAD and AP extension filing fees. They should also remember that we are approaching the nation's Independence Day holiday.

06/30/2008: H-2B Temporary Worker Petition First Half Annual Cap Count for FY 2009

• The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services. The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves(First Half cap of 33,000 allocated from October 1, and Second Half cap of 33,000 allocated from April 1.) For the FY 2009, the First Half cap petitions are available from 10/01/2008 and the Second Half cap petitions are available from 04/01/2009 since the USCIS regulations allow for filings 6 months in advance. However, H-2B petitioners first must obtain a temporary labor certification from the Department of Labor (DOL). DOL regulations stipulate that the application for temporary labor certification may not be filed more than 120 days (4 months) in advance of the need for the employee to ensure the accuracy of the labor market test. Thus, USCIS normally begins receiving the First Half cap petition with employment starting dates in October from June or July. For the FY 2009 First Half cap they have already started accepting the H-2B cap petitions in June 2008 as follows:
  • Total Cap: 33,000 (10/01/2008-03/31/2009) as of June 24, 2008
  • Cap Count as of 06/24/2008: Total 15,414 (out of 33,000)
    • Already Approved: 9,002
    • Received and Pending: 6,412
• Since almost 45% cap number have already been taken within less than a month, it is expected that the First Half Cap Numbers are expected to reach very fast. Once the First Half cap numbers are reached, the employers will not be able to file H-2B new petitions until June 2009 for the Second Half Cap Numbers of 33,000.

06/30/2008: Portability of I-140 Petition and Change of Employment Before and After the Recent Neufeld AC 21 Memorandum

• As we reported, it is not likely that the USCIS will be able to initiate and complete the rule-making process for the AC 21 regulation before December 31, 2008. To put it in more correct terms, the agency does not expect to see this regulation until after the new Administration moves into the White House next year. Accordingly, the immigrant community may witness more AC 21 memorandum being issued in the future to update the changing circumstances. The recently released so-called Neufeld AC AC 21 memoranum illustrates the point. As time passes, some issues develop because of the changes in related processings in and outside of the agency and because of some questions which were not answered in the previous memorandums and need some answers.
• The Neufeld Memorandum clarified the foregoing points with no room for misunderstanding about the purpose of the new memorandum. Accordingly, the memorandum confirms that the USCIS should not deny pending I-485 application "solely" because the alien changed employment to a qualified new or similar occupational classification before 180 days of filing of I-485 application and before I-140 petition was approved. However, it does not mean that such alien will be able to go into the open job market in free-hand any time before I-140 is approved and before 180 days are passed after filing of I-485 applications. The General Counsel of the USCIS, to the best recollection of this reporter, clarified certain conditions attached to such portability. (1) The I-140 petition must be "approvable" at the time of filing; (2) The I-140 petition "must" be adjudicated and approved no matter whether before or after 180 days of I-485 application filing; (3) If the I-140 petition is adjudicated after 180 days of I-485 application, the adjudicaor of the I-140 petition must assure herself or himself that "the petition would have been approved , had it been adjudicated within 180 days of I-485 application filing." In other words, unlike some confusion in the immigrant community, it is insufficient that the I-140 petition was approvable at the time of filing. The memorandums also have made it clear that the passage of 180 days from the date of I-485 application does not entitle the applicant to the benefits of AC 21 portability of unadjudicated I-140 petition. Even after 180 days, the I-140 petition must be adjudicated and approved before the adjudicator can adjudicate pending I-485 application. Additionally, simple withdrawal of the I-140 petition by the employer after 180 days should not itself deprive the alien of the eligibility for portability, but if it is revoked for the reasons of meritlessness or fraud or misrepresentation or error of facts, even if the petition was approved before 180 days of I-485 application, the portability should not be recognized and the pending I-485 application may be denied on the basis of the agency's revocation of the approved I-140 petition. When the adjudicator is required to adjudicate the I-140 petition after passage of I-485 applications, the official may have to question and find an answer as to whether he or she would have approved the petition if he or she had adjudicated the petition before the passage of 180 days of I-485 application based on the evidence. The Neufeld Memorandum is intended to clarify the USCIS position to follow the cited AAO precedent decision which refuted the advanced argument that simple passge of 180 days of I-485 filing should entitle the alien beneficiary of I-140 petition to the AC 21 portability regardless of the underlying I-140 petition was approable before 180 days of filing.
• We ask the readers to revisit the Neufeld memorandum in the context of the adopted AAO decision, prior Aytes AC 21 Memorandum and Yates AC 21 Memorandum, before jumping into the dead valley.

06/30/2008: Approaching the Fourth of July Long Holiday Week-End and Importance of Use of Valid I-765 EAD Application Form

• We are approaching the nation's most important Holiday, the Fourth of July Indenpendence Day, and people should be aware that certain old version EAD applications will expire and not acceptable after July 8, 2008. The only acceptable form will be the 05/27/08 version. The 04/08/08 and 07/30/07 editions will be accepted only until 07/08/2008. No previous editions accepted. Since the employment authorization without any interruption will be very important, one cannot make a mistake of filing an expired form and experience of rejection of filing after a period of time. Please take this notice as an important reminder. People may want to make it sure that they start using the new edition even now not to take any chances.

06/29/2008: Proposed H-2A and H-2B Temporary Labor Certification Application Form, Prevailing Wage Determination Form, Revised ETA 9089, and Proposed ETA 9035

• As we reported earlier, the DOL released a notice for these proposed forms. Readers will learn that in both the forthcoming new ETA 9089 PERM form and ETA 9142 for Temporary Employment Certification Application form, the agency requires a detailed information on the employer and the agent/attorney for the purpose of creating account system. Please review these forms:
  • ETA 9141 as modified on 06/26/2008: Job Offer and Required Wage Determination Request Form for PERM, H-1B, H-2B, and H-2A
  • ETA 9142 as modified on 06/26/2008: Application for Temporary Employment Certification Form for H-2B and H-2A
  • ETA 9089 as Modified (See the link at the bottom): New PERM Application form (March 2008 version)
  • ETA 9089 Instructions as Modified (See the link at the bottom): (March 2008 version)
  • AILA and Tindall law firm Comments of 04/29/2008 for final modification of the revised ETA 9089
• Please stay tuned to this website for the ETA 9035 revised form proposal.

06/29/2008: Immigration Benefits Application and Petitions Statistics as of the End of May 2008

06/29/2008: Naturalization Benefits Application Statistics as of the End of May 2008

06/28/2008: I-140 Backlog Dropped Below 140,000 Level at the End of May 2008

• The I-140 backlog remained above 140,000 for almost one year. However, the record as of the end of May 2008 reflects that it has improved showing for the first time the figure below 140,000. It has dropped to 136,231.
• I-485 backlog: 739,934
• EAD backlog: 194,913
• I-129 nonimmigrant petition backlog: 109,132
• N-400 Naturalization backlog: 816,540

06/28/2008: OFLC Update From Vancouver: Backlog Elimination Program and PERM Specialization Related Issues

• As readers should know it, the Backlog Elimination Centers in Philadelphia and Dallas and BEC programs have been closed since the end of September 2007. The unfinished cases, if any, have been taken over by the Chicago National Processing Center and the Office of Chief of Foreign Labor Certification in Washington, D.C. The left-over cases involve those waiting for the responses and reconsideration issues. The report indicates that there are ony 150 cases left in the Chicao NPC and only three cases in the OFLC Headquarter. It thus appears that the backlog reduction program is literally disappearing into a history.
• As for the PERM specialization program which turned the Chicago NPC into a temporary certification program center and Atlanta NPC into a permanent certification program center effective June 1, 2008, the transition in the Chicago NPC has been undertaken very smoothly and successfully without too much pains and aches. As of now, the left-over cases in Chicago NPC have been finished up other than 20 cases under audits and approximately 150 cases of motion to reconsider.
• In the employment-based immigrant community, there have been two concerns raised. One was increased backlog of PERM applications as affected by either the audit policy or resources allocation. The other was the processing delays in the Atlanta NPC. The following is the report of the OFLC in Vancouver:
  • Audits and Processing Backlog: The recent report of audits of PERM applications reaching over 46% has raised a serious concern in the community, as it entails the processing delays. Additionally, the recent decision of the OFLC to audit all the PERM applications filed by a largest immigration law firm in the country is likely to affect the processing times of the PERM cases in one way or another. However, the OFLC reports that the percentage of audit has dropped down into only three (3) out of ten (10) applications since their last written report. They predict that the rate might continuously drop. This optimistic report of the reduction of the audit, however, appears discounting the affect of their decision to audit of the law firm cases which could hundreds of cases.
  • Atlanta NPC Recent Processing Delays: There were some changes in processing jurisdictions for temporary certification applications beginning later part of 2007. Unlike permanent labor certification cases, the temporary labor certificatuion are "time-sensitive" or "time-driven" legal process with a quasi-deadline for adjudication under the rules. They are thus considered a priority case from the perspectives of the foreign labor certification managers. During this change, the Atlanta NPC was shut down for a period of time for the PERM program to exclusively handle these time-driven temporary applications causing a substantial processing backlogs and delays in the PERM applications. On the other hand, reportly the Chicago NPC PERM function remained opened rather than being shut down unlike the Atlanta NPC. Reportedly, this has created a wide discrepancy in processing times of PERM applications between the Chicago NPC and Atlanta NPC.
  • Atlanta PERM Spcialization Center: Now, temporary labor certification function has been removed from the Atlanta NPC to the Chicago NPC, allowing the Atlanta NPC to totally focus on the PERM applications. Additionally, increase in resources has been undertaken in a massive scale. Reportedly, the resources of the Atlanta have been doubled recently. The OFLC has been transfering the training the former Philadelphia and Dallas Center staff. They are also hiring and training new employees to deal with the changes. The increased resources and reduced rate of audits should help the agency to control backlogs, assuming that they are successful in reducing the audit numbers in the future.
• New Forms of PERM ETA 9089 and H-1B LCA ETA 9035 and "Account System" Development: These form changes have been initiated and are currently underway with the target starting date of January 1, 2009. The form changes are driven by the need for achievement of "integrity" in the certification programs and development of "account" system for management and operation of the foreign labor certification programs with enhanced technology integration phases. The revised ETA 9089 form, after going through the proposed and comment period and the OMB review process, hss been approved by the OMB on June 2, 2008 with all the changes incorporated in the current ETA 9089 form. The new form ETA 9089 will expire on June 30, 2011. On the front of H-1B LCA form ETA 9035, it is currently undergoing the OMB and comment process. The new form will add the request for information relating to the agency's "account" system program under the integrated and unified technical program that crosses between the PERM program and the temporary certification programs. The target date of implementation of the new form is again January 1, 2009. From the perspectives of the consumers of the revised ETA 9035, January 1, 2009 will mark as a turning point in the H-1B LCA processing time from a few second in online filing to about one-week processing time. The employers will thus have to adjust their temporary foreign worker recruitment schedules and plans to accomodate the processing times delays in LCA beginning from January 1, 2009.
• Proposed Centralization of Prevailing Wage Determination: As we reported earlier, the OFLC is proposing the nationalization or centralization of the prevailing wage determination function from the current state SWAs to the National Processing Centers in Chicago and Atlanta. It proposes that the centralization be undertaken in stages beginning from H-2A agricultural worker certification program and moving into PERM labor certification program probably in line with the new ETA 9089 form implementation. Since this proposal has to go through the proposed regulation rule-making process, it will take time before such change will be materialized. The nationalization or centralization of prevailing wage determination will produce winners and losers considering the current discrepancy in processing times of prevailing wage determination in different states.

06/28/2008: Some Clarification on USCIS Two-Year EAD Program

• The detailed have been noted in its announcement. However, there appears to be some confusion relating to certain issues. For instance, the decision of issuance of one-year or two-year validity EADs is not a process which requires applicant's any initiatives or requests. It remains the "sole" authority of the USCIS adjudicators based on their review of the specific individual applicant's file, facts, and circumstances from the perspectives of the standards which are laid out in its recent announcement. Accordingly, there is no action required on the part of the applicants other than submitting some additional evidence to help the adjudicators to make a decision. The USCIS Service Center Operation Director indicates that the adjudicators will check the Visa Bulletin at the time of "filing" of the EAD applications to initially determine the two-year period EAD. However, there may be some change in circumstances which the adjudicators should consider in making a decision on one-year or two-year EAD. It thus apepars that the applicants should not assume on his or her own whether he or she should get one-year or two-year valid EAD.
• The EAD applicants may start receiving the first two-year valid EAD cards from next week as the two-year cards are scheduled to be issued on or after June 30, 2008.
• The eligible applicants of EAD will recieve the two-year EAD cards regardless of their "fee-paid" or "fee-waived" applications. Depending on when the I-485 was or will be filed, some EAD applicants do not have to pay any filing fees for the EAD application or extension, while some EAD applicants may have to pay the fees everytime they file extension of EAD. Those who filed I-485 beginning from August 2007 paid or will pay one-packet filing fees of $1,020 which entitle them to receive EAD and AP extensions without additional filing fees for these ancilary applications, excepted those who submitted I-485 under the July 2007 Visa Bulletin fiasco period. All the latter applicants who paid separately EAD filing fees instead of one-packet fees of $1,020 will have to pay the EAD extension application fees. However, when it comes to the decision of one-year or two-year EAD, the USCIS will not distinguish between these two groups of I-485 filers and regardless of their status of EAD-fee waiver or EAD-fee required applicants, both of them will receive the same treatment by the USCIS.

06/28/2008: Closing of Other USCIS Overseas Field Offices and Opening of New Overseas Office

• The USCIS is currently planning reorganization of some "small" overseas field or district offices for the effective and efficient management and operation of its international customers. As previously announced, its office in Hong Kong will be closed. Other than closing of its offices in Tijuana, Mexico and Hong Kong, the USCIS is planning on the following changes which will be announced in its website as soon as the arrangments are complete.
  • Scheduled closing of office in Islamabad, Pakistan (?)
  • Scheduled addition of office in Amman, Jordan.
• For the announcement of the changes, please check with the USCIS announcements.

06/28/2008: Closing of USCIS Overseas Field Office in Tijuana, Mexico, and Instructions on Where to Submit Applications Previously Processed at the Office

• USCIS releases notice to revise its previous announcement on closing of this overseas office relating to the applications which had been previously processed at this overseas office. Depending on the specific type of applications, some will be submitted to its overseas office in Mexico City and others will have to be submitted to its overseas office in Ciudad Juarez. Those involved in the jurisdictional change should make a note of it. Read on.
  

06/27/2008: USCIS Update From Vancouver: Status of I-140 Premium Processing for Current Limited Cases and Expansion Plan

• The USCIS has been receiving smaller numbers than they anticipated. Each of the Service Centers (NSC and TSC) has been receiving approximately 15 to 20 cases only per day. Additionally 60% of the cases have been rejected for such reasons as 60-day H-1B six-year limit reaching issue, premium processing unavailable classification of the petitions, and failure to enclose a copy of the certified labor certification applications.
• The USCIS has been hiring and training staff to expand the I-140 processing services gradually. They will also closely look into the cases involving those who are in 7th year or 8th year H-1B but unable to extend beyond the time or those cases who have already reached six-year limit and changed the status to other nonimmigrant status. Please stay tuned.

06/27/2008: USCIS Update From Vancouver: FY-2009 H-1B Cap Processing Status

• The processing and adjudication have been moving along as scheduled. CSC has completed mailing out of rejection package and VSC is scheduled to complete the mail-out of the rejection packages by the end of next week. CSC and VSC are scheduled to complete most of the adjudications by the end of August 2008 such that all the selected cases be adjudicated by the end of FY 2008, September 30, 2008. As of now, the USCIS has either approved or rejected in 45,700 cases. As for the initial 500 cases of suspected duplicate filing, after the review, they determined that the suspect cases were between 250 cases to 300 cases, out of which they estimate that the truly rejectable duplicate cases may turn out to be approximately 130 cases.
• In order to abate the problems associated with the past lottery process, the USCIS is working on "pre-registration" program coming year.

06/27/2008: USCIS Update From Vancouver: USCIS Efforts Not to Waste FY 2008 EB Visa Numbers

• The USCIS is reportedly working closely with the State Department to monitor the visa number usages both in the U.S. and outside of the U.S. as well as the visa number consumption plan. Thus the USCIS is reportedly working on the I-140 and I-485 concurrently filed cases in the pipeline to get ready for the adjudication of I-485 applications as soon as visa number becomes available such that any waste of annual visa numbers be abated or minimized. They are very conscious of massive filing of I-485 applications during the period of 2007 VB fiasco.

06/27/2008: USCIS Update From Vancouver: Name-Check Backlog Reduction Plan

• The USCIS and FBI have been working hard to achieve the reduction of the name-check backlog. Under the plan, the name-check will be completed in 180 days by February 2009, and in 98% in 30 days and 2% in 90 days by June 2009.

06/27/2008: USCIS Update From Vancouver: Single EAD-AP Document Plan

• This plan is still in place but the USCIS is pushed ahead EAD related programs step-by-step. The USCIS has already launched two-year valid EAD. However, unlike EAD, in the reform of Advance Parole program, the USCBP is also involved since they will have to perform inspection function for the admission of the aliens. Accordingly, the USCIS has been working closely with the USCBP to work out the final plan. Once such coordination is completed, the USCIS intends to launch the single EAD document that can also be used as an Advance Parole travel document. It may take a little bit of time, but it is also a good news that the USCIS will launch this program in the future.

06/27/2008: USCIS Update From Vancouver: 245(k) Rule Making

• The 245(k) provides a provision that allows certain EB immigrants to file EB-485 applications even if they violated status or engaged in authorized employment for less than 180 days from the date of last admission to the U.S. This law has been implemented by the USCIS without the implementing rule. This rule making is likely initiated in the next one or two months. Please stay tuned.

06/27/2008: USCIS Update From Vancouver: Schedule of AC-21 Rule Making

• Again, this rule making remains a high priority, but because of the other priorities involved, it is not likely that this rule will be published and enacted this "calendar" year. Another good news for the time-being.

06/27/2008: USCIS Update From Vancouver: Schedule of Termination of I-140/EB-485 Concurrent Filing

• This rule-making plan remains still one of the top priorities because of the detected and potential frauds involved, but because of other priorities, it is unlikely that this rule-making will be published within this "calendar" year. In all likelihood, it will be published in the form of a proposed rule next year. Good news for the time being.

06/27/2008: USCIS Update From Vancouver: USCIS Corrects I-9 Form Validity Date

• USCIS posted in error that I-9 form other than 06/16/2008 version would not be acceptable. They corrected it. The I-9 form of 06/05/2007 version is still valid and any versions earlier than the version will not be acceptable. Employers, please make a note of it.

06/27/2008: BIA Ruled on Tuesday John's Single Act of Soliticing Prostitution on His Behalf Did not Constitute Inadmissibility

• Read Matter of Gonzalez-Zoquiapan, Interim Decision #3613 (BIA June 25, 2008).

06/27/2008: State Department Under Fire in Congress Wednesday for Improper Outsourcing of Visa Works in Mexico

• Report indicates that the State Department came under fire in Congress Wednesday for outsourcing visa processing work in Mexico to a contractor without an open competition. Read on.

06/27/2008: State Department Corrects Effective Date of Interim Final Rule of Au Paire Exchange Program Recently Published

• Effective date of this rule is not June 19, 2008 but July 21, 2008. Please make a note of it.

06/27/2008: USCIS Monthly Newletter for June 2008

06/27/2008: Notice of USCIS Site Outage Tomorrow

• USCIS Case Status Online system, Change of Address Online system, processing times, and field office/Application Support Center/Civil Surgeon locator will be unavailable due to system maintenance from 8:00 AM through 3:00 PM, Saturday, June 27, 2008.

06/26/2008: Automatic Cap-Gap OPT Extension and Employment Authorization and Availability of International Travel

• FY-2009 H-1B cap filers whose OPT F-1 authorized stay and employment authorization have recently been automatically extended under the new rule pending either adjudication or approval of H-1B petition which will take effect on or after October 1, 2008 have been facing a serious question as to whether they will be able to travel outside of the U.S. during the cap-gap period. The USCIS has made clear in the conference that it will not issue an EAD for these students, and with such EAD or extension of F-1 "status," the visa posts will not issue an extended F-1 visa when they leave the country. Additionally, the USCBP will also have a problem of admitting such OPT aliens with a valid F-1 visa in the passport. For these reasons, the three agencies (USCIS, USCBP, DOS) are strongly suggesting these OPTs not to travel outside of the U.S. during the extended cap-gap period not to encounter denial of their return to the U.S. Ouch!

06/26/2008: USCIS to Search, Collect, and Use Information From Commercial Online Database to Adjudicate Applications and Petitions

• The USCIS authority disclosed at the AILA Conference in Vancouver that beginning from about two months from now, the field offices will require less supporting documentation from the petitioners or applicants and instead use the information about the petitioners or applicants which are available and accessible to the public online to adjudicate the petitions or applications. The disclosure of this information initially gave an impression that it might be a good move to required from the petitioners and applications less amount of supplemental documentation with possibly less amount of RFE, but close analysis of the announcement raised a serious concern to the immigration lawyer community in the Conference. The serious concerns include, among others, (1) privacy of the information on the applicants and the petitioners; (2) suspect accuracy of the commercial online database without any mechanism for verification; and (3) ultra viras of the authority of the agency whose statutory authority is to "adjudicate" the immigration benefits petitions and adjudication "based on the evidence offered by the parties" rather than to search, investigate, and collect the privacy information" as a quasi-investigatory authority and adjudicate the petitions and applications based on such information which is not offered by the parties in the administrative proceedings under the Administrative Procedure Act but collected by the agency on its own. It is likely that the immigration lawyer community will continuously oppose every move of the agency and discourage the agency from taking such action. Otherwise, the agency may face challenges at many different levels, including political, legal, and administrative actions. Please stay tuned.

06/26/2008: PIMS and Unresolved Problem

• As we reported earlier, the current PIMS has a problem for the extension or change of status applicants in the application for visas at the visa posts. The agencies report here in Vancouver that the ultimate solution is the data-sharing between the USCIS and DOS/KCC for the EOS or COS files, but there is no such data-sharing arrangment available at this time. The current system requires the adjudicating Service Center to forward the original hard copy file to the KCC before the KCC can scan it into the PIMS system. However, from the perspectives of the USCIS, it involves the financial burden requiring additional resources to handle it as well as other expenses, not to mention their priorities. USCIS reports that they are doing as best as they can to forward the files to the KCC, but obviously people still see some time lag in such forwarding from the USCIS to the KCC. DOS reports that once the hard copy files are received, they are completing the scanning in two days. What is the answer then? People should file in every EOS or COS petitions "in duplicate" with the legible bold print requesting the Service Center to forward one set to the KCC expeditiously. It appears that other than this temporary arrangement, there is no immediate solution foreseen in the very near future.

06/26/2008: GAO Reports on Issue of Whether State Department Expects to Meet Projected Surge in Demand for Visas and Passports in Mexico

• The U.S. Mission in Mexico is the Department of State's largest consular operation. In fiscal year 2007, it processed 1.5 million of the 8 million nonimmigrant visas (NIV) State handled worldwide. According to State forecasts, as of April 2008, the U.S. Mission in Mexico's (Mission Mexico) NIV demand will peak at slightly over 3 million applications in fiscal year 2011, about twice the number from fiscal year 2007. State acknowledges there are uncertainties regarding the number of Border Crossing Card holders who will renew their cards and the number of first time NIV applicants, which may affect the accuracy of its forecasts. State will be revising the forecasts on a periodic basis as new data become available. Read on.
  

06/26/2008: Employers, Beware of I-9 Form Change Effective 06/16/2008!

• Without much publicity, the USCIS released revised I-9 form with the advice that this new form must be used by the employers. The new form brings the following changes:
  • Five documents have been removed from List A of the List of Acceptable Documents:
    Certificate of U.S. Citizenship (Form N-560 or N-561)
    Certificate of Naturalization (Form N-550 or N-570)
    Alien Registration Receipt Card (I-151)
    Unexpired Reentry Permit (Form I-327)
    Unexpired Refugee Travel Document (Form I-571)
  • One document was added to List A of the List of Acceptable Documents:
    Unexpired Employment Authorization Document (I-766)
  • All Employment Authorization Documents with photographs have been consolidated as one item on List A:
    I-688, I-688A, I-688B, I-766
  • Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify.
    Employers may now sign and retain Forms I-9 electronically. See instructions on page 2 of the Form I-9.
• See the new form.
  

06/26/2008: OFLC Notice of Proposed Elimination of Fax-Back Services of Labor Condition Application Certification

• OFLC has released its notice today that they are revising the current 9035 forms for H and E-3 nonimmigrant proceedings to remove the part relating to the fax back certification of the applications. The modifications are proposed to ETA Form 9035, 9035CP, and 9035E are primarily due to the elimination of the ``Fax Back'' system and converting exclusively to the electronic submission system except are in rare cases of physical disability that prevents use of a computer. All three forms needed to be updated to eliminate all reference to the ``Fax Back'' system and provide more clarity to the user of the form, thereby obtaining more accurate information for the Department to assist in more efficient and effective adjudication of the requested benefit. The information collected remains the same.
  

06/26/2008: Proposed Prevailing Wage Determination Request Form ETA 9141 for PERM and Nonimmigrant H Proceedings by National Processing Centers

• As we reported on 06/23/2008, OFLC will soon take over the prevailing wage determination from the state SWAs and the National Processing Centers will perform the determination of the prevailing wage for the permanent labor certification proceedings as well as temporary labor certification proceedings including H-2A, H-2B, etc. Once this is implemented, the employers will be required to file the form ETA 9141 to obtain the prevailing wage determination from the National Processing Center. The form was submitted to the OMB and obtained the approval of the proposal from the OMB on 05/30/2008. The employers and the immigration practitioners may familialize themselves with the form. Please review also justification statement.
• The form will be used for the wage determinations in H-2A proceeding initially, but will be expanded to other proceedings including PERM, H-1B, H-2B, etc. Another Form of ETA 9142 will be used initially for this purpose for prevailing wage determination request for H-2A and H-2B/ In the long run, the proposed centralization of the prevailing wage determination function may help the agency to achieve its future plan for the integrity of foreign labor certification programs and for coordination with other sister agency databases for detection of the frauds.

06/25/2008: AILA Annual National Conference in Vancouver, Canada 06/25/2008-06/29/2008

• People must have noticed that most of their legal counsels have not been available since Monday, 06/23/2008. They are traveling to attend the Conference. This is the biggest event in a year when the immigration law practitioners and their paralegals get together with the stakeholder government represenetatives and their colleagues from all over the world to discuss and share the issues in immigration and up date their knowledge in developing immigration laws, rules, policies, practice, and the perspectives in the year ahead.
• This reporter has been attending most of these annual conferences since 1984 and have been reporting the developing news onsite for almost a decade. Please stay tuned to this website.

06/24/2008: 29-Month OPT Rule Lawsuit Update

• Reportedly, the DHS filed answers to the complaints in court day before yesterday rebutting the arguments that the rule would hurt U.S. tech workers and it was a backdoor increase of H-1B workers. Read on.

06/23/2008: OFLC Proposes to Centralize PERM Prevailing Wage Determination Function at National Processing Center

• The OFLC is proposing to centralize the prevailing wage determination function at the National Processing Center removing the state agencies from the process by amendment of 20 CFR Section 656.40. Currently, the prevailing wage is determined by the State Workforce Agency (SWA) in each state. The deadline for comment to this proposed regulation is July 7, 2008. Read the proposed regulation.

06/23/2008: Visa Waiver Program Expansion and GAO Warning on Its Potential Impact on Consular Workloads

06/23/2008: PERM Application Statistics During First 8 Months of FY 2008 (10/01/2007-05/31/2008)

• Total Received: 61,800
• Total Completed During the Period:
  • Total Completed: 38,246
  • Certified: 28,773
  • Denied: 7,779
  • Withdrawn: 1,694
• Status of Total Pending Cases (30,600) as of 05/31/2008
  • Under Sponsorship Review: 3%
  • Under Audits: 44%
  • Under Final Review: 41%
  • On Appeal: 12%

06/23/2008: DOL H-1B Enforcement Agency Compliance Guidance

• This handy H-1B LCA compliance guidelines of ESA(Employment Standards Administration),the foreign labor certification and temporary labor certification enforcement arm of the DOL, will give employers sort of checklist for preparation and development of the internal compliance record evidence system in the area of H-1B. The human resources managers should go over this material and consult with their legal counsels.
• Information indciates that the DOL will publish the renengineered ETA 9035 form for H-1B LCA application early next month, July 2008. This revised form will focus on integrity of the H-1B LCA system and may provide that the LCA will be certified NOT INSTANTLY, but in one week. This regulation will be published with a 60-day comment period. More details are likely to be released during the AILA National Conference in Vancouver next week. Please stay tuned.

06/23/2008: USCIS Issues Fact Sheet on Iraqi Refugee Processing 06/23/2008

06/23/2008: USCIS Director's Comment on the Question of USCIS Processing Times 06/23/2008

• Mr. Scharfen has apparently received a number of questions on the processing times of various immigration and naturalization benefits application in response to his posting in the Leadership Journal of DHS. Regardless of whether he answered all the questions satisfactorily to those who had addressed the questions to him, we wholeheartedly welcome his today's comment in that the head of the agency was willing to communicate with the consumers and in that regard, it represents a step forward for the agency's responsiveness to the public in the immigration business management. Hats-off to Mr. Scharfen!

06/22/2008: What Triggers the DOL to Focus on Integrity as Primary Goal for Foreign Labor Certification Programs in FY 2008 and 2009?

• The report indicates that this new direction of the DOL's foreign labor certification programs has been dictated by the results of the investigations by the DOL's Office of Inspector General. The following summarized: the backbone of the current and future direction of the foreign labor certification:
• "CHALLENGE: Maintaining the Integrity of Foreign Labor Certification Programs....OIG audits have identified vulnerabilities in FLC programs, and our investigations, some of which have been initiated based on referrals from DOL's Employment and Training Administration (ETA), have identified fraud against these programs. The foreign labor certification process continues to be compromised by dishonest attorneys, labor brokers, and employers. For instance, a recent OIG case led to the conviction of a former owner of an information technology company. He was convicted for his role in fraudulently assisting hundreds of immigrant aliens to live and work illegally in the United States. This former business owner was sentenced to prison and ordered to forfeit $5.7 millions....The Department is challenged in maintaining the integrity of the FLC programs, while effectively reviewing employer requests for foreign workers. For instance, the Department must increase its detection of fraudulent labor applications during the certification process. FLC programs are one of the few legal avenues available for foreign workers who want to enter the U.S. on a temporary or permanent basis. This fact, combined with the large amounts of money that can be made by unscrupulous entities, continues to create strong incentives to commit fraud or abuse...Because the Department must certify that H-1B applications are accurate and complete within seven days, DOL has limited capacity to validate the information on the application, which presents a challenge to the program's integrity. Considering the large number of both Permanent and H-1B applications, it remains a challenge for the Department to avoid backlogs while maintaining the integrity of the FLC process...The Department has instituted measures to reduce fraud in its FLC programs. As a result of OIG investigations repeatedly demonstrating the need to eliminate the praactice of substituting a new foreign worker for the one originally named on a permanent labor certification application, the Department enacted the Fraud Rule which prohibited the practice of substitution. The Fraud Rule became effective on July 16, 2007. In addition, the OIG and ETA have been working collaboratively to identify and reduce fraud in the FLC process by immigration attorneys, employers, and others.

06/21/2008: Direction of Foreign Labor Certification Policy as Relected in FY 2009 (10/01/2008-09/30/2009) Congressional Budget Justification for Foreign Labor Certification

• This budget proposal reviews the past record and issues involving permanent and temporary labor certification program management of the U.S. Department of Labor (OFLC) and the proposed changes, goals and targets, and focus of the foreign labor certification programs, including fee-based system, integrity-intensified program mangement, and employer account system that crosses among various foreign labor certification programs at federal level (PERM, H-1B LCA, H-2A, H-2B, etc) and state level (SWA prevailing wage determination record) as well as the USCIS (i.e. H-1B, H-2A, H-2B, I-140 petitions) record system and State Department visa application system, all towards the deteection of frauds and achievement of integrity in the foreign labor certification programs. Indeed, FY 2009 is declared to be a year of integrity of the foreign labor certification program. This material presents overall picture of the past and future direction of the foreign labor certification program. This is a MUST-READ materials for large employers that handle large number of temporary and permanent labor certification applications, not to mention the immigration practitioners.
• Recent hit of a largest immigration law firm by the Department was often misinterpreted by some leading immigration practitioners without the knowledge of the changing overall policy and direction of the Department. In a way, such action represents a signal under the new direction of the foreign labor certification program and it is expected that the enforcement activities will be reinforced and intensified in the future. There is already a report that a DOL official made a site visit for the apparent purpose of H-1B labor condition application compliance investigation. Under the changing environment, the employers may be called upon to increase their resources for the task of "compliance system development" inhouse. CHANGE IS COMING, CHANGE IS COMING!

06/20/2008: PIMS, Confusing State of Employment-Based Nonimmigrant Visa Processing at Visa Posts, and Need for Reinstatement of Visa Revalidation Services

• The November 2007 Department of State cable to the visa posts indicates that the USCIS adjudication database of the I-129 extension or change of status of employment-based nonimmigrant status is accessible by the visa posts through the PIMS of the Kentucky Consular Center of the Department of State and the visa posts are not allowed to issue the visas until it is verified such. The USCIS released an advisory through the AILA that people should file the I-129 petition and entire supporting documentation in duplicate for the Service Centers to forward these files expeditiously to the KCC. Otherwise, those who need the consular visa application should file I-824 application to request forwarding of the USCIS adjudication files to the KCC so that the KCC can update its database.
• Currently there is a confusion on the procedure which such EOS or COS visa applicants should follow to obtain the visas at the visa posts without unexpected delays. It appears that at this point, USCIS adjudication database sharing is not fully in operation until the USCIS forward the adjudication data to the KCC. Since at some points, every nonimmigrant worker and their family members will have to travel outside of the U.S., the current state of processing of PIMS practically requires that all the employment-based nonimmigrant petitions may have to be filed in duplicate. From the perspectives of the visa applicants, the State Department should have waited the mandatory process of PIMS until the time when there would be available the complete sharing of the USCIS adjudicattion database for the extension or change of employment-based nonimmigrant petitions or alternatively until the time when the USCIS would amend the procedure mandating the filing of the petitions in duplicate in all the cases for their current or future consular visa applications. Absent such clear policy and practice in place, the foreign workers, their employers, and their family members are currently experiencing confusion and distress because of the lack of clear procedure to follow and fear of potential delays they may face at the visa posts outside the country.
• Had the State Department reinstated the visa revalidation program, the agency could have avoided all of the foregoing problem. We urge the Congress to pass the Senator Coleman's bill, S. 2653, which provides for the reinstatement of the State Department's visa revalidation services for the employment-based nonimmigrant workers within the United States. This legislation will at least remove the PIMS for the foreign workers who obtains "extension" of their visas in the U.S. based on the prior visa issuance in the passport. We want to repost our report of March 29, 2008 to remind the Congress of the need for this legislation.
  • Mr. President, today, along with my distinguished colleague from New Mexico, Senator Bingaman, I am introducing legislation to restore and enhance our Nation's competitiveness for international students, scholars, scientists, and exchange visitors, and better facilitate legitimate business travel to the U.S. In the immediate aftermath of the events of 9/11, it was necessary to take the steps we did to improve and enhance our Nation's security. But in the more than 6 years since 9/11, these well-intentioned changes have had unintended consequences, stifling legitimate academic and scientific exchange and international business travel, and tarnishing our Nation's image around the world. Three years ago, Senator Bingaman and I introduced a similar bill designed to reverse the decline in the number of foreign students studying at American colleges and universities. At that time, international applications to U.S. graduate schools and to English as a Second Language, ESL, programs were plummeting, and visa delays were numbering in the thousands. Visa delays were also negatively impacting the scientific and business communities, resulting in billions of dollars of losses for the U.S. economy, as scientific research, conferences, and business meetings had to be canceled and shifted to overseas locations. Over the past 3 years, there have been improvements with visa issuance, and it is the State Department's Bureau of Consular Affairs, particularly Assistant Secretary Maura Harty, who deserves much of the credit. I am pleased with their advancements to enhance consular staff; adopt newer, more efficient technology; offer international students, scholars, and exchange visitors preferential consideration when scheduling in-person interview appointments; and extend security clearance validity. The Department also has established a business visa center to field inquiries from U.S. businesses and their worldwide counterparts, although the center cannot expedite in-person interview appointments or the processing of visa applications. This is not to say that visa delays have disappeared entirely. Delays do continue to occur, albeit not at the huge volume they once were. Because of this, there is a lot of lingering uncertainty about the process which generates a great deal of concern for international students, scholars, exchange visitors, and business travelers, and reinforces a perception that America is not a welcoming place for international visitors. Indeed, serious concerns remain regarding the U.S. position in the competition for international talent, particularly among higher education, the scientific community, and the private sector. Our competitiveness problem is not just a visa problem--we cannot solve it simply by fixing the visa problems that were created after 9/11. The U.S. now faces strong competition for international students, scholars, scientists, and exchange visitors. The United Kingdom, Australia, New Zealand, and the European Union all have coordinated, government-led strategic plans in place for attracting international students and scholars to their colleges and universities. Even our neighbor to the north, Canada, plans to announce a strategic plan this year. Meanwhile, traditional sending countries such as China and India are expanding their own higher education offerings, both to retain more of their own students and to attract international students. In the face of this competition, the U.S. still struggles along with piecemeal efforts, with each positive action seemingly cancelled out by a negative action and persistent negative perceptions. The results are worrisome. While international student enrollment in the U.S. declined in both the 2003-2004 and 2004-2005 academic years, and remained stagnant in 2005-2006, over the same period, enrollment in the United Kingdom jumped more than 80,000, in Australia and France more than 50,000, and in Germany and Japan more than 20,000. In 2006, then-U.K. Prime Minister Tony Blair announced a goal of attracting an additional 100,000 international students to Great Britain in the next 5 years. Although we have started to see the enrollment numbers tick upwards slightly just this past year--in Minnesota, 9,048 international students were studying at colleges and universities last academic year, contributing $186.4 million to the state's economy--it is still below the peak level of 9,143 achieved in 2003-2004, so there is still ground to make up for what was lost over the past 3 years to ensure we regain our place as the most desired destination for study and for research. Even if we return to pre-9/11 numbers, we may find we have lost market share to competing nations. Why should this matter to the U.S.? Recent public opinion polls taken around the world show that the U.S. has fallen out of favor. But these same polls also show that foreigners who have personally visited the U.S. have a significantly more favorable opinion than those who have never visited. International students and scholars benefit greatly from their experiences in the U.S., not only from their studies and research, but also from living in daily American life. They carry these experiences home, often becoming ambassadors of goodwill and understanding. Many go on to achieve leadership positions in their home countries in government, business, or education. These exchanges also benefit American students, researchers and business colleagues, who similarly have the opportunity to learn about another culture in this globalized world. Two expert commissions recently issued recommendations citing international educational exchange as a critical form of public diplomacy outreach. Last November, the Center for Strategic and International Studies' Commission on Smart Power cited international educational exchange as a key element for improving America's declining standing and influence in the world. Just last month, the Secure Borders and Open Doors Advisory Committee, a federal advisory committee tasked by the Departments of Homeland Security and State to provide recommendations on the Departments' missions to protect not only America's security but also our economic livelihood, ideals, image, and strategic relationships with the world, cited the need for a proactive national strategy to mobilize all the tools and assets at our disposal to attract international students and scholars to the U.S. International students and scholars are not only important for public diplomacy, they also are essential for our Nation's global competitiveness. They make significant contributions to our economic growth and innovation. According to recent National Science Board data, nearly half of all graduate enrollments at U.S. colleges and universities in the science and engineering fields are international students. And these students often go on to positively impact future research and technology output in this country. I strongly support efforts to build up America's own supply of science and technology talent, but we also must continue to actively attract international talent to our shores if we are to retain our innovative edge. It is a reality of our time that, at the high-skill level, the temporary immigration system has become a conveyor belt of talent into the permanent immigration system. Most foreign students do want to go home after graduation, but some want to stay and use the knowledge they have acquired at our universities. For example, Ms. Indra Nooyi, the current CEO of PepsiCo, the world's fourth largest food and beverage company, is herself a former international student who received her master's degree from Yale University's School of Management. So it is for all these important reasons that Senator Bingaman and I once again introduce legislation on this important issue: The American Competitiveness Through International Openness Now, ACTION, Act of 2008. This year's bill once again calls for the establishment of a strategic plan for increasing the competitiveness of the U.S. in recruiting international students, scholars and exchange visitors. The U.S. can no longer sit back and rest on its laurels when engaging in this global competition, especially when all of our competitors clearly have stepped up their game. Our biggest problem is our inability to marshal the efforts of all the relevant agencies into one coherent effort. Too often, these agencies work in an uncoordinated manner, or worse, at cross purposes. The PR blunder cases, where one arm of our government sets up exchange programs to attract people and another arm of the government detains them at the border, is only the tip of the iceberg. Our legislation would create a White House-chaired International Education Coordinating Council to guide the work of the myriad agencies that affect our competitiveness for international students and exchange visitors. One of the most important provisions in the legislation would remove the nonimmigrant intent requirement for international students, the so-called 214(b) rule. This outdated requirement that all applicants for student visas must intend to return home after their studies makes no sense, especially when talent-starved high-tech industries actively court international students upon graduation. As I stated earlier, our ability to attract international talent is essential to sustaining our competitive edge in the world. Retaining such a requirement is simply out of step in this day and age, especially when most of our competitors are going out of their way to enact policies to make it easier for international students to stay after graduation. The bill calls for further improvement in the timeliness and efficiency of the visa issuance process for those in the sciences. It directs the Secretary of State to issue guidance to reduce the length of time to issue visas to scientists to a maximum of 30 days, and to provide a special review process for those cases that are delayed more than 45 days. It also directs the Secretary of State to review and update the Technology Alert List on a regular basis, and to consult with academia and the private sector as part of this review, to ensure the list reflects the current state of technology. It also calls for expediting visa reviews for so-called ``Trusted Travelers'': easily identifiable, low-risk frequent travelers who have a history of past visa approvals, haven't violated their immigration status, and have provided their biometric data, plus any additional information required, to the consulate. This would both ease travel for these individuals and permit consular resources to be focused on more important cases. There is also a provision to also allow expedited visa reviews for international students, scholars and exchange visitors who leave the United States temporarily to visit their families or attend conferences and require a new visa to return to the same program. Today, these people can be stranded abroad for months without being able to return to their programs. The legislation calls for the reinstatement of domestic or stateside visa renewals for those here on employment-based non-immigrant visas. This practice was discontinued in 2004, because U.S. consulates abroad were better equipped to collect the required biometric data from the renewal applicant. Given today's available technology, we should seek to reinstate this practice. This would help to alleviate the volume of renewal applicants at our overseas consulates, as well as help renewal applicants who often opt to forgo travel overseas due to the uncertainty of timely and efficient processing of their renewal applications. Finally, there has been much public debate about driver's licenses and Real ID. In our well-intentioned efforts to ensure that only persons in the U.S. legally are able to acquire driver's licenses, we have unintentionally hamstrung the ability of legal nonimmigrants to have licenses. Real ID's unrealistic documentation and renewal requirements for international students and scholars send yet another negative signal about America's openness to them, and frankly ignore technical advances which could provide both better assurances about a person's legal status and licenses of a longer validity. Our bill will correct this problem in a way that will strengthen, not weaken, the integrity of driver's licenses. For all of these reasons, our legislation is endorsed by NAFSA: Association of International Educators, the world's largest professional association advocating for international education and exchange programs, by the National Foreign Trade Council, the Nation's premier business organization dedicated to advancing global commerce, and by USA Engage, a leading broad-based coalition of trade associations promoting global economic engagement. The American way of life owes its success and vitality to its historic ability to harness the best in knowledge and ideas, not only those that are homegrown, but also those that come from outside our borders. The longer we wait to take action, the more we risk missing out on future U.S. academic, business, and research success.

06/19/2008: NBC Centralization of Naturalization Processing and Schedules of Internal Transfers of Pending Applications from Other Service Centers to NBC

• According to the AILA-NBC liaison minutes, the N-400 applications in other four Service Centers will be moved to the NBC in the following schedules:
  • TSC to NBC: All cases which were received by TSC after 06/06/2008 without any filing flaws are being moved to NBC during June 2008.
  • CSC to NBC: All cases which were received by CSC after certain date in July 2008 without any filing flaws will be moved to NBC during July 2008. The specific cut off date has yet to be announced.
  • NSC to NBC: All cases which were received by NSC after certain date in August 2008 without any filing flaws will be moved to NBC during August 2008. The specific cut off date has yet to be announced.
  • VSC to NBC: All cases which were received by VSC after certain date in September 2008 without any filing flaws will be moved to NBC during September 2008.
  • All cases which were received prior to the foregoing cut-off dates for each of the four Service Centers will continuously be processed by the specific Service Center unless a different decision is made in the future.
• The cases which are processed by the "five" Service Centers (NBC,, TSC, CSC, NSC, and VSC) will be eventually sent to the local field offices for the final adjudication including interviews.

06/19/2008: USCIS Revised Medical Examination Form I-693

• The USCIS revised the medical form on June 5, 2008 and announces that the I-693 form earlier than 06/05/2008 will be acceptable only until July 14, 2008. Read on.

06/18/2008: USCIS Announces Permanent Closing of Its Overseas Field Office in Hong Kong Effective 08/29/2008.

• Again, this announcement is not for the American consular services in Hong Kong. It is the USCIS overseas field operation located in Hong Kong.

06/18/2008: USCIS Announces Permanent Closing of Its Overseas Field Office in Tijuana, Mexico Effective 07/03/2008

• This announcement is not for the American consulate in Tijuana. It is the USCIS overseas field operation located in Tijuana, Mexico. The impact of closing of an USCIS overseas operation is more or less limited in that the services that are offered by the overseas offices are limited to certain group of people who are narrowly defined, such as petitioners with residence in the country, etc.

06/18/2008: June 15, 2008 USCIS Processing Dates

• Now TSC shows July 17, 2007 for the EB-485 processing times! I-140 is still crawling and remains still in snail pace in both Centers.
• For FY 2009 H-1B cap cases, VSC is 04/10/2008 and CSC is 04/16/2008. Since these cases had not been selected until 04/14/2008, not to mention of receipting, VSC may still have to adjudicate and approve these cases, while CSC has already started adjudicating and approving some of these cases as we reported a few days ago. We have been receiving the approval notices from the CSC.

06/18/2008: Bulgaria Added to List of Visa Waiver Program Expansion Candidate

• Remarks by the two-country represenatives.

06/17/2008: Enormous Challenge Millions of Employees of Federal Contractors and Subcontractors Face in E-Verify Program

• Report indicates that federal contractors will be required to vet nearly 4 million current and future employees through E-Verify database to verify their legal working status once the pending proposed rule is enacted. Under the President's executive order of 06/09/2008, federal contractors must agree to use E-Verify as a condition of all future federal contracts. The program is currently voluntary for private sector companies but mandatory for federal agencies, applicable to all future contract employees as well as existing employees once they begin working on new contracts. The rule also applies to federal subcontractors.
• Reportedly, in its initial year, the government expects nearly 170,000 contractors and subcontractors will enroll in the system, verifying the status of roughly 3.8 million employees, costing contractors more than $100 million in the first year and between $550 million and nearly $670 million during the next 10 years. The rule exempts employees working on contracts performed outside of the United States, those hired before Nov. 6, 1986, contracts valued at less than $3,000, and subcontracts for materials only for commercially available products.
• About 6 % of employees vetted through E-Verify receive a tentative nonconfirmation letter requiring further action, and reportedly SSA's inspector general found that the database had an error rate of 4.1 percent., which has come down to 0.5%, according to the DHS Secretary. Companies that do not terminate the employment of nonverified workers face a fine of $500 to $1,000, the rule states. Read on.
  

06/16/2008: Prelimilary Approval of Settlment by the Court in Norwest Immigrant Rights (aka LEAP) Legalization Class Action Lawsuit

• The USCIS has just announced that on June 2, 2008, the court signed the order of preliminary approval of the class action settlement. This settlement will open an opportuntiy to certain class of illegal aliens present in the U.S. before January 1, 1982 for amnesty legalization under the legal proceeding of 1986. Read on.

06/15/2008: Midwest Flood Disaster and Needs for DOL and USCIS to Extend Emergency Relief as Demonstrated in Katrina Hurricane and California Fires

• Whenever either man-made or mother-nature induced disaster develops, there are always victims who are not in the center of attention and publicity and in that regard, remain invisible. They arre foreigners or immigrants, whatever one may want to call them. The 9/11 World Trade Center terrorist attack in New York City, and devastating Katrina Hurricane in New Orleans, and fires in California last year illustrate the situation. For the obvious reasons, the nation and the involved communities focus on the rescue and financial relief for the victims. However, when it comes to the foreigners, there are additional sufferings involved from such disaster, which can be even more disastrous than the financial loss. It is destruction and loss of documents and evidence that are related to the immigration proceedings.
• The DHS, DOL, DOS, and other government agencies have eventually extended their helping hands to these immigrant victims in many different ways, including but not limited to rescheduling of the filing deadlines or interviews and relief for missing or lost documents or evidence, and extension of legal deadlines, etc. Unlike the East Coast or the West Coast or the South, the Midwest is not a center of immigrants. Consequently, from the standpoint of the stakeholder federal agencies, the natural disaster may not present a mammothe scale of problems relating to the immigrants' legal proceedings. However, from the standpoint of the immigrants involved, there are less resources availble for the assistance in the community and in the areas. Under the circumstances, we commend the USCIS for their announcement that their field office in Des Moines was closed due to the weather and would accomodate the immigrants in the area rescheduling appointments. However, the USCIS action should go beyond the rescheduling of appointments and extend the other immigration relief that were extended in the Katrina and California incidents. People see on the TV the city of Cedar Rapids, the second largest city in Iowa, is in the water. Practically important population centers other than Cedar Rapids are also suffering from the diastrous flood, such as the capital city of Des Moines and education center of Iowa City, etc. The urban centers tend to have more immigrant residents than rural farm areas. We urge that the USCIS announces that the agency will extend similar relief to these immigrant victims in terms of the missing or lost documents for their immigration proceedings as well as extension of various deadlines for filing immigration papers. The same action should be taken by other agencies including the Department of Labor, Social Security Administration, etc. We want to remind the agencies once again that there are less helping resources available for the immigrants in the communities in area.

06/15/2008: Receiving First Thick Manila Envelope of FY 2009 H-1B Cap Rejection from California Service Center

• We have just recieved the first rejection envelope in the U.S. mail. Again, the USCIS was mailing out the rejection envelopes just as they had initially estimated and planned. From the perspectives of the petitioners and the alien beneficiaries, it is a relief in that they do not have to hang on with any last glimmer of hope and they can move on with the next step action including extension of their student status or change of status to other nonimmigrant classification. Unfortunately, the rejection notice suspends the cap gap OPT and Employment Authorization Extension for the OPT students. However, they are given 60 days of grace period for a lawful stay in the U.S. without employment authorization, during when they can apply for extension of student status or change of status to other nonimmigrant status. Come to think of over 80,000 rejection envelopes that will be delivered to the doors of the employers during the next six weeks or so. What about the waste of government expense to mail out the heavy and thick envelopes! It is indeed a travesty.
• The report indicates that when the USCIS completed mailing out receipt notices, there were about 500 cases which appeared to be duplicate filings. Since some of the duplicate filing were submitted in good cause and not necessarily rejectable, the agency was closely reviewing these cases before they would decide to either accept or reject them. Accordingly, there may be a few filers who had sent in the filings in duplicate for whatever reasons and may receive neither receipt notice or rejection in the mail for a while. Uneasiness will continue with them not knowing the fate of their cases.

06/14/2008: Disappointment With I-140 PPS and 2-Year EAD Announcements

• It has been a while since the USCIS has been struggling with the growing backlogs in I-140 petitions and I-485 applications. The source of the backlog might not necessarily have been limited to the July 2007 Visa Bulletin fiasco. When the rumors started running around in the business and immigrant communities that these two relief would be forthcoming, their hopes and expectations ran sky high. However, this week's announcements of limited I-140 PPS and two-year EAD only for visa number retrogressed I-485 filers have disappointed the consumers tremendously destroying their long-conceived dreams and hopes. The scope of the limited I-140 premium processing services is so narrow that only a very limited number of I-140 petitioners are expected to benefit from the reinstatement of I-140 PPS. Besides, the decision also involves a failure to keep a balance in terms of the fairness between the interest of earlier starters of the labor certification process and the later starter of the labor certification process. After all, there are more than 145,000 backlogs in I-140 petition pipeline at this time! As for the two-year EAD initiatives, maybe the disappointment stems from a sort of greediness in that most of the I-485 waiters are suffering from the visa number retrogression and there should be no disappointment with the announcement. However, we cannot ignore other group of I-485 waiters who have been suffering not from the visa number retrogresstion but from the processing delays including the FBI name check backlogs and the USCIS processing backlogs, particularly relating to the July 2007 Visa Bulletin fiasco. There was a report that the I-485 Visa Bulletin fiasco cases may take even upto three years to clear out of the USCIS EB-485 processing pipelines. Some of these filers will not only suffer delays from the visa number retrogression, but also from the processing delays associated with the agency's limited resources and workloads. This website hoped that the agency would give identical benefits to the latter group as well when processing took or would take one year or longer.
• We fully understand that the USCIS had to reinstate I-140 PPS at a manageable level within 15-day processing legal requirement and could not open the floodgate of workload for EAD under the constraint of their limited resources. Additionally, some is better than nothing. In a way, this comment can be taken as a luxury. We just hope that the agency expands these new services gradually as soon as possible.

06/13/2008: OFLC Issues 06/13/2008 PERM Guidance on Permissible Attorney or Agent Involvement in PERM Recruitment Process

• As everyone knows by now, one of the largest immigration lawfirms is subject to audits of all the PERM applications which are represented by the law firm. Allegedly, the decision is made on the agency's interpretation of laws on the permissible scope of legal representative's role in development of the PERM recruitment and applications. This has raised a serious controversy relating to the employer's right to legal counsel in the PERM application process and the PERM regulation that prohibits the attorney's interviewing the U.S. worker applicants in response to the recruitment.
• Today, the Office of Foreign Labor Certification issued this special guidance to clarify its position on this issue. The important part of this Guidance includes the following:
  • By prohibiting attorneys, agents, and foreign workers from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. 656.10 (b)(2)(i) and (ii), the Department does not thereby prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer, and not the attorney or agent, must determine whether a U.S. applicant’s credentials meet the minimum qualifications for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. After an employer evaluates a U.S. worker and concludes that the worker is unqualified, the employer may seek the advice of its attorney or agent to ensure that its reasons for rejecting the U.S. worker are lawful, and the attorney or agent may review the qualifications of the U.S. worker to the extent necessary to provide that advice. By contrast, if an employer evaluates a U.S. worker and determines that the worker is minimally qualified, the attorney, agent, or foreign worker may not thereafter consider the applicants’ qualifications and attempt to substitute his or her own judgment for that of
    the employer. In the Department’s view, an employer’s determination that a U.S. worker is minimally qualified for a position constitutes clear evidence that there are U.S. workers who are able, willing, qualified and available for the work to be undertaken.
    More specifically, the types of actions prohibited by 20 C.F.R. 656.10(b)(2)(i) and (ii) include:
    • Attorneys and agents may receive resumes and applications from U.S. workers who respond to the employer's recruitment efforts; however, they may not conduct any preliminary screening of applications before the employer does so, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. The attorney or agent may not withhold from the employer any resumes or applications that it receives from U.S. workers.
    • Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. Such involvement, because of its uniqueness, has resulted in an impermissible “chilling effect” on the interests of U.S. worker-applicants in the position.
    • After the evaluation of applications by the employer has been completed, the employer may consult with its attorney or agent about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question.
• Employers and immigration practitioners should familiarize themselves with this Guidance not to face adverse action by the OFLC in the PERM applications.

06/13/2008: Unresolved Disagreement With Hispanic Legislators for Highly Skilled Foreign Worker Immigration Legislations

• A number of businesses and immigrants watched webcast hearing of the House Judiciary Immigration Subcommittee hearing yesterday that is related to the Rep. Zoe Lofgren's trio piecemeal employment-based immigration relief bills. The testinomies of the witnesses demonstrated a strong support of these bills by the high tech community. At the same time, the hearing revealed a continued resistance from the Hispanic supporting legislators who support the relief for the farm workers foreign workers and comprehensive immigration reform legislation, making the fate of these bills uncertain, according to the ComputerWorld report. There was also a resentment expressed by one of the legislators to the elitist mentality underlying these highly skilled foreign worker employment-based immigration bills. One wonders where these two conflicting communities can find a common ground where they can work out a compromise. It thus appears that the situation requires a very high-level of skills of negotiation and compromise for a successful resolution.

06/13/2008: USCIS Announces 2-Year EAD Issuance Beginning From 06/30/2008

• USCIS releases announcement that beginning from June 30, 2008, the agency will issue two-year EAD to certain I-485 filers who experiences visa retrogression based on most recent Visa Bulletin. The 2-year EAD will be issued only to those whose I-485 is pending with retrogressed visa number as of June 30, 2008. Those who file a new I-485 with EAD application will be issued only one-year valid EAD and not two-year valid EAD because the applicants are filing I-485 based on the available visa number in the Visa Bulletin. This raises an interesting question: What happens to those who file I-485 applications before June 30, 2008 when their visa numbers are available under June Visa Bulletin, but files EAD application in July 2008 based on the July 2008 Visa Bulletin when the visa number will be retrogressed, particularly EB-3 applicants. We do not see why they should not be eligible for the 2-year EAD.
  • Announcement
  • Fact Sheet
• Good!

06/13/2008: Questions on Eligibility for Two-Year EAD for 485 Applicants

• People will remember that the USCIS has already changed its EAD regulation allowing the USCIS to issue an EAD for more than one year. However, implementation of this revised rule has been deferred or delayed until now. Accordingly, the USCIS can start issuing the two-year EAD without a separate rule-making process, even though the USCIS may release an announcement as to the eligibility of such EAD.
• The DHS Secretary announcement reflects that the two-year EAD is expected to be issued to those 485 applicants "if their 485 applications are expected to be pending for more than a year." The question remains how they would determine it. Among others, two questions may be relevant here. The first question is the point of time of determination of "expected to be pending more than a year." The second question involves the basis of the determination of "pending more than a year." As for the first questions, there can be two different points of time: At the time of "filing" of I-765 application or at the time of "adjudication" of I-765. Since it is the USCIS that will determine whether to issue one-year or two-year EAD based on these standards rather than at the request of the applicants, the agency is likely to determine the eligibility of two-year EAD based on the situation at the time of filing or at the time of adjudication. Generally, the USCIS has been adopting "filing date" rather than "adjudication date" for similar situations. We hope that the agency takes a similar practice in the two-year EAD eligibility determination point of time. As for the second question, the basis of determination of "expected one-year pending" can come from the visa number retrogression in the Visa Bulletin or the agency's backlogs in I-485 processing. We suggest that the agency considers both of these criteria, and issues the two-year EAD to the I-485 filers or waiters whose priority dates are "not current or not available" in the Visa Bulletin or whose filing date (Receipt Date) of I-485 application is estimated to take longer than one year from the standpoint of the agency's estimate processing time of I-485 or the situation as reflected in its monthly processing time reports.
• Please stay tuned to this website for the anticipated announcement of the USCIS.

06/12/2008: FY 2009 H-1B Cap Processing Update

• The USCIS has kept its origital schedule to mail out receipt notices for selected cases before June 2, 2008. According to the AILA, they indeed completed mailing out of the receipt notices on May 24, 2008. They started returning the loser cases beginning from this week. One bad news is that there will be no "reserve pool" this year as they determined that the initially selected cases meet this year's cap without the reserve.

06/12/2008: Text of Testimonies of Witnesses Before House Judiciary Immigration Subcommitte Hearing on Need for Green Cards for Highly Skilled Worker

06/12/2008: Thresholds of I-140 Premium Processing Services

• Without going into the details, we would like to outline the step-by-step determination of one's eligibility for the I-140 PPS under the just released USCIS announcement. Through this analysis, people will learn that this limited PPS is to assist those H-1B foreign workers who started the green card process at the last minute and face H-1B 6-year limited within 60 days because I-140 petition has either yet to be filed or filed but pending. For instance, those H-1Bs who will receive PERM application approval from hereon which they filed only a few months back and will face the H-1B 6-year limit soon will be the most typical beneficiaries of this PPS initiatives. All those who are in 7th year, 8th year, 9th year H-1B are thrown out because they are still eligible for one-year increment H-1B extension beyond the 6-year limit. For these reasons, the number of people who will benefit from this I-140 PPS may turn out to be fairly small or limited.
  • Are you in H-1B status now? If no, you are out. For instance, if you traveled on Advance Parole and have not reinstated to a H-1B status, you may not be eligible for the I-140 PPS.
  • Are you considering filing of EB-1C Multinational Corporate Executive/Manager I-140 petition or EB-2 National Interest Waiver Petition? Such I-140 is not eligible for the PPS.
  • Is your priority date earlier than 365 days before reaching your H-1B six-year limit? You are eligible for the one-year increment H-1B extension under a different section of AC 21, Section 106(a) and you are not eligible for the PPS now.
  • Were you in L-1 visa status and changed to H-1B and you filed the labor certification at least 365 days before you reached 5 years combining H-1B time and L-1 time? You may not be eligible for the PPS as for the purpose of determination of H-1B six-year limit, the time in L-1 status is counted as part of the H-1B maximum limit. You are not eligible because you will be eligible for one-year increment H-1B extension under AC 21 Section 106(a).
  • If you meet the H-1B status requirement and ineligibility for one-year H-1B extension under Section 106(a), but have more than 60 days remaining to reach your H-1B six-year limit, you are not eligible for PPS at this time. You will have to wait until the time when you reach H-1B six-year limit in 60 days to file the PPS. Caveat, though. If such waiting will make you eligible for 106(a) one-year increment H-1B extension, you will not be eligible for the PPS.
  • If you meet all of the foregoing requirement, you can file I-140 petition along with the PPS (I-907). If your I-140 petition has been pending, you can file I-907 requesting PPS for the pending I-140 petition.
• Please pay attention to the USCIS requirement for three types of documents:
  • Current I-94: To prove the H-1B status
  • All the previous I-94 and I-797 H-1 and L-1 approval notices: To determine the total H-1B time in the U.S., probably excluding the time outside of the U.S.
  • Labor certification approval letter of DOL: To determine the priority date (filing date of the labor certification application) to calculate 365 days relating to the H-1B six-year limit.

06/11/2008: Here We Go! USCIS Announces I-140 PPS Services from 06/16/2008, Next Monday

• USCIS has announced that they are resuming premium processing services beginning from next Monday only for those who cannot apply for the extension of H-1B unless 104(c) three-year increment extension petition is filed with the approval of the I-140 petition. The starting date is not July 16, but June 16, 2008. For the details, please read the following:
  • Announcement
  • Fact Sheet
• Please make it sure that the filers follow the procedures, documentation requirement, and other instructions which are elaborated in these documents carefully.

06/11/2008: Did You All Get Relieved Sufficiently Yesterday?

• Yesterday should mark as one of the unusual days that had thrashed out the four most awaited information to the immigrant community in a single day, either for good or bad: (1) July 2008 Visa Bulletin; (2) FY 2009 Immigration Lottery Results; (3) Two-Year EAD for I-485 Announcement; and (4) I-140 Premium Processing Reinstatement for 104(c) H-1B Beneficiaries. These four questions had choked up the immigrants for a while until yesterday. What an exciting day it was!
• Now, we need the details. We hope that the USCIS releases the official announcements and the details as soon as possible. Please stay tuned to this website for the upcoming USCIS announcements.
• The Administration has done their share of work for some of the administrative fixes. Now, it is the Congress' turn to show their shares of work for the legislative fixes for the nation's businesses and their international competitiveness. We anxiously look forward to the actions of the both Houses for the LOFGREN "TRIO" employment-based immigration legislation before the summer is over. These legislations should give the foreign workers more than a "icy cooler beer" relief from the steamy hot summer!! Let's first watch tomorrow's House Judiciary Immigration Subcommittee hearing that is related to these trio legislations.

06/10/2008: I-140 Premium Processing Reportedly Reinstated 06/16/2008 for Certain Limited Situation That Need 104(c) H-1B Extension

• AILA has reported that USCIS will resume I-140 PPS in limited circumstances. According to the report PPS should be available for those beneficiaries whose H will expire within 60 days of filing the request, and who need the I-140 approval to become eligible for that additional H time. Please stay tuned for the official notice of the USCIS.

06/10/2008: Planned Reinstatement of "Questions and Discussions" Session on Our Site

• During the last one year, there have evolved a number of developments in the laws, policies, and practices of the government agencies that affect the immigrants, particularly the employment-based foreign workers. Additionally, the economy is witnessing a real downturn that growingly produces layoffs, pushing up higher unemployment rate. Without doubt, more and more foreign workers are likely to lose the jobs in the next several months.
• Under the given environment, the foreign workers may have to learn all the potentential contingencies which they will have to face and various options which may be available under the changing laws, policies, and practices of the agencies, particularly the USCIS and Department of Labor. One of the survival tools have been made available to the foreign workers in this type of negative environment was the so-called AC 21 rules, but over the years, the interpretation of this AC 21 law has been steadily revised with the attending positive or negative impact on the foreign workers facing difficult times. The late supplemental AC 21 memorandum encompasses certain patchwork to the existing Yates and Aytes Memorandums that affects the foreign workers differently in certain changing environment. This reporter would like to review various issues in the context of the changed laws, policies, and practices of the agencies as well as potential upcoming additional changes that are likely to develop in the next one year or so.
• AILA is scheduled to hold its annual national conference from June 25 through 28 in Vancouver, Canada with important representations in the four-day meetings by the key government officials. This reporter is scheduled to attend the conference during the period. We hope that they be able to update the lawyers with the past changes and the forthcoming changes with the agency policies and practices. We would like to hear from the audience some questions which they want this reporter discuss in this website as a general dicussion before and after the AILA conference. We encourage the audience to send us their questions in general terms taking out all the identifiable languages through our email ohlaw@immigration-law.com. The audience may not get return emails for the obvious reasons, but some of them will be discussed in general terms on our "Questions and Discussions" site. We look forward to hearing from you.

06/10/2008: USCIS Proposes Change in H-2B Temporary Worker Requirement for the Employees and the Employers

• The USCIS submitted yesterday a proposed rule to the OMB to amend 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. These proposals will increase the efficiency of the program by eliminating certain regulatory barriers. This is part of the administrative fix of the immigration reform which DHS Secretary Chertoff released yesterday along with the two-year EAD issuance plan within this month.
• The Secretary explained the proposed H-2B rule as follows: "For the H-2B program reform, today we have sent over the Office of Management and Budget here at the Department of Homeland Security a new proposed regulation which would also propose some significant changes designed to increase the effectiveness and attractiveness of this H-2B-9 immigrant classification program.It eliminates certain regulatory barriers, adds protection for foreign workers, and increases efficiency and coordination. It also proposes to change the definition of temporary employment to recognize that some H2B employment could last up to three years. Under this change, an employer who demonstrates a temporary need lasting no more than three years could keep the same worker in the same job for all three years provided they can demonstrate that there's no American worker available to do that work, because we do put Americans first.Again, it's going to answer a complaint that we've heard for a long time from the business community. It implements one of the reformed proposals we tried to get done through comprehensive immigration reform, and it's going to produce benefits not only for the employees themselves, but for everybody else who benefits when we can invigorate businesses, particularly seasonable and temporary businesses that produce benefits throughout the entire economy. The bottom line is we're doing what we said we were going to do last August. We're doing tougher enforcement; more effective enforcement. We are showing results. We are trying to work with the existing law to make it as easy and non-bureaucratic as possible for temporary workers to be brought in to fill jobs American won't fill.In the end these are not permanent solutions. A truly permanent solution requires a more comprehensive look at the issue of immigration reform. Only Congress can take that step and although we bought some time, perhaps, this problem is going to persist until Congress grabs the nettle and decides that we're going to put together a comprehensive immigration reform program that everybody can live with.
• For the full text of the press release, please click here.

06/10/2008: USCIS to Issue Two-Year EAD for I-485 Waiters Beginning End of June 2008!

• The Secretary of the Department of Homeland Security announced on 06/09/2008 that the DHS would start issuing two-year EAD beginning from end of June 2008 for the I-485 filers. Hooray!
• Announcement: "I'm also pleased to announce that we will be extending the validity period of the employment authorization documents that we issue to individuals who are waiting adjustment of status to lawful permit residenture or in colloquial phrase, the green card. Currently, adjustment applications are granted employment authorization documents with only a one year maximum validity. Beginning later this month, we'll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year. This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year. It's going to cut the paperwork there."

06/10/2008: Mixed Reaction of EB Professionals to July 2008 Visa Bulletin and Prediction of the Visa Numbers Through September 30, 2008

• There are two groups of foreign workers who have filed I-485 applications: One is single and the other is married. Single unmarried EB-485 waiters have been agonizing over the recent EB visa number progression as they will have to marry and bring the future unknwon bride or bridegroom to the country before their EB-485 applications are approved. By now, people know that certain countries have a culture and a tradition where the marriage is more or less decision of the families rather than inidividuals involved. This is particularly noticeable in the South Asian continent countries and Muslim traditions. For some of these EB-485 waiters, today's Visa Bulletin is indeed a relief and a blessing, even though it may be taken as an inconceivable irony to those who are ouside of these cultures. Quite contrasted to these groups, there are a large number of people who were a single and unmarried at the time of EB-485 filing and have since married. These other halves have remained in limbo because they could not file I-485 because of the visa number retrogression. For the married people in this group, today's Visa Bulletin and prediction are nightmares. After all, life navigates in a sea full of ironies - We are human beings in a society full of laughters and sorrows!

06/10/2008: FY-2009 H-1B Regular Cap Decisions Update

• As we reported earlier, the employers or their representatives are receiving the decisions in the mail. The USCIS has yet to announce the details, but there is an unconfirmed indication that the cases appear to be adjudicated in the order selected, which are reflected in the case numbers in the Receipt Notices. This makes a perfect sense since the entire cases which had been received from April 1 through April 7 were run into electronic random selection process regardless of actual receipt dates. Watch for the three digit numbers next to 081 in the case numbers to figure out roughly when each of your cases may be adjudicated. This information can be wrong but the employers themselves can confrim this information through the approval notices they receive in the mail.

06/10/2008: DV-2009 Lottery Results

• The results are published in the July 2008 Visa Bulletin. Please see the July 2008 Visa Bulletin.

06/10/2008: Official July 2008 Visa Bulletin

• State Department Predictions of Employment-Based Immigration Visas:
  • EB-2: There have been questions raised regarding the way numbers have been provided to the China and India in the Employment Second preference categories beginning in April. Section 202(a)(5) of the Immigration and Nationality Act states that if total demand for visas in an Employment preference category is insufficient to use all available visa numbers in that category in a calendar quarter, then the unused numbers may be made available without regard to the annual per-country limit. (For example: If the second preference annual limit were 40,000, number use by “All Other Countries” were estimated to be only 25,000, and the China/India combined number use based on their per-country limits were 6,000, then there would be 9,000 numbers unused. Those 9,000 numbers could then be made available to China and India applicants without regard to their per-country limits.) Based on the informaiton available, it was been determined that the demand from “All Other Countries” for Second preference numbers, plus the amount of numbers available under China and India Second preference per-country limit, would be insufficient to utilize all available numbers under the annual limit for this category. Therefore, pursuant to Section 202(a)(5) of the Act, the unused numbers have been made available to China and India Second preference applicants. Since Section 203(e)(1) of the Act requires that such unused numbers be made available strictly in priority date order, the China and India applicants have been subject to the identical cut-off date. As there are more Employment Second preference applicants from India and the Indian applicants may have earlier priority dates, it is likely that Indian applicants will receive a larger portion of the available numbers than Chinese applicants. It should be noted that the Employment Second preference category is "Current" for all countries except China and India. If at any point it appears that demand from “All Other Countries” would utilize all available numbers, then an adjustment would be made to the China/India cut-off date. Therefore, providing the unused numbers to China and India in no way disadvantages applicants from any other country, and helps to insure that the worldwide annual limit can be reached.
  • EB-3: Demand for numbers, primarily by USCIS for adjustment of status cases, will bring the entire Employment Third preference category to the annual numerical limit by the end of June. As a result, this category will become “unavailable” beginning in July and will remain unavailable for the remainder of FY-2008. Such action will only be temporary, however, and Employment Third preference availability will return to the cut-off dates established for June in October, the first month of the new fiscal year.

06/10/2008: July 2008 Visa Bulletin (Unofficial): World-Wide (Except China, India, Mexico, Philippines)

• Employment-Based: EB-3 Unavailable
  • EB-1=C, EB-2=C, EB-3=Unavailable, EW=01/01/2003, EB-4=C, EB-5=C
• Family-Based:
  • F-1=03/15/2002, F-2A=08/01/2003, F-2B=09/01/1999, F-3=06/08/2000, F-4=09/01/1997

06/10/2008: July 2008 Visa Bulletin (Unofficial): India

• Employment-Based: EB-3 Unavailable
  • EB-1=C, EB-2=04/01/2004, EB-3=Unavailable, EW=01/01/2003, EB-4=C, EB-5=C
• Family-Based:
  • F-1=03/15/2002, F-2A=08/01/2003, F-2B=09/15/1999, F-3=06/08/2000, F-4=02/15/1997
    

06/10/2008: Status of CIS Ombudsman Recommendations for Improvements and Changes and DHS Responses

• As people know it, there was change in appointment of Ombudsman after resignation of the former Ombudsman. This status report is limited to the recommendations presented to the agency by the former Ombudsman. We post this information to understand what potential issues and disagreement can exist with respect to the USCIS current immigration benefits service management system and policies.

06/09/2008: Full Text of Senators Boxer-Gregg Bill, S. 3084 to Exempt EB Numerical Limit for U.S. STEM Advnce Degree Holders

• Since this is the Senate companion bill of the House Zoe Lofgren bill, the text of this bill is identical to the House bill as we noted earlier.

06//09/2008: Congress Passes Today Kendell Frederick Citizenship Assistance Act, S. 2516, Providing Special Biometric and Naturalization Procedures for Members of U.S. Armed Services

• The Senate passed this bill earlier and the House agreed to this bill today by voice vote. This bill provides use of biometric data on file at the U.S. Armed Services rather than collection of new biometric data in immigration proceedings and expedited naturalization proceedings for the members in active services. This bill also mandates DHS cnetralization of the naturalization processing for the U.S. armed services members. Once this Congressional bill is forwarded to the President, he is expected to sign it into the law without objection.
• As for the centralization of processing, the USCIS already announced on 06/05/2008 that the U.S. armed services members naturalization processing was being centralized at the Nebraska Service Center.

06/09/2008: House Passes This Afternoon H.R. 5569 EB-5 Immigrant Investor Regional Center Five-Year Extension

• This afternoon, the House passed this bill by voice vote, which was sponsored by Rep. Zoe Lofgren. Congratulations to the immigrant investors in Regional Centers.

06/09/2008: June 2008 Audit Report of FBI Security Check for Immigration Applications and Petitions by the Inspector General of the U.S. Department of Justice and FBI Response to IG Report

• Very good and interesting findings and causes for security check delays at the level of FBI.

06/08/2008: FY 2009 H-1B Regular Cap Petition Decisions Start Coming In

• We do not know how long it will take to adjudicate all these non-Premium Processing regular filing cases. Since random selection was completed by April 14, 2008, followed by receipting process up through June 2, 2008, it may take a while before the agency will be able to pump out the decisions for these petitions. There have been reports on the receipting and adjudication of the cap cases, but most of these discussions have been limited to the premium processing cases.
• Now, we passed June 2 and have started seeing the hard copy decisions coming in the mail. After all of the roller-coaster we have been riding with the filers, the approval notices of these cap cases in the mail are allowing us to experience a mysterious emotional ecstasy with our eyes and mouth wide opened, followed by our smiles that flow from our emotional relief from uneasiness for the past two months. Ahhh.................

06/08/2008: Text of Sen. Barbara Boxer Bill S.3084 to Exempt from Numerical Limit for U.S. STEM Advance Degree Holders

• This bill is a companion bill to Rep. Zoe Lofgren bill H.R. 6039 pending in the House, and people may review H.R. 6039 for the text of S. 3084 until the Senate version is published. In fact, S. 3084 is jointly sponsored by Sen. Boxer and Sen. Gregg and this bill is referred to "Boxer-Gregg bill."
• Remember that Rep. Lofgren is pressing ahead H.R. 6039 in the House as evidenced by the oversight hearing which is scheduled by her Subcommittee on June 12, 2008 on "the Need for Green Cards for Highly Skilled Workers." It is expected that she may mark up her trio EB bills, H.R. 5882(Recapture Bill)-H.R. 5921(Country Limit Elimination Bill)-H.R. 6039(STEM Bill) sometime after the oversight hearing. Please stay tuned for the text of testimonies of the witnesses at this upcoming hearing.

06/07/2008: Congressional Legislative Strategy Shifts from H-1B to EB Green Card Options for Recruiting and Retaining Required Highly Skilled Foreign Workers

• Report indicates that the H-1B visa cap adjustment efforts have been stymied by the legislative deadlock over broader immigration reform despite some bi-partisan efforts, and supporters of highly skilled foreign workers are focusing on exempting these foreign workers from the national annual limit for the employment-based immigration (140,000), particularly for the U.S. advanced degree holders, where these supporters can make the strongest case for keeping these workers in the U.S. with lesser challenges from opponents than the option to increase the number of national annual limit from 140,000 to either 290,000 or even 400,000. This strategy is evidenced by the efforts of Rep. Zoe Lofgren, Chairwoman of House Judiciary Immigration Subcommittee and Sen. Barbara Boxer in the Senate. As we reported it, these legislators have introduced several bills both in the House and the Senate to achieve the strategic target for enacting employment-based immigration relief for the business community. This trend is however not limited to these two bills. We have a bill introduced by Sen. Cornyn, another bill introduced by Sen. Norm Colman of Minnesota, a bill introduced by Rep. Kennedy, a bill introduced by Sen. Gregg to convert current Diversity Visa Program to the employment-based immigration program, etc.
• Out of the foregoing bills, Rep. Lofgren and Sen. Boxer bills are expected to face less challenge from the Hispanic Caucus in the Congress in that these bills do not propose adjustment of the employment-based immigration quota and will bring about a limited impact on overall employment-based immigration reform goals to solve the overall currently broken employment-based immigration system, and these EB supporters should eventually join the comprehensive immigration reform supporters in the future to achieve the needed overall reform in the employment-based immigration system within the context of the comprehensive reform. Surely enough, current EB bills represent piecemeal immigration legislations with lesser impact on the overall strategy of the comprehensive immigration reform strategists. Reportedly, to seize a momentum to obtain supports from the national election candidates for the next year's comprehensive immigration reform, the Hispanic strategists and comprehensive immigration reform supporters are scheduled to mobilize massive rallies during the Labor Day holiday in September throughout the country and the country will be swirled into the debates of comprehensive immigration reform legislation rather than piecemeal legislation. Accordingly, unless the supporters of the pending employment-based immigration bills work hard and successfully pursuade rather than pressure the Hispanic legislators very quickly, the odds are not too promising.

06/07/2008: FY 2009 H-1B Lottery Winning Odds for Google Exceeded Two-Thirds

• Google has reported that they filed 300 H-1B cap petitions and they won 210 cases and lost in 90 cases. Considering the fact that the overall national odd should be about 2:1 (163,000 vs. 85,000), their record was not bad at all.

06/06/2008: U.S. STEM Advance Degree Numberical Limit Exempt Immigration Bill Introduced in the Senate

• There is a bill pending in the House which was introduced by Rep. Zoe Lofgren of California which is similar to this new Senate bill which was introduced yesterday by Sen. Barbara Boxer of California. The House bill is H.R. 6039 and the Senate bill is S. 3084. Both of these bills propose to exempt U.S. advanced degree holders working for the U.S. employers from the numerical limit in the employment based immigration. The full text of the House bill is posted on May 11, 2008. The full text of this Senate bill will also be posted on our site as soon as that becomes available. Please stay tuned.
• For the news release by the sponsor, please click here.

06/06/2008: Some Immigration Bills Moving Forward in the Full House Floor

• The Judiciary Committee passed earlier the following bills as we reported. Yesterday, these three bills were reported to the House for the House floor action. The full House has yet to schedule a debate for these bills.
  • H.R. 5060, 5-year P visa bill for the athletes
  • H.R. 5569, EB-5 investment visa Regional Center program extension for five years
  • H.R. 4040, separate nonimmigrant visa classification for distinguished fashion models (currently under H-1B).
• Please stay tuned to this website for floor calendar for these bills.

06/06/2008: Advance Copy of ESTA (Electronic System for Travel Authorization) Interim Rule and Timeline of Implementation for VWP Travelers

• USCBP will publish this interim rule in the federal register on next Monday, 06/09/2008, which will take effect in 60 days from publication, which will be August 2008. The agency will start taking applications from the VWP travelers in August but it will remain "voluntary" rather than "mandatory until 60 days after DHS Secretary publishes a notice of implementation in the federal register. The DHS is scheduled to publish such notice in November 2008 so that they implement this requirement "mandatory" before January 12, 2009. If the notice is published on November 1, 2008, this requirement may turn into a mandatory program. The latest the agency can publish such notice will be November 13, 2008. Accordingly, the VWP travelers may prepare themselves to apply for the pre-travel authorization. Once the mandatory ESTA is implemented, each nonimmigrant alien wishing to travel to theUnited States under the VWP must have a travel authorization prior to embarking on a carrier. DHS, however, recommends that VWP travelers obtain travel authorizations at the time of reservation or purchase of the ticket, or at least 72 hours before departure to the United States, in order to facilitate timely departures. This timeline will allow accommodation of last minute and emergency travelers. For other detailed information, please read the advance copy of this rule.

06/06/2008: USCIS in the Process of Revision of Languages in "Transfer Notices" of I-751

• USCIS announced last month that it is revising filing instructions for Form I-751 to require filing at the California or Vermont Service Centers. Until the form instructions are revised, any petitions filed with the Nebraska and Texas Service Centers will be transferred to California and Vermont, respectively. When USCIS enters data at one service center and later transfers the case to another, a Transfer Notice is sent to the petitioner advising him or her that the case has been transferred for adjudication and that they will be notified of the final decision. The problem that has been confusing the filers is the current transfer notice currently contains the following phrase: “CRI89 approved removal of conditions (I89).” That statement means that the biometric portion of the case has been successfully transferred; it does not, however, mean that the petition itself was approved! In order to avoid such confusions, the USCIS will soon revise the transfer notice removing and changing the langues of transfer of the I-751 to the people.
  

06/06/2008: USCIS Separates Filing and Processing Jurisdictions and Centralizes Naturalization Initial Processing Function at NBC in Missouri

• The USCIS announces that it has divided the naturalization process functions into three field offices. People should mail and file N-400 applications to one of the four Service Centers (CSC,TSC,NSC,VSC) of their jurisdiction of residence, but internally these applications are transfered to the National Benefits Center (NBC) in Missouri that will issue the Receipt Notices and process the N-400 applications. However, the final steps of interview and adjudication will continuously be conducted at the local field offices in the location of their residence. This practically divides the management of N-400 process into the three different offices.
• Because of the foregoing change, the people who file N-400 naturalization application with one of the four Service Centers of their jurisdiction of residence will receive the Receit Notices not from the one of these four Service Centers but from the National Benefits Center with MBC case numbers. From thereon, the applicants follow the steps which are given by the NBC and go through the interview and sworn-in process. Please remember that the N-400 naturalization "processing" has been centralized at the NBC at the national level, but the filing window remains one of the four Service Centers of their jurisdiction of residence. Accordingly, if N-400 is mailed directly to the NBC, the NBC will "reject and return" such applications. Remember "three" steps: (1) File N-400 by mail to one of the Service Center of their residece (CSC, VSC, NSC, or TSC); (2) Receive Receipts from the NBC that processes and manages the filed N-400 applications; (3) Interview and approval/denial of N-400 applications by the local district or field offices of USCIS in their local residence.

06/05/2008: May 27, 2008 USCIS National Stakeholder Meeting Q&A and Issue of Multi-Year EAD Issuance Schedule and Question

• This posting is not the April stakeholder meeting which was revised and released at the end of May. This posting is the national stakeholder meeting which was held on May 27, 2008. At this meeting, the national stakeholders and the USCIS covered a number of issues including multi-year EAD issuance schedule. We would like to quote this specific question and answer as follows [edited by this reporter]:
  • Question: During a recent meeting, USCIS stated that it hoped this summer to introduce multi-year EADs for I-485 applicants whose cases were backlogged. Please provide more information about the types of applicants that would be eligible for such EADs?
    Response: A proposal is currently under review by USCIS program offices to issue a multi-year employment authorization document to those applicants affected by visa retrogression. If this proposal is adopted, it will apply to adjustment of status applicants.
    
  • Question:.Please explain what USCIS means in this context by the term “backlogged” – does it refer only to cases pending more than a certain number of months where applicants are filing for renewal EADs?
    Response: USCIS is considering issuing multi-year EADs to those applicants affected by visa retrogression. Further information will be provided once a final decision is made.
  • Question: Will I-485 applicants receive an initial EAD that is valid for more than one year? Does this apply to all I-485 applicants (family-based and employment-based)?
    Response: Further information will be provided once a final decision is made.
• Well, the best information has surfaced in the question rather than in the answer. The summer 2008 is probably one-year anniversay of the end of July 2007 Visa Bulletin fiasco. It also comes close to this reporter's recent analysis of the cost-benefit aspect of the policy decision. However, the agency refused to confirm this schedule. We will leave this question with the speculation that the multi-year EAD may be issued sometime before the end of this year.

06/05/2008: Local Police and Immigration Enforcement

• The involvement of the state and local governments in the enforcement of the federal functions of immigration laws has been steadily growing and expanding lately in the name of homeland security. In April 2008, we reported study of National Conference of State Legislatures, Immigration Policy Project, dated April 24, 2008, which summarizes the list of state legislatures and legislative bills on this subject. The National Immigration Law Center has accumulated and released specific laws, resolutions and policies instituted by state and local authorities, the list of which may be taken as an alarm and intimidating by the concerned citizens.
• The Revised and Updated a Legal Guide for Advocates of Appleseed studies in depth the issue of current local police and immigration enforcement by local and state governments. This is a growing area of concern for the legal community on the Constitution of the United States, not to mention the rights and privileges of the immigrants which are protected by the federal constitution. Read on.

06/05/2008: House Judiciary Immigration Subcommittee Schedules a Hearing on the Need for Green Cards for Highly Skilled Workers

• House Judiciary Committee Immigration Subcommittee will hear testimonies from the witnesses on the issue of need for permanent residence for highly skilled foreign workers on June 12, 2008 09:30 a.m., next Thursday. This hearing is related to the pending bills on this subject. For the pending bills, please visit our report on May 20, 2008. As soon as we learn the list of winesses and outline of testimonies, we will report it on this site. Please stay tuned.

06/05/2008: USCIS Q&A 06/05/2008 on Availability of Expedited Processing of I-485 and N-400 for the Kaplan Class Action Settlement SSI Beneficiaries

• Q&A
• Kaplan Settlement Notice
• Text of Settlement

06/04/2008: USCIS Releases 05/30/2008 "AC-21 Supplemental Memorandum" on Processing of AC-21 I-140, and H-1B Portability or Extensions, and I-485 Portability

• Today, the USCIS released a memorandum of Donald Neufeld, Acting Associate Director, Domestic Operations, dated 05/30/2008 entitled "Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), as amended, and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of Public Law 105-277. This memorandum provides important clarification and supplement that affects the guidance for procedure, eligibility, and adjudication of I-140 petitions as affected by recent changes in DOL Permanent Labor Certification system and Fraud Prevention Rule, one-year or three-year H-1B Extension Eligibility Standards as affected by the DOL rule on expiration of the labor certification application or revocation, Concurrent H-1B Non-Cap Exempt Petition for the Cap-Exempt H-1B Aliens, and I-140 Portability which is often called Change of Employment After 180 Days of Filing of I-485 Application.
• This new AC 21 supplemental memorandum revises or expands or reclarifies so-called "Yates AC-21 Memo" and "Aytes AC-21 Memo" on H-1B extension and I-140 portability. The new memorandum requires line-by-line review and analysis to understand its pact on the existing AC-21 memorandums. We will try to discuss the changes in the form of Discussion and Analysis on our site as soon as our reviews and summary are completed.
• The USCIS had a rule-making agenda this year on AC-21 Act and ACWIA incorporating all of the existing AC-21 memorandums. However, the release of this new supplemental AC-21 probably implies that the rule-making agenda may be pushed off and may not be enacted this year. Please stay tuned.
  

06/04/2008: State Department Reports Latest Figures on Iraqi Refugee Admissions and Humanitarian Aid as of June 3, 2008

• FY08 Totals to Date
  Refugees: 4,742 (as of 05/31/08)
  SIVs: 636 (as of 04/30/08)
  Refugees + SIVs: 5,378
  
  

06/04/2008: DHS Secretary Remarks on ESTA (Electronic System for Travel Authorization) Yesterday Before Two Different Groups

• These presentations are very helpful in understanding the DHS initiative of this ESTA program, particularly for the current Visa Waiver Program countries and the other countries that have been selected for expanded VWP countries in the near future.
  • Woodrow Wilson International Center for Scholars, 06/03/2008, Read on.
  • 2008 Homeland Security Science & Technology Stakeholders Conference East, 06/03/2008, Read on.

06/04/2008: FY 2009 H-1B Cap Processing Update

• Unconfirmed sources indicate that all the winners of the H-1B cap have been notified as scheduled. It is thus likely that those who failed to make it may receive one of the two notices soon. One is those that have been selected in the waiting list. The others are those whose petitions have failed in the initial selection and even in the waiting list. The latter are likely receive return of the petitions in the form of rejection. The USCIS has yet to officially report the status. Please stay tuned.
• One related question is the likely processing time of the selected H-1B petitions (regular filing). As people must have noticed in the May 15, 2008 Service Centers Monthly Processing Time Report, they were still processing March 2008 cases in both California Service Center and Vermont Service Center. In view of the bulk volume of the cap cases, we suspect that it may take some time before they adjudicate all of these cases and this may be reflected in the report of H-1B petition processing times in the USCIS monthly processing times report.

06/03/2008: USCIS Revises on 05/30/2008 its Stakeholder Q&A in National Stakeholder Meeting of 04/29/2008

• Those who read the USCIS release of this Q&A dated 04/29/2008 should revisit the 05/30/2008 revised version not to misunderstand the information on certain local practice related issues, practices, and policies.

06/03/2008: April 2008 Naturalization Applications Receipts and Backlog Statistics

06/03/2008: April 2008 USCIS Immigration Benefits Receipts and Backlog Statistics

• Please review this monthly statistics in line with our report on May 20 and May 30 analysis of implications.

06/03/2008: I-485 Initial Receipts and Backlogs Showed a Fairly Steady Numbers in April 2008

06/03/2008: EAD Initial Receipts and Backlogs Witnessed a Substantial Jump in April 2008

• In April 2008, the USCIS received total of 90,914 EAD applications pushing up the backlogs to 184,251 cases. Part of this jump may have been brought about by the visa number changes in April and FY 2007 VB fiasco I-485 filers filing renewals. It is not clear whether this statistics have anything to do with the USCIS reconsideration of its current requirement that EAD renewal cannot be filed until the current EAD will expire within 120 days. Currently any EAD applications filed earlier than 120 days of current EAD expiration are expected to be rejected.
• However, there was a report that the USCIS HQ was considering to revisit this policy and might consider allowing people to file EAD renewal applications earlier than 120 days of expiration of the current EAD. Please stay tuned to this website for the potential announcement of USCIS on this reconsideration of the EAD renewal policy.

06/03/2008: I-140 Backlog Shows Slight Improvement in April 2008: 140,635

• As of the end of April 2008, the USCIS has 140,635 petitions of I-140 pending. The backlog number still remains at the level of 140,000 but it also reflects the trend of improvement from the previous months. For the past months figures, please revisit our report of May 31, 2008.

06/03/2008: Initial Receipts of I-129 in April 2008: 89,293

• USCIS reports that the Receipts of I-129 petitions from April 1 through April 30, 2008 was 89,293 petitions. I-129 petitions include all the employment-based nonimmigrant petitions. However, the December 2007 record reflects that the same receipt number was 23,322 petitions. The report also indicates that this receipt data only reflects the number of applications that USCIS was able to fee receipt and/or data enter into a case processing system. Applications currently held in USCIS mailroom facilities but not processed to the point of recognition as Initial Receipts are deemed frontlog cases. These frontlog cases are also not reflected in these figures. Accordingly, one can easily tell that 89,293 receipt figure reflects most of the selected FY 2009 H-1B cap petitions since cap exempt or non-cap H-1B cases or other types of I-129 visa cases amount fairly small as reflected in the December 2007 statistics. Please stay tuned to the USCIS official update of the FY 2009 H-1B cap status report.

06/03/2008: DHS Announces Pre-Travel Authorization Program for U.S.-Bound Travelers from Visa Waiver Countries

• This preboarding electronic authorization in the Visa Waiver Program travelers from the port of departure in the foreign countries will start accepting applications beginning from August 1, 2008 on voluntary basis and it will not become mandatory until January 12, 2009. The advance copy of Interim Final Rule on this pre-travel authorization program is published in this link. The VWP country travelers may want to review this announcement, FAQ, Guidance, and regulation posted in the announcement.

06/03/2008: House Returns to the Session Today After Memorial Holiday Break With Various EB Legislative Bills on the Shelves

• Both the House and the Senate will start picking up the legislative bills from this week and some of the employment-based bills will come to their attention as time moves on, such as Conrad 30 extension bill or Conrad 30 program improvement bill for the international medical graduates (current law already sunsetted two days ago on June 1, 2008) and religious worker immigration bill which will sunset at the end of September 2008. These two bills passed the House waiting for the Senate action. There are many other immigration bills pending in the House and the Senate, some of which were attached to the Iraq War Emergency Special Spending bill in the Senate and all of these bills were killed by either the Senate majority leaders or hardline minority Senators primarily related to the AgJOBs bill which was considered by the illegal immigration relief opponents as an amnesty legislation which the Democrats attempted to pass as part of the national election year strategy. The employment-based immigration bills are currently facing a strong resistance from the comprehensive immigration reform advocates opposing piecemeal immigration legislations and deeply tangled in the election year party politics. The comprehensive immigration reform proponents appear to take a strategy of holding the immigration legislation at bay until next January or February, while the employment-based piecemeal immigration proponents want the Congress to pass these bills before the end of the year. As the primaries of the Democratic Presidential nomination are about to wind down and the election politics will pick up the heat of steam of the Pesidential fights between the Republican candidate and the Democratic Candidate, both of the candidates may noticeably try to move to the center to grab independent voters, giving added strength to the comprehensive immigration reform proponents as opposed to the employment-based piecemeal immigration reform proponents. From the perspectives of the employment-baed immigration legislation, there lie some uphill battles. We will closely watch and monitor the drama for the next two or three months. Unless any EB based bills are compromised and passed during the period, the chance for the EB reform will practically evaporate in 2008. Please stay tuned.

06/03/2008: PERM Centralization and Chicago Pending PERM Cases Update

• As we reported earlier, the PERM applications are centralized to the Atlanta National Processing Center effective June 1, 2008. Relating to this change, the AILA has reported that for the pending cases as of the end of May 2008, unlike its previous announcement that pending cases at the end of May 2008 in Chicago would be transferred to the Atalanta Center, the Chicago National Processing Center will rather complete the processing of any pending PERM cases located there, including any that were issued an audit before April 15, 2008, or which were denied and an appeal was filed before April 15, 2008. However please note that all audits and denials issued since April 15, 2008, require the employer to submit the response to the Atlanta Center per the audit instructions. The report also indicates that the Chicago Center will not complete all the cases by June 1, 2008 but will complete the cases in a short period of time after June 1, 2008. This is a good news in a way in that any delays that are associated with the process of transfer can be abated. Please stay tuned to this website for further development.
  

06/02/2008: U.S. Department of Labor Auditing All Permanent Labor Certification Applications Filed by a Major Immigration Law Firm

• U.S. Department of Labor has announced today that they are auditing all permanent labor certification applications filed by a major immigration law firm to assure the integrity of the labor certification system. Read on.
  

06/02/2008: STEM OPT Extension Challenge Lawsuit Update

• This lawsuit is broader than what we speculated. Three organizations and nine individual plaintiffs are seeking three relief: Declaratory Judgement, Permanent and Temporay Injunction, and Mandamus relief. The suit advances three cause of action: (1) The F-1 student visa section of the INA authorizes for admission for the purpose of pursuing a course of study and does not authorize a 29-month guest worker program for STEM and in this regard, the implementation of this rule exceeded the statutory jurisdiction and authority of the DHS Secretary in violation of 5 USC Section 706(2)(C); (2) The provisions of the rule are not in accorance of the law, and the implementation of the rule by the DHS Secretary was arbitrary, capricious, an abuse of discretion, and otherwise not in accorance with the law in violation of 5 USC Section 706(2)(A); (3) There were no circumstances that justified the waiver of the notice and comment requirements under the APA and DHS Secretary implemented the changes to the rule without observance of procedure required by law in violation of 5 USC Section 706(2)(D). Accordingly, the plaintiffs ask the court to declare that the waiver of notice and comment to implement changes to the existing rule were unlawful. Plantiffs also ask the court to issue a preliminary and a permanent injunction enjoining the DHS from implementing or enforcing this rule and also to declare that implementation of this rule violated federal law.
• We will post the full text of the complaint as soon as it becomes available. Please stay tuned.

06/01/2008: STEM OPT Extension Challenge Lawsuit Update

• We have yet to obtain a copy of the pleading for this lawsuit, but according to the unconfirmed sources, apparently the plaintffs brought this action based on cause of action for the violation of Administrative Procedure Act (APA) that allowed enactment of the rules without a notice publshed for the public comment. In other words, apparently theyare arguing that the DHS enacted this rule without notice to the public with period of comment based on the provision of the APA that permits waiver of such notice in "emergency" and the plaintfiffs appears to argue that there was no such emergency involved other than the DHS attempt to practically expand the H-1B cap numbers whhich was expected to reach almost instantly and through this regulation, attempted to expand practically the H-1B type of nonimmigrants. It thus appears that the issue may involve the interpretation and scope of "emergency" exception to the fedeeral rule making procedure rather than the statutory authority of the DHS to make such rule under the statute. In other words, the issue appears to be procedural violation and not substantive violation. It is not certain whether this is indeed the essence of the cause of action, but if it is true, we want to remind our readers of the following report on our site on April 10, 2008:

"04/10/2008: How Did OPT Extension Rule Cleared in Three Days Rather Than 90 Days?

• As we reported, the OMB review and approval of an agency's rule usually takes from 30 days to 90 days. Then how could the OPT extension get cleared in three days? Report indicates that to make the rule effective immediately DHS cited Administrative Procedure Act that provides that an agency may dispense with notice and comment rulemaking procedures when an agency, for good cause, finds that those procedures are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(B). Thus, the exception excuses notice and comment in emergency situations, or where the delay created by the notice and comment requirements would result in serious damage to important interests. Reportedly, the DHS advanced such emergency on the following: "This rule will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy," and "By extending the training period by an additional 17 months to students who are employed by businesses enrolled in E-Verify, we are further ensuring a legal workforce in the U.S. and aiding good corporate citizens."
• Aha! "
• Plese stay tuned to our website for a copy of the pleading.

06/01/2008: Airport Hassle-Free Global Entry Program for USC or LPR Frequent International Business Travelers

• The Global Entry program is a new pilot program managed by U.S. CBP which allows pre-approved, low-risk travelers expedited clearance upon arrival into the United States. U.S. citizens and U.S. Lawful Permanent Residents aged 14-years and older may apply to this program.
• On May 12, 2008 Global Entry began accepting applications using the Global On-Line Enrollment System (GOES). ( Global Entry Program – Applications Are Available Now! ) A non-refundable $100.00 per person applicant processing fee is payable on-line at the time of application.
• Beginning June 10, 2008, Global Entry will be available to approved members at Terminal 4 - John F. Kennedy International Airport, Washington-Dulles International Airport, and George Bush Intercontinental Airport. Prior to approval, applicants must be interviewed for eligibility at one of the enrollment centers that CBP has established at these airports.
• Travelers must be pre-approved before they can participate in the pilot project. All applicants will undergo a rigorous background check and be interviewed by a CBP officer before they are enrolled. Automated enforcement checks will occur each time the member uses the kiosk to enter the United States. Although pre-approved for the program and determined to be low risk, members of Global Entry may be examined at any time when entering the United States.
• Participants will enter the United States utilizing automated self-service kiosks. To report their arrival, participants will use their machine-readable U.S. passport or permanent residency card, submit their fingerprints for biometric verification, and make a CBP declaration at the kiosk’s touch-screen. Upon successful completion of the Global Entry process at the kiosk, the traveler will be issued a transaction receipt and directed to baggage claim and the exit, unless chosen for a selective or random secondary referral.
• Global Entry participants are exempt from routine CBP questioning however, on a random basis or if selected by CBP officers, they may be subject to additional screening at any time in the Customs process.
• For the details of application procedure and other information on the Global Entry Program, please click here.
  

06/01/2008: I-290B Appeal/Motion Form Problem Resolved

• We reported earlier that the USCIS had revised this form on 03/04/2008 without much publicity making all the previous forms not acceptable. There were a few reports that the agency rejected the appeal or motion to reopen/reconsider for the reasons that the people used the old version of the form. Now, the USCIS reverses its previous position and updated I-290B form site announcing that previous version is also acceptable. Please see the form site.
• Cabeat, though. They published the new version form with the comment period. They can reverse themselves again. It is thus recommended that people start using the new version form dated 03/04/2008 for AAO Appeal or Motion to Reopen or Reconsier filed with the USCIS field offices.

05/31/2008: STEM OPT Extension Rule Sued by H-1B Opponent Groups in Federal Court on 05/29/2008

• Report indicates that the anti-H-1B organizations filed a lawsuit in the federal court in Newwark, New Jersey on May 29, 2008 challenging the authority of the DHS to make such rule by an administrative regulation. The lawsuit seeks to have the court declare DHS regulations implemented last month unlawful. The DHS rule extends the time foreign students with degrees in Mathematics, Engineering, Science or Technology are allowed to work after graduation under Optional Practical Training, from 12 months to 29 months. This lawsuit is important in that it is a challenge to the Bush Administration's "administrative fix" of nonimmigrant and immigrant problems by regulations and without legislation. Considering the fact that the Congress is currently in gridlock and legislative relief or fix of immigration problems is hopelessly stalled, the administrative fix has been considered very important for the employment-based immigrants. TN three-year proposal is another important administrative fix without legislation for the Canadian and Mexican professionals. The Administration has been considering serveral other administrative fix initiatives, and these anti-immigration groups' strategy to challenge and block such administrative fix of immigration problems for the foreign brains is indeed a new development, which the immigration lawyers community should be active to support the DHS in the litigations. Please stay tuned to ths website for this important development.
• We must note that the STEM OPT 29-month administrartive fix was intigated and demanded by the 20 "Senior" U.S. senators in their joint letter to the DHS Secretary Chertoff last November. Now this rule is challenged in a federal court and the Senate should come forward to fix the issue at the legislative level by passing Senator Coleman's Action Act, S. 2653, which is pending in the Senate Judiciary Committee. This bill proposes the exactly same STEM OPT 29-month Program. This bill also proposes to reinstate the visa revalidation program. Again, the immigrant community hoped that the State Department reinstate the visa revalidation program as another form of administrative fix of the problems which foreign brains have been facing. However, report indicates that the State Department has no plan to reinstate this program at this time. In this regard, the legislative fix is the only option for the foreign workers to achive the visa revalidation program. For the full text of this bill, please revisit our table of pending legislative bills which we reported on May 11, 2008.

05/31/2008: USCIS Naturalizes First Military Spouse Overseas in Frankfurt, Germany on 05/29/2008

• In January 2008, President Bush signed the National Defense Authorization Act for Fiscal Year 2008 into law. This new law amended portions of the Immigration and Nationality Act to allow certain spouses of members of the military to naturalize overseas where they are stationed. Before January 2008, these spouses could only naturalize while physically within the United States. On May 29, 2008, the agency naturalized the first alien spouse of the members of the military under this new law. Read on.

05/31/2008: USCIS Announcement of New Courier Service Delivery Chicago Lockbox Address

• As we reported earlier, the Chicago Lockbox address for overnight delivery or courier delivery has changed. However, the USCIS announcement indicates that the courier delivery services have agreed to forward the deliveries which are addressed to the old address to the new address for 90 days.

05/31/2008: I-140 Backlog, Probable Causes, and Need for Reinstatement of Premium Processing Services

• Currently, I-140 is suffering from two ailments: One is processing delays (much longer than 10 months), and the other is the backlogs (over 145,000). The agency has never released information for the sources of the processing delays and the backlogs in terms of total pending petitions. Here, we want to focus on potential causes of backlogs since we do not have any informaton or data to analyze the sources of the processing delays.
• As a frame of analysis, we may start our analysis on the premises that backlogs are generally caused by increase in receipts or processing delays or other factors. There is no denying that part of the surge was caused by DOL acceleration of backlog elimination cases with a target to remove the entire labor certification backlog by the end of September 2007. Additionally, elimination of substitution labor certification applications as of July 15, 2007 and the employers in rush to file substitution I-140 petitions by July 16, 2007 led such surge in the I-140 surge. In other words, the surge in I-140 petitions during the period was caused by "increase" in new filings. However, the surge after September 2007 was not caused by increase of new filings as the sources of increased new filings disappeared by that time. In other words, the sources of recent backlogs could be either processing delays or other causes. Since we do not have any information on the processing delays (even though recent policy priority on naturalization backlog for the political reasons might have affected I-140 processsing delays) , we want to assume that the recent backlog has been primarily caused by the suspension of the premium processing services. This is reflected in the following USCIS I-140 backlog statistics.

• Considering the fact that current I-140 processing backlog and processing delays may increasingly create a huge problem for the USCIS itself down the road, we submit that the USCIS should reinstate the I-140 premium processing services as soon as possible. Current backlog and processing delays may be considered arguably intolerable.

05/30/2008: Corrected TSC I-140 Processing Times - Not 08/26/2007 But 07/16/2007

• AILA has reported that the TSC corrected the error in its 05/15/2008 processing time report for the I-140 processing times. The date of 08/26/2007 was an error and the correct date should have been 07/16/2007. The official report will be corrected soon.

05/30/2008: Report of Chinese Hackers Attacks on U.S. Computer Networks and Its Unknown Fall-Outs in the Immigration Context

• The report indicates that the U.S. government has been taking an action to defend its government computer networks from the international hackers' cyberspace attack. Reportedly, one of the government actions involves technical restrictions to the U.S. computer networks by the public. Reportedly the cyberspace war is getting serious. Reportedly, the Department of Homeland Security has also been taking action to control access to the information. However, there is no information available about with reference to other potential fall-outs in the context of the immigration proceedings. Obviously, the immigrant community will face a growing restriction to information on the agency's internal decision making process online down the road. We are uncertain whether this will have any other fall-outs, particularly in the name check clearance process involving Chinese nationals. Something to watch closely. Please stay tuned.

05/30/2008 (Friday): PERM Labor Certification Advisory and Reminder

• We have posted this reminder for a number of times considering importance and potential deadly consequences the employers can face after a few months. Practically, today is the last working day the Chicago National Processing Center is involved in the permanent labor certification process. Effective June 1, 2008, the permanent labor certification applications will fall under the "sole" jurisdiction of the Atlanta National Processing Center. Procedurally, the Certifying Officer in the Atlanta National Processing Center will also have sole jurisdiction with reference to the public report of misrepresentation in the employers' permanent labor certification. Accordingly, those employers who post the internal notice as part of the PERM labor certification process on or after June 1, 2008 for the jobs located in the current Chicago National Processing Center must print the name and address of Atlatan National Processing Center in the notice. The OFLC has made it clear that should the notice posting shows the Chicago National Processing Center, they will consider it a defective posting and are likely deny the permanent labor certification application. Since such denial will not take place until a few months after June 1, most of the recruitment will have expired by then and the employers will not be able to refile the applications using the recruitment evidence. It will thus result in tremendous expenses and loss of time to refile the application. Employers cannot afford making a mistake on the notice posting from here on.

05/29/2008: Address Change of USCIS Chicago Lockbox for Filing via Courier Services

• The Chicago Lockbox filing was one time limited to the USCIS local district/field office proceedings, particularly family-based cases, but the types of cases that are required to be filed with the Chicago Lockbox have been steadily expanded over the years. When the cases are filed via overnight delivery services or courier services, people must use the street address rather than a P.O. box. It is thus critically important that people use the correct street address.
• The Chicago Lockbox address has just been changed to: 131 South Dearborn, 3rd floor, Chicago, Illinois 60603-5517. Please make a note of it.

05/29/2008: Question of Atlanta National Processing Center Processing Queue for PERM Cases Transferred from Chicago National Processing Center

• It is by now obvious that the PERM cases which have been pending at the Chicago Center will be completely transferred to the Atlanta Center and Chicago will cease to process or adjudicate any PERM applications which have been pending at the Chicago Center. When a case is transferred from one office to another office, there always evolve the issue of order or queue of processing of the transferred cases. Even though the OFLC released a Q&A on the centralization of PERM processing at the Atlanta Center beginning from June 1, 2008, Sunday, it never touched on the issue of the queue for the transferred cases. In all fairness, the Atlanta Center may pool together their own pending cases and the cases which are transferred from the Chicago Center and determine the processing queue based on the filing dates, but this has yet to be confirmed by the agency. We understand that the Atlanta Center has been experiencing backlogs even before such centralization and without doubt the queue may be tremendously stretched out when the transferred cases are added to the Atlanta Center's own cases. We just wish that the agency works out some solutions to prevent any serious backlogs in the PERM program after the launch of centralization.

05/29/2008: Some Positive News on PERM Cases on Appeal/Motion

• AILA has reported that approximately out of 900 cases which had been denied and either appealed or filed motion for reconsideration, OFLC has decided to return approximately 350 cases back to the PERM processing queue based on their determination that these cases could have been denied in "clear error." The AILA has been working hard to work with the OFLC on this in the form of a pilot project and deserves a big hats-off for the job well-done.

05/29/2008: OMB Clears USCBP Visa Waiver Program Changes to Implement the Electronic Travel System For Authorization ESTA Program

• Yesterday, the OMB cleared this Interim Final Rule of the Visa Waiver Program U.S. entry procedural requirement changes. This rule is specifically intended to fulfill the requirements of section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act). The rule requires that each alien traveling to the United States under the VWP must obtain electronic travel authorization via the ESTA System in advance of such travel. VWP travelers may obtain the required ESTA authorization by electronically submitting to U.S. Customs and Border Protection (CBP) biographic and other information as currently required by the I-94W Nonimmigrant Alien Arrival/Departure Form (I-94W). By procedurally shifting the paper form to an electronic form and requiring the data in advance of travel, CBP will be able to determine, before the alien departs for the U.S., the eligibility of nationals from VWP countries and whether such travel poses a law enforcement or security risk. In addition to fulfilling a statutory mandate, the interim final rule serves the twin goals of promoting border security and legitimate travel to the United States. By modernizing the VWP, the ESTA is intended to both increase national security and provide for greater efficiencies in the screening of international travelers by allowing for vetting of subjects of potential interest well before boarding, thereby reducing traveler delays based on lengthy processes at ports of entry.
• This rule is expected to be published in the federal register soon. Please stay tuned.

05/28/2008: Exhausted "Point Finger"

• The end of May 2008 will mark a turning point for our employment-based clients and this reporter has been busy in clicking the mouse to check on the online banking site with the status of H-1B cap filing fee check clearance and PERM labor certification applications pending at the Chicago National Processing Center for our clients. We have been constantly checking our online banking site because this will be the last week by when the USCIS was planned to send out all the receipt notices for the H-1B cap lottery winners. As for the PERM labor certification applications, we have been constantly clicking the poor mouse to check the status of our cases which have been pending longer than 45 days at the Chicago National Processing Center because unless the cases are decided within this week, our applications are destined to be transferred to Atlanta National Processing Center. Since the transfer is likely to cause some delays in the processing, we wanted to see that our cases be adjudicated befor the end of this week. Thus far, no luck, zip! This reporter starts feeling an arthritic pain on the poor "point finger." What an agonizing moment for the poor clients!

05/28/2008: Confusion on Evidence of "U.S. Earned Master Degree"

• There are some reports that the Vermont Service Centrer has been requiring in the U.S. earned Master's Degree H-1B cap cases that only a "Registrar" certification statement is acceptable and not the Dean's statement or Department Chairman's statement or any other school officials' statement on the "completion" of a U.S. Master's degree to meet the threshold requirement for 20,000 special "U.S. Earned Master's Degree." It is unclear at this point whether this is an isolated incident limited to the Vermont Service Center or the change of policy of the USCIS in general on the interpretation of a degree program "completion" evidence. This development will bring about a number of serious consequences including the denial of the H-1B cap filing as well as a potential EB-2 master degree I-140 denials on the issue of "completed" degree program at the time of filing of the labor certification application. The AILA appears to be on alert on this new development and closely monitoring development of the USCIS practice on this issue. This site will also closely monitor and report development of this news, considering its potential