CSC Liaison Meeting 12-14-2005 (12-15-2005)  [Top]

Inquiry procedure – inquiries may only be made when a Notice Date is 30 days earlier than the date referenced on the JIT Report. Notice Date is often later than the Receipt Date.

Adjustment Applications (I-485) – CSC is establishing a procedure as to when it is appropriate to inquire on Fingerprint Notices which have not been received. At this time, an inquiry may only be made if a case is beyond processing times and a visa number is available. Once a visa number becomes available, an inquiry may only be made 30 days after a visa number has become available.

Although Biometric Appointments are being scheduled, photos are still required for the following applications: I-485, I-131, and I-765.

If Biometrics have been done and I-485 has been approved, an inquiry may be made if an Alien Registration Card is not received after 30 days.

When an I-485 has been reviewed and requires an interview, the case will be transferred to a local USCIS office even if a visa number is not available. The local office will decide when to schedule an interview.

DOL/AILA November 2005 Liaison Meeting Summary (12-15-2005)  [Top]

The DOL announced that its goal is to process PERM Labor Certifications within a 45-60 day period. This applies only to “clean cases”. Processing times will vary for cases with issues. Any kind of glitch will make processing longer. If a case has been pending for longer than 90 days, an inquiry may be made.

At this time, no Appeal/Motion to Reconsider has been adjudicated. A system for Appeals is being set up. DOL is not providing any turn around time for Motions to Reconsider at this time. A new case cannot be filed if an appeal is pending.

DOL advised that data entry has been completed so as to provide screen shots in response to requests for verifying that a case is pending. However, DOL estimated, based on current processing, that all 45-day letters should be issued by June 2006. DOL will soon be issuing recruitment instructions for traditional cases. DOL confirmed that it cannot accurately report on the processing times until all data entry/45 day letters are issued.

H-1B Visa Number Availability as of December 5, 2005 for U.S. Graduates (12-15-2005)  [Top]

H-1B Visa Number Availability as of November 14, 2005 for U.S. Graduates (11-30-2005)[Top]

H-1B Visa Number Availability as of October 23, 2005 for U.S. Graduates (11-01-2005) [Top]

As of October 23, 2005, only 6,607 H-1B visas remained of the additional 20,000 visas made available for individuals with US graduate degrees for the fiscal year ending September 30, 2006. 9,680 petitions had been approved; 3,713 were pending – thus totaling 13,393 petitions filed.  

USCIS Over-Issued H-1B Visas for Fiscal Year 2005 (11-01-2005) [Top]

The Department of Homeland Security Inspector reported that USCIS issued in excess of the 65,000 H-1B visa limit for 2005. At the same time, USCIS refused to add unused fiscal Chile and Singapore H-1B1 numbers back into the H-1B pool.

H visa extensions beyond 6-year limit (11-01-2005) [Top]

The USCIS accepted the following criteria in determining if an extension beyond the 6^th year limit should be granted:

1. The 6^th year period of authorized admission on an H-1B visa only accrues during the periods when alien is lawfully admitted and physically present in the United States.
2. A request for an H-1/H-4B visa extension beyond the 6th year must be accompanied by a statement and/or chart of dates spent outside the US and copies of passport pages or Form I-94 arrival-departure records to corroborate the extension. Providing insufficient documentation could be subject to error in interpretations and may be rejected by USCIS.

New Increased USCIS Filing Fees (09-26-2005) [Top]

Effective October 26, 2005, USCIS is introducing new increased USCIS filling fees. Please see the link below for the new fee structure published in the Federal Register:

http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-19226.htm

The new fee has also increased for I-485 for children from $215.00 to $225.00.

2007 Diversity Visa Lottery Registration Begins on 10-05-2005 (09-26-2005) [Top]  

Persons seeking to enter the lottery program must register online through the designated Internet website during the registration period. The website for registering www.dvlottery.state.gov is available from October 5, 2005 noon until noon on December 4, 2005.

In response to demand, the Department tripled the number of servers hosting the registration website this year. In addition, persons submitting entries to the 2007 lottery will receive a notice of receipt now containing their name, date of birth, country of chargeability, and a time/date stamp when information has been properly registered at www.dvlottery.state.gov.

The Department continues to encourage persons who wish to enter the 2007 Diversity Visa Lottery to submit their information early in the two-month registration period.

There is no fee charged for entering the Diversity Visa Lottery. The Department of State does not endorse, recommend or sponsor any information or material from outside entities. The Department is aware that websites and email have masqueraded as official Diversity Visa Lottery facilitators. Registration for the Diversity Visa Lottery through the official, U.S. government website, www.dvlottery.state.gov is free of charge and notification of winning entries are sent by mail only.

The 2007 Diversity Visa Lottery marks the second year that electronic registration is required. Paper entries and mail-in requests for Diversity Visa Lottery registration are not accepted.

H-1B Visa Number Availability as of September 19, 2005 for U.S. Graduates (09-19-2005) [Top]

As of September 19, 2005, of the additional 20,000 visas made available for individuals with US graduate degrees for the year ending September 30, 2005, 7,074 visas are left. In more detail 12,058 petitions have been approved, 868 are pending – thus a total of 12,926 petitions have been counted against the 20,000 cap. NOTE: As of August 4, 2005, 10,150 visas had been counted against the cap.

As of September 19, 2005, of the additional 20,000 visas made available for individuals with US graduate degrees for the fiscal year ending September 30, 2006, 7,561 visas remain; 7,099 petitions have been approved; 5,340 are pending – thus totaling  12,439 petitions filed. NOTE: As of August 4, 2005, 7884 visas had been counted against the cap.

Employment Visa Numbers (09-14-2005) [Top]

The October 2005 Visa Bulletin shows retrogression of visa numbers for India and China first (EB-1) and second (EB-2) preference employment based immigrant visa categories. The cut off dates for China are January 1, 2000 (EB-1) and May 1, 2000 (EB-2). The cut off dates for India are as follows: August 1, 2002 (EB-1) and November 1, 1999 (EB-2). Visa numbers for the first and second preference employment based immigrant visa categories for the rest for the world are current for the month of October 2005.

Whereas a cut off date exists for all third preference employment based immigrant visa categories (EB-3). The cut off date for China is May 1, 2000; for India - January 1, 1998; for Philippines – March 1, 2001; for Mexico – January 1, 2001; and the rest of the world – March 1, 2001.

Update From DOL Backlog Reduction Centers (09-14-2005) [Top]

As of September 12, 2005, the total number of cases forwarded to the two centers was approximately 345,000. Some cases are still in the San Francisco and New York regional offices.

Currently, approximately 90% of cases at the Backlog Reduction Centers have had at least partial data entry. However, 45 day letters are generated only for the cases with full data entry. In the next few months, the centers plan to complete full data entry of all cases and issue the 45-day letters.

To date, the centers have been processing RIR and traditional cases where recruitment was previously completed and no further recruitment was required. 

In the next few months, the centers will be preparing to process cases requiring recruitment.

Updates from California Service Center (CSC) (09-06-2005) [Top]

Receipt Notices

The CSC experienced a temporary system failure around July 22, 2005.  Since that time, electronic receipt notices for Premium Processing filings have not been issued.

Security Checks

The CSC confirmed that it does not have control over when the results of security checks arrive. However, CSC does regular monitoring of files pending security checks to determine when security checks arrive, so as to process these pending cases. Security checks include an FBI check, as well as checks from several other agencies. Although, an FBI check may be completed, other checks may still be pending. The CSC cannot accept a letter received by an attorney/client from the FBI as proof that there is no hit/record. The official clearance must be received by CSC directly from the FBI.

A response to a FOIA request will not provide evidence that the security check requests were sent to the FBI/other agencies. These security check requests are sent electronically with no record in the file.

There is no official processing time for security checks. It can take several months or even years depending on the specifics of a case (e.g. common last name).

EB-3 Cases

H-1B Visa Cap Reached (08-12-2005) [Top]

The USCIS announced on August 12, 2005 that it has received enough H-1B visa petitions to meet the H1B cap for the fiscal year 2006 (i.e. October 1, 2005 and September 30, 2006). The “final receipt date” is August 10, 2005. For cap subject H-1B visa petitions received on that date, USCIS will apply a computer-generated random selection process. This process will select the exact number of petitions from that day’s receipts needed to meet the cap. Any remaining cap subject H-1B visa petitions will be rejected and returned with the filing fees.

The earliest date to now file an H-1B visa petition subject to the cap will be April 1, 2006 with an effective date of October 1, 2006.

Although the H-1B visa cap has been reached, this does not affect the filing of the following types of H-1B visa petitions:
An extension of H-1B visa with a current employer;
An amendment of an existing H-1B visa;
A transfer of an H-1B visa from one employer to another employer;
A concurrent H-1B visa;
An H-1B visa for an individual holding a U.S. Master’s or higher degree;
An H-1B visa for an institution of higher education;
An H-1B visa for a nonprofit research organization; or
An H-1B visa for a governmental research organization.

H-1B Visa Number Availability (08-11-2005) [Top]

The USCIS recently announced that as of beginning of August 2005, fewer than 6,300 H-1B visas are available for the fiscal year ending September 30, 2006. 

More specifically, 22,383 H-1B visa petitions have been approved; 29,556 are pending – thus a total of 51,939 against the cap of 58,200*. (*6800 visas are set aside for the H-1B1 program for citizens of Chile and Singapore).

In relation to the additional 20,000 visas made available for US graduates with graduate degrees for the year ending September 30, 2005, 9621 visas are left. In more detail 9557 have been approved, 822 are pending – thus a total of 10,379 have been counted against the 20,000 cap.

For the fiscal year ending September 30, 2006, 11,788 visas remain; 4212 have been approved; 4000 are pending – thus totaling 8212 filed.

PERM Labor Certification Process (08-11-2005) [Top]

On August 8, 2005, the Department of Labor (DOL) issued further clarification pertaining to the PERM Labor Certification process. DOL has now clearly stated that under PERM only one Labor Certificate Application (LC) for an alien may be filed by the same employer. Two LCs will NOT be allowed for one alien by the same employer, even for different positions.

After August 31, 2005, once one LC for a particular alien is certified, all other applications for that alien filed under PERM will be denied. Additionally, once one application under PERM has been certified, a Notice of Findings will be issued for any LC filed by the employer for the same alien under the prior regulation (i.e. Traditional or RIR). 

If multiple LCs for the same alien under PERM are certified, all certifications will be revoked, but for the first one. In case multiple LCs are certified for the same alien either under PERM or RIR/Traditional, the one under PERM will be revoked.

If an employer has a pending RIR or Traditional LC and wishes to file a PERM case, a request in writing to withdraw the pending LC must first be submitted, unless it was denied, prior to filing a case under PERM.

An employer may not file a new application while a request for review is pending with the Board of Alien Labor Certification Appeals (BALCA). 

No correction, including a typographical error, may be made once a LC has been filed electronically.


Employment-Based Immigrant Visa Number Availability

The USCIS anticipates that starting October 2005 cut-off dates in the Third Preference Employment Based category will apply to China, India and Philippines. Additionally, a Third Preference cut-ff date on a worldwide basis may be required by December 2005.

The establishment of cut-off dates for the Employment Based First and Second Preference categories is not expected until December 2005.

H-1B Visa Number Availability (08-04-2005) [Top]

The USCIS recently announced that as of end of July 2005, fewer than 10,000 H-1B visas are available for the fiscal year ending September 30, 2006. This indicates approximately 12,000 cases have been filed each month since April – it would appear that these H-1B visa numbers may be exhausted by the third week of August 2005.

More specifically, 21,252 H-1B visa petitions have been approved; 27,788 are pending – thus a total of 49,040 against the cap of 58,200*. (*6800 visas are set aside for the H-1B1 program for citizens of Chile and Singapore).

In relation to the additional 20,000 visas made available for US graduates with graduate degrees for the year ending September 30, 2005, 9850 visas are left. In more detail 9,358 have been approved, 792 are pending – thus a total of 10,150 have been counted against the 20,000 cap.

For the fiscal year ending September 30, 2006, 12,116 visas remain; 4035 have been approved; 3849 are pending – thus totaling 7884 filed.

First 45-day Letter Received for a California Case (07-19-2005) [Top]

On July 19, 2005, this office received the first 45-day letter for a traditional Labor Certificate Application (non RIR) filed with California State Workforce Agency (Employment Development Department) on July 24, 2001.

Employment-Based First and Second Preference Visa Availability (07-19-2005) [Top]

Update on New 20,000 H-1B Visas (07-14-2005) [Top]

On July 12, 2005, the USCIS announced that it had received 8,069 H-1B petitions for the fiscal year ending September 30, 2005 toward the new 20,000 visas made available on May 5, 2005.

H-1B visa number availability (06-27-2005) [Top]

A USCIS government official announced at the AILA Annual Convention last week, that approximately 8,300 H-1B visa petitions have been filed and/or approved against the 20,000 exemption cap allocated to US graduates with MS or higher degrees for the fiscal year ending September 30, 2005.  Approximately 5,500 H-1B visa petitions have been filed and/or approved against this same cap for fiscal year ending September 30, 2006.  If the 20,000 allotment for this fiscal year is not “used” – it will not roll over to next year. 

As for the 65,000 H-1B cap for fiscal year 2006 (ending September 30, 2006), approximately 27,300 H-1B visa petitions have been filed and/or approved.  These numbers are less than what was expected. 

An H-1B visa number is not counted against the cap unless a change of status has been approved, a U.S. Consulate issues a visa or an individual enters the U.S.  An individual with an approved H-1B Visa Petition Approval Notice, but not obtaining the H-1B visa stamp, remains subject to the cap when another H-1B visa petition is filed.

Backlog Elimination Center (BEC) Update (06-27-2005) [Top]

The BEC (previously known as BRC) has data entered approximately 200,000 of   the pending 360,000 cases.  BEC expects to receive all cases by June 30, 2005.  The goal is to have data entered all these cases by September 30, 2005.  The Department of Labor (DOL) hopes to then post some information on the website about these cases, i.e. processing times.  However, some of the cases are being data entered with only skeletal information – not the complete information.  Until the complete case is data entered, a 45-day letter is not issued.

BEC in Dallas is currently processing California cases with receipt dates at DOL in San Francisco of May to July 2003.

PERM Update (06-27-2005) [Top]

Todate, 28,000 employers have registered under the PERM guidelines.  Approximately 8500 PERM cases have been filed and 3000 drafts are pending in the system.   DOL has only received approximately 100 cases with a request to re-capture the previous priority date.

Although some cases have been approved, most PERM cases have been either denied or scheduled for audit.

Portability Issue Under AC-21 (06-27-2005) [Top]

During the AILA National Conference last week, a USCIS government official strongly suggested that the forthcoming regulations addressing AC-21 may require, that to successfully port, the underlying I-140 must be approved.  While waiting for these regulations, the Yates memo of May 12, 2005 provides guidance.

Visa Waiver Program (06-27-2005) [Top]

An individual, entering the U.S. on or after June 26, 2005 under the Visa Waiver Program, must present a machine-readable passport.  On or after October 26, 2005, a digital photograph in the passport is required for passports issued on or after October 26, 2005.  A biometric chip will be required in passports starting October 26, 2006.

An individual entering the U.S. on a private jet is not eligible for entry under the Visa Waiver Program.

EB-3 Visa Number Unavailability (06-27-2005) [Top]

As of July 1, 2005, Third Preference Employment Based Visa Numbers are unavailable. Therefore, Third Preference Employment Based Adjustment Applications cannot be filed on or after July 1, 2005 for the balance of this fiscal year, i.e. until September 30, 2005. Additionally, pending I-485s based on Third Preference Employment Based Petitions for all countries can not be adjudicated on or after July 1, 2005, until visa numbers become available next fiscal year starting October 1, 2005.

U.S. Extends Visa Validity for Chinese Students and Exchange Visitors (06-27-2005) [Top]

Beginning June 20, 2005, eligible Chinese nationals who wish to study in the United States temporarily as students (F-1), exchange visitors (J-1), or to undertake vocational training (M-1) will be issued visas that are valid for 12 months and multiple entries. The previous maximum validity for U.S. visas issued for these purposes was six months and for two entries.

The Chinese Ministry of Foreign Affairs has also agreed to reciprocally issue to U.S. citizens visiting China temporarily as students, exchange visitors or vocational students, visas valid for 12 months and multiple entries.

While the United States and China will in principle issue maximum validity visas to each other's citizens, on a case-by-case basis, each side may limit the period of validity and number of entries as required by law and regulation.

New H-1B Visa Exemptions (05-25-2005) [Top]

The USCIS announced on May 24, 2005 that more than 6,393 H-1B visa petitions had been received as of May 20, 2005 against the 20,000 new H-1B visas for foreign workers with a minimum master’s level degree from a U.S. academic institution. These 20,000 visas are available until September 30, 2005.

New Filing Procedure for “Green Card” Renewals or Replacements (05-25-2005) [Top]

Starting May 31, 2005, all applications to renew or replace Permanent Residence Cards (“green cards”) must be mailed directly to the Los Angeles Lockbox, a processing facility used by USCIS to accelerate the collection of applications and petitions.

Thus starting May 31, 2005 all filings of Form I-90, regardless of state of residence, must be mailed to one of the following addresses:

For U.S. Postal Service (USPS) deliveries: 

U.S. Citizenship and Immigration Services
P.O. Box 54870
Los Angeles, CA 90054-0870 

For non USPS deliveries (e.g. private couriers):

U.S. Citizenship and Immigration Services
Attention I-90
16420 Valley View Avenue
La Mirada, CA 90638 

Applicants should not include their initial evidence and supporting documentation when submitting Form I-90 to Los Angeles Lockbox. All applicants will receive a notice for biometrics processing appointment at an ASC and will submit their initial evidence at that appointment.

Fingerprint Notices Including on Approved I-485 (05-23-2005)  [Top]

USCIS has been issuing Fingerprint (FP) Notices in some cases where I-485s have been approved. The USCIS requests that applicants appear as scheduled at the ASC for biometric capture (photo, signature, and index fingerprint). Dependents under 14 will have their biometric photos captured only.

I-485 applicants whose print query results are 15 months old or older are being scheduled for the entire set of biometrics including 10 prints, index print, and signature. Dependents over 14 years of age are being scheduled for the entire set of biometrics capture. Dependents under 14 years of age are being taken biometric photos only.

NOTE: It is very important that applicants comply with the ASC Notices to complete the processing of the required biometrics. Also, children under the age of 14 should go to the ASCs for biometric photo capture only. The ASC notices currently read “Fingerprint Appointment Notice” and USCIS is finding out that some children under 14 are not appearing at the ASC if they receive these notices. As a result USCIS is in the process of changing the notices to read simply “ASC Appointment Notice”.

Interim Guidelines for AC21 (05-18-2005) [Top]

USCIS issued a Memo dated May 12, 2005, which will be in effect until final regulations are published. The Memo addresses portability of I-140/I-485 applications, adjudication of 7^th year H-1B visa petitions and adjudication of H-1B visa petitions in connection with H-1B portability.

USCIS advises that if an I-140 beneficiary (I-140 has not been approved and I-485 has been pending for more than 180 days) ports to a new sponsoring employer, the I-485 may be adjudicated, if it is approvable. Additional evidence however may be requested. If an RFE is issued, and the response to the RFE does not adequately address the issues, or the response is not received at all, or the petitioner responds saying that the beneficiary is no longer employed, the I-140 will be denied, resulting also in the I-485 denial.

When determining if the I-140 petition is portable, the focus will be made on a comparison of the position offered, whether it is the “same” or “similar” occupational classification.  A different geographic location is not material. Also a different salary (unless it is significant) compared to the salary on I-140/Labor Certificate will not matter.

Multinational managers or executives are eligible to port to a new employer, provided the job is “same” or “similar”.

The Memo also allows for the I-140 beneficiary to port to self-employment provided the employment is in a “same” or “similar” occupational classification.

An I-140 will be invalid for porting purposes when:

·        I-140 is withdrawn before the alien’s I-485 has been pending 180 days; or

·        I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

An H-1B visa extension beyond the 6-year limit may be filed when

·        365 days or more have passed since the filing of any application for labor certification; or

·        365 days or more have passed since the filing of an EB immigrant petition (I-140).

An extension which would include a 7th year may be filed provided that the above requirements are met prior before the requested start date on the petition.

H-4 dependents are eligible for extensions of their status beyond the 6-year limit provided they meet the H-4 requirements and the principal alien is also eligible for the 7^th year H-1B visa extension.

When another alien is substituted in the Labor Certification, the H-1B visa extension beyond the 6-year limit may only be requested for the alien currently using the Labor Certificate.  The law does not require that the Labor Certification or Immigrant Petition be from the same employer requesting the H-1B 7th year extension.

If the 7^th year extension of the H-1B visa has been granted, however the underlying Labor Certificate or Immigrant visa petition is denied, that renders the 7^th year extension invalid.

There is no guidance on 7^th year extensions with the implementation of the new DOL PERM program.

AILA-DOL Liaison Meeting of April 27,2005 (05-18-2005)[Top]

The DOL advised that some attorneys have not received 45-day letters due to several possible reasons:

• Letter was issued but the delivery address was incomplete (BCR error);
• Letter was issued to an old address (the documentation requesting the address change/change of attorney had not reached the file prior to issuing the 45-day letter);
• Letter was not issued because the case had not yet been entered into the BRC system;
• Letter was not issued/or response to the 45-day letter received because of file mismatch as a result of the transfer.

DOL is working on solving this issue. Any cases closed as a result of DOL error will be reinstated.

At this time it is unknown how many RIR and how many traditional cases have been received by the Backlog Reduction Centers, therefore there is no guideline on how these cases will be processed. At this time, the DOL did not provide information on the current processing times by the Backlog Reduction Centers.

DOL is searching for a quick solution for issuing proof of pending Labor Certifications, needed for H-1B visa extensions beyond the 6-year limit. The re-filing of an identical PERM case or the mismatch/45-day letter is complicating obtaining such proof.

The DOL announced that approximately 7000+ employers have registered as employers. Approx. 700 applications under PERM have been processed. Approximately 100 re-files have been submitted to retain earlier Priority Dates. Approximately 1000 applications saved and incomplete in the DOL system, not yet submitted.

DOL is developing a test, which will identify which LC applications may be viewed as “identical”.

Although listing using special requirements on an application will not mean an automatic denial, it will involve review by an adjudicator.

DOL’s general policy is they do not want to see multiple filings. This issue is still being discussed.

Possible Retrogression of EB Visas (05-18-2005) [Top]

The State Department announced that there has been a significant increase in the use of employment-based visa numbers for adjustment applications (I-485) during the last few months due to USCIS’s Backlog Reduction efforts. It is estimated that the Backlog Reduction will continue to sustain the same level of demand in the future.  Therefore, visa number availability cannot be guaranteed for the last quarter of fiscal year 2005 (i.e. July through September 2005).

If the demand for visa numbers continues at the current rate, many or all of the Employment based categories on a Worldwide basis may become oversubscribed.  Such oversubscription could result in the establishment of cut-off dates, retrogression of already established dates, or some categories becoming “unavailable”.

2005 H-1B visas available (05-18-2005) [Top]

On May 5, 2005, the regulations concerning reopening the period for filing H-1B visas were published. On May 12, 2005, 20,000 H-1B visas became available for aliens who received a master’s or higher degree from a U.S. institution of higher education.

The USCIS is anticipating that these 20,000 visas may be exhausted on the first few days of filing. If the number of visa petitions filed on May 12, 2005 exceeds 20,000, the USCIS will use a computer-generated random selection process to randomly select 20,000 petitions out of all petitions received on May 12 and 13, 2005.

Once the 20,000 visa cap for fiscal year 2005 is reached, the USCIS will process the rest of the petitions for the next fiscal year of 2006 (start date October 1, 2005), unless otherwise indicated on the petition.

These regulations also allow “upgrading” H-1B visa petitions submitted previously (or approved previously) with a new start date (earlier than October 1, 2005). All requests for a 2005 H-1B visa must be filed at a designated address at the Vermont Service Center.

In future fiscal years, the USCIS will use the first 20,000 visas for the H-1B workers who have a master’s or higher degree. Once these 20,000 visas have been exhausted, the congressionally mandated 65,000 visas will be used for workers who have a master’s or higher degree and all other workers who qualify for an H-1B visa.

Availability of 20,000 Additional H-1B Visas (03-24-2005) [Top]

As of noon on March 24, 2005, the USCIS had not yet published regulations in the BoseFederal Register allowing for the filing of H-1B visa petitions against the additional 20,000 visas made available by the law passed in December 2004 with an effective date of March 8, 2005.

Although this law indicated that eligibility was limited to MS/Ph.D graduates of US universities, there have been rumors that these 20,000 visas may be available to anyone who qualifies for an H-1B visa.

H-1B Visas for the Fiscal Year of 2005 (03-24-2005) [Top]

Starting April 1, 2005, 65,000 H-1B visas, along with the 20,000 H-1B visas for MS/PhD graduates, will be available for the fiscal year of 2006. An H-1B visa petition filed on or after April 1, 2005, and consequently approved, would have an effective date of October 1, 2005 or later.

New Form I-129W (03-24-2005) [Top]

The USCIS has revised Form I-129 three times in the last three weeks. The revision dated March 17, 2005 is the most recent version as of March 24, 2005. Beginning May 1, 2005, only this version of the I-129 will be acceptable for filing.

The First Labor Certificate Approved by the Texas BCR (03-24-2005) [Top]

On March 18, 2005, this office received an approval of a Labor Certificate Application (regular non-waiver case) from the Texas Backlog Reduction Center (BRC). This Labor Certificate was originally filed with the Texas State Agency on August 18, 2000 and transferred to the Department of Labor (DOL) on October 24, 2001. The 45-day letter was received and responded to on January 3, 2005.

45-Day Letters Update (03-24-2005) [Top]

This office has received 45-day letters from the Philadelphia and Texas Backlog Reduction Centers for cases transferred to these centers from the Department of Labor. No 45-day letter has been received for cases transferred from the State Agencies.

Perm Regulations (03-24-2005) [Top]

On Monday, March 28, 2005, the U.S. Department of Labor Regulations eliminate the current Labor Certification Program, which involves traditional recruitment and reduction in recruitment. Under the new program, employers must demonstrate a shortage of American workers using the PERM system. The new process involves filing an online 10-page attestation form. The recruitment efforts include placement of two Sunday classified newspaper ads and a job order with the state workforce agency. Professional positions require additional/different recruitment efforts. Employers are required to maintain detailed records of recruitment efforts and results; however these records would only be submitted in the event of an audit. The Department of Labor (DOL) hopes that eliminating the supervisory role of the State Workforce Agencies will reduce Labor Certification processing times. The pending Labor Certifications may be continued under the old regulations and are expected to be processed within the next two to three years. 

Minneapolis Airport Inspectors Requires Access to Traveler's Email (03-24-2005) [Top]

Customs and Border Protection Inspectors at the Minneapolis Port of Entry recently insisted that certain arriving travelers sent to Secondary Inspection access their email accounts, which the Inspectors then reviewed. At this time there is no information if this practice is becoming a new trend in U.S. or if it was an isolated incident.

Visa Numbers Availability for EB-3 Category (03-24-2005) [Top]

In April 2005, immigrant visa numbers have progressed to April 1, 2002 for workers in the skilled and professional category (EB-3) who are chargeable to India, China and the Philippines.

DV Lottery (02-25-2005) [Top]

Approximately 6.3 million entries were received for the 2006 Diversity Lottery.  The anti-fraud technology detected 31,344 exact duplicates, which were then eliminated.  An additional 5,221 entries were eliminated through the utilization of facial recognition and knowledge discovery software.  Notification of winning entries will be sent to the winning entrants by mail only between May and July 2005.

CSC Liaison Meeting Of February (02-25-2005) [Top]

EB-2 Pilot Program ceased as of 09-30-2004.  Approximately 300 cases filed under this special program remain pending due to security checks.

An individual with a pending derivative I-485 may file a second I-485 as a principal.  The second filing will be consolidated with the first filing.  Instead of filing a new I-485, a letter with the I-140 approval notice may be submitted to be consolidated with the first filing.  The case will then be adjudicated based on the filing date of the approved I-140.

CSC recently discovered that the National Scheduler failed to schedule fingerprint appointments for cases as they were receipted into the system.  CSC is presently identifying these cases and fingerprint notices are being issued. (This office received a number of such notices on 02-24-2005).  In the future, CSC plans to prepare weekly reports to ensure cases are timely scheduled.  In the interim, no procedure has been established to follow up on fingerprint notices.  However, if fingerprints have expired, an email inquiry may be submitted.

In the near future, when individuals attend their fingerprint appointment, the biometrics for the issuance of the actual “green card” will be taken at the same time.  Thus children under the age of 14 will receive notices to visit the Application Support Center (ASC) for these purposes.  CSC requests that all family members visit the ASC at the same time, even if the appointment times differ.  Additionally, applicants are to bring the receipt for the filing of the I-485 in addition to the fingerprint notice.

When an email inquiry is made on a pending I-485 and the response is: “This case is undergoing detailed review.” or “Your application is pending review and additional system checks.” – this is a standard response when all required system checks have NOT been completed.  If such a response is received, CSC requests that no further inquiry be submitted for 180 days.

CSC was unable to provide information concerning the filing of H-1B visa petitions, which will use the 20,000 numbers becoming available on 03-08-2005.

Perm Process (02-25-2005) [Top]

PERM is coming

PERM arrives on March 28, 2005 (Monday).

Regular (Traditional) and RIR filings cease on March 24, 2005 (Thursday).

On December 27, 2004, the Department of Labor (DOL) finally published its long awaited PERM regulations, which take effect on March 28, 2005.  These regulations eliminate the filing of Regular (Traditional) and RIR cases and thus change the process for filing a Labor Certification (LC), which is the first step when sponsoring an employee for permanent residence.   However, the basic premise of this process remains the same: DOL must  make a determination that there are insufficient U.S. workers who are able, willing, qualified and available for the position sought to be certified and that the hiring of the alien on a permanent basis will not have an adverse effect on the wages and working conditions of U.S. workers similarly employed.

The PERM Regulations require that an employer must first obtain a Prevailing Wage Determination (PWD) from the State Workforce Agency (SWA).  The salary offered to the alien must be equal to or greater than the PWD; commissions, bonuses or other incentives can only be included if the employer guarantees payment of these on a weekly, bi-weekly or monthly basis.  There is no longer a 5% margin.  The PWD is valid for 90 days to a maximum of one year, within which time the employer must either file a LC or at the least begin its pre-filing recruitment.  The validity period of the PWD will be noted by the SWA.

These new regulations require that the employer conduct recruitment prior to the filing of the application (ETA Form 9089), which can be done electronically or by mail.  The mandatory recruitment steps to establish that there is no qualified or available U.S. worker are as follows:

            Placement of a 30-day job order with the SWA;

            Placement of two Sunday newspaper ads (may be consecutive Sundays);

            Posting a Notice internally for ten consecutive business days advising

employees of the LC filing; and

            Publishing a notice in any and all in-house media, whether electronic

or printed, in accordance with the normal procedures used for the

recruitment of similar positions in the employer’s organization.

These mandatory steps must be conducted at least 30 days, but no more than 180 days, before filing the LC.

The Sunday newspaper ads must include:

            Name of the employer;

Job title;

            Jobsite;

            Means to contact employer (can use a P.O. Box).

The ad need not include salary nor the employer’s physical address.  A job identification code may be included to assist with tracking applicants who respond to the job opportunity.

If the position is a professional one, three additional recruitment steps are required, which may include:

                                                              i.      Job fairs;

                                                           ii.      Online job posting, even if posted in conjunction with a print ad;

                                                         iii.      Posting on employer’s website;

                                                          iv.      Posting on a job search website other than the employer;

                                                             v.      Employee referral program with incentives;

                                                          vi.      Use of professional or trade organizations by advertising job opportunity in newsletter or trade journal;

                                                        vii.      Notice of the job opening at a campus placement office, if the job requires a degree but no experience;

                                                     viii.      On-campus recruiting, if the job requires a degree but no experience;

                                                          ix.      Use of private employment firms;

                                                            x.      Local and ethnic newspapers, if appropriate for the job opportunity;

                                                          xi.      Radio and television advertisements.

The employer must prepare a recruitment report describing the recruitment steps and the results, including the number responses, number of interviews, number of hires, the number of U.S. workers rejected along with the job-related reasons for the rejections.  This report is to be kept as part of the employer’s documentation in the event the Certifying Officer (CO) issues an audit letter.  The CO may also request the resumes of the U.S. workers sorted by the reasons they were rejected.  The job duties and requirements may need to be supported by evidence of their business necessity.

When defining the requirements for the job opportunity, experience gained with the employer cannot be used, unless the position is not “substantially comparable”, i.e. less than 50% of the duties are the same..  However, experience gained with an entity having a different Federal Employer Identification Number (FEIN), such as an overseas subsidiary or an acquired company, can now be used without restriction.

If an employer has had a layoff in the immediately preceding six months of filing a LC, the employer must document it has notified and considered laid off workers with the same job opportunity.  The regulations define layoff as any involuntary separation of one or more workers without cause or prejudice, such as reduction-in-force, restructuring or downsizing.

The employer is not required to submit any documentation at the time of filing the LC; however documentation may be required in the event the application is selected for audit.  The CO may issue an audit letter as a result of random sampling or the application appears to have some problematic issues.  DOL has not identified the criteria for an audit in its final regulations.  When an audit letter is issued, the employer has 30 days within which to respond. 

Failure by the employer to provide the required documentation in response to an audit letter will result in a denial of the pending application and may result in an order for the employer to conduct supervised recruitment for future filings during the next two years.  Supervised recruitment would normally require the placement of an advertisement for three consecutive days, including a Sunday, and any other recruitment the CO deems necessary.

The employer must maintain the documentation for five years from the time of filing the LC.

The final regulations provide that a LC may be revoked if the CO finds the LC was not justified i.e. for any grounds that would have resulted in a denial of the LC.  There is no time limit as to when a CO can revoke a LC.

A LC filed and certified electronically must upon receipt of the LC, be signed immediately by the employer in order to be valid.

A LC, which was filed prior to March 28, 2005, may be withdrawn and re-filed under PERM (provided a job order has not been placed for the first case) without the loss of the priority date.  However, to retain the priority date, the CO must agree that the re-filing is for an identical position and the employer has met all of the filing and recruitment requirements under PERM. Identical means the employer, alien, job title, job location, job requirements and job description are the same as those stated on the original application.  This refiling will be deemed to be a withdrawal of the previous application.  If the CO determines that the applications are not identical, the priority date will be lost.  This may then compromise an employee’s eligibility to seek an extension of a temporary work visa (this AC-21 issue has not yet been addressed by USCIS).  Additionally, the loss of a priority date may impact the time line for an employee to file an adjustment of status application due to the now existing backlog of visa numbers for Third Preference India, China and The Philippines.

The PERM Regulation (01-05-2005) [Top]

At long last, the regulation to implement the re-engineered permanent foreign labor certification program (PERM) was published in the Federal Register on December 27, 2004, with an effective date of March 28, 2005. Thus, the last date to file traditional and/or RIR (Reduction in Recruitment) Labor Certificate Applications would be March 26, 2005. Department of Labor (DOL) will offer four public briefings to educate the public on using this new permanent foreign labor certification system. The four briefings will take place in early 2005 in Chicago, Atlanta, Costa Mesa and Washington, DC. During these briefings, the DOL will also provide an update on backlog reduction efforts. 
As of December 13, 2004, DOL opened two new National Processing Centers in Atlanta and Chicago. These two Centers will handle permanent labor certification cases filed under the PERM system. 

Highlights of the PERM Regulation (01-05-2005) [Top]

The PERM Regulation is effective March 28, 2005. Applications may be filed electronically or by mail (no fax). Prior to filing a case, a Prevailing Wage Determination (PW) must be obtained from the State Workforce Agency (SWA) and the offered salary must be 100% of this PW; there is no longer a 5% margin. The goal for decisions on electronically filed PERM cases is 45 to 60 days. Conversion of previously filed cases means withdrawal and refiling for only “identical” job opportunities. Recruitment for professional positions requires an internal posting, job order with the state job bank, two advertisements in a Sunday newspaper (can be two consecutive Sundays and need not reference salary offered), and three additional recruitment activities such as web postings, job fair attendance, employee referral program, etc. A copy of the application and supporting documentation must be retained for five years from the date of filing.