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Automatic Visa Revalidation Restriction Regulation
I-140/485 Concurrent Filing Regulation
Non-1mmigrant Allied Healthcare Worker Visa Screen Requirement Final Rule
PERM Final Regulation

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07/03/2009: USCIS Updates Immigration Information for Members of the U.S. Armed Forces and their Families 07/02/2009

07/02/2009: 29-Month STEM OPT Rule Litigation Update

• This case is on appeal and report indicates that the government that defends the 29-month OPT rule faced tough questions from the judges at a hearing. This litigation has been dragged on because the anti-immigration groups have persistently fought against the rule. There are a huge number of foreign students whose future can be seriously affected if this rule is turned down by the court. Please stay tuned.

07/02/2009: General Rule of Federal Holidays for Public Employees

• When the official federal holiday falls on Saturday, the Friday preceding to the Saturday is considered a holiday for the purpose of pay for the federal employees. When the official federal holiday falls on Sunday, the Monday that follows the official holiday on Sunday is considered a holiday for the same purposes. Visa posts are closed on July 3rd because the Fourth of July falls on Saturday. The USCIS has yet to announce closure of offices tomorrow. Unless the USCIS officially announces closure, people should keep all the appointments and other schedules with the agency tomorrow. Please stay tuned to this website.

07/02/2009: USCIS Explanation for Recent Biometric Appointment Cancellation Notices and Rescheduling

• Application Support Center Appointment Rescheduling - July 6 - 10, 2009 : System errors caused a number of Application Support Centers to be overscheduled during the week of July 6-10, 2009. As a result, some applicants may receive cancellation notices for appointments originally scheduled during this timeframe. If you do not receive a cancellation notice, please appear at your ASC appointment as scheduled. If you do receive a cancellation notice, you will soon receive an ASC appointment notice for a new date and time, typically for an appointment within the next two to four weeks. See announcement.

07/01/2009: Naturalization Application Receipts and Backlogs as of End of May 2009

07/01/2009: Immigration Benefits Applications Receipts and Backlogs as of End of May 2009

07/01/2009: DOL H-2A Agricultural Worker Temporary Labor Certification Final Rule Rides Roller Coaster

• DOL announces on June 29, 2009 that on June 29, the U.S. District Court for the Middle District of North Carolina issued a preliminary injunction against the Department's Final Suspension of the December 2008 Final H-2A Rule. As a result of this court action, and unless and until additional court action takes place, the Suspension is no longer in effect and the December 2008 Final Rule remains in effect. Read on.

07/01/2009: ICE Steps Up I-9 Audits

07/01/2009: DOL Notice on Disabling of Previous Online LCA Filing System

• Effective July 1, 2009, the Office of Foreign Labor Certification (OFLC) will no longer allow external users to create new accounts and/or create new Labor Condition Applications (LCAs) via the LCA Online System. All users will be required to file the ETA Form 9035E through the OFLC iCERT Visa Portal System at http://icert.doleta.gov and should register for an account in that system. However, external users with existing LCA Online System accounts may continue to access those accounts in order to complete and submit any draft or incomplete LCAs begun prior to July 1, 2009 and/or withdraw any previously certified LCAs. Read on.

07/01/2009: DOL PERM and H-1B Quarterly Performance Report Ending March 31, 2009

• This report indicates that only 11% of applications received were completed within six months from the date of receipt (priority date) during the first three months of 2009. The report also indicates that such delays was caused by the mission to achieve "integrity" of the applications. WOW! Read on.

06/30/2009: Today, CIS Ombudsman Submits to Congress "2009 Annual Report"

• The 2009 Annual Report includes:
  • A review of USCIS Transformation
  • The most pervasive and serious problems USCIS customers experience such as Requests for Evidence, customer service, and FBI name checks
  • Eight Annual Report recommendations that cover file transfers and tracking, DNA testing, and more
  • Eight formal recommendations that cover motions to reopen, EB-5 investor visas, T and U visas, EADs; and more
  • Ombudsman facilitation of interagency meetings
• Readers are reminded again that USCIS and CIS are two different components of the DHS and CIS Ombudsman is independent from the USCIS and under the command of the DHS Secretary. The CIS Ombudsman represents a window for the USCIS customers feed-back and complaints for its management and services and recommendation of improvements in USCIS management and services. See DHS organization chart.

06/30/2009: Important Reminder for e-Passport Requirement for Visa Waiver Program Travelers Effective Tomorrow For Visa Waiver Entry to the U.S. or For Transit

• Those VWP travelers who are scheduled or intend to enter the U.S. port of entry without a visa tomorrow should remember that effective tomorrow, July 1, 2009, they must carry with them e-passports including those who intend to use emergency or temporary passports. This includes VWP applicants who present emergency or temporary passports to transit the United States. An e-Passport contains an integrated chip that stores biographic data, a digitized photograph, and other information about the true bearer and indicated by this symbol on its cover. This is a reminder because we posted this important message earlier: Read on.

06/30/2009: OFLC Releases FAQs on Implementation of Final H-2B Regulations for Temporary Labor Certifications in the Entertainment Industry

• The FAQs give answers to questions relating to the new procedure under the H-2B Final Rule that took effect this year, particularly for the entertainment industry.

06/29/2009: The First Day of Resumption of I-140 Premium Processing Services

• Today marks the first day of the USCIS resumption of I-140 petition premium processing service. Hope the employers and the involved foreign workers enjoy the new beginning in their immigration journey. Availability of premium processing services will be critically important particularly when the USCIS halts current I-140/I-485 concurrent filing procedure in the future, even though the specific schedule has yet to be announced.

06/29/2009: USCIS Operating Performance April 2009

• The USCIS has released update of operating performance report of April 2009. The last report included the statistics for March 2009.

06/29/2009: H-1B Cap Count as of 06/26/2009 (Friday)=44,800

06/28/2009: DV-2010 Lottery Online Individual Entrant's Status Check Available Beginning from 07/01/2009

• The State Department indicates that starting July 1, 2009, the FY 2010 DV lottery entrants will be able to check the status of their entry through theE-DV website at http://www.dvlottery.state.gov. Entrants will need to use their own confirmation page information from the time of their entry (October 2, 2008, to December 1, 2008), to check the status to find out if their Diversity Visa Lottery entry was or was not selected. The overall results of FY 2010 DV lobbery results have yet to be published.

06/27/2009: House and Senate Passed a Resolution for "Conditional" Recess Through 07/06/2009

• The Fourth of July marks the nation's "the" most celebrated official holiday to refresh a sense of the pride and dignity as an Independent Nation and a world leader. Legislators will have to return to their home towns to share the celebration with their constituents. That is what the Congress decided by passing a resolution to go into the Independence Day recess, conditioned upon the authorities of House Speaker and Senate President to call back the members of the both Houses anytime during the recess, should the circumstances warrant such call.

06/27/2009: Important Reminder for H-1B Petition Filers - Disabling of Current LCA Online Filing System Takes Effect Next Wednesday, 07/01/2009

• Beginning from July 1, 2009, the employers will not be able to file the Labor Condition Application for H-1B using the current online filing system. The last date available for LCA online filing using the current system will be next Tuesday, 06/30/2009. Those employers who have yet to register with the new iCert portal system should register as soon as possible. Unlike the current system, the registration is not necessarily completed in a matter of seconds in lots of cases and help-line for iCERT system has experienced in responding to the queries in the past causing delays in registration. Employers who need to file the H-1B petitions in the next one month or so should file the LCA before next Wednesday and at the same time, make it sure to start registering with the iCERT portal system as soon as possible. Please visit our home page for the link to the iCERT portal. Important, important!

06/27/2009: USCIS Updates Information and Guidance for I-140 Premium Prcoessing Services Request Filing Effective Monday, 06/29/2009

• As announced, the USCIS will start accepting I-907 Premium Processing Service Requests, beginning from Monday, for I-140 petitions for all categories except EB-1C Multinational Corporate Executive/Manager and EB-2 National Interest Waiver categories. The Premium Processing Services will be available not only for the new I-140 filings but also the pending I-140 cases. When PPS request is filed for the pending cases, the petitioners may make it sure to enclose a copy of the Receipt Notice of pending I-140 petitions to assist the agency. Additionally, the filing will be rejected if it fits one of the following conditions.
• Conditions for I-140 Petition Premium Processing Request Filing "Rejection":
  • Filing with an incorrect jurisdiction: Incorrectly submitted concurrently with a Form I-140 petition at a USCIS office without geographic jurisdiction over the Form I-140 petition;
  • Filing unavailable category I-140 petition: As of 06/29/2009, EB-1C and NIW I-140 petitions will remain unavailable for the PPS, as stated above.
  • A second filing of I-140 petition while an initial I-140 remains pending;
  • I-140 petition with Labor certification substitution requests;
  • Filing of I-140 without the original, requesting duplicate Labor certification. The situation may also involve I-140 amendment petitions without the original labor certification to recapture earlier priority dates from prior I-140 petitions because the original certified labor certification will not be readily available for adjudication within 15 calendar days. The latter practice has been adhered to particularly by the Texas Service Center.
  • A Form I-140 petition in which a final decision has been made. Too obvious reason.
• It is a best practice to write a separate check for I-907 filing fees such that rejection of I-907 for whatever reasons will not result in rejection of entire filing including I-140 petition. It is not stated in the foregoing guidance, but PPS request signed by an alien beneficiary or a legal counsel without the petitioning employer's consent will also be rejected. Only the petitioning employer or its legal counsel with the employer's authorization can file the PPS request. Voila! Enjoy PPS!

06/26/2009: USCIS Updates Guidance on Employment Eligibility Verification Form I-9

• USCIS announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.
  

06/26/2009: USCIS Memorandum of 06/25/2009: Implementation of the District Court’s Order in Ruiz-Diaz v. United States, No. C07-1881RSL (W.D. Wash. June 11, 2009)

• This memorandum is issued to implement so-called I-360/I-485 concurrent filing order of the U.S. District Court in Seattle in a class action by the religious worker special immigrants. This memorandum is very important and we will post most of the text to alert the eligible religious workers to act promptly:
  • Field Guidance: Effective immediately, USCIS personnel are directed to comply with the following instructions summarized below.
    
    • A. Eligible Applicants
      (1) Principal Aliens: The district court’s order pertains to applicants who previously filed for adjustment of status, whether or not submitted concurrent with, or subsequent to, the proper filing of a Form I-360 for classification as a religious worker. Because the district court invalidated the concurrent filing regulations as applied to religious workers, individuals who sought to concurrently file Forms I-360 and I-485 on or after July 31, 2002,2 are permitted to re-file their Forms I-3603, I-485, and I-765 with the California Service Center. To give effect to the district court’s order pertaining to retroactive employment authorization, USCIS will not count the period of unauthorized employment from the date of the original submission of the Form I-360 or November 21, 2007, whichever is earlier, once the applicant files the previously rejected Forms I-485 and I-765 with the Form I-360. USCIS can only issue prospective employment authorization cards (EAD) upon receipt of a properly completed Form I-765.4
      (2) Spouses and Children: Similarly, the district court’s order also permits spouses and children who are the beneficiaries of properly filed Forms I-360 by religious workers to be accorded the same status and order of consideration as the principal, unless the spouse and child are already entitled to another immigrant status and immediate issuance of a visa under section 203(a), (b), or (c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(a), (b), or (c). Like the principal, spouses and children are also subject to the same requirements for adjustment eligibility, including admissibility.
    • B. Provisions Regarding Unlawful Presence and Unauthorized Work: Pursuant to the district court’s order, three categories of individuals will receive protection from the accrual of unlawful presence and from unauthorized work during periods in which an individual was not permitted to concurrently file a religious worker Form I-360-based application for adjustment of status:
      (1) any alien who concurrently filed a Form I-360 with a Form I-485 and/or Form I-765 and whose I-360 and I-485 applications were rejected pursuant to 8 C.F.R. § 245.2(a)(2)(i)(B) and who properly re-files5 the I-360 and I-485 applications with appropriate fees and supporting documentation will have any period of unlawful presence and unauthorized employment that began accruing after either filing of the Form I-360 or November, 21, 2007, whichever is earlier, tolled until September 9, 2009, (i.e., 90 days from the date of the district court’s order);
      (2) any alien who has a Form I-360 religious worker petition pending with USCIS as of June 11, 2009, will have any period of unlawful presence and unauthorized employment that began accruing after properly filing of the Form I-360 with appropriate fees and supporting documentation, tolled until September 9, 2009;
      (3) any alien who files a new Form I-360 religious worker petition with USCIS on or after June 11, 2009, will have any period of unlawful presence and unauthorized employment that began accruing after properly filing of the Form I-360 with appropriate fees and supporting documentation, tolled until September 9, 2009.
      Persons falling in categories 1 and 2 are immediately eligible to file a Form I-485, as well as Form I-765 applications. All persons who properly file their I-485 and I-765 on or after June 11, 2009 and have their applications receipted in by USCIS prior to September 9, 2009, also will have any period of unlawful presence or unauthorized employment tolled until USCIS issues a final administrative decision.
      USCIS adjudicators should still consider any periods of unlawful presence and unauthorized work that accrued or occurred prior to the filing of the Form I-360 or prior to November 21, 2007, whichever is earlier, when determining an alien’s eligibility for adjustment of status. Adjudicators should also consider any periods of unlawful presence that accrue after approval of a pending Form I-360, if the alien fails to file a Form I-485 by September 9, 2009.
      Any alien that believes that he/she is covered by the provisions of the court’s order may refile a Form I-360 with the I-485 and I-765 applications, with appropriate fees, prior to September 9, 2009. Affected individuals should also submit a copy of the original USCIS denial or rejection notice indicating that the case was denied or rejected solely based on the concurrent filing regulation at 8 C.F.R. § 245.2(a)(2)(i)(B).
    • C. New Filings:
      The district court’s order requires USCIS to accept concurrently and properly filed religious worker petitions (Forms I-360), requests for employment authorization (Forms I-765), and adjustment applications (Forms I-485). However, USCIS is not prohibited from rejecting improperly filed applications that do not comply with the regulations at 8 CFR 103.2, 245.2(a)(3), and 274a.13 or Instructions for the Forms I-360, I-485, or I-765. Applicants must also comply with all requests for additional evidence, for appearance at interviews, and for biometrics and background or security checks pursuant to standard instructions and operating procedures for adjustment applications and requests for employment authorization.
      • Petitioners filing new applications, re-filing applications, or who have pending Form I-360 religious worker petitions must mail their applications to:
        California Service Center
        P.O. Box 10485
        Laguna Niguel, CA 92677-1048, Petitioners should annotate on the front of the envelope in clear large print “I-360/I-485 – RUIZ-DIAZ LITIGATION” so that the application may be routed to the proper Service Center adjudications unit.
        
      • Petitioners who have an approved Form I-360 religious worker petition and live in Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin or Wyoming, should file the I-485 and I-765 with the Nebraska Service Center.
        Nebraska Service Center P.O. Box 87485 Lincoln, NE 68501-7485
        
      • Petitioners who have an approved Form I-360 religious worker petition and live in any other state, U.S. territory, or Washington, D.C., should file the I-485 and I-765 with the Texas Service Center.
        Texas Service Center P.O. Box 851804 Mesquite, TX 75185-1804
        
    • D. Aliens in Removal Proceedings:
      The district court’s order only affects cases that are currently pending before USCIS or that will be filed with USCIS pursuant to the order. As a general matter, USCIS lacks jurisdiction over aliens who are in removal proceedings. For aliens in removal proceedings or subject to a final order of removal, U.S. Immigration and Customs Enforcement (ICE) may issue separate guidance in the future.Memorandum to all HQ and Field Leadership
• Please read the full text and follow the guidance in the memorandum.
• Also read:
  • Ruiz-Diaz Notice to Pending I-360s
  • Notice of Court's Order Regarding Beneficiaries of Pending Petitions for Special Immigrant Religious Worker Visa (Form I-360)
  • Order Directing Entry of Judgement

06/26/2009: Text of Testimony of Mr. Alejandro Mayorkas, New USCIS Director Nominee, Before Judiciary Committee on 06/24/2009

• The personal part of Mr. Mayorkas: "As one who was granted citizenship through the beneficence of our government and by virtue of my family's journey to this country, I understand deeply the gravity as well as the nobility of the mission to administer our immigration laws efficiently and with fairness, honesty, and integrity. The most important responsibility of USCIS is its authority to bestow citizenship. As a naturalized citizen, I have a deep understanding and appreciation of this mission. My parents, sister, and I were once refugees. In 1960, we fled Cuba. My father lost the country of his birth, and my mother, for the second time in her young life, was forced to flee a country she considered home. But our flight to security gave us the gift of this wonderful new homeland. I know how very fortunate I am."
• Mr. Mayorkas' priorities as the new Director of USCIS:
  • First, clarity of mission is critical in enhancing the public profile of the Agency and instilling public confidence in the secure, fair, and effective administration of our nation's immigration laws. I am committed to ensuring USCIS delivers high-quality customer service to those who are eligible to receive benefits. Protecting our national security and public safety is a critical component of the USCIS mission, not an after-thought. This means we must continue to strive to improve the Agency's fraud prevention and detection operations, increase collaboration with US Immigration & Customs Enforcement (ICE) and other law enforcement agencies to respond to fraud, and improve the efficiency and accuracy of the E-Verify system.
  • Second, I believe it is critical to enhance transparency and improve the flow of information from the Agency to Congress and the appropriate stakeholders to ensure those concerned about particular issues understand USCIS actions and are able to enact effective immigration regulations and laws. I hope to build an effective relationship with this Committee, both members and your staffs, and to understand your priorities. I know this confirmation process is just the start. I also hope that, if I am confirmed and after I have completed an Agency review, you will be willing to hear from me about the needs of USCIS.
  • Third, we must always look to the future. It is critical to position USCIS to meet current and future immigration demands. To this end, we must ensure the successful progress and implementation of Business Transformation, increase the efficiency of domestic and international operations, and improve detection and prevention of system abuse.
  • Fourth, developing a motivated workforce is important to ensure high-quality service and retaining such a workforce is always a challenge. If I am confirmed, I commit to doing my very best to review the needs of the USCIS workforce and to implement programs and policies that serve to motivate and retain employees.
• Please get to know him.

06/26/2009: Senator Chuck Schumer's Seven Priuciples of Immigration Reform

• Senator Schumer, Chairman of Senate Judiciary Immigration Subcommittee announced seven(7) principles that he said would form the basis for the legislation he intends to introduce by the fall:
  1. Illegal immigration is wrong, and a primary goal of comprehensive immigration reform must be to dramatically curtail future illegal immigration.
  2. Operational control of our borders--through significant additional increases in infrastructure, technology, and border personnel--must be achieved within a year of enactment of legislation.
  3. A biometric-based employer verification system—with tough enforcement and auditing—is necessary to significantly diminish the job magnet that attracts illegal aliens to the United States and to provide certainty and simplicity for employers.
  4. All illegal aliens present in the United States on the date of enactment of our bill must quickly register their presence with the United States Government—and submit to a rigorous process of converting to legal status and earning a path to citizenship—or face imminent deportation.
  5. Family reunification is a cornerstone value of our immigration system. By dramatically reducing illegal immigration, we can create more room for both family immigration and employment-based immigration.
  6. We must encourage the world’s best and brightest individuals to come to the United States and create the new technologies and businesses that will employ countless American workers, but must discourage businesses from using our immigration laws as a means to obtain temporary and less-expensive foreign labor to replace capable American workers; and finally
  7. We must create a system that converts the current flow of unskilled illegal immigrants into the United States into a more manageable and controlled flow of legal immigrants who can be absorbed by our economy.
• For the news release, please click here.

06/26/2009: President's Announcement of New Collaborative Initiatives Between the White House IT Staff and the USCIS for Launch of New USCIS Services for Transparency and Efficiency

• In releasing a statement on the yesterday's CIR meeting result, the President released the following information:
  • Today I'm pleased to announce a new collaboration between my Chief Information Officer, my Chief Performance Officer, my Chief Technologies Officer and the U.S. Citizenship and Immigration Services Office to make the agency much more efficient, much more transparent, much more user-friendly than it has been in the past.
  • In the next 90 days, USCIS will launch a vastly improved Web site that will, for the first time ever, allow applicants to get updates on their status of their applications via e-mail and text message and online. And anybody who's dealt with families who are trying to deal with -- navigate the immigration system, this is going to save them huge amounts of time standing in line, waiting around, making phone calls, being put on hold. It's an example of some things that we can do administratively even as we're working through difficult issues surrounding comprehensive immigration.
  • And the idea is very simple here: We're going to leverage cutting-edge technology to reduce the unnecessary paperwork, backlogs, and the lack of transparency that's caused so many people so much heartache.
• For the announcement, please click here.

06/26/2009: Senator Jeff Sessions Assessment of CIR White House Summit Yesterday

• Senator Jeff Sessions from Alabama has been a staunch road block to the comprehensive immigration reform legislation representing ultra right wing conservative view and position in the Senate for the past two years. Accordingly, his assessment of yesterday's White House CIR Summit which he attended gives a sketch of the views and positions of the conservatives which were probably addressed at the Summit. According to the report, Senator Sessions assesses the Summit as follows:
  • The CIR leadership should come from the White House and not the Congress. Unless the President articulates the CIR proposal, the Congress would not act.
  • The stumbling block that Senator Sessions see in this endeavor is that the President's plate is too full with so many different critical national issues and in his assessment, the President will not be able to push his strong leadership in the direction of CIR this year.
  • Senator Sessions sees three broad factions which are addressed by the three broad political groups on CIR issues:
    • Legalization of undocumented aliens which the Democrats focus on and which the conservatives will continue to oppose.
    • Guest worker programs (employment-based immigration) which both the Democrats and the Republicans agree to. In the conservative forces' view, the stumbling block for the CIR legislation towards this direction is labor unions and unless the President is successful in persuading the unions to compromise, the CIR will fail. This position has also been strongly addressed by the moderate Republican Senator John McCain.
    • Border security, immigration law enforcement, and control of unauthorized employment through reinforcement of employer sanctions which will be the focus of the conservative Republicans. Democrats have been opposing such proposal, but lately Senator Chuck Schumer of New York backed off from the traditional Democratic position on this issue and agreed to accommodate such demand by accepting e-verify program.
• As this reporter addressed it yesterday, people may not be able to expect too much from the Summit other than to identify "differences" among the members of the Summit. It thus appears that there has been no change with reference to the differences in views on the CIR between the liberal Democrats and the conservative Republicans that have posed a stumbling block for a successful CIR legislation for the past several years. The key appears to be that someone or some groups in the political factions should come forward to moderate the process of negotiation and compromise of the differences, but at this point, we do not see such process in place yet. There is no indication that the yesterday's summit was successful in reaching an agreement to any mechanism to initiate the process other than the President's idea that he will let the DHS Secretary Napolitano to assist him to work with various groups to address different CIR issues. It is unknown whether the President was able to form a bi-partisan task force that encompass the White House, the Congress, and the Administration, something similar to the one which the former President Bush formed for the 2008 CIR legislative process, which ended up with the ditch in the House. Please stay tuned.

06/25/2009: Remarks by the President After Meeting With Members of Congress to Discuss Immigration

06/25/2009: "Soccer Ball" Named CIR and Disappointing News on CIR Summit in the White House

• Disappointing news are all over in the media after the summit was over this afternoon. Reportedly, the President even brought up the target date of CIR this year or "early next year." The problem with this schedule is that everyone knows that year 2010 is the election year and history tells that the election years are the worst year to consider CIR. We reminded readers of this reporter's analysis on this issue during the last few days.
• What are the "real" sources of problem? Current environment including the economic recession and terrible unemployment rate is inducing the political leaders to act "low key" for fear of being labeled as "alien" amnesty advocates. At the same time, they cannot afford losing the Hispanic constituency and they have been acting "pushed" by the political motives rather than "spearheading" the reform. For the reasons, CIR has lately turned into a soccer ball which every political leader wants to kick around to place blame of failure on someone other than himself or herself. News is abound now that the House leaders do not want to act unless the Senate moves and pass a bill first. Republican leaders claim that it is the President who should come forward with a specific bill and they will not act first without the President showing "real" leadership in the CIR. The White House is down playing the chance of CIR in 2009 advancing a theory that there are not enough number of supporters of CIR in the Congress, but advances a position that the legislators in the Congress must first come up with a bill. The Senate majority leader keeps spinning that the CIR is "do-able" in 2009, but is not willing to take it up until "fall" because of the two higher priorities in health care reform and energy reform. Politics abound.
• When it comes to the blame for "inaction," every single of them should share a slice of the "sour" pie. Before they kick a soccer ball around to blame everyone other than himself or herself, they should prove themselves to the public and the system that they can "initiate" themselves by proposing and introducing CIR bill. Current problem is that no one wants to "initiate" any specific proposal or legislative bill! When it comes to the word "initiate," each of them points a finger at others. This reporter wants to ask the President whether he brought a proposal to the summit. This reporter wants to ask the legislative members of the summit whether each of them brought any proposal or a draft of a legislative bill. The details of the today's summit discussion has yet to be disclosed, but the indication is "probably not." Next week, we celebrate the Fourth of July which will quickly move into the Congress' August summer recess. This year's CIR game shows a phenomena which is distinctively different from previous two or three years. In previous years, the legislators were eager to be prominent in CIR and active in initiating and introducing their CIR proposals and bills. Not this year!? Hmm..........................................................................................................................!

06/25/2009: Senate Judiciary Concluded New USCIS Director Nomination Hearing

• Yesterday, the Senate Judiciary postponed this hearing conditioned upon the full Senate floor situation. The Senate floor was able to pass the Motion to Cloture for the nomination of Harold Koh by obtaining more than 63 votes on the floor and the members of Judiciary was thus apparently available to pick up and take care of the Judiciary Committee business. Accordingly, the Committee concluded a hearing to examine the nomination of Mr. Alejandro N. Mayorkas, of California, to be Director of the United States Citizenship and Immigration Services after the nominee testified and answered questions in his own behalf. This nomination is expected to the full Senate floor sooner or later for the confirmation. Mr. Hrold Koh is expected to be confirmed this morning on the full Senate floor.

06/25/2009: White House Immigration Summit Meeting Today

• Today, the President will meet at 2:00 p.m. EST with 20 bi-partisan legislative leaders to discuss the immigration reform. The legislators include include, among others, "Who"s Who" immigration reform legislators from both parties and both Houses, including Sen. John McCain, R-Ariz., Sen. Chuck Schumer, D-N.Y., Sen. Robert Menendez, D-N.J., and Sen. Mel Martinez, R-Fla., Sen. John Cornyn, R-TX, on the Senate side, and Rep. Zoe Lofgren, D-CA, Rep. Loretta Sanchez, D-CA, Rep. Howard Berman, D-CA, Rep. Luis Gutierrez, D-Ill., Rep. Lincoln Diaz-Balart, R-Fla., and Rep. Lamar Smith, R-Texas. The summit meeting is likely to achieve at least one thing: "differences" between the Democrats and the Republicans. Since no legislators have released their proposals, the differences have yet to be clarified by these legislators and the White House.

06/24/2009: Senate Judidicary Hearing for New USCIS Director Nomination Confirmation "Postponed"

• The Senate Judiciary was scheduled to have a nomination confirmation hearing today, but since the Senators are likely totally tied up with Senate floor action today relating to a hotly contested legislative bill , the nomination hearing has been conditionally postponed in anticipation that the Committee would not be able to meet the quorum to conduct such hearing. One of the hottest Senate floor action today is nomination of Harold Hongju Koh, of Connecticut, to be Legal Adviser of the Department of State. This nomination can be jeopardized unless the Senate floor assues at least 60 votes ot muscle out Motion to Cloture so that the floor can block filibusters and pass confirmation. Apparently, there is a concern with availability of 60 votes in favor of the notion at this point. Pleasse stay tuned.

06/24/2009: H-1B Cap Count Update as of 06/19/2009=44,500

• Why not moving? The responsible official explains that it is partly related to its way of counting this year taking out the number of cases which the agency may deny or revoke or employers may withdraw. It is uncertain how many of FY 2010 H-1B cap numbers have been saved as affected by the agency's action of denial, revocation or withdrawal, but the number could be somewhat substantial.
• However, do not bet on the current frozen numbers. People should remember that before the FY 2010 H-1B cap filing started on April 1, 2009, the Congress passed H-1B special legislation putting a two-year moratorium during when the so-called TARP funded employers would be practically prohibited from hirning new H-1B employees. The total number that are affected by this action have yet to be identified. However, accorting to the FY 2008 list of entire H-1B employers and the H-1B numbers filed by these employers in the order of the volumes, the numbers that had been filed by the TARP funded H-1B employers were quite substantial. Additionally, there are unconfirmed sources of information that the TARP funded companies have also been indirectly forced by the fed not to circumvent the new H-1B law by practically hiring new H-1B employees in the name of consultants through consulting companies. Now, this may change since a number of large TARP funded companies have been paying back the money to the fed in order to stay out of the fed "ownership?" or "control." The question remains whether these former TARP funded employers are freed from the new H-1B hirming freeze law since they are no longer TARP funded employers as defined in the statute. According to the USCIS sources, the USCIS is currently working with DOL and Treasury Department to determine this issue. Should they arrive at a conclusion that they will no longer be subject to the new H-1B moratorium statute, people can easily figure out the number of new H-1B filings these companies may file either directly or indirectly. This can change the picture of FY 2010 H-1B cap count updates down the road. Beware!

06/23/2009: USCIS Announces That FBI Name Check Backlog Has Been Eliminated

06/22/2009: USCIS Reinstates Premium Processsing Services for I-140 Petitions Effective 06/29/2009

• USCIS will receive I-140 premium processing request applications for the following categories effective June 29, 2009:
  • EB-1A: Extraordinary Worker Petitions
  • EB-1B: Outstanding Research/Teacher Petitions
  • EB-21: Advanced Degree and Exceptional Worker Petitions
  • EB-31A: Professional Worker Petitions
  • EB-31B: Skilled Worker Petitions
  • EB-3EW: Unskilled Worker Petition
• The following categories remain unavalable:
  • EB-1C: Multinational Corporation Executive/Manager Petitions
  • EB-2NIW: National Interest Waiver based EB-2 Petitions.
• I-140 filers have been long waiting for the reinstatement of Premium Processing Services because of the following benefits, among others:
  • AC 21 porting of approved I-140 petition to new employment after 180 days of I-485 filing
  • Three-year increment extension of H-1B status indefinitely pending visa number availability
  • Two-year extension of EAD pending visa number availability
  • Retention of priority date allowing recapture of the retained priority date afterwards to new I-140 petitions in identical or different EB classifications and with same or different employer sponsored I-140 petitions
• Considering the anticipated visa number retrogressions for a prolonged period of time almost in all categories in the future, particurlarly when the relief through the CIR legislation becomes more and more uncertain in the near future, the USCIS reinstatement decision can be taken as a very important administrative fix at the level of administration to give relief, albeit partial and limited, for the employment-based immigration foreign workers and the employers in the U.S. including high tech industry and research and academic institutions. From the perspectives of the USCIS, the agency will likely raise a huge sources of additional funding which should help it to push ahead ongoing initiatives with the additional resources to improve efficiency of the management, backlog reduction, etc. without compromising the parallel task of achieving integrity of the immigration benefitis application processing and adjudicating system. Mutual interest, we may say!

06/22/2009: Senate Judiciary Hearing on EB-5 Regional Center Program

• The Senate Judiciary was scheduled to have a hearing on 06/24/2009 on "Promoting Job Creation and Foreign Investment in the United States: An Assessment of the EB-5 Regional Center Program" but this hearing has been postoned. The full committee will however hear the new USCIS Director nomiee confirmation agenda as scheduled on 06/24/2009. For the rescheduling of EB-5 program hearing, please stay tuned to this website.

06/22/2009: Wexler's Nursing Relief Bill Reportedly Faces Unexpected Hurdle

• Report indicates that the President Obama has a skeptism over the bill that foreign nurses should be imported to relieve the country from the current problem of shortage of nurses. Uh, uh........ Read on. By now, people know that philosophically he is a strong supporter of unionization of work forces and labor unions. Nurse immigration issue is another addition to the problem which employment-based immigration faces and will probably continue to face on top of restrictions to H and L visa programs. Hope the report is wrong!

06/21/2009: CIR and What's Ahead

• On Friday, Obama Press Secretary Robert Gibbs officially announced that the President was scheduled to call a small group of Congressional leaders and political leaders to the White House to open a dialogue on CIR next Thursday, 06/25/2009. Troublesome was another statement that recognizes the facts by the Press Secretary at the same press conference that the Congress did not have enough numbers to pass a CIR legislation. As we reported earlier, for a CIR to pass the Congress, it should pass both the Senate and the House. However, it is the House that lacks enough numbers at this time to pass a CIR legislation this year. There are a plenty of House legislators who represent districts that are politically not affected by the Hispanic population and their political pressures. These legislators usually form a group of Democratic represenstives who are either conservative and middle of the road in the political ideology. The situation tends to be different when it comes to the Senate that is consisted of legislators based on their statewide consistuencies as opposed to the House representatives that represent small neighborhood and district constituencies. The Senators' decisions are thus derived more from broader national political or statewide political issues and interests of the whole party. For this reasons, for the past several years, the Senate initiated and was able to pass CIR bills which have ended up in the ditch when it moved to the House floor. The background behind the Press Secretary's announcement downplaying the potential success of CIR within this year is their motivation to control unrealistic rise of expectation in the CIR supporting community on the President's initiatives that can also end up in another ditch with potential negative political fall-outs to his political leadership. The current politcal landscape and environment then raise two questions. The first question is whether the President and the Democratic Congress will have enough energy and zeal to successfuly change the existing political landscape, particularly in the House of Representatives, within such a limited time within this year. The Congress will soon go into the Summer recess and the remaining legislative days in the Congressional calendar for 2009 are very limited. The second question is why then Senate Majority leader, Sen. Harry Reid, has been spinning in media on his agenda to take up a CIR bill this fall with the full realization of political reality that can be ditched again in the House. It appears that part of such spinning is related to his own political future. His seat in the Senate will be up for reelection in the national mid-term election in 2010 and he needs a strong support from the Hispanic constituency in the State of Nevada. The Hispanic population has been rapidly growing durng the past several years in the State of Nevada. His push for a CIR will achieve his political calculation, no matter whether the bill will pass or fail in the Senate. Again, the chance for a CIR passing the Senate in 2009 is indeed very good as the chance for Senate Democrats pulling together 60 votes may turn realistic, particularly as affected by the final result of the current Senate election dispute in the State of Minnesota. In the very near future, the Minnesota Supreme Court is likely to hand down a decision sustaining the election of Mr. Al Franken, a progressive Democrat, as the next Senator, over the conservative former(?) Senator Norm Coleman. For the discussion per se, let's assume that the CIR fails to pass either in the Senate or in the House. The Senator Harry Reid will still get all the credits in his Hispanic constituency in the State of Nevada for his initiatives in the Senate to legislate a CIR!
• All in all, year 2009 will turn out to be the only year that can pass a CIR because this is a so-called leap-year when there is no national reelection and the House members will be less affected by their activities this year. The key is whether the President Obama will have enough energy, steam, and polical motive to make a full-court pressing and arm-twisting of the conservative Democratic members in the House within a "very" short period of time, within this Summer or early fall at the latest. Currently, his and Democrats' top two reform agenda stay with the nation's health care and energy reforms. Until we see such full dedication and commitment of the President to the CIR within a given time, one should not raise the level of his/her hope or expectation too high as it will indeed bring out really devastating frustration and hopelessness in 2010 in that considering the November 2010 mid-year election, the chance for CIR next year will turn out to be very slim because of the rerunnng Democrats in the election from small districts that are not affected by the Hispanic political pressures. Until we see such solid momentum and heat of passion on the part of the President leading to quick actions in the near future, all the media campaign and spinning of news by the White House and the Senator Reid may have to be taken with caution and discount.

06/20/2009: Senate Judiciary Schedules New USCIS Director Nominee, Alejandro Mayorkas, Confirmation Hearing on 06/24/2009, Wednesday

• Senate Judiciary Committee schedules to hold hearing to examine the nomination of Mr. Alejandro N. Mayorkas, of California, to be Director of the USCIS/DHS on June 24, 2009, Wednesday, at 10:00 a.m. The USCIS Director position has been vacant and Mr. Michael Aytes has been filling the vacancy in the USCIS leadership as the Acting Deputy Director of the USCIS. It is thus likely that beginning from July 2009, the USCIS may have a new leader in place. Obviously, the new leader may bring some changes in direction of management and immigration policies along the way, but it is unclear how soon and to what level such changes will take place.
• On the occasion of upcoming change in the USCIS leadership, immigration stakeholders and immigrant community should recognize and salute the job well done for immigration benefit program management during the leadership vacancy by Mr. Michael Aytes, Acting Deputy Director, and Mr. Donald Neufeld, Associate Director of Domestic Operations. Both of these leaders are career immigration officials for over 25 years with profound expertise and knowledge in immigration.

06/20/2009: Nonimmigrant Visa Revalidation for Visiting Canada, Mexico, and Caribbean Islands

• Summer travel season is approaching soon and a number of nonimmigrants are likely to visit Canada, Mexico, and Caribbeans Islands for a short vacation or pleasure. We posted earlier the visa revalidation rules for the nonimmigrants whose visas in the passport have been expired but who have a valid passport and a valid nonimmigrant I-94. As summer vacation season approaches, we would like to post the visa revalidation rule once again to remind the nonimmigrants that there are different types of revalidation rules for different types of nonimmigrants. Automatic visa revalidation applies to expired nonimmigrant visas of aliens who have been out of the U.S. for 30 days or less in border countries (Canada and Mexico). According to the visa revalidation fact sheet of U.S. Customs and Border Protection agency, the following rules are in place:
  • Must have a valid passport.
  • F- 1 and J-1 Students: Can visit and return from Canada or Mexico or adjacent islands other than Cuba within 30 days with the expired visas but with a valid I-94.
  • M-1 Students: Can visit and return only from Canada or Mexico, but not adjacent islands.
  • Other Nonimmigrants: Can visit and return only from Canada or Mexico.
• The foregoing visa revalidation is not available in the following two situations:
  • Nationals of Iran, Syria, Sudan, and Cuba
  • Nonimmigrants who applied for a visa during such visit at the American Consulate in the visiting countries or visa was denied by the American Consulate in the visiting countries during the visit.
• For the full details, please read CBP Automatic Revalidation Fact Sheet.

06/19/2009: Advisory for Visa Waiver Program Travelers Without Visas

• Effective July 1, 2009, all VWP travelers including those with emergency or temporary passports should carry with them e-passport. Otherwise, they will be detained for processing or denied admission to the U.S. In certain cirucmstancs, they will exercise discretion and VWP travelers should read the USCBP website notice carefully before they depart from their countries.

06/19/2009: USCIS 06/17/2009 Memorandum Revises Adjudicators Field Manual on Processing and Adjudication of I-140 Petitions for Foreign Physicians

• This memorandum is issued by Mr. Donald Neufeld, Acting Associate Director of Domestic Operations, USCIS to give a guidance as to how to determine if a foreign Medical Degree (MD) is the equivalent of a U.S. MD degree, and thus an advanced degree, for EB2 purposes. This memorandum also addresses how to determine whether an alien physician has met the education, training and experience requirements of the labor certification and licensure in the area of intended employment, and it clarifies that all EB2 and EB3 alien physicians must overcome the “unqualified physician” inadmissible alien provisions of INA §212(a)(5)(B) at the time of the permanent job offer.

06/19/2009: DHS Inspector General Report of 06/11/2009 on Special Immigrant Nonminister Religious Worker Program Management Findings and Recommendations to USCIS

• This report reviews the IG's investigation results and findings on the I-360 program for nonminister religous workers, and IG's recommendations to Mr. Michael Aytes, Acting Deputy Director of USCIS list of recommendations. The report also includes Mr. Aytes responses to the recommendations. Those who are involved in the program should read this report.

06/19/2009: Advisory for H-1B and PERM Filing Planners

• Time really flies. July is already almost at our door step. July will bring a couple of changes in the foreign labor certification programs. First, the current online Labor Condition application filing (ETA 9035E) is scheduled to be disabled at the end of day of June 30, 2009. Accordingly, beginning from July 1, 2009, employers who file LCA for H-1B petition must use iCERT portal system. Filing of LCA using iCERT may cause some delays for a number of reasons. Firstly, there are a number of employers who have yet to familiarize themselves with the new system and thus far some employers have already been experiencing delays even at the stage of employer and lawyer registrations which is the first step for using the new system. Secondly, should the employer uses authoritative private wage survey instead of DOL wage data library for the prevailing wage determination, they will almost automatically experience delays in obtaining the decision for one week or even longer depending on the private wage sources. Currently, there are still enough FY 2010 H-1B cap numbers, but that can change. Since the FY 2010 H-1B cap cases must be filed before it reaches the cap, these delays may result in critical consequences for some employers down the road. Employers will witness another changes coming July. The DOL will release new wage data. No one knows how the current economic recession will affect the new wage figures. However, considering the fact that hike of the inflation rate may push up the prevailing wage figures, one may as well assume that the new wages will go up. Once the new figures are released, the employers are required to use the new wage data. Increase in the prevailing wage will affect some employers that can afford only limited amount of wages for H-1B foreign workers under the current economic environment. The wage change will also affect PERM application. Unlike H-1B cases, in the PERM applications, most of the employers are required to use the DOL wage data rather than a private survey in order not to experience delays or other consequences. This impact will become more visible once the prevailing wage determination is centralized. Currently, the prevailing wage determination is made by the State Workforce Agencies for PERM proceedings and only the wage determination for H-2 temporary labor certification application is made by the Chicao National Processing Center of DOL instead of SWAs at the state level. This will change down the road. DOL intends to centralize the prevailing wage determination for PERM at the Chicao NPC sometime early FY 2010. What happens if the employers obtain the prevailing wage determination from the SWAs now? They will give 90-day valid prevailing wage determination for PERM which may remain valid for filing of PERM even after the end of June 2009. One drawback is that the employers must ensure that the recruitment activities are launched within the validity period (90 days) of states' prevailing wage determination and PERM application must be filed without too much delays.
• For the foregoing reasons, the employers may obtain the prevailing wage determination as well as the LCA for H-1B before the end of this month, which is only about 12 calendar days or seven working days away.

06/19/2009: Bill Introduced to Waive New Requirements for VWP Program for Two Years

• Representative Mike Quigley from Illinois introduced in the House H.R.2954 to authorize DHS Secretary to waive certain requirements under the Visa Waiver Program for an additional 2 years.

06/18/2009: USCIS Neufeld Memorandum on Immigration Benefits of Widows and Children of Deceased U.S. Citizens

• We reported on June 9, 2009 that DHS Secretary Napolitano announced temporary deferred action reflief of such widows and children. This DHS Secretary's announcement is followed by the official release of memoraum on this decision by Mr. Donald Neufeld, Acting Associate Director for Domestic Operations of USCIS on June 15, 2009 to give a guidance to the field offices and adjudicators on such applications. Albeit temporary relief, this is an important relief for the widows and children of deceased U.S. citizen. Read on.

06/18/2009: The Board of Immigration Appeals Handed Down an Important Decision on Aged-Out Benefits Under CSPA

• On June 16, 2009, the BIA ruled that the automatic conversion and priority date retention provisions of the Child Status Protection Act do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a Family-Based 4th preference visa petition, and on whose behalf a Family-Based 2nd petition is later filed by a different petitioner. It means that if a CSPA aged-out benefit is attached as the derivative beneficiary of 4th preference immigrant petition, such aged-out benefit is not automatically transferred to another 2nd preference immigrant petition if such 2nd preference petition is filed on his/her behalf afterwards. Those affected by this decision is encouraged to read the full text of the decision. See Matter of Wang, 25 I&N Dec. 28 (BIA 2009), Interim Decision #3646 (BIA June 16, 2009)

06/18/2009: USCIS Memorandum of 06/17/2009 on EB-5 Alien Entrepreneurs - Job Creation and Full-Time Positions

• This memorandum is released to clarify that each petitioner must submit a business plan, along with their Form I-526, Immigrant Petition by Alien Entrepreneur, which provides an accounting of the required number of qualifying jobs that will be created within the two-year period of conditional residency. and that there may be some flexibility with respect to the timing of job creation at the Form I-829, Petition by Entrepreneur to Remove Conditions, stage. This memorandum also clarifies the meaning of full-time position as it relates to job creation.
• Readers may read the foregoing Neufeld Memorandum in connection with the USCIS Acting Deputy Director Michael Aytes' written response to the Ombudsman's recommendation of 06/12/2009 on the EB-5 program management improvements.

06/17/2009: "Comprehensive" Immigration Reform

• As affected by the President's total focus on health care reform agenda, the immigration reform initiatives have been delayed and part of the immigrant community are experiencing impatience as we approach the Congress' summer recess down the road. However, the immigrant community has more or less lost sight of the key issues in the comprehensive immigration reform. It is not the "procedure" but the "substance" that will eventually determine the success or failure of the CIR. As the Rep. Zoe Lofgren opined lately in the press conference, the success of CIR will depend on a few key factors as judged from the repeated failure for the Congress to pass CIR legislation in the past. Firstly, at this time, the immigrant community, religious supporters, and the labor unions are totally focused on the long-delayed relief for undocumented aliens. Without doubt, this should be the "most" important part of the CIR. However, legislative process involves both the Senate and the House. When it comes to the Senate, each state sends two legislators and in that regard, each state has an "equal" voice and shake, no matter how small or how large, while when it comes to the House, the states are not equal and each state does not have an equal voice. In number wise, larger states like California, Florida, New York, Texas, etc. have dominating voices and power on the House side as they send a majority of legislators to the House. As we all know it, California sends the largest legislators to the House and CIR will have not chance to make it unless the CIR move accomodates the California's interest, which is the need for high-tech foreign workers and employment-based immigration reform. For the reasons, Rep. Lofgren opined that the House would probably not touch CIR unless the Senate first passes a bill. Such bill should accomodate the needs of largest states including the State of California. Accordingly, unless the CIR is debated in "comprehensive" and "balanced" issues, it will be doomed to fail again. Unlike other nations, the legislative process is much more complicated and complex in the United States than one often preceives. Secondly, should the CIR be dominated by any "poison pills" that touch nerve, sensive and painful wounds of the nation, again such pill can kill the CIR. For instance, no one will deny that last year, the soc-called "point system" reform of the legal immigration system rocked and killed the CIR. It was not much the relief of undocumented aliens that decisively killed the bill. The point system concept killed the bill because it touched the most sensive issue of ethnic balancing and control of immigration scheme in the long run that underlied the reform proposal. It was concocted by the ultra conservative right wing think-tankers and legislators. Should this surface again as one of the main features of the CIR, the whole CIR is doomed to collapse and fail again. The community should be watchful of potential resurface of this poison pill from the right. The President's promise to call legislative and political leaders for discussion is just a beginning and a tip of iceberg. More important is the substance rather than timing or procedure that should push and direct the CIR move to a right direction for success. Thus far, the CIR advocates and different communities have failed to form a coalition at the community level to open a dialogue and debate. Should the CIR fail this year again, the communities should take a part of the blame for the outcome.

06/16/2009: "PASS ID" Act, S. 1261, Introduced in the Senate With Strong Backing by the DHS

• Senator Daniel Akaka of Hawaii yesterday introduced this bill proposing repeal REAL ID, replaced by PASS ID devise. This bill is intended to alleviate the issues of invasion of privacy under the current REAL ID law but to achieve the purpose of the homeland security. This bill is strongly supported by the Senior Democratic Senators and the DHS Secrretary Napolitano.
• For the details, please read the summary of the bill prepared by the bill sponsor.

06/15/2009: DHS Expands Cyber-Space Campaign to Reach its Consumers and the Public

• The strength of Obama Presidential campaign, current Obama White House and Administration is to reach the public, particularly the new generation public by the cyber-space medium including internet, text messaging, inter-active sites of twitter, face-book, etc, etc. So far, it has turned out to be very effective both in and out of the coutnry. Internationally, his recent extensive visits in the Europe and Middle East and the aftermath of Iranian presidential election and the American freedom message to the younger generation all over the world "vividly" testify the power of electronic medium nowadays to reach the people.
• The White House has been actively using the electronic medium from "day one" to reach the public. The DHS has also followed the suite at a limited level. Now, the DHS Secretary Napolitano is expanding her policy to reach the public by a new electronic medium, named The Blog@Homeland Security, http://www.dhs.gov/theblog. Well, this is a blogging age for sure. People may address whatever issues and problems using the blog.

06/15/2009: H-1B Cap Count: Still 44,400 as of 06/12/2009

• The number has been either moving backward or standing still. It appears that part of the reasons appears to be that some of the petitions have been denied, revoked, or withdrawn. We are curious as to how many pettions they have physically received and how many cases they have denied or revoked or withdrawn to keep the cap count standstill. They have been issuing "tons" of RFEs for H-1B petition, a substantial number of which are boiler plate type of RFEs, and probably there have been a large number of denials either after receiving such RFEs or without issuing RFEs. The employers are also experiening a lot of RFEs or denials of H-1B "extension" cases.

06/15/2009: USCIS Updates on 06/15/2009 the Processing Times as of 04/30/2009

• Please see our home page.

06/13/2009: White House Reportedly Further Delays Obama's Scheduled CIR Leadership Meeting

• The meeting was initially scheduled at June 8, 2009, but because of the President overseas trips, it was delayed to June 17, 2009. Now, report indicates that this meeting scheduled has been nixed and no specific date has been disclosed other than within June. The President is currently struggling with the healthcare reform program. Immigration advocates including Hispanics are growingly impatient with the President's indetermination.

06/12/2009: USCIS Memorandum of 06/01/2009 on Standards for Determination of U.S. Interest for H-2A and H-2B Workers of Countries Not Listed in the Regulation

• Currently, H-2A or H-2B temporary worker visas are not available unless their nationalist is listed in the relations, but the regulations permit the agency to approve such cases for those who are nationals of countries listed in the regulation "in the discretion" of the agency and when the facts establish that such approval satifies the "U.S. interest." The new H-2A and H-2B regulations list the following four factors for consideration:
  • Evidence that the beneficiary has been admitted to the United States previously in H-2A or H-2B status and complied with the terms of his/her status;
  • Evidence that a worker with the required skills is not available from a country on the list of eligible countries;
  • Potential for abuse, fraud, or other harm to the integrity of the H-2A or H-2B program through the potential admission of these worker(s) that a petitioner plans to hire; and
  • Other factors that would serve the U.S. interest, if any.
• The memorandum is to give a guidance for adjudicating these issues. The guidance provides that each request for a U.S. interest exception is fact-dependent, and therefore must be considered on a case-by-case basis. Although USCIS will consider any evidence submitted to address each factor, USCIS has determined that it is not necessary for a petitioner to satisfy each and every factor. Instead, a determination will be made based on the totality of circumstances. For factor no. 3, USCIS will take into consideration, among other things, whether the alien is from a country that cooperates with the repatriation of its nationals. For factor no. 4, circumstances that are given weight, but are not binding, include evidence substantiating the degree of harm that a particular U.S. employer, U.S. industry, and/or U.S. government entity might suffer without the services of H-2A or H-2B workers from non-eligible countries. H-2A or H-2B petitions without sufficient evidence to establish such facts will be issued RFEs. Adjudicators are then advised to carefully review any evidence submitted with a petition (or submitted in response to a request for evidence) that addresses the four factors of the U.S. interest requirement. Although the Adjudicator should consider all four factors, the case should be reviewed based upon the totality of the circumstances and not based upon failure to satisfy all four of the factors listed above. Additionally, due to the potentially novel and sensitive nature of the U.S. interest determination, consultation with Headquarters is encouraged in unique or complex cases.

06/12/2009: USCIS Announces InfoPass Scheduler Outages This Evening

• USCIS announces that the InfoPass Appointment Scheduling System will be out of service for maintenance from 6:00 PM ET Friday June 12 to 1:00 AM ET Saturday June 13.

06/12/2009: Sen. Robert Menendez Introduces S. 1247 Bill for Immigration Relief for Widows of U.S. Citizens

• Yesterday, Senator Menendez from New Jersey introduced another family unity legistive bill in the Senate to legislate the immigration benefits of widows of U.S. citizens. This bill is distinguished from the previous family unity bill, S. 1085 which is a comprehensive immigration reform bill. Yesterday's widow immigration legislative proposal is co-sponsored by the Senate Judiciary Chairman Patrick Leahy and Sen. Gillbrand from New York. In introducing this legislative bill, Senator Menendez issued a press release yesterday praising DHS Secretary Napolitano's action to give temporary administrative relief of immigration benefits for widows of U.S. citizens and the purpose of S.1247 bill to legislate such relief at the legislative releaf. For the press release of Senator Menendez, please click here.
• Lately, there have been positive activities for immigration benefits for the widows at the levels of judiciary, legislation, and administration. Readers may go back to our earlier reports on this site to review the activities. In the West Coast, a federal judge issued an order in support of such relief, the benefits of which are somewhat limited, in the House, a legistive bills was introduced earlier in this 111th Congress for such relief expanding the definition of "widow" for the relief, now Senator Menendez bill for the idential legislation, and Secretary Napolitano's action at the administrative level for temporary relief which was released on 06/09/2009.

06/11/2009: Federal Judge in Ruiz-Diaz v. USA Issues Final Order Today (06/11/2009) Ordering USCIS to Accept Concurrent Filing of I-360/I-485 for Religious Workers

• As we reported earlier, the federal district judge in Seattle, Washington issued a conditional order in support of I-360/I-485 concurrent filings in March 2009 and stayed the order pending the DHS's filing of supplemental brief by April 2009. Today, the judge issued a final decision in this litigation invalidating the USCIS interpretation of the immigration statute excluding religious workers from the benefit of concurrent filing of special immigrant petition (I-360) with the I-485 unlike the cases that permit concurrent filing in I-140 petition and I-485 application when the visa number is available. The judge ordered the USCIS to accept such concurrent filing in the religious worker special immigration cases and to publicize this order in the litigation settlement site of the USCIS website. Along with the order, the judge also ordered to stay removal proceedings and toll running of unlawful presence where the beneficiaries fell out of status because they were not allowed to file I-485 applications concurrently. For those who filed I-485 applications pending I-360 petitions in resistance to the USCIS opposition, the judge ordered to adjudicate such I-485 applications now.
• This is "literally" a revolutionary turn of event in the immigration history. We salute the legal counsels, including Robert Gibbs, Esquire in Seattle, for the remarkable job they have achieved for the religious community and their foreign workers.
• The question remains how the immigration law community should deal with the two portential developments relating to this legal triumph in the class action. One is whether or not the government will appeal the decision to the circuit court of appeals. The other is potential termination of the concurrent filing rule. The USCIS policy to halt the current concurrent filing still remains in the USCIS rule-making agenda. The proposed rule may be released before the end of the year. The immigration law community should reinforce their advocacy efforts to deal with these forthcoming developments.

06/10/2009: State Department Visa Bureau Chief Mr. Oppenheim Visa Predictions For the Future

• AILA has reported Mr. Oppenheim's prediction as follows:
  • EB2 India.Prediction for August or September 2009: Unavailable.
  • EB2 China Prediction for August or September 2009: Unavailable
  • EB2 India Prediction After September 2009: Waiting time can be years or even decades without legislative relief
  • EB2 China Prediction After September 2009: Waiting time can be many years without legislative relief
  • EB3 India Prediction for August and September 2009: Unavailable
  • EB3 China Prediction for August and Septermber 2009: Unavailable
  • EB3 Mexico Prediction for August and September 2009: Unavailable
  • EB3 India Cut-Off Date Prediction for October 1, 2009: 11/01/2001
  • EB3 China Cut-Off Date Prediction for October 1, 2009: 03/01/2003
  • EB3 Mexico Cut-Off Date Prediction for October 1, 2009: 03/01/2003
  • EB3 Worldwide Prediction in August and September 2009: Unavailable
  • EB3 Worldwide Prediction for October 1, 2009: 03/01/2003. There will be extended delays thereafter.
• The prediction is much grimmer than this reporter reported yesterday. India EB-2 waiting times can be even "decades?" I need a breathing air, it is choking and choking!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! But it is a prediction, and a prediction is a prediction. Prediction is paraphrased by "May be......" So, in reading the foregoing prediction, readers should add "may." Now, I get the breathing air.

06/10/2009: H.R.2681 Bill in the House to Provide for Naturalization for Certain High School Graduates

• An interesting bill was introduced in the House on June 3, 2009 by Rep. Joe Baca of California that proposes certain young permanent resident aliens be eligible for waiver from certain requirements for natualization application. The aliens who will be eligible for such waiver under this proposed bill include:
  • He/she is under 25 years of age on the date when he/she submits an N-400 application for naturalization under section 334 who graduated from public or private schools in the U.S. as proven by the school transcripts and high school diploma as follows:
    • (A) The alien completed grades 6 through 12 in the United States and was graduated with a high school diploma.
    • (B) The alien completed a curriculum that reflects knowledge of United States history, Government, and civics.
  • N-400 filing fee is reduced to 50% for such naturalization applicants.
• In a way, the intent of the bill is understandable in that the U.S. high schools offer civic courses and the sponsor probably assumes that they should posssess such knowledge and be eligible for the citizenship with such requirements. However, it is likely that such presumption may be challenged by legislators based on the statistics that more than 50% of native born U.S. citizens might fail in tests for the naturalization application. Interesting to hear the debates in the committees and on the floor, should the bill be successful in advancing to the floor.

06/09/2009: DHS Secretary Napolitano's Huge Gift for Widows of U.S. Citizens Today, Albeit Administrative Relief

• DHS Secretary Janet Napolitano today granted deferred action for two years to widows and widowers of U.S. citizens—as well as their unmarried children under 18 years old—who reside in the United States and who were married for less than two years prior to their spouse’s death. Secretary Napolitano also directed USCIS to suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage. Additionally, ICE will defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children. USCIS will also consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law. DHS will soon issue guidance instructing the public on how to apply for this relief. These directives apply regardless of whether the citizen filed a petition for the alien spouse before death. Deferred action is generally an act of prosecutorial discretion to suspend removal proceedings against a particular individual or group of individuals for a specific timeframe; it cannot resolve an individual’s underlying immigration status. Individuals granted deferred action may apply for work authorization if they can demonstrate economic necessity. While Secretary Napolitano’s directive provides a short-term arrangement for widow(er)s of deceased U.S. citizens, legislation is required to amend the definition of “immediate relatives” in the Immigration and Nationality Act to permit surviving spouses to remain indefinitely after the U.S. citizen spouse dies, enabling them to seek permanent resident status. For the full text, please click here.
• As we reported earlier, in a federal distict court litigation in the West Coast on this issue, the court ordered a similar but much limited relief order that applies only to those who are residents in Circuit 3 an 6 jurisdictions despite the nationwide class action lawsuit. In order to give a full relief, a Congressman introduced a legislative bill last month to give the same relief which the Secretary Napolitano is granting in the form of deferred action. As the Secretary states above, the law must be amended to redefine the "immediate relatives," and the pending bill is intended to achieve the full relief which the Secretary has alluded to. Big Hats Off to Honorable Janet Napolitano for the admirable humanitarian decision. For the development of pending judicial relief litigation and the legislative relief bill, please stay tuned to this web site.

06/09/2009: H-1B Cap Count Update: 44,400 As of June 5, 2009

• It moved backward from 45,800 as of May 29, 2009. Probably they detected some problem filings. Hmm..........., HMMMM..................... It Ain't Interesting?

06/09/2009: Grim Outlook for FY 2010 Employment-Based Visa Numbers

• Under the current immigration law, the annual numerical limit for the employment-based immigrant visa numbers is set at 140,000. Recently, there was a report that one of the I-485 jurisdiction Service Centers reported that it had "preadjudicated" 80,000 employment-based applications. Now, unconfirmed sources indicate that the USCIS has "preadjudicated" as high as 120,000 employment-based I-485 applications. Considering the fact that some of annual numbers will also be consumed by the immigrant visa applications at the visa posts outside of the U.S., it practically implies that most of the FY 2010 employment-based cap numbers have already been practically consumed. It means that those EB I-485 waiters with earlier priority dates may start receiving green card approvals beginning from October 1, 2009 but those I-485 waiters with lower priority dates may lose any hope for approval of their I-485 applications more than 14 months or longer. This will also adversely affect the visa number movement for employment-based categories during FY 2010 (October 2009-September 2010).
• Immigrants live in a mixed and confused state of hope for the chances of Comprehensive Immigration Reform legislation within 2009 on the news that President Obama will meet with the legislative leaders next week to discuss the CIR and the Senate Majority Leader Harry Reid spilled information that the CIR was his legislative priority agenda number 3 and wanted to pass the CIR within this year. However, just released unemployment statistics and the disastrous impact of creation of employment by the economic stimulus packet during the last few months raised questions of practicality and feasibility of such move. From the perspectives of the employment-based immigration, the businesses hoped to see a legislation to recapture unused and wasted visa numbers which exceeded 200,000 but the chance of such legislation has also been doomed under the current political environment and continuing economic crisis. The situation makes people feel impotent and depressed for not being able to see any hope and light at the end of tunnel. The news of revolt of Democrats in the New York Senate against their own party yesterday throws a chilling bucket of cold water for the future of the political landscape of this country when people wanted to see a new era of hope ahead. Just hope that things get better.

06/09/2009: Official July 2009 Visa Bulletin

• Family-Based:
  • Row China India Mexico Philippines
    1st 15NOV02 15NOV02 15NOV02 01JAN91 01SEP93
    2A 22DEC04 22DEC04 22DEC04 22JUN02 22DEC04
    2B 15APR01 15APR01 15APR01 01MAY92 01APR98
    3rd 22OCT00 22OCT00 22OCT00 01JUL91 01JUL91
    4th 22OCT98 22OCT98 22OCT98 15JUN95 08AUG86
• Employment-Based: China EB-2 Retrogressed
  • 1st C C C C C
    2nd C 01JAN00 01JAN00 C C
    3rd U U U U U
    Other Workers U U U U U
    4th C C C C C
    Certain Religious Workers C C C C C
    5th C C C C C
    Targeted Employ-ment Areas/
    Regional Centers C C C C C

06/09/2009: Shocking PERM Program Performance Result for FY 2009 First Quarter Ending 12/31/2009 Released by DOL

• The DOL report indicates that the percent of employer permanent labor certification applications resolved within six (6) months of filing was only 37% during the first quarter of FY 2009! This performance result is contrasted to the same for the previous year (2007) achieving 94% within six months. Additionally, the report indicates that the target of FY 2009 (10/01/2008-09/30/2009) to resolve the PERM cases within six months of filing is set at average 64% only. The diagnosis of the causes of delays and predictions for the future are stated that PERM program performance significantly decreased due to the impact of increased integrity activities and processing adjustments for downturns in the economy in conjunction with large employer layoffs. With current resources and application filing patterns processing delays would continue to occur absent marked changes in both the economy and greatly increased resources. From the report, readers can figure out the level of intensity of scrutiny and microscope investigation of applications the agency has been engaging in processing the PERM applications. Heydays are gone for the PERM applications.

06/07/2009: Immigration Benefits Filing System Transition: Bi-Specialization System - Lockbox Centralized System - Electronic Filing Transformation Centralized System

• USCIS released a federal register notice on 06/05/2009 that effective July 5, 2009, it will remove filing locations and processing jurisdictions information from the USCIS regulation and alerted the immigration stakeholders and customers to follow the information in the immigration forms, instruction sheets, USCIS website, and 800 NCSC to find out the information on the filing locations and processing jurisdictions for different types of applications and petitions. The USCIS is taking the action to transit from the current fixed bi-specialization filing and processing jursdictions to the centralized filing jurisdiction through expansion of lockbox and eventual launch of electronic filing system under the transformation program in the future. As we reported earlier, the USCIS's transformation program has witnessed a substantial delay. The latest information which is released through the rule-making process dated June 5, 2009 indicates that the transformation program will not be in place until between January 17, 2013 and January 22, 2014. Accordingly, the USCIS has been accelerating launch of lockbox filing system to fill the gap between the current problematic paper-filing bi-specialization program and the future transformation program that centralizes filing system through the electronic filing system. Removal of filing location and processing jurisdiction requirements from the current USCIS regulation is intended to support such transition towards the centralization of immigration benefits management. Accordingly, pending such transition, the customers are likely to witness and experience a lot of confusions in filing procedures and the information on the agency's processing and adjudication of their applications and petitions. Centralization may also bring about the processing and adjudication system being further shielded from the customers' direct contact and the role of NCSC is likely to be elevated as de facto information officer function. The USCIS' transition to the transformation program and the DOL's transition to iCert program are critically important from the perspectives of national policy makers to achieve the dual goals which have presented a confict to a great extent. One goal is to achieve national homeland security and integrity of immigration management system, and the other goal is to achieve efficiency of such management to remove and prevent the backlogs. Current managmeent system is witnessing conflicts between two goals in that focus of national security and integrity of the system tend to cause processing delays and backlogs, negatively affecting the efficiency of the immigration management system. Meanwhile, focusing on efficiency may lead to the lapse in national security and assurance of integrity of the immigration management system. The ongoing reform of these two agencies is intended to resolve such conflicts and achieve both national security/integrity goal and managment efficiency goal through electronization process and "account" system that will allow security and integrity tasks efficiently and effectively achieved. Immigration management system will literally move into a new chapter in the country's immigration history. In the interim, the immigration system will move fairly quickly into lockbox filing system after they complete their current processing reduction task and goal by the end of September 2009. Please stay tuned.

06/06/2009: iCERT System of Foreign Labor Certification Programs and Agency's Statement of Justification for FY 2010 Budget

• The foreign labor certification programs will soon open a new chapter with the launch of electronic portal operation of iCERT system. The FY 2010 budget justification gives a glimpse of the policy goal underlying launch of this program. Close reading of this statement will give the readers a sense of direction this system will move ahead, including fee system.
• Here is the statement: "The Office of Foreign Labor Certification (OFLC) provides national leadership and policy guidance to carry out theresponsibilities of the Secretary of Labor under the Immigration and Nationality Act, concerning foreign workers seeking admission to the United States for employment. OFLC provides labor certifications to employers seeking to bring foreign workers into the United States. Certification may be obtained in cases where it can be demonstrated that there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing wage paid for the occupation in the area of intended employment. This initiative addresses the automation and technical support needed for various FLC programs that comply with different regulatory requirements and are subjected to possible changes with relatively short notice. This investment supports DOL's strategic goal 2, A Competitive Workforce. The system supports four different programs areas: H-1B (Non-immigrants in Specialty Occupations), H-2A (Temporary Agricultural Employment and Services of aTemporary or Seasonal Nature), PERM (Permanent Immigration) and H-2B (Temporary Non-Agricultural Employment).The investment will be in Operations & Maintenance in FY10 and Mixed Life Cycle in FY 09. This will help DOL to develop the "front-end common portal" of an IT system to support H-2A and H-2B regulatory reforms. The wage system will be designed as a universal system to serve all OFLC programs (allowing use of fee revenue). ETA collaborates with the Departments of Homeland Security and State (DOS) on ways to reduce fraud in these programs. An ETA-DHS subgroup meets monthly to confer and strategize about fraud investigations in progress. FLC will collaborate with the Department of Treasury to implement the fee module using PAY.GOV. The Department currently maintains four case management systems that are all utilized by the same staff at the ETA National Processing Centers. This has resulted in substantial administrative inefficiencies and a lack of communication among the systems to combat fraud and abuse. A seamless system will improve efficiency in case processing, provide greater flexibility in reducing workload, improve departmental response to Congressional and Customer inquires and substantially reduce administrative waste and inefficiencies. Applicants/immigration lawyers will be able to reduce time by reusing common data that is applicable across all system."
• The statement also assessed the foreign labor certification program's processing goal substantially achieveed in FY 2009. The average processing time for permanent labor certification program was six months for the fiscal year of 2009 and the current state of processing time of PERM applications fairly acculately reflects this statement. The statement was presented in April 2009. We post this information to give some perspectives to the businesses, employers, and foreign workers for their planning and management of foreign labor certification applications for foreign workers. The perspectives should highlight primarily three components: Fees and online payment system, interagency and microscope operation of program for achievement of integrity, and processing times. For leadership, Dr. William Carlson is current Chief of Foreign Labor Certification Program, Ms. Renata Adjibodou is the Chief of Atlanta National Processing Center for PERM Program, and Ms. Charlene Giles is the Chief of Chicago National Processing Center for Temporary Foreign Labor Certification Application Program.

06/05/2009: Update of House Bill Extending Sunsetting Trio Immigration Programs

• At the order of the House Speaker, the bill has been referred to the three different committees, Judiciary, Education & Labor, and Ways and Means. Each committee has its own schedules. A wrinke to this bill is E-Verify program extension proposal. This proposal has been very controversial and in order to pass the bill, some twisting of arms may be required along the way. Please stay tuned to this web site for the progress of this legislation activities.

06/05/2009: Reuniting Family Act Bill Introduced in the House on 06/04/2009

• Rep. Michael Honda of California introduced in the House on 06/04/2009 H.R.2709, Reuniting Family Act bill, cosponsored by 55 other Congressmen and women.

06/04/2009: President Obama's Congressional leaders CIR Meeting Rescheduled to 06/16/2009

• Report indicates that the President's CIR summit meeting has been rescheduled to June 16, 2009 because of his international traveling schedule. It was initially scheduled at June 8, 2009.

06/04/2009: Important Alert: Advance Copy of USCIS Interim Rule Removing from its Current Regulations Filing Locations/Jurisdictions and Filing Procedures

• The USCIS will publish this Interim Rule in the federal register tomorrow, 06/05/2009. This interim rule will remove from the regulations all instructions regarding the filing locations for petitions and applications. These regulatory provisions are unnecessary and restrict USCIS’ ability to vary petition and application filing locations as necessary to address fluctuations in the volume of applications, shifting workload needs, and benefits processing modifications. Removing these regulatory provisions will allow USCIS to better utilize its resources and serve its customers. Filing locations and procedures will still be available on USCIS forms and the USCIS Web site. Customers may also call the USCIS ‘800-number’ customer service line for information on where to submit their documents, or simply call the agency listing in the government resources pages of their local telephone directory. This change does not affect any evidentiary requirement or substantive eligibility requirement for a particular benefit. This interim rule also removes current geographic jurisdictional service boundaries. This change will allow USCIS the flexibility to manage workloads and facilitate interaction with, and services to, the public. For those few applications and petitions that are currently filed at USCIS local offices, customers will be able to file these specific forms at the office closest to them. Regarding services that require an alien to make an appearance at a USCIS office, by removing the geographic parameters on the office with jurisdiction for adjudicating specific immigration or naturalization benefits, USCIS will have the flexibility to offer interviews and other services at different offices in the area based on the ability to schedule appointments most effectively. See 8 CFR 103.2(b)(9). The rule adds a definition of the term “Form” to 8 CFR part 1. USCIS has addedthis definition to clarify that references to the term “form” and to form numbers throughout USCIS regulations are now intended to encompass both the traditional paperform and all approved electronic equivalents used for on-line filing with USCIS or other similar purposes.
• This Interim rule will take effect 30 days from 06/05/2009. The change is intended to meet their transition from paper filing to increased electronic filing in the future. Overall, the rule is intended to help the public determine where to file forms with USCIS, create a more efficient and streamlined process for future changes to filing instructions, and allow the component to better manage its workload through, among other things, affording greater flexibility to accept and process applications and petitions in an electronic environment.
• How people will be affected? Effective July 5, 2009, the paper USCIS regulations will be outdated and should not be relied on to determine filing jurisdictions and procedures. For safeside, these paper regulations may be tossed away. From July 5, 2009, people should strictly follow the instructions and information on the "up-to-date" immigration forms and instructions and the USCIS website postings. This change will help the consumers who have been so confused with the filing locations and procedures lately because of the USCIS' frequent announcement and implementation of filing location and procedure changes on the USCIS websites and the immigration forms. When the immigration petitions or applications are filed electronically, the filers have experienced more confusions when they receive the receipt notices because they receive the receipt notices from the immigration offices outside the jurisdiction of their residences or the type of cases. For instance, currently when people file I-140 petition electronically, all these I-140 petitions are processed and adjudicated by the Texas Service Center even if they live or work in the Nebraska Service Center jurisdictions. With the upcoming change, it may be prudent for the filers to check the filing locations through the forms and USCIS website every time they file a case not to experience a nightmarish rejection of the filings.

06/04/2009: H.R.2679 Proposes to Extend Nonreligious Worker Immigration, Conrad 30 NIW Waiver for IMGs, EB-5 Regional Pilot Investment Immigration for Five Years

• In March 2009, the Congress passed legislation to extend the then sunsetting immigration programs until September 30, 2009. Just introduced Rep. Goffords bill proposes to extend these forthcoming sunsetting programs for five years from September 30, 2009 to September 30, 2014. This bill also proposes to extend the same for the E-Verify program.
• The House Judiciary Immigration Subcommittee has swiftly taken up this bill and schedules to have the mark-up hearing today for this bill. Good Deal, Indeed!!

06/04/2009: Rep. Michael Honda of California Scheduled to Introduce "Reuniting Families Act" in the House This Week

• On May 20, 2009, the Family Unity Immigration Reform bill, S.1085, was introduced by Sen. Robert Menendez in the Senate. Today, Chairman of the Asian Pacific American Caucus, Rep. Michael Honda, will hold a press conference to present key components of a comprehensive immigration package, in preparation for President Obama's reform agenda. Joining the Congressman will be other Members of Congress and supporting advocacy organizations. This will be his vesion of a comprehensive immigration reform legislation.
• Report indicates that this bill will focus on the following components:
  • Recapture unused family-based and employment-based visas previously allocated by Congress which remain unused.
  • Allow a green card holder to reunite with their spouses and minor children: The bill classifies the children and spouses of lawful permanent residents as "immediate relatives." This would allow lawful permanent residence spouses and children to immediately qualify for a visa.
  • Increase the per country limits of family and employment-based visas from 7% to 10%: Right now, each country only has a 7% share of the total cap of visas that Congress allocates each year. Increasing each country's percentage of visas would eliminate the absurdly long wait times for individuals to immigrant from certain countries like the Philippines, China, and India.
  • Allow orphans, widows and widowers to immigrate despite death of a petitioner.
  • Promote family unity by allowing more people to use the system: The bill gives the Attorney General greater flexibility to address numerous hardships, including family separation, caused by a provision that bars individuals who had been unlawfully present in the United States from utilizing our legal immigration system.
  • Recognize the sacrifices that certain World War II Filipino veterans made for this country, by exempting their children from the numerical caps on visas.
  • End discrimination in immigration law, allowing same-sex partners to reunite.
• This week, immigration advocacy groups are gathered in Washington, D.C. to work with the legislators and push CIR in preparation for President Obama's scheduled meeting with the legislative leaders on Monday, June 8, 2009 to initiate his CIR move. Please stay tuned.

06/04/2009: Bill to Extend Certain Immigration Programs Introduced in the House 06/03/2009

• Rep. Gabrielle of Giffords of Arizona introduces on 06/03/2009 H.R.2679 to extend certain immigration programs, and for other purposes. Please stay tuned for the details.

06/03/2009: House Judiciary Immigration Subcommittee Mark-Up of Hearing on Bill to Extend Certain Immigration Programs on 06/04/2009

• The Immigration Subcommittee schedules a mark-up hearing and debate for extension of certain immigration programs. For the details, please stay tuned.

06/03/2009: Implementation of Mandatory E-Verify Requirement for Federal Contractors/Subcontractors Delayed Until Sept. 8, 2009

• Read on.

06/03/2009: USCIS Begins Transfer of Historical A-Files to National Archives for Permanent Retention

• Read on.

06/03/2009: Compean Vacated By A.G. Today

• Today, the Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed the Board of Immigration Appeals and the Immigration Judges to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel. See Matter of Compean, et al, 25 I&N Dec. 1 (A.G. 2009), Interim Decision 3643 (A.G. June 3, 2009)

06/03/2009: USCIS Amend 17-Month STEM OPT Extension Regulation to Correct Errors and Omissions

• See the amended part of regulation.

06/03/2009: Increasingly Hostile Environment in the U. S. Against H-1B Foreign Workers

• H-1B foreign worker visa program has been facing hostility all over lately. Introduction of H-1B restriction bill in the Congress is just one environment that has been widely publicized. However, at the administrative level, the H-1B visa program has been going through a number of problems without much publicity. For Fiscal Year 2010 H-1B program, unlike previous years, there is a short of H-1B petitions to fill the annual cap this year two months after the agency first started taking in the petitions beginning from April 1, 2009. On the surface, the workloads of the new H-1B petitions have been substantially reduced for the agency, but in reality, the employers that filed the new H-1B petitions have been facing tons of boiler plate Request for Evidence demanding tons of documents over and over causing tremendous delays in adjudication of the petitions. The hostile environment does not end with the new H-1B petitions. Report indicates that the H-1B workers are increasingly stranded abroad not being able to obtain the visa stamp abroad pending so-called protracted security checks and consequently not being able to return to the U.S. to resume employment. Should this environment continue, the business environment for the U.S. businesses will continuously deteriorate and the businesses will continuously suffer unless they take out their businesses and jobs abroad to meet the needed workforces in order to stay in business in increasingly competitive global economy. Nothing will be able to stop the offshore outsourcing of the U.S. businesses. This is something the Obama Administration should think about very quick before too late.

06/03/2009: USCIS Naturalization Applications Statistics at the End of April 2009

• Naturalization receipts in April 2009 increased 30 percent when compared to April 2008, while approvals/oaths decreased by 26 percent and denials decreased 13 percent. For the full report, click here.

06/03/2009: USCIS Applications and Petitions Statistics at the End of April 2009

• Applications and petitions for immigration benefits in April 2009 decreased 2 percent compared to the number received in April 2008. April 2009 approvals increased by 28 percent, denials increased by 48 percent, and pending decreased less than 15% compared to April 2008. For the full report, click here.

06/02/2009: Advance Copy of USCBP Federal Register Notice of US-VISIT "Exit" Biometric Collection Programs at International Airports in Atlanta & Detroit Effective 05/28/2009

• This notice notifies that the TSA has started collecting biometric data for the aliens who depart from the Atlanta and Detroit international airports since May 28, 2009. This biometric collection is undertaken by TSA officials at the point of departure in these airports as a pilot program for 35 days. They intend to expand the pilot program to certain other airports in the future.

06/02/2009: H-1B Cap Count Update as of 05/29/2009=45,800

• USCIS reports that as of May 29, 2009, approximately 45,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. Considering the fact that its cap count as of 05/22/2009 was approximately 45,700, they received only 100 cap cases during one week!? Hmm.......................... Interesting.
• Employers, beware that even if the annual regular cap is 65,000, they usually announced in the past that cap had reached when they had received about 58,000 because of the special cap numbers (6,800) assigned to the free trade agreements for Singapore and Chile. Besides, since the U.S. Master degree cap of 20,000 has been exhausted, all the U.S. master degree H-1B cap cases are counted under the regular 65,000 cap. Still, we do have a plenty number for new cap filings.

06/02/2009: OFLC Alerts ICERT System Down This Weekend [06/05 5:00 pm - 06/08 7:00 am]

• Due to regular system maintenance, the iCERT online system will be unavailable from 5PM EDT on Friday, June 5, 2009 to 7AM EDT on Monday, June 8, 2009. Accordingly, those who have started filing LCA and managing LCA tracking using ICERT Portal should use current LCA online filing filing during the weekend. It apears the ICERT portal needs maintenance to fix the current problems of filing of LCA using ICERT and for transition to exclusive LCA ICERT filing requirement and disabiling of current LCA filing system as of July 1, 2009. Please beware!

06/02/2009: USICE Updates List of SEVP Approved Schools as of 06/01/2009

06/01/2009: USCIS Compehensive Report of its Operating Performance of March 2009

• USCIS removed during the weekend its previous processing target and performance information from its site on the field offices monthly processing time site. Instead, it has published Operating Performance report which describes in details its operation performance during the period of FY 2007, FY 2008, and the second quarter of FY 2009 as well as the processing target for each type of applications and petitions and current performance. It is a very comprehensive report of its operation performance and adjudications of applications and petitions. This report also includes its ongoing preadjudication of cases. Readers cannot miss this report. It is a nine-page document and people should read it.

06/01/2009: CBP Acting Commissioner Statement on WHTI Land/Sea Border Implementation Effective 06/01/2009

• The Acting Commissioner lays out the outline of the implementation of this initiatives beginning from day in the DHS Leadership Journal. Read on.

05/31/2009: SOC Classification Changes Effective 01/01/2010, and Potential Affects on Job Zones and Prevailing Wages

• OMB published 2010 SOC classifications which will have a substantial impact on O*Net System and foreign labor certification /H-1B practices for the employers. New SOC/OES wage data is annually published in July and considering the fact that the new classfification will take effect only at the end of 2009, the 2009-2010 O*Net and wage data may or may not be affected. Another policy point for the DOL foreign labor certification as related to the change in SOC occuplational classification involves the launch of new PERM ETA 9089 application on September 1, 2009 and likely need for their readjustment of the job zones and prevailing wage issues as affected by the occupational classification changes. The employers and employment-based immigration practioners should watch carefully upcoming changes in not only the new PERM application form in September 2009 but also occupational changes.
• The 2010 SOC classification system will have total of 840 detailed occupations. The 2010 SOC will realize a net gain of 19 detailed occupations, 12 broad occupations, and 1 minor group. The number of major groups is unchanged. The 2010 SOC system contains 840 detailed occupations, aggregated into 461 broad occupations. In turn, the SOC combines these 461 broad occupations into 97 minor groups and 23 major groups. More than 400 of the 840 detailed occupations in the 2010 SOC structure remained the same as in 2000, and over 300 others required only editing changes. Therefore, no substantive changes occurred in occupational coverage for about 4 out of 5 detailed occupations in the 2010 SOC.
• The following are sample changes effective 01/01/2010:

Current	2010
15-1031 Computer SW Eng, Appl	15-1132 SW Developers, Appl
15-1032 Computer SW Eng, Sys SW	15-1133 SW Developers, Sys SW
15-1041 Computer Support Specialists	15-1151 Comp User Support Specailists
15-1081 Network Sys/Data Comm Analy	15-1122 Info Security analysts 15-1134 Web Developers 15-1142 Network/CompSys Admin 15-1143 Computer Network Arch 15-1152 Computer Network Supp Special
19-3021 Mkt Research Analysts	13-1161 Mkt Res Anal & Marketing Spec
29-1111 RN Nurses	29-1141 RN, except 29-1151-1171 29-1151 Nurse Anesthetists 29-1161 Nurse Midwives 29-1171 Nurse Practitioners
Many other changes

• AILA National Annual Conference may explore this issue in DOL sessions.

 

05/30/2009: USCIS Acting Deputy Director Responds to CIS Ombudsman Recommendations on T and U Visa Proceedings

05/30/2009: Effective Monday, 06/01/2009, Canadian and U.S. Travelers at Sea or Land Need Passport or Other Specified Documents

• The Western Hemisphere Travel Initiative (WHTI) requires U.S. and Canadian travelers to present a passport or other document that denotes identity and citizenship when entering the U.S. WHTI will go into effect June 1, 2009 for land and sea travel into the U.S. WHTI already went into effect for air travelers on January 23, 2007. For the details, please visit the CBP website.

05/30/2009: USCIS Reminds I-485 Applicants, Asylum, Legalization, and TPS Beneficiaries to Obtain Advance Parole Before Traveling Abroad

• As travel season starts, the USCIS releases this advisory to caution the involved aliens of importance and potential serious consequences of traveling without such advance parole. Please note one important caution in this notice. If the people are subject to either three-year bar or ten-year bar from reentry due to their unlawful presence in the U.S. for more than six months or more than one year, even if they carry Advance Parole, they will not be readmitted to the country. The USCIS usually does not issue Advance Parole to such people, but should they inadvertently issue such documents to those who are subject to such bar, they will still be subject to the bar from reentry and will not be able to come back to the U.S. even if they carry the Advance Parole.
• Another precaution involves inadvertent admission of I-485 applicants to the U.S. by the CBP officials at the port of entry without advance parole and in nonimmigrant status other than a valid H-1B or L-1 visa status. Such admission will result in denial of I-485 applications afterwards based on the rule that such admission constitutes an abandonment of permanent resident application. I-485 applicants should never travel and return to the U.S. without one of the two: (1) Valid H-1B/H-4 or L-1/L-2 or (2) valid Advance Parole. They should never return and be readmitted to the U.S. on other nonimmigrant visas such as F, M, B, C, D, E, P, or other nonimmigrant visas. Reentry is one thing and abandonment of I-485 is another. Permission to return and reenter at the port of entry does not mean their green card application will not be disrupted in the latter situation.
  

05/29/2009: USCIS Alerts Permanent Resident Card Production Delays for Upto Eight Weeks Pending Upgrading of Card Production Equipment

• Are you waiting for the plastic cards? This will be painful news for you. Upto eight weeks mean two months. The USCIS thus advises that you will need to take your passport to your appointment. If you do not have a passport, you must bring a passport style photo and government issued photo identification to receive temporary evidence of permanent residence. If the application is approved subsequent to your interview or by a Service Center or the National Benefit Center, the applicant should bring the above documents to an INFOPASS appointment to be issued temporary evidence of permanent residence in the form of an I-551 stamp. Ouch!
• The delay is one time event pending the equipment upgrading. Once the job is done, it is likely to return to previous practice of receiving the plastic card in the mail in about 10 days after approval. Such swift production of the plastic cards had been made possible thanks to the digitalization of the process between the adjudicator's input of approval into the system by computer and the card production machine in remote location. Before the digitalization, those who received approval notices had to wait from three months to even one year to receive the plastic card, and pending issuance of the plastic cards, all of them had to visit the local USCIS offices to obtain a temporary evidence of permanent resident stamp (ADIT Stamp) in the passport to travel outside of the United States and to continue employment.
• Caveat: The approval notice is not a document that permits the permanent resident to travel and return or to work. Only the plastic card or ADIT stamp in the passport works as the evidence of permanent resident for the purpose of international travel or work. DON'T LEAVE THE COUNTRY WITHOUT ONE OF THESE.

05/29/2009: TSC is Reportedly in Line with NSC in Processing Time Reduction and Backlog Reduction

• The May 19, 2009 AILA-TSC Liaison minute reflects that TSC is in a simlar pace with the NSC when it comes to its proceeding time reduction efforts. There was a report that part of the I-140 cases were transfered to the NSC, but TSC reports that the transfer was limited to EB-1 and EB-2 NIW cases and number was only 1,000. As for the I-140 processing, it reports that they will achieve the USCIS target processing time of 4-month by the end of June 2009 just like the NSC. TSC has been processing of I-140 petitions and concurrent I-140/I-485 cases at an average of 3000 to 4000 a month. They have completed adjudication of almost all of the I-140 petitions which were filed during the FY 2007 Visa Bulletin fiasco (July and August 2007). As for the EB-485 applications, they have preadjudicated 85,000 cases which await the visa number availability beginning from the next fiscal year.
• Over all, the report was positive, particularly in two points. One is the anticipated achievement of 4-month processing time goals for I-140 petitions within a month from now. The second is that since the EB-485 cases involving fairly early priority dates have been preadjudicated, once the visa numbers progress forward beginning from the new fiscal year, October 2009, a large number of EB-485 waiters are likely to receive approvals of their long-awaited I-485 applications. Hats off to NSC and TSC!!
• Lately, I-485 waiters have been receiving RFEs or interview scheduling in a fairly large number. From these reports, we can draw a speculation that these cases have fairly early priority dates and are now undergoing such preadjudications in anticipation for the upcoming visa number availability in early part of FY 2010. They may receive approvals of their cases fairly early in the new fiscal year. With such a good news, please enjoy the SUMMER!

05/29/2009: DHS Collects Exit Biometrics at Airports in Atlanta and Detroit for 35 Days for Outbounding Aliens Including Permanent Residents

• Report indicates that beginning from 05/28/2009 the CBP started collecting biometrics at these two airports from aliens departing from the U.S. on air. The testing will compare the process of collecting fingerprints at checkpoints operated by the TSA to having CBP collect fingerprints at gates. This appears to be pilot program that will last for 30 days. The DHS reportedly did not seek any funding in its fiscal 2010 budget request to move forward with an air exit system. But reportedly one aide said the test results will be known by the time the House and Senate begin to reconcile their fiscal 2010 Homeland Security spending bills, and adding money for an air exit system will likely be part of conference negotiations. Alien travelers departing from these airports for international trip should be aware of the new procedure in place. The DHS has been collecting biometrics in the international airports from arriving aliens including permanent residents for a while by now.

05/29/2009: Reminder of Two Nurse Relief Bills in the House

• People are reminded that currently there are two nurse relief bills in the House. One is Rep. Shadegg bill and the other is Rep. Wexler bill. Shadegg bill seeks the relief for nonimmigrant visas and the Wexler bill seeks permanent resident relief option. It may be ideal if these two bills are consolidated into one final bill. We will repost our prior posts on these two bills to assist the advocates for the nurse relief legislation:

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

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

"05/26/2009: Summary of Nursing Shortage Relief Provision of Wexler's "Emergency Nursing Supply Relief Act," H.R. 2536

• Numerical limitation will not apply to (1) the beneficiaries of I-140 immigrant petitions which are filed under Schedule A, Group I any time prior to September 30, 2012 and which are or have been approved and (2) their family members accompanying or following to join, provided that the total immigrant visa number should not exceed 20,000 per one fiscal year plus any available visa numbers under this new law which are not used during the preceding fiscal year. The annual cap will apply only to the principal aliens and not to the accompanying or following-to-join family members.
• The DHS should expeditiously review and act on such I-140 petitions within 30 days from the date of filing of such petitions.
• The sponsoring employer must pay $1,500 fee per each professional nurse sponsored upon approval of such nurse's I-485 application or immigrant visa application. No such fee will be imposed on the dependent family members accompanying or foloowing to join such professional nurses.
• The $1,500 fee will be waived with the following two employers:
  • (i) Health care facility that is located in a county or parish that received individual and public assistance pursuant to Major Disaster Declaration number 1603 or 1607; or
  • (ii) Health care facility that has been designated as a Health Professional Shortage Area facility by the HHS as defined in section 332 of the Public Health Service Act (42 U.S.C. 254e)."

05/29/2009: OFLC Releases Frequently Asked Questions on the Occasion of Suspension of Amended H-2A Rule in Federal Register Today

• Since the suspension is not effective until June 29, 2009, the OFLC releases practice points for H-2A employers and representatives, who should read carefully this FAQ. For the announcement, please click here.

05/29/2009: DHS Secretary Napolitano Announces 2nd Phase of Efficiency Review Reached Milestone and Enters 3rd Phase of Efficiency Review

• For the different phases of efficiency review, please review this announcement.

05/29/2009: DOL Suspends 9-Months H-2A Rule as Amended on 01/17/2009 and Reinstates the H-2A Which Was in Effect Before Amendment

• DOL has published this morning H-2A final rule suspending the H-2A Final Rule which was published on December 18, 2008 and took effect as of January 17, 2009. This amended H-2A rule was so-called last minute and overnite eanctment of the rule before the departure of the Bush Aministration on January 19, 2009. After nine months of suspension, the Obama Administration will either lift the suspension or make another rule-making. The Bush Administration H-2A amended rule has already been administratively suspended pending this final rule making announcement. For the details of today's federal register announcement, please click here.
  

05/29/2009: Senate Judiciary Committee Hearing on 06/03/2009 Sen. Leahy Bill S. 424 to Grant Alien Gay Partners Spousal Immigrant Benefits

• This is a bill which we reported on 02/21/2009. The bill was introduced in the Senate by a powerful Senator Leahy, Chairman of Judiciary Committee. Next Wednesday, June 3, 2009, at 10:00 A.M., Senate Judiciary is scheduled a hearing on this bill "The Uniting American Families Act: Addressing Inequality in Federal Immigration Law.” This bill proposes to recognize and grant the alien gay partners the spousal immigrant benefits under the immigration statute. The hearing will be webcasted.

'02/21/2009: Full Text of S. 424 and H.R. 1024 on Gay-Lesbian Partner Right to Spousal Immigrant Benefits
As we reported earlier, this bill was introduced in both Houses. Senate bill was introduced by the powerful Senator Leahy with quite a number of co-sponsors in the Senate. This bill is anticipated a strong opposition by Republican Senators in the Senate and the House.'

• Text of testimonies of witnesses:
  • Senator Patrick Leahy
  • Senator Russ Feingold
  • Shirley Tan
  • Gordon Stewart
  • Julian Bond
  • Roy Beck
  • Jessica Vaughan
  • Christopher Nugent

05/28/2009: CBP Changes Implementation Date of Rule Establishing U.S. Ports of Entry in the Commonwealth of the Northern Mariana Islands to 11/28/2009

05/27/2009: CIS Ombudsman's 05/15/2009 Recommendation to USCIS for Improvements in Processing of Motion to Reopen or Reconsider

The Ombudsman recommends that USCIS:

(1) Establish more uniform filing and review procedures for motions to reopen and reconsider among field offices and service centers by:

(a) Standardizing and clearly articulating to the public the procedures by which an applicant or petitioner may bring a clear Service error to the attention of a USCIS office without incurring the $585 filing fee for a motion to reopen or reconsider; [Currently, local procedures to bring clear Service error to the attention of a USCIS office lack uniformity. Clearly articulating to the public more uniform, customer-friendly filing procedures would minimize disparities in the quality of USCIS’ customer service.]
(b) Developing and implementing a uniform tracking mechanism for motions to reopen and reconsider; and, A uniform receipting and tracking mechanism would ensure that all customers are able to obtain official proof of filing for a motion to reopen or reconsider, and provide filers and USCIS the means to more efficiently track the status of motions.
(c) Instituting, publishing, and monitoring agency-wide completion goals for the adjudication of motions to reopen and reconsider. Implementing agency-wide completion goals for motions to reopen or reconsider would provide customers with a general estimated processing time for motions and permit sufficient flexibility at the local office level to take more time to review particularly complex cases. In addition to ensuring that cases will be completed timely, public knowledge of these completion goals would provide USCIS’ customer base with some assurance that motions will not unnecessarily languish due to a focus on other workload demands.

(2) Communicate the filing and review process for motions to reopen or reconsider more effectively to customers and stakeholders by:

(a) Consistently incorporating standard language on how to file a motion to reopen or reconsider into written denials that cannot be appealed; Consistently providing motion filing information in written, unappealable denials would ensure that customers have equal access to the USCIS motions process.
(b) Revising the information on motions to reopen and reconsider provided by Tier 1 of the USCIS National Customer Service Center (NCSC); and, To reduce customer confusion, USCIS should revise the information provided by the NCSC to ensure that it accurately reflects the filing requirements contained in the regulations and the AFM.
(c) Posting on the USCIS website more specific information about the filing and review procedures for motions to reopen and reconsider.
The USCIS website is a powerful tool of communication. Specifically incorporating motion filing and review information into the “How Do I?” section of USCIS’ website and the online glossary, for example, would better educate USCIS customers and improve compliance with the filing requirements for motions. Including specific information on the USCIS website would also reduce confusion regarding the differences between motions and appeals. Where necessary, USCIS should also publish local variations in motions processing on local office web pages.

05/27/2009: Answer to Mystery of Missing High-Speed Train in America Unlike Europe and Far East Asia

• As the President Obama intends to push the high-speed train program using stimulus package, everyone wonders why our country has been behind in this modern day commute distance revolution which is witnessed in the Far East Asia and some European countries. The United States is still the leader in technology and economy in the world and the answer to this mystery has nothing to the level of technology or economy in the country. Careful observer will notice one fundamental difference between the Unied States and other countries in the world. Generally, other countries are homogenic ethnically and culturally, while the United States is a country of immigrants initially formed by the European immigrants and afterwards added by other ethinic immigrants from other parts of the world. The second group is generally called in this country "minority."
• The history of urban development and community in the United States is marked by the struggle by the so-called "white" and well-to-do population of a town to escape from the minority population, particularly blacks. In order to achieve the purpose, in old days they used land-use control devises requiring acres of land to build a house in outlying areas such that economically and ethnically disadvantaged minority population could not move into the outlying areas since they could not affod it. They also used control of transportation accessibility to such outlying areas. Such struggle has induced urban sprawl in this country as the first group has migrated out farther and farther from the center of a city or town. Facing constitutional challenge, use of land-use control has tuned out less effective for them but there still lie such legal tools to protect the outlying areas from invasion of minority. Historically the most notorious struggle was witnessed in New Jersey right across the Hudson River of Manhattan in New York. Some of the communities still require a large acres of land to build a house in the areas. However, the most effective tool turned out to be control of transportation access. It is no wonder why the subway train never crosses the bridges to New Jersey from Manhattan. It is no wonder why other mass transit such as city buses do not give a full access between Manhattan and New Jersey. Even in Manhattan, subway system appeared to have been designed such a way that access from the West side and uptown Manhattan to the East side and lower Manhattan is made not that easy in connections among different lines of subways. The well-to-do East Mahanhattan is so-called "green line" subway zone and transfer to the green-line subway to other lines is not well developed, allowing the area protected from moving in of not-well-to residents who needs to commute for low-scale retail service jobs in the heart of the city.
• High-speed train will result in a revolutionary restructuring of the traditional pattern and migration of different ethnic groups. The unsponken question is "Is America Ready for Such Change?" Development of such high-speed trains is likely to create exodus of current so-called "suburban" whilte and well-to-do population from the corridors of the high-speed suburban train zones to the new suburban areas of seclusion and isolution blocked from access to the mass transit and will bring about spatial change in urban sprawl as well as social structure changes because there still lie and will continue to lie discomfort zones between the well-to-do white majority and the ethnic minority population in this country. Unlike the homogenic population in the East Asia and the Europe, the country must face a potential steep resistance within the communities to such social integration and change that will bring about by the high-speed transits. It is a very sensitive issue and topic but involves a reality. We will watch how this development will unfold.

05/27/2009: Congress Out of Session and Not Return Until 06/01/2009

• Both the House and the Senate are not in session this week. When Congress returns on the next week, even though the President is scheduled to meet high profile legislators on June 8th to discuss the CIR, it is predicted that the Hill will be obsessed with the confirmation hearing for Sotomayor U.S. Supreme Court justice nomination. Accordingly, there are a sign that the Hispanics take the Supreme Court justice confirmation as a higher priority over the CIR and the political heat and passion in the Hispanic community in the CIR may be somewhat quiet down and delayed. It will be interesting to watch how these two top stakes for the Hispanics will play out in the Congress for the rest of year 2009. Please stay tuned.

05/26/2009: Summary of Nursing Shortage Relief Provision of Wexler's "Emergency Nursing Supply Relief Act," H.R. 2536

• Numerical limitation will not apply to (1) the beneficiaries of I-140 immigrant petitions which are filed under Schedule A, Group I any time prior to September 30, 2012 and which are or have been approved and (2) their family members accompanying or following to join, provided that the total immigrant visa number should not exceed 20,000 per one fiscal year plus any available visa numbers under this new law which are not used during the preceding fiscal year. The annual cap will apply only to the principal aliens and not to the accompanying or following-to-join family members.
• The DHS should expeditiously review and act on such I-140 petitions within 30 days from the date of filing of such petitions.
• The sponsoring employer must pay $1,500 fee per each professional nurse sponsored upon approval of such nurse's I-485 application or immigrant visa application. No such fee will be imposed on the dependent family members accompanying or foloowing to join such professional nurses.
• The $1,500 fee will be waived with the following two employers:
  • (i) Health care facility that is located in a county or parish that received individual and public assistance pursuant to Major Disaster Declaration number 1603 or 1607; or
  • (ii) Health care facility that has been designated as a Health Professional Shortage Area facility by the HHS as defined in section 332 of the Public Health Service Act (42 U.S.C. 254e).
    

05/26/2009: H-1B Cap Count as of 05/22/2009=Approx. 45,700

05/26/2009: USCIS Service Center Operations Chief 05/20/2009 Memorandum on Guidance for Health Care Workers H-1B Adjudication and Standards

• This memorandum lays out general guidance for H-1B petition beneficiaries in a "health care occupation" which is defined under 8 CFR 212.15(c) meeting the specialty occupation definition under 8 CFR 214.2(h)(4)(ii)(4). If the beneficiary meets these two requirements, the memorandum generally provides the following guidance for the Service Center adjudicators:
  • If the beneficiary possesses a valid unrestricted state license in a given state to work within the state, the adjudicators should approve such H-1B petitions upto three years but not exceeding the periof of the license without looking beyond the license and consider the beneficiary meets the qualifications to perform services in a spcialty occupation as outlined in 8 CFR 214(h)(4)(iii)(C)(3).
  • If the beneficiary possesses a valid restricted state license in a given state to work within the state, the adjudicators should approve such H-1B petitions for a period of one year or the period of the valid license, whichever is longer, again without looking beyond the licenses.
  • If the beneficiary does not possess a state license for the reasons that a social security number could not be obtained without a license, the adjudicators should approve such H-1B petitions for a period of maximum one year, provided the beneficiary submits the evidence and he/she filed a license and could not obtain a full unrestricted license in the state due to the requirement for possession of a social security card, valid immigration document, and/or physical presence in the U.S. in the form of a letter from the State Board.
• Please read the full text of the memorandum carefully and follow the guidance in the memorandum.

05/24/2009: OMB Approves on 05/21/2009 DOL H-2A Final Rule with Changes

• On March 17, 2009,the DOL published a Notice of Proposed Suspension of the H-2A Final Rule, published December 18, 2008.Based on the comments received from the public and stakeholders, DOL submitted a Final Rule to the OMB for its approval. On May 21, 2009, the OMB approved the Final Rule as proposed by the DOL without changes. To avoid the regulatory vacuum that would result from a suspension, DOL proposed to reinstate on an interim basis the rules that were in place on January 16, 2009, the day before the revised rules became effective. This final rule will be published in the federal register soon.

05/23/2009: AC-21 Change of Employer and Fallacy of Belief That Terms of Labor Certifications Filed by Former Employer Was Same With H-1B or L-1 Terms of Employment

• Current economic recession and change of environment force EB-485 applicants to change employment invoking AC-21 portability. To invoke AC-21 portability, the foreign worker must prove that the new employment is a "same" or "similar" occupational classification. The adjudicators are currently guided by the USCIS so-called "AC-21 Memorandums" of Yates, Aytes, and Neufeld. When it comes to determination of what constitutes "same" or "similar," there are still room for different interpretations by individual adjudicators, especially when the new employment faills within the same occupational classification under the former DOT occupational classification system or the current OES/SOC occupational classification system of O*Net. Since over 10,000 occupational classifications under the old DOT system has been reclassified into less than 900 occupational classifications under the O*Net system, using of the O*Net occupational classifications substantially expands the scope and parameters of "same" or "similar" occupational classification for the purpose of AC-21 portability as one occupational classification under the O*Net system encompasses a large number of different occupational classifications under the old DOT system. Accordingly, "same" or "similar" occupational classification determination has been fairly broadly applied by the adjudicators in adjudicating AC-21 portability. However, there are still certain thresholds the foreign workers must establish beyond the job title, job description, and qualification requirements in the labor certification application and the terms of new employment. For instance, adjudicators also examine salary differences to determine "same" and "similar" occupational classification issues.
• Currently, a number of 485 applicants who want to invoke AC-21 portability and change of employment face a serious problem because of their inability to access the certified labor certification applications when former employers refuse to release the document. When it comes to preservation of record and evidence, these foreign workers tend to neglect keeping a good copy of such record in their files. Some foreign workers even fall into a naivete to assume that the employer filed a labor certificxation for an occupation that matches with their H-1B employment occupational classification and employment terms and conditions. Reality may be different depending on the employer's needs for so-called "permanent" employment. Accordingly, when they have no knowledge or access to the certifified labor certification applications, they face a srious problem as to whether the new employment falls under a same or similar occupational classfication under the certified labor certification applications. Unless the employers or their legal counsels are willing to release a copy of the application, the problem becomes critical since the certified labor certification is considered a government record that is protected under the employer's privacy right and not subject to release through Freedom of Information Request process. For the reasons, there is no easy solution to tackle the problem.
• When the labor certification used old form of ETA 750, the employees were asked to sign on Part B which is alien qualification attestations and the employers in most cases did not release the Part A, the employer requirement, to the employees. Beginning from March 28, 2005, the DOL started using a new form ETA 9089 which requires attestations to the application by employers, employees, and representatives. Supposedly, the whole document of ETA 9089 should be released to the alien employees before they are required to sign in signature box in certain page. Because of the new structure of the form, it may not comfort with the rule for the employers just to release Part J and K of the application to alien employees for their signature. This change gives the alien employees an opportunity to examine and even keep a copy of whole text of application for their individual files such that they be better prepared for AC-21 change of employment down the road. In immigration journey, record-keeping is critically important, particularly when the whole journey can take years and years because of the visa number retrogression.

05/23/2009: Unresolved Issue of Impact of H-1B 485 Applicant Working for Second Employer on EAD on H-1B Status

• The USCIS has been issuing RFEs to EB-485 applicants even during the visa number unavailability as part of the ongoing "preadjudication" initiatives. Some of these cases have been scheduled for interviews at local field offices. One of the issues that can involve in such RFE or transfer to the local field office inerviews is the agency's unresolved record or issues on the alien's violation of H-1B status when an information is detected that the H-1B aliens had income from sources other than H-1B employment. Over the years, the AILA has been arguing and pressing the USCIS to recognize that working for second employer on EAD while keeping employment with the H-1B employer would not constitute a violation of H-1B nonimmigrant status or would not cease the status of H-1B nonimmigrant at the time of taking second employment on EAD. However, the USCIS has resisted such demands and deferred to their future memorandum relating to the AC-21 Act or AC-21 regulation. Neither of these two actions has been materialized and the issue of this posting remains up in the air. We notice that there are a lot of conflicting online discussions or so-called online legal opinions or advices on this issue, but readers should be advised and cautioned that these discussions have no legal authority to back up the opinions in one way or another at this point and such opinions constitute neither a law nor a rule. People should take such information at his or her own risk under the changing environment on foreign workers.

05/23/2009: USCIS Notice of Everify Outages During the Memorial-Day Long Weekend

• The USCIS E-Verify system will be unavailable from 6:00 PM EDT Friday May 22 through Saturday May 23, and only intermittently available on May 24-25.

05/22/2009: Reduced Case Loads Combined With Some Changes in Processing Practice Leads NSC to a Successful Reduction of Backlogs and Processing Times

• NSC reported to the AILA very positive news and state of its backlog reduction and processing times. It appeaars that the NSC have successfully achieved such backlog reduction and processing time reduction, in part thanks to slow-down of new receipts as affected by the economy and the new international procedure refreshing the expiriring and expired fingerprints rather than rescheduling biometric collection scheduling.
  • Backlog Reduction:
    • All Types of Cases:
      • As of 12/31/2008: 250,000
      • As of 03/31/2009: 87,500
      • As of 06/30/2009: Current (Current means those figures which are set at the USCIS Target Processing Reduction Table)
    • I-140 Cases:
      • 10/2008: 40,000
      • 05/2009: 10,000
  • New Receipts:
    • All Types of Cases per Month:
      • As of 10/2008: 80,000
      • As of 01/2009: 40,000
      • As of 05/2009: 50,000
    • I-140 and EB-485 Receipts per Month Between 10/2008 and 05/2009:
      • I-140: 2,500
      • EB-485: 2,500
  • Internal Biometric Refreshing vs. Rescheduling of Biometric Recollection Scheduling
    • Average: 95% Refreshing vs. 5% rescheduling biometric recollection scheduling with some exceptions
    • Fingerprints captured on or before 01/01/2006: 95% refreshing rather than rescheduling for fingerprint recapture with some exception
    • Fingerprints taken between late 2007 and early 2008 (FY 2007 July Visa Bulletin fiasco affected cases?): Fingerprint recapturing is scheduled because of the system problem the agency experienced at the time
  • Preadjudication of Visa Number Retrogressed Cases: Preadjudication means the agency completes adjudication but for approval pending the visa number availability for each applicant in the future. This preadjudication practice is made possible because of the reduced new case receipts and overall reduced case loads.
• The report confirms our previous report that some of I-140 cases which were pending at the TSC have been transferred to the NSC to achieve the overall USCIS I-140 processing backing and time reduction goal per the USCIS Target Goal table. For the Target Goal table for different types of cases and by period, please visit USCIS website "Processing Times" site. Hats off to the agency!

05/21/2009: Finally, Legislators and Political Leaders Are Waking Up to the Voice of Call for Political Action for Immigration Reforms

• Whether the reality will lead to the achievement of a comprehensive immigration reform depends on the political leaders' attention, leadership, and action on immigration issues. During the first five months of the 111th Congress, as we stated earlier, the Congress was inactive in the area of immigration reform issues. Now, there is a sign that the Congress and the White House are waking up and become more active in legislative bills and initiating discussion and debates on immigration issues in the public and political arena. Other than the legislative bills which were introduced in the Congress yesterday, there are some indications that mroe legislative bills are likely to follow the suit. AILA has also reported that the President is also scheduling on June 8 a meeting of immigration reform team of legislators and his administration to discuss the direction and form of comprehensive immigration reform initiatives. There we go! The start is a half of journey to reach the destination. We welcome their initiatives to pull back immigration issues and debates into the public arena.

05/21/2009: President Sent Yesterday USCIS Director Nomination of Alejandro N. Mayorkas to the Senate for Senate Confirmation

• The President earlier announced his intent to nominate the new Director but yesterday the name was officially forwarded to the Senate Judiciary Committee for the nomination hearing and consent of the Senate for the nomination of Mr. Alejandro N. Mayorkas. The Senate is expected to schedule a hearing soon and consent to the nomination. The Directorship of USCIS has been vacant for quite some time filled temporarily by acting directors or acting deputy directors. Bush nominated at the last minute of his Pesidency the then Acting Director who for the obvious reasons resigned. Instability in leadership has posed a political vacuum for immigration policies and management. Immigration leadership requires at least two qualifications: One is political connection to the new White House and new government to push and attain political support for the Director's agenda for immigration policies and management. Second is the leadership and management skill and understanding of the nation's immigration issues. Please stay tuned.

05/21/2009: Family Unity Immigration Reform Bill Reintroduced in the Senate

• Senator Robert Menendez of New Jersey reintroduces in the Senate on 05/20/2009 his Family Unity Immigration bill, S.1085 with three cosponsors. This is his version of a comprehensive immigration reform legislative bill.

05/21/2009: Nurse Shortage Emergency Relief Act Bill Reintroduced in the House

• Congressman Robert Wexler of Florida reintroduced in the House Nurse Shortage Relief Act bill, H.R.2536 on 05/20/2009 with four cosponsors.

05/20/2009: CIR - May 2009 Has Come and is About to Go Away in Silence

• Despite the economic downturn, the Obama Administration sent out message upon boarding his Administration ship that he would keep his campaign promise to achieve CIR this year and pompous events would take place in May to initiate the campaign pulling together CIR team and leader in the White House and scheduling political appearances in support of the CIR. A report indicates that a key official of the Obama Administration admitted quietly yesterday that such CIR initiatives would be difficult under the given circumstances. The report continues to show information that can back up its assessment that May 2009 may go away without such events considering the current schedules of the President and the key official for the rest of May 2009.
• The key official reportedly analyzed difficulty of pushing the CIR this year into two factors: One is the current economic turmoil and rising unemployment and the other is a trend of rapid slow-down of illegal immigrants crossing the borders. The economic downturn reportedly has quiet down the immigration advocates, and the slow-down of stream of illegal entrants has dissipated the fervour of anti-immigration forces. These two factors combined, the CIR has remained in the dark closet with no loud noices and in silence, and it is likely to continue. Reportedly, in order to deal with the impact of the economic down-turn, immigration advocates have shaped up their new concerted and orchestrated strategy to advance their argument that legalization of illeganlimmigrants would help the country's economic recovery rather than hurt the economy. The AILA advocacy group has also started such campaign beginning this week. On top of all these developments, the pandemic threat of H1N1 flu is still there and rising with potentilly catastropic explosion into human misery throughout the world.
• Since opening of the 111th Congress, it introduced thousands of bills but have shyed away from the immigration legislations. The Judiciary Committess of both the House and the Senate have remained dormant when it comes to immigration reform legislations, no matter whether piecemeal or comprehensive. The immigration debates in the immigration subcommittes of both houses are visibly absent. The reality has set in with no one's defeat or victory. The dream for immigration reform in 2009 is slowly slipping away.

05/19/2009: USCIS Opens International Adjudications Support Branch in California

• The IASB will support USCIS overseas adjudicators to adjudicate I-601 waver applications in Mexico and reduce the current backlog of its overseas adjudication of I-601 applications.

05/19/2009: Recruitment Challenges for PERM Applications During Graduation Season and Economic Recession

• The next few months will represent a worst period for recruitment for permanent foreign labor certification applications for a number of reasons. This is a graduation season that produces college graduates en masse when the unemployment rate marks 8.9%. Worse yet, the current practice of the prevailing wage determination for the permanent foreign labor certification applications restricts the recruitment period to this toughest time. In the first week of July each year, the Department of Labor publishes a new wage data and the State Workforce Agency's prevailing wage determination after the release of new wage data must use the new wage data, which tends to go up. The problem is not rising wage rate. It is the practice of the wage determination agencies on the period of validity of the prevailing wage determination during when the employers must recruit U.S. workers. During the 90-day period prior to DOL's release of new wage data in July, the state agencies issue the prevailing wage determination with a cap of 90 days in validity of the wage determination. Such determination with a short span of validity restricts the employers to engage in the recruitment activities within the graduate seasons. What's the problem? Most jobs for the permanent labor certification applications require experience and the new graduates may not be qualified for the positions. However, in desperation of seeking jobs during the recession, the employers are likely to receive a large number of applicaations from the U.S. workers, including the new graduates. When a PERM application is audited, the sheer number of applications from such U.S. workers, albeit not qualified, prejudices the adjudicators and denial rate is likely to rise on issues of unduly restrictive requirement of qualifications or deficiency in the recruitment activities. Tough time to engage in foreign labor certification recruitment activities.

05/19/2009: Immigration Only 'Geniuses' Need Apply?

• Report indicates that U.S. Department of State issued 9,014 O-1 (extraordinary worker, EB-11) visas in 2008, up 40% from 2004. It also reports that the USCIS approval rate for the O-1 petitions averaged 94% during the period (2004-2008). This nonimmigrant category represents Nobel laureates level (?) of highly achieved foreigners who eventually obtain permanent resident status on self-petitions or by U.S. employers without labor certification. The other benefit is availability of concurrent filing of I-140 petition and EB-485 application, along with the ancillary application of employment authorization document and travel document. Additionally, Premium Processing Services are available for such nonimmigrant and immigrant petitions. The foregoing statistics appear to indicate that the country always opens arms to such 'geniuses,' when H-1B other professionals are continuously facing challenges. Hmm.................................

05/18/2009: USCIS Update of FY 2010 H-1B Cap Count on 05/18/2009

• The regular cap count is approximately 45,500 out of 65,000 annual cap. Read on.

05/18/2009: We Urge USCIS to Release the IBM Immigration Digitization Schedules for Processing Times Reduction

• As we reported earlier, the goal of processing time reduction for various applications and petitions will be achieved when the transformation program is operational in full. The transformation program has witnessed some delays for a number of reasons, and pending the transformation program, the agency appears to rely on certain reduction resources within the existing paper-processing system. One is active utilization of the pre-adjudication of applications and petitions and the other is increase in the number of human resources to process and adjudicate the petitions and applications. These options will however have a limited impact on the whole management and processing system when it comes to the efficiency. Thanks to the huge visa number retrogression for employment-based areas and use of these tools, the USCIS is witnessing some progress in the reduction of processing times, particularly in the permanent resident areas, such as I-140 petitions and I-485 applications. Their goal is to reach four-month processing times by the end of September 2009. Assuming, however, that this goal can be attained as planned, the next question is what will follow next and what's next. People will recall that the Bush Administration launched five-year processing time reduction plan pumping in $500 million, $100,000,000 each year. When the firve-year period was consumed, the agency announced that the reduction had more or less been achieved using certain statistics. Since then, the processing times of I-140 and I-485 have returned to "square one," worse than before the 5-year investment plan in some sense. It appears that the failure could have been related to the unexpected delays in the transformation program. Such patch work with a dubious success frustrated the employers, immigrants, public, and oversight authorities.
• Now, the USCIS has hired IBM investing billions of dollars for digitization of processing and adjudication systems. According to the limited information which has been made available to the public through the media, the IBM project includes two phases. One is to digitize the existing files and data in the USCIS and DHS management system, and the other is to convert the current paper filing and processing system into digitization processing system and manage the files and databases digitally. It appears that progress of the phase-one work will help the agency to reduction of processing times in internal processing, particularly for the purpose of clearance process for integrity of the applications and petitions, making the agency easier to launch preadjudication of the applications and petitions. However, the ultimage achievement of processing time reducations may have to depend on the progress of the second phase of the digitization program. However, hiring more officials and resources have a limit in that it must be funded by general fund, tax money, and further funding for the purposes may face a challenge in the Congress, considering the hostile environment against the immigration in the Congress and for the tax payers. Accordingly, the reduction must be achieved through the IBM project. Since the immigration stakeholders have a huge interest in the progress of the forthcoming changes, the USCIS should release its time tables for the IBM digitization program including the time table for the phase one and the time table for the phase two. It appears that because of the limited resources, they may not be able to undertake the two phases of work in parallell, but the stakeholders need the information from their perspectives of managing immigration matters. We urge the USCIS to release the information as soon as possible so that the employers and the immigrants be prepared for the upciming changes in the immigration management system and processing in the future. The stakeholders are in a sense entitled to the information considering the fact that the project is expected to be supported not by the tax general fund but by user fees which will come from the consumers of their services and they may increase the fees next year for the alleged purpose of reduction of I-140 and EB-485 processing times. Obviously the increased fees may be needed to support the digitization program.

05/18/2009: USCIS Undates on 05/5/2009 the Information for Filing of I-129 Nonimmigrant Worker Petitions

• In the year 2009, the form I-129 and filing procedures have gone through a lot of changes as affected by the legislative activities followed by its rule-making activities to reflect the legislative changes. The 05/15/2009 online update gives up-to-date guidance for users of the I-129 forms, particularly H-1B employers, R-1 religious worker employers, and other employers. Employers may download and keep this update information as a reference guide for processing of I-129 petitions in-house. Read on.

05/17/2009: American Embassy and Consulates in Canada Will be Closed Two Consecutive Mondays

• Monday, 18th, is the Canadian Victoria Day and Monday, 25th, is the Memorial Day in the U.S. To observe the Canadian and U.S. holidays, the U.S. Embassy and all the consulates will be closed on these two Mondays. Accordingly, during these two weeks, they will remain opened only four days each week.

05/16/2009: Highlights of AgJobs Bill

• Following is the highlights the bill sponsor published:
  • Undocumented agriculture workers would be eligible for a “blue card” if they can demonstrate having worked in American agriculture for at least 150 work days (or 863 hours) over the previous two years before December 31, 2008.
  • The blue card holder would be required to work in American agriculture for an additional three years (working at least150 work days per year) or five years (working at least 100 work days per year), before becoming eligible to apply for a green card to become a permanent legal resident.
  • The blue card would entitle the worker to a temporary legal resident status. The total number of blue cards would be capped at 1.35 million over a five-year period, and the program would sunset after five years.
  • Before applying for a green card, participants would be required to pay a fine of $500, show that they are current on their taxes, and show that they have not been convicted of any crime that involves bodily injury, the threat of serious bodily injury, or harm to property in excess of $500.
  • Employment would be verified through employer issued statements, pay stubs, W-2 forms, employer contracts, time cards, employer sponsored health care or payment of taxes.
  • All blue cards would have encrypted, biometric identifiers and contain other anti-counterfeiting protection.
  • The bill also would streamline the H-2A seasonal worker program so that it realistically responds to agriculture needs.
  • The bill would shorten the labor certification process, which now often takes 60 days or more, and reduce the approval time to 48 to 72 hours.
  • The bill also would require that growers first advertise and recruit U.S. workers in the local area by filing job notifications with state employment agencies.
  • The Department of Labor would be required to process H-2A applications within 7 days and notify the consulate or port of entry within 7 days of receipt.
  • The Adverse Effect Wage Rate would be frozen for three years, to be gradually replaced with a prevailing wage standard.
  • H-2A visas would be secure and counterfeit resistant.
• For the background of this bill, please click here.
• Reintroduction of AgJobs bill has its own merit and significance as a piecemal legislation. But one cannot ignore its importance for comprehensive immigration legislation process. As this reporter noted earlier, the initiatives and movement for comprehensive immigration reform must come from two sources. One is community mobilization and the other is legislative bills. Single bill of comprehensive immigration reform has yet to be presented in the Congress, but introduction of piecemeal immigration reform bills that tend to form backbone of a comprehensive immigration reform plays an important role in the comprehensive immigration reform legislation process. The comprehensive immigration reform covers primarily three components: (1) Control of Illegal Immigrants. This component includes (a) Border Security and (b) Immigration Enforcement. (2) Legal Immigration System Adjustment and Reform. This components includes adjustment of immigration allocation primarily among two components of (a) Family-Based Immigration, and (b) Employment-Based Immigration primarily relating to the high-tech and high-end industries. (3) Legalization of Illegal Aliens and Reform of Low-End Industry Immigrant Workers named Essential Workers which cover primarily farm and related food processing industries and hospitality industries. The foregoing three key components are inter-related in formulating the nation's strategy and direction for demand-supply of workforces for the nation's economy and demographic composition of the nation's future population. Thus far, two legislative bills have been introduced in the Senate that touch on the third component: One is "Dream Act" which is the benchmark of Senator Dick Durbin of Illinois, and the other is "AgJobs" bill which is the benchmark of Senator Dianne Feinstein of California. The first component is currently receiving the highest attention either as a precondition for consideration of reforms in the second and third components or as one of the key components in overall strategy and direction for formulation of nation's future economy and demographic visions. However, there are no legislative bills introduced in the Congress in the form of piecemeal legislation for this compoponet. The AFL/CIO labor union presented its proposal and the President Obama has also addressed this reform as key reform in his agenda, but these ideas and proposals have yet to be translated into legislative bills. What about the second component? Thus far, it remains "abandoned" and "orphans" in the reform agenda. In the House, Rep. Jackson from Texas introduced her comprehensive immigration reform bill early in the 111th Congress, but it totally focused on the family-based immigration and third component of legalization of illegal aliens and reform in essentail worker immigration. By all accounts, the employment-based immigration reform for high-tech industry turns out to be a "lone-star" and "abandoned" orphan. Historically, the piecemeal legislative bills for this part of the second component of a reform have been actively introduced and pushed by the Republicans backed by their primary constituents of the fortune 500 companies and higher learning institutions. In the 111th of Congress, these legislators remain in low-key, apparently intimidated by the nation's outrage which can burst into an emotional volcano in the environment of economic recession and horrific unemployment rate. However, from the perspectives of the comprehensive immigration reform, the reform in employment-based immigraiont is something which "cannot go without" in overall reform. Besides, the nation should be concerned with its long-term impact on its competitiveness in the world. Unlike the low-end industry, the education and high-tech that support the high-end industries are considered the areas that take decades and not months or year to build and sustain its strength and current political environment can leave a "permanent" scar on the nation's health against brutal competition by other nations in the world in the future. For the reasons, the damage can be witnessed not today but after decades in the future. We need leaders' vision for the future and not just short-sighted day-to-day run of the nation's business in the political gridlocks and jigzags. We need leaders who have sharp eyes to see changing events and history in the world and have a vision for the future and a courage to stand tall to lead the nation out of the political swamp of gridlocks and jigzags. The nation cannot afford potentially witnessing crumbling of foundation of its competitive edge in the high-end industry and face reality in the next generation that by the time we realize the past mistakes, it would be too late to correct the mistakes because of the nature of the high-end industry and high-tech which take decades to build rather than months or a year!

05/15/2009: USCIS Updates on 05/15/2009 Processing Times as of 03/31/2009

• USCIS releases today processing time update as of March 31, 2009. Please visit our home page.

05/15/2009: Positive News from Nebraska Service Center on I-140 and EB-485 Processing Backlog Reduction Progress

• AILA has reported the NSC update on its progress of backlog reduction for the employment-based I-140 and EB-485 (EB-3). Reportedly, the NSC will achieve its goal of four months processing time for I-140 and six months processing time for EB-485 (EB-3) by end of June 2009. Besides, the NSC will achieve its goal for processing time reduction to four months for EB-485 (EB-3) by the end of September 2009. More positive news is that the agency is "preadjudicating" certain visa number retrogressed I-485 applications such that when the visa number becomes current for these cases, they can act swiftly approving the cases. They are also conducting biometric recapture work for those whose biometric collection is older than 15 months and expired such that some of these EB-485 cases can be approved without rescheduling biometric collections at ASC for some cases. What a bright and positive news! Right on, Nebraska Service Center!!
• Indeed, preadjudication for numerical limit cases is the initiative of the DHS Secretary Napolitano for this period of her efficiency directives and it is likely that other Service Centers and field offices are also following the directives. Preadjudication is also a way of reducing processing backlog in the immigration benefits applications.

05/15/2009: AgJobs Bill Introduced in Both Senate and House 05/14/2009

• Yesterday, Senator Dianne Feinstein of Califoria introduced in the Senate S.1038 bill to improve agricultural job opportunities, benefits, and security for aliens in the United States and for other purposes., cosponsored by 16 other Senators.
• A companion bill was also introduced in the House, H.R.2414, by Rep. Howard Berman of California, cosponsored by 26 other representatives.

05/14/2009: USCIS Issues Memorandum on Consolidattion of Guidance on Unlawful Presence 05/06/2009

• This memorandum revises existing guidance in Adjudicator's Field Manual in the areas of three-year bar, ten-year bar, or permanent bar from returning to the U.S. for certain aliens who depart from the U.S. after an unlawful presence in in the U.S. for certaiin period of time or who were unlawfully present in the U.S. for more than a year and entered or attempt to enter the U.S. without inspection.

05/14/2009: USCIS May 5, 2009 National Stakeholder Meeting Questions and Answers

05/13/2009: State Department Seeks Internet Online Filing System of Immigrant Visa Applications Using New Form DS-260

• The State Department intends to initiate Internet filing system of immigrant visa application using a new form DS-260. The new form will be used to elicit information necessary to determine the eligibility of aliens applying for immigrant visas. The DS-260 form will be submitted electronically to the Department via the Internet. The applicant will be instructed to print a confirmation page containing a 2-D bar code record locator, which will be scanned at the time of processing. Applicants who submit the electronic application will no longer submit paper-based applications to the Department. The State Department is seeking the OMB approval for this proposal which will seek public comment for 30 days once it is published. The proposal indicates that there are appximately 700,000 immigrant visa applicants annually who will use the new form once this new form is in place. Well, this is a cyber-space age and more and more government processes will be converted to oneline service processes in one form or another. Please stay tuned.
  

05/13/2009: Schedule to Disable Current Online LCA Filing System Changed from 05/15/2009 to 07/01/2009

• AILA has just reported that OFLC has changed its plan to disable the current LCA filing system on 05/15/2009 because of the reported issues which the agency will have to address before mandating LCA filing only through the new ICERT portal system. Accordingly, the employers and the representatives will be able to keep filing H-1B LCA through the current LCA filing system at least until June 30, 2009. What a relief! Hats-off to Dr. William Carlson of DOL for the decision.
• Here is the official notice published in its website:
  • May 13, 2009: LCA Legacy System to Remain Operational Through June 30, 2009: OFLC will keep the old LCA system operational through June 30, 2009 to give all users sufficient time to fully transition to the new iCert system. Users are encouraged to familiarize themselves with the iCert system as quickly as possible to allow adequate time to establish accounts and file LCAs using the new ETA-9035. Please note that all technical issues need to continue to be raised through the iCert help desk at OFLC.Portal@dol.gov.

05/12/2009: Reminder of OFLC Schedule of Disabling Current H-1B LCA Online Filing System Effective 05/15/2009

• The Office of Foreign Labor Certification will mandate filing of H-1B Labor Condition Applications using iCert System effective May 15, 2009 and disable the current LCA Filling System as of May 15, 2009. Thus until May 14, 2009, Thursday, the employers and representatives will be able to file and obtain certifications in a matter of seconds online using the current online LCA Filing System. We post this reminder because until one is familiarized with the new ICERT filing details, they can experience delays in filing LCA through ICER System. Additionally, it appears that certification of LCA via ICERT system can take upto one week in each individual situation. Accordingly, those employers and represeantives who face H-1B filing deadline or need filing of FY 2010 H-1B cap or H-1B extension within certain days may want to file and obtain LCA certification ahead of time, certainly within the next three days or until this Thursday using the current LCA Filing System.

05/11/2009: USCIS Announces Extension of J-1 Entry Date for IMGs to Qualify for “Conrad 30” Waiver

• USCIS annoounces on 05/11/2009 that the current sunset date of Sept. 30, 2009 applies to the date the medical doctor originally entered the United States in J-1 status or received a change of status to J-1, to complete a residency program in the United States. Doctors who acquired J-1 status before Sept. 30, 2009, may pursue a waiver of the two-year foreign residence requirement under the Conrad State 30 program, if they meet all the eligibility requirements.
  

05/11/2009: USCIS Changes Plan for Halting Concurrent Filing of I-140 and I-485

• USCIS changes its initial plan to outrightly terminate the current system of concurrent filing of I-140 and I-485 by withdrawing its previous proposal and planning to release a new and revised proposal. Previous proposal was simply terminate such concurrent filing. The agency had been considering this plan for quite a while, but on April 16, 2009, they withdrew the initial proposed rule-making plan. Instead, they plan to present a revised version of their plan for termination of concurrent filing. Accordingly, there will be no change with its plan to terminate the concurrent filing, but the new plan would remove an alien’s reliance on the Visa Bulletin to determine visa availability and therefore eligibility to file for adjustment of status. Instead, the plan would propose that USCIS utilize a registration process for intending I-485 applicants by requiring an applicant to file a registration packet after the approval of I-140 petition and prior to visa availability, based on the use of “qualifying dates” established by DOS. This plan is intended to streamline adjustment application processing by utilizing a two-step process in which registration packets can be pre-screened for documentary evidence, security checks can be initiated and completed, and pending visa demand can be adequately conveyed to DOS. The DOS will then adjust its Visa Bulletin accordingly and applicants may then proceed forward with filing their I-485s based on visa availability as reflected in the monthly Visa Bulletin. This process will result in a steady workflow, will mitigate visa retrogression, and make applications generally decision- ready shortly after time of visa availability. This plan will also allow USCIS to correct a discrepant regulatory reference that defined an employment-based priority date based on a DOL issued labor certification incorrectly.
• Simply put, the USCIS will propose a regulation to terminate the concurrent filing of I-140 and I-485, but by adopting a two tear system of EB-485 application filing process that requires as a first step filing of "preregistration" of intended I-485 applicants, even during the period of visa number unavaility, and as a second step, filing of I-485 application when visa number becomes available in the Visa Bulletin. This new plan is likely to reduce drastically the processing time for I-485 application once the visa number becomes available. The USCIS wants to kick in and adopt "pre-adjudication" mechanism as part of I-485 application filing and adjudication process. The scheduled release of this proposal is December 2009, but it can change depending on the development of events.
• However, this plan will present a serious problem and hardship for employment-based immigrants under the current conditions of massive visa number retrogression and unpredictable visa number movement from month to month. Obviously, this new plan is intended to prevent reoccurence of July 2007 Visa Bulletin fiasco and related avalanch filing of millions of I-485 and EAD and Advance Parole applications in a short period of time. Additionally, under this plan, delay of I-140 processing for whaever reasons will present a tremendous hardship on the employment-based immigrants because of the potential consequences of a long wait for opportunity to file I-485 applications as affected by the unpredictable visa number movement by month to month.
• Considering the fact that the USCIS is planning to release a proposed new rule at about similar time this year along with the planned proposal to increase the filing fees for applicaations and petitions for the alleged purpose of backlog reduction for I-140 and I-485, the employment-based immigrants and employers will face a new chapter in the green card process beginning from sometime middle of 2010. Beware!

05/11/2009: USCIS Plans to Review Current I-485 Filing Fees to Help I-485 Backlog Reduction Cost

• The just released semi-annual rule making agenda for 2009 indicates that the USCIS is reviewing current I-485 fee rule to propose the fee in order to support onegoing 485 processing backlog reduction work. If this review recommends the fee incease, the proposed rule may be published in federal register in October 2009 with a comment period of two months. Should this plan proceed, the fee is like to go up next Spring, 2010. Please stay tuned.

05/09/2009: CIR Wind Storm Has Yet to Blow

• Currently, pro and con CIR forces keep spinning wheels in media in low key and in empty hands. For the reasons, the CIR remains practically out of picture in the public and in the mainstream America. The reform debates should come from two sources. One is mobilization of pro and con forces in the communities and the other is legislative proposals of CIR. The first source has been dampened by the so-called H1N1 flu scares, reported disastrous turn-out of supporters in the scheduled rallies in the first week of May that included May Day and Cinco de Mayo celebration for Hispanics. As for the second source, no single CIR proposal has been presented to the public either by the White House or the Congress. Debate requires contesting proposals. Without proposals, there cannot be any political process of negotiation and compromise to lead to a final legislative product. No fool will assume that there will be only one proposal to lead a CIR legislation. However, the legislators remain quite in both Houses, not to mention White House. Under the circumstances, one questions what we mean by "CIR?" Supposedly for the Obama Administration to initiate a CIR move, they keep pumping up so-called administrative fixes to reinforce the border security and immigration enforcement. We agree that it is a smart and important move and strategy to lead to CIR initiatives. However, at some point, the political leaders must show the public what they mean by "broken immigration system" and "how they are going to fix it by what reform." In such vacuum, no one can expect any debates and sense of importance of such debates for the nation. In this regard, we must say that the second source is very important even for the first source, mobilization of debates in the communities. Demagogue is perceived as a political gimmick and not enough to persuade the public to pay attention to. Something solid with substance must be presented to the public for them to debate about.
• We hope that CIR proposals be introduced in the House or in the Senate in various forms as soon as possible. Senator Reid's reported agenda to present a CIR in the fall should be a product that will be produced after negotiation and compromise of various CIR bills in the House and the Senate. Political leaders, let the public see "what's in your wallet" as soon as possible.

05/09/2009: USCIS 485 Processing Time Target of Four-Month and FY 2009 Employment-Based Visa Bulletin

• The USCIS has been aggressively working on reduction of I-140 and EB-485 processing times to achieve its target goal of four-month processing times by the end of September 2009. It appears that in order to achieve the goal, the involved cases have even been transferred around to different field offices. Thanks to this move, those whose priority dates were available have been receiving either approvals or RFEs or local interview notices for the pending EB-485 cases. This has been a good news for those whose priority dates were current and who had to endure the pains of long-wait. Obviously, this has resulted in massive taking out of FY 2009 EB visa numbers exhausting the pool of the EB visas. As is true in every immigration event, development of immigration news brings with it those who are winners and those who are losers, some smiles and some tears. As is predicted by the State Department, the picture of visa numbers for the rest of fiscal year 2009 may remain grim as the USCIS efforts to achieve the target goal of EB-485 processing times before October 1, 2009 are likely to continue. EB immigrants should prepare themselves to keep their legal status intact and alive during the long wait.

05/09/2009: Some Sites on the USCIS Website Will Be Down for Maintenance from 10:00 a.m. to 06:00 p.m. Tomorrow

• Those who will have to work with the USCIS sites during the weekend may as well complete it today.

05/08/2009: June 2009 Visa Bulletin

• SHOCKS! Indian EB-2 will be moved backward to January 1, 2000.
• EB-3 and Unskilled EW categories will be totally unavailable.

05/08/2009: House Bill to Eliminate Diversity Visa Program

• Rep. Bob Goodlatte of Virginia introduced in the House on 05/07/2009 H.R.2305 to eliminate the diversity immigrant program. This bill is cosponsored by 26 members of the House.

05/07/2009: DHS Reportedly Stepping Up Enforcement of the H-1B Program Including Work Site Visits

• Report indicates that DHS Security Secretary Janet Napolitano told at a Senate Judiciary Committee hearing yesterday that her agency was stepping up its enforcement of the H-1B program. She reportedly said that over the last month the department has added fraud prevention tactics that were not being used previously in the H-1B program. Those measures include visits to work sites.

05/07/2009: PERM Processing Times Update as of 04/30/2009

• Final Reviews (Clean-Cut Cases): November 2008 Receipt Date Cases
• Audit Cases: September 2007 Receipt Date Cases
• Standard Appeals Cases: June 2007 Receipt Date Cases
• Government Error Appeals Cases: Current (no backlog)

05/07/2009: USCIS Updates List and Profile of USCIS Leadership

• The newly announced nominee of new USCIS Director has yet to go through the Senate confirmation process. However, since the nomination of the new Director has been announced, it is likely that major policy decisions of the USCIS may await his coming aboard and in due deference to the new leader's direction and leadersahip, the current USCIS leadership team may slow down any major policy making activities until the new leader takes the office. Pending the upcoming changes, the USCIS website has updated the current acting or permanent leadership lists and profiles with their photos. Photos always help in humanizing and forming image of leaders not just as a mechanical figure but as a human being whom people can feel more touchable and perceived as "one of us."

05/07/2009: H-2A Final Rule Clears OMB Approval 05/06/2009

• The initial version H-2A final rule which was enacted immediately prior to the departure of Bush Administration has remained suspended until now in order for the Obama Administration to review the rule. The new version of its final rule was completed and is ready for publication. Accordingly, it is anticipated that the final rule will be published in the federal register in the near future. Please stay tuned.

05/06/2009: House Bill H.R. 2261 Introduced to Expand Visa Waiver Program to Greece

• Yesterday, Rep. Carolyn B. Maloney of New York introduced this bill to designate Greece as a program country for purposes of the visa waiver program.

05/06/2009: House Bill H.R. 2258 Introduced to Grant Immigrant Status to Certain Liberians Who Have Been Provided Refuge in the United States

• Rep. Patrick Kennedy of Rhode Islands introduced this bill yesterday in the House. For the details, please stay tuned.

05/05/2009: I-140 Projected 4-Month Processing Time Goal and Transfer of Stand-Alone I-140 from TSC to NSC

• AILA has reported that Texas Service Center is transferring the stand-alone I-140 petitions to Nebraska Service Center in order for the USCIS to achieve the targeted four-month processing time of I-140 petitions. This is a very good news for those who need approved I-140 petitions for the ancillary benefits such as H-1B extension beyond six years, two-year EAD application, AC-21 porting of approved I-140 petition to change employment, etc.

05/05/2009: Senate Bill to Restrict Private Contracting of Government Jobs, S. 924

• Currently, new contracting of federal jobs to private contractors remain in moratorium for FY 2010. Senator Barbara Mikulski of Maryland introducted on 04/29/2009, cosponsored by nine powerful Senators, S. 924 for alleged purpose of cleaning up inefficiency of government functions and restrict contracting practice of government jobs to private contractors. During the Bush Administration, a substantial amount of government jobs were contracted out to the private contractors instead of government employees with the alleged consequences of inefficiencies and waste of funds in government functions. For the outline of this bill, please click here.

05/05/2009: FY-2010 H-1B Cap Count Update of 05/04/2009

• The regular cap count remains at 45,000. Keep going and going and going! Ain't it interesting? Hmm......................................................................................

05/05/2009: What's the Meaning of USCIS Release of Non-Minister Religious Worker Immigration Processing News?

• There is a litigation in Seattle wherein the judge issued a conditional order to require the USCIS to accept the concurrent filing of I-360 and I-485, which was conditioned upon the completion of a certain procedural matter in the litigation. In a way, the just released (05/04/2009) USCIS processing news of I-360 and I-485 after the Congress passed legislation extending the sunset date of this program to September 30, 2009 raises a question of whether it is an overture of potentially upcoming concurrent processing of I-360 and I-485 or a signal of its determination to fight against such concurrent filing ruling all the way to the end? Hmm......................... Please stay tuned.

05/05/2009: Sen. Jeff Sessions to Replace Sen. Arlen Specter for Senate Judiciary Republican Leadership

• Not a too promising news for smooth sailing of CIR initiatives in the Senate Judiciary Committee. Read on.

05/02/2009: USCIS Releases Fact Sheet on Naturalization Process for the Military

• This fact sheet gives details of requirement, procedures, and statistics of alien naturalization in military in the U.S. and Overseas.

05/01/2009: Immigration Benefits Application Backlog and Statistics at the End of March 2009

05/01/2009: Naturalization Backlog and Statistics at the End of March 2009

• The number of pending N-400 cases reached 299,109 in March 2009, a decrease of 69 percent compared to the same month in fiscal year 2008. It keeps dropping.

05/01/2009: Processing of Clean-Cut PERM Applications Closely but Not Quite Keeping Pace with the Agency's Average Target Processing Time of Six Months

• The Office of Foreign Labor Certification of DOL is expected to release the third quarter report of their processing times and performances after June 2009 and through scheduled stakeholder meetings. However, unconfirmed and unscientific sources of information indicate that the Atlanta Processing Center has moved into adjudication of October 2008 cases. This means that the agency has yet to meet the target average six-month processing times, even though it is coming close to the target. Considering the apparent reduced number of applications filed by the employers as affected by the economic recession lately, the agency appears to be stuck with their tasks of reinforcing the integrity of the applications causing increased amount of time to process each application. They hope launch of the upcoming iCERT online system will help reducing processing times for new cases in the future, but the cases in the pipeline may have to leave with the current pace of their processing times for a while, particularly considering the fact that the agency will soon be overwhelmed by the time-mandated FY 2010 First Half temporary worker labor certification applications pouring into the system. Please stay tuned.

05/01/2009: Concern With Turnout of May Day Immigration Rallies Potentially Dampened by Swine Flu

• The watchers and supporters of the CIR movement will nervously watch the impact of the ongoing H1N1 Flu (Swine Flu) on the organized rallies scheduled today, May Day, and for that matter, throughout the month of May. Anti-immigrationists have also started drumming up their campaign against the CIR negatively implicating undocumented Mexicans with current health crisis and border security crisis for the nation. What a turn of the event.

05/01/2009: Notices of Winners of 2010 Diversity Visa Lottery Scheduled Beginning From Today

• The State Department is scheduled to send out notices to the 50,000 winners of the annual immigration lottery from May through July 2009. Since no notices will be sent out to those whose registrations failed in the lottery, millions of people who sent in the lottery will have to go through the pains of checking the notices religiously from today until the end of July. As is usual with any lotteries, there will be many smiles and many frustrations. We wish all the luck for the lottery result waiters!

05/01/2009: DHS Secretary Welcomes President's Intent to Nominate Mr. Alejandro Mayorkas as New USCIS Director

For Pre 05/01/2009, Please click here (Archive XIX).