U.S. Immigration Updates
H-1B petition filings for Fiscal Year 2011 Begins April 1, 2010 (03-09-2010) [Top]On March 8, 2010, USCIS announced that it would start accepting H-1B visa petitions subject to the cap on April 1, 2010 for a start date of October 1, 2010. The Fiscal Year (FY) cap for 2011 is 65,000. An additional 20,000 H-1B visa petitions filed on behalf of individuals who have earned a U.S. Master’s degree or higher will also be accepted. USCIS will monitor the number of H-1B visa petitions filed and will notify when the cap is reached. On the day that the cap is reached, USCIS will randomly select the number of petitions required to meet the numerical cap. H-1B petitions for new employment are exempt from the annual cap if the beneficiaries are seeking employment at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or government research organizations. H-1B visa petitions filed on behalf of current H-1B workers are also not subject to H-1B visa cap including:
180 Audit Notices Issued by ICE (03-03-2010) [Top] U.S. Immigration and Customs Enforcement (ICE) is issuing Notices of Inspection (NOIs) to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. These notices alert the businesses that ICE will be inspecting their hiring records to determine if they have complied with employment eligibility verification laws and regulations. ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This is the first step in addressing the illegal employment problem. Employers are required to complete and retain a Form I-9 for each individual hired in the United States. This form requires employers to review and record each individual’s identity documents and authorization to work and determine if the documents reasonably appear to be genuine and related to the individual. In 2009, ICE implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. New Filing Requirements for Certain USCIS Applications (03-02-2010) [Top] USCIS has recently revised a number of forms (I-140, I-485, I-765, etc.) and filing requirements for these forms in an effort to transition the intake of these forms from the Service Centers to Lockbox facilities. Visit www.USCIS.gov - choose “Forms” for the most up to date information. Centralizing form and fee intake allows USCIS to provide the public more efficient and effective initial processing of applications and fees. New Filing Requirements for Form I-485 As of February 25, 2010, Form I-485 (Application for Adjustment of Status to that of Permanent Resident) should be submitted to a USCIS lockbox facility depending on the eligibility category. See http://www.uscis.gov/files/form/i-485instr.pdf Previously, an employment-based I-485 was filed with a USCIS Service Center having jurisdiction over the applicant’s residence. USCIS will forward all Form I-485 applications to the appropriate Lockbox facility until March 29, 2010. After March 29, 2010, USCIS will return any incorrectly filed applications with instructions to re-file at the correct location. Additionally, Form I-485 has been revised. After March 29, 2010, USCIS will only accept Form I-485 dated “Revision 12/03/2009”. Any previous version of an I-485 will be rejected. At this time, an I-485 should not be concurrently filed with I-140 at the lockbox facility. I-140s must continue to be filed at either the Nebraska or the Texas Service Center depending on jurisdiction. New Filing Requirements for Form I-765 As of February 25, 2010, Form I-765 (Application for an Employment Authorization Document – EAD Card) must be submitted to a USCIS lockbox facility/Vermont Service Center depending on the eligibility category. See http://www.uscis.gov/files/form/i-765instr.pdf If an I-765 is filed concurrently with an I-485, it should be filed at the same location as the I-485, depending on eligibility. USCIS will forward all incorrectly filed Forms I-765 to the appropriate Lockbox facility until March 26, 2010. After March 26, 2010, USCIS will return any incorrectly filed application with instructions to re-file at the correct location. Additionally, Form I-765 has been revised on February 12, 2010. Previous versions marked with “Y” (at the bottom right hand corner - Form I-765 (Rev. 02/12/10)Y) are acceptable at this time. Filing Requirements for Form I-131 As of March 2, 2010, the filing requirements for Form I-131 (Advance Parole) have not changed: filing with the Nebraska or Texas Service Center (based on eligibility), if filed separately based on a pending employment based I-485. If an I-131 is to be concurrently filed with an I-485, the place of filing would be governed by the I-485 filing. It appears that these instructions may change in the future. March 2010 Visa Bulletin Shows Slight Progression For Employment Based Categories (02-08-2010) [Top] The March 2010 Visa Bulletin shows slight forward movement in essentially all categories. First Preference Employment Visa Numbers remain current as does Second Preference for all countries except China and India. After remaining at a stand still for five months, India Second Preference moves forward by nine days to February 1, 2005, while Third Preference also moves forward by nine days to July 1, 2001. Third Preference for the World and China advances three months to December 15, 2002, while China Second Preference has a six week advance to July 8, 2005. Now that the State Department is aware of the visa numbers needed to adjudicate Adjustment of Status cases pending with USCIS and also has a tally of the visa numbers needed at the US Consulates - numbers will move very slowly forward (if at all) - but there should be no retrogression until visa numbers are nearly exhausted in the summer toward the end of the fiscal year. Little Movement in Employment Based Immigrant Visa Numbers for February 2010 (01-11-2010) [Top] The U.S. State Department has released its February 2010 Visa Bulletin: although there is good news in that First Preference Employment Visa Numbers remain current as does Second Preference for all countries except China and India - India sees no movement in its Third and Second Preference Visa cut off dates. Third Preference for India remains at June 22, 2001 and Second Preference remains at January 22, 2005. Third Preference for the World moves forward to September 22, 2002 (a seven week gain - the same for China Third), while China Second moves forward by three weeks to May 22, 2005. Now that the State Department is aware of the visa numbers needed to adjudicate Adjustment of Status cases pending with USCIS - numbers will move very slowly forward (if at all) - but there should be no retrogression until visa numbers are nearly exhausted in the summer toward the end of the fiscal year. H-1B Visa Cap Number Calculations (01-05-2010) [Top] Each year, 6,800 H-1B cap numbers are reserved for Chile/Singapore H-1B1 visas. The unused Chile/Singapore numbers are then rolled over into the next fiscal year’s regular cap. For fiscal year 2009, there were approximately 6,100 unused Chile/Singapore H-1B1s which were added to the 58,200 regular cap numbers available for fiscal year 2010 (excluding the 20,000 master’s exemption), thus the regular H-1B cap was 64,300. USCIS has historically accepted more H-1B petitions than available cap numbers based on the assumption that some petitions will be denied, rejected or withdrawn. However, this year was different from the previous years as USCIS was able to use actual data on approvals to determine when to end the filing period for the regular cap. USCIS applied approval, denial, withdrawal, etc. rates from the cases that had already been adjudicated to the pending cap subject petitions to estimate how many of the pending petitions may be eligible for a cap number. That number was added to the number of petitions that had already been approved for fiscal year 2010 cap number. When the estimated cap eligible number reached 64,300, USCIS closed the filing period. A lottery of the filings received on December 21, 2009 was run to accept only a portion of filings received on that date. New Process for Obtaining Prevailing Wage Determinations (01-05-2010) [Top] As of January 1, 2010, the Department of Labor (DOL) will require centralized filing (Washington, DC) of all Prevailing Wage (PW) Requests for H-1B, H-1B1, H-1C, H-2B, E-3 and Permanent Labor Certifications Programs. Previously, PWs were filed with the various State Workforce Agencies (SWAs) where the job function was to be performed. At this time, all PW Requests must be submitted by mail or comparable physical delivery service to the following address: U.S. Department of Labor - ETA, National Prevailing Wage and Helpdesk Center, Attn.: PWD Request; 1341 G. Street, NW., Suite 201, Washington, DC 20005-3142. DOL advised that mail (or other hard copy delivery) is the only option from January 1 through January 19, 2010 – they will not accept applications by fax or electronic means. To expedite return of the wage determination, if the completed form includes an email address for the contact, DOL will email back a scanned copy of the completed wage request. DOL advised that an online prevailing wage system (as part of iCERT) will go live on January 20, 2010. Once this prevailing wage system is up on iCERT, PW Requests may be completed online and submitted electronically. H-1B Cap Reached on 12-21-2009 (01-04-2010) [Top] USCIS announced on 12-22-2009 that the H-1B cap was reached on 12-21-2009. For those petitions received on 12-21-2009, a lottery will be conducted to determine which petitions will receive a number. New H-1B cap subject petitions can now only be filed on 04-01-2010 with a effective date of 10-01-2010. 64,200 H-1B Cap Subject Visa Petitions Filed as of 12-15-2009 (12-17-2009) [Top] USCIS announced on 12-17-2009, that 64,200 H-1B cap subject visa petitions had been received as of 12-15-2009. USCIS has not advised how many H-1B cap subject petitions will be accepted to reach the 65,000 cap. LCA Processing Delays (12-16-2009) [Top] The Department of Labor (DOL) office in Chicago having jurisdiction for processing Labor Condition Applications (LCAs) in support of H-1B visa petitions was moving location last week and only on 12-15-2009 did the phones and servers become available for responding to queries and processing requests for FEIN/employer name verification and adjudication of LCAs. Processing has now resumed as of 12-15-2009. Theoretically, the number of H-1B filings this week may be less since LCAs were not being certified - thus the H-1B cap may remain available longer. H-1B Cap Reaches 62,900 as of 12-11-2009 (12-15-2009) [Top] USCIS has indicated that as of 12-11-2009 a total of 62,900 H-1B cap subject petitions had been filed. An increase of 400 cases filed in one business day - this seems to be the current rate of filing on average. Still no word from USCIS as to how many petitions will be accepted to reach the 65,000 cap. USCIS Acknowledges 62,500 H-1B Cap Filings as of 12-10-2009 (12-14-2009) [Top] As of 12-10-2009, USCIS indicates that 62,500 H-1B cap subject petitions are on file. This is an increase of 1,000 filings since the last count of 12-08-2009, approximately less than 400 filings each day. There is still no word from USCIS as to how many petitions will be accepted to meet the 65,000 cap. 61,500 H-1B Cap Subject Petitions Received as of 12-08-2009 (12-09-2009) [Top] As of 12-08-2009, USCIS had received 61,500 H-1B cap subject petitions. In two business days since the last count on 12-04-2009, only 400 petitions had been filed; whereas in the previous 5 business days more than 400 petitions had been received each day. Apparently the number of filings is now decreasing so that the 65,000 cap may not be reached so quickly. Perhaps H-1B cap numbers will remain available through the month of December. However USCIS has still not indicated how many petitions will be accepted in order to reach the 65,000 cap. 61,100 H-1B Cap Subject Petitions Received as of 12-04-2009 (12-08-2009) [Top] As of 12-04-2009, USCIS had received 61,100 H-1B cap subject petitions. USCIS continues to accept H-1B cap subject petitions and will continue to accept filings until it has received a sufficient number of petitions to reach the statutory cap of 65,000 - no indication how many petitions will ultimately be accepted to reach the cap nor when the cap may be reached. 2010 H-1B Visa Cap (12-03-2009) [Top] In early December 2009, USCIS indicated that there has been an increase in H-1B cap subject visa filings during the last two weeks of November 2009, including approximately 2,000 visa petitions received in the days before Thanksgiving. UCSIS also confirmed that the demand for H1B1 Chile and Singapore visas has been very small this year; therefore unused visa numbers may be added to the general H-1B visa pool. Based on estimates from the previous years, USCIS sets aside H-1B visa numbers, which are expected to be needed under the Chile and Singapore category. The unused H-1B numbers are added to the general H-1B visa pool. Although USCIS has not indicated how many H-1B visa petitions will be accepted, the number is clearly more than the 58,200 since as of November 27, 2009 USCIS had received 58,900 petitions. Nevertheless, the H-1B visa cap may be reached any day and any delays in filing H-1B visa petitions may result in rejection due to lack of H-1B numbers. Vaccinations Requirements (11-30-2009) [Top] Since November 13, 2009, USCIS has held certain applications to adjust status to permanent residence until new Center for Disease Control and Prevention (CDC) vaccination criteria become effective on December 14, 2009. CDC announced that it was developing new criteria for determining which vaccinations for applicants seeking to become lawful permanent residents would be required. Based on this new criteria, the vaccines for herpes zoster (zoster) and human papillomavirus (HPV) will no longer be required for immigration purposes as of December 14, 2009. As a result, any applications held since November 13, 2009 based on the applicant’s failure to show proof of having received the HPV or zoster vaccine will be adjudicated on December 14, 2009 using the new vaccination criteria. More information on the new criteria and changes to the vaccination requirements is available on CDC’s website: http://www.cdc.gov/ncidod/dq/laws_regs/fed_reg/vaccine/revised-vaccination-immigration.htm 58,900 H-1B cap subject petitions received as of 11-27-2009 (11-30-2009) [Top] As of 11-27-2009, USCIS had received 58,900 H-1B cap subject petitions. USCIS continues to accept H-1B cap subject petitions and will continue to accept filings until it has received a sufficient number of petitions to reach the statutory cap - no indication how many petitions it will ultimately accept nor when the cap may be reached. Employer Site Visits (11-24-2009) [Top] The Department of Homeland Security established a program “2009 Government and Employers: Working Together to Ensure a Legal Workforce” aimed at fraud detection and ensuring national security. This program involves employer site visits to ensure compliance. Three types of visits are currently being conducted: 1. Risk Assessment Program Fraud Study. Applicable to any type of benefit including family or employment based; this study is part of a joint program between USCIS and ICE. Applications and petitions are chosen at random, usually on a post-approval basis, for visits to help in designing profiles of potential fraud. 2. Targeted Site Visits. These visits take place where fraud is suspected, and consist of a visit to ask questions. Advance notice, including notice to counsel, is supposed to be provided. 3. Administrative Site Visits. These relate to religious worker and H-1B petitions. They are generally conducted by contractors who know nothing about immigration law. The contractors are equipped with a set of specific questions, and all employers/beneficiaries should be asked essentially the same questions, primarily reaching the issues as to whether there is really an employer, if the employer knows it filed the petition, and if the beneficiary is doing the work and receiving the wage indicated on the petition. The H-1B visits are done on a post-adjudication basis and are randomly selected. Each employer should receive only one such visit, but may receive different visits for different sites. 56,900 H-1B Cap Subject Petitions Filed as of 11-20-2009 (11-24-2009) [Top] As of 11-20-2009, USCIS received approximately 56,900 H-1B cap subject petitions. Thus in one week, 1,300 petitions had been received. The rate of filing is now increasing: the previous week, an additional 1,000 petitions had been filed. Depending on how many H-1B cap subject petitions USCIS will accept to reach the cap, the ability to file H-1B cap subject petitions may soon disappear. I-9 Audits to Hold Employers Accountable (11-23-2009) [Top] On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure. These business owners have been alerted that ICE will audit their hiring records to determine compliance with employment eligibility verification laws. These employers were selected for inspection as a result of investigative leads and intelligence and because of the business connection to public safety and national security. An Audit involves a comprehensive review of Form I-9s, which an employer is required to complete and retain for each individual hired in the United State. An Audit may result in civil penalties and lays the groundwork for criminal prosecution of an employer who knowingly violates the law.
In July 2009, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today.
55,600 H-1B cap subject petitions filed as of 11-13-2009 (11-19-2009) [Top] USCIS announced that as of 11-13-2009, there had been 55,600 H-1B cap subject visa petitions filed. Approximately 900 petitions have been filed in the one week lapse since USCIS provided data on H-1B cap subject filings. At this rate, if approximately 1000 H-1B cap petitions are filed weekly, and if the number of petitions USCIS will accept is 58,200 (likely more due to the expectation that some petitions may be denied and/or withdrawn), USCIS may stop accepting H-1B cap subject petition filings as previously predicted, by early December 2009. H-1B cap reaches 54,700 (11-16-2009) [Top] As of November 6, 2009, approximately 54,700 H-1B cap subject petitions had been filed. Although there are 65,000 H-1B cap subject numbers available each fiscal year, USCIS allocates 6,800 of these numbers for H-1B1 Free Trade Visas for Chile and Singapore. Thus, only 58,200 H-1B cap subject numbers are available - this cap may be reached in short order, i.e. early December 2009. Little Change in Employment Based Visa Numbers for December 2009 (11-10-2009) [Top] The U.S. State Department has now published the Visa Bulletin for the month of December 2009 - the only change is with Third Preference India which has inched forward by 8 days to 05-01-2001 - whereas the rest of the Bulletin remains the same. First Preference for all countries continues to be current and Second Preference for the world also remains current. No change for Second Preference China - remains on 04-01-2005 and India also remains at 01-22-2005. Third Preference for all countries except India is stagnant at 06-01-2002. H-1B Cap Subject Numbers Continue To Be Depleted (11-07-2009) [Top] As of October 30, 2009, approximately 53,800 H-1B cap-subject visa petitions had been filed. Since USCIS has approved 20,000 H-1B petitions for aliens with advanced degrees, the remainder of the advanced degree petitions have now being allocated to the regular cap-subject allocation. USCIS headquarters explained that the jump in the H-1B cap-subject count from September 18th (46,000) to the current number (53,800) is due more to the reaching of the advanced degree 20,000 allocation and placing the remainder of these cases into the regular cap, than any significant increase in H-1B cap-subject filings. Regardless, the regular H-1B cap-subject allocation will now be reached sooner than previously anticipated. H-1B cap-subject visa petitions filings triple (11-03-2009) [Top] USCIS has announced that as of 10-25-2009, 52,000 H-1B cap subject petitions had been filed. Thus, in one month (09-25-2009 to 10-25-2009), USCIS received 5,300 H-1B cap subject petitions; whereas in the previous month only 1,600 H-1B cap subject petitions had been filed. With the number of H-1B cap subject petition filings increasing significantly, the cap could be reached within approximately one month. USCIS Conducts Unannounced Audits of H-1B Visa Employers (10-28-2009) [Top] USCIS through its Office of Fraud Detection and National Security (FDNS) has recently started conducting unannounced H-1B site visits. These visits occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the H-1B visa petition. The H-1B employer may request that its immigration attorney be present during the visit. However, the officer will not typically reschedule a site visit so that an attorney may be present. It was stated that the counsel’s presence may be allowed by phone. During the H-1B site visit, an officer will normally verify information contained in a specific H-1B visa petition filed by the H-1B employer. A request is usually made to speak with the employer’s representative who signed the H-1B petition and ask for specific information about the company (sponsoring the H-1B visa employee) such as:
The officer may request a tour of the H-1B employer’s facility during which the officer may take photos of the facility and request to interview the H-1B employee. The H-1B employee may be asked the following questions: job title, job duties, responsibilities, employment dates, position location, requirements for the position, academic background and previous employment experience, current address, and information about dependents, if any. After speaking with the H-1B employee, the officer may speak with a colleague of his or the manager. The officer will verify the information about the H-1B employee’s title, position duties, and requirements for the position. The H-1B visit usually lasts less than an hour. USCIS Vermont Service Center indicated that it has transferred approximately 20,000 cases to the FDNS as part of the H-1B assessment program. It is assumed that the USCIS California Service Center has also forwarded a comparable number of cases for review. USCIS Case Status Online Delays (10-26-2009) [Top] USCIS announced that there is a several day delay in the system update to the USCIS Case Status Online. It may take up to a week to have an approval reflected in USCIS Case Status Online. USCIS is working to correct the problem as quickly a possible. Annual Diversity Immigrant Visa Program (10-14-2009) [Top] In the first week for the 2011 Diversity Immigrant Visa Program (DV-2011) registration, applicants from around the world submitted over 900,000 entries – a 63% increase over the same time period last year. More than 13,000,000 entries are expected before the registration period ends on November 30, 2009. This congressionally mandated program makes available 55,000 immigrant visas annually, drawn randomly from all entries and issued to persons who meet strict eligibility requirements from countries with low rates of immigration to the United States. Successful DV-2011 entrants will receive notification of their selection via mail between May and July 2010, and will be permitted to commence the Immigrant Visa application process in October 2010. The deadline for visa issuance is September 30, 2011. Entries must be submitted online. Paper entries are not acceptable. All successful entrants will be notified by mail, but entrants who retain their online confirmation page will be able to check their entry status through the Internet. Employment Based Immigrant Visa Numbers for November 2009 (10-13-2009) [Top] The Department of State has now issued the Visa Bulletin for the month of November 2009. For the most part, there has been little movement forward but there has been no retrogression. First Preference Visa Numbers continue to be current along with Second Preference for the "world". Unfortunately, Third Preference for the world has remained at 06-01-2002. The biggest move forward was China Third Preference which now matches the world at 06-01-2002 (a gain of 3 months), while Second Preference China has moved forward one week to 04-01-2005. Second Preference India has remained at 01-22-2005, whereas Third Preference has moved forward one week to 04-22-2001. Due to the number of cases in the queue - progression of visa numbers is not expected to move forward quickly, if at all. Updates from Department of Labor(10-06-2009) [Top] During a meeting on 09-22-2009, Department of Labor (DOL) confirmed that Audits of PERM Labor Certification Applications will definitely continue. Of the pending 65,800 PERM cases, 24,600 are in the Audit queue. The cases being worked on in this queue are cases filed in October 2007. There are 37,500 cases in the Final Review queue and DOL is working on December 2008 filings. Approximately 3,000 cases are in the Request for Review and Request for Reconsideration queues. DOL priorities for implementing future online systems are currently Prevailing Wage (scheduled for January 1, 2010), then the H-2B program and lastly the PERM filings. Thus PERM cases to be filed thru the iCERT portal may be many months away. 46,700 H-1B cap-subject visa petitions received as of 09-25-2009(10-05-2009) [Top] Within one week (09-18-2009 to 09-25-2009), USCIS reported receiving an additional 700 H-1B cap-subject visa petitions so that the total number of petitions received as of 09-25-2009 totaled 46,700. This is a significant increase in that the previous three week period, 900 petitions had been filed. Although many H-1B cap numbers remain - if the number of filings continues to increase - the H-1B cap subject numbers may certainly be exhausted by the end of this calendar year 2009. 2011 Diversity Visa Lottery Program Registration(09-29-2009) [Top] The Department of State has announced the opening of the registration period for the DV-2011 Diversity Visa Lottery. Entries for the DV-2011 Diversity Visa lottery must be submitted electronically between noon, Eastern Daylight Time (EDT), Friday, October 2, 2009, and noon, Eastern Standard Time (EST), Monday, November 30, 2009. Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Section 203(c) of the INA provides a maximum of 55,000 Diversity Visas (DVs) each fiscal year to be made available to persons from countries with low rates of immigration to the United States. A computer generated, random lottery drawing chooses selectees for DVs. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more that 50,000 immigrants to the United States over the past five years. Within each region, no single country may receive more than seven percent of the available DVs in any one year. For DV-2011, natives of the following countries are not eligible to apply: Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except for Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. For more detailed information visit DV lottery www.dvlottery.state.gov . Withdrawing OPT Applications (For F-1 Students) (09-29-2009) [Top] F-1 students who wish to withdraw a pending application for Optional Practical Training (OPT) must submit an original, signed letter requesting that the I-765 be withdrawn. This letter must include the I-765 receipt notice number and be sent to USCIS via certified mail, return receipt requested/or FedEx so as to have proof of delivery. Additionally, the Designated School Official (DSO) should cancel the request for OPT in SEVIS and email vsc.schools@dhs.gov a scanned copy of the applicant’s signed withdrawal request. An application cannot be withdrawn or cancelled if the approved OPT start date has passed. Number of pending employment based I-485s (09-29-2009) [Top] USCIS recently published some Q & As regarding the number of pending employment based I-485s. Currently, approximately 234,000 employment based adjustment applications (I-485s) are on file with USCIS. The U.S. Department of State gives out 140,000 employment based visas each year (October to September); of that number, 85% are allocated to I-485s and 15% are distributed to the U.S. Consulates abroad for immigrant visa issuance. Of the 140,000 visas, 28.6% are distributed to first, second and third preference categories each, i.e. 40,040 visas per category. However, there is a per country limit of 7% which means for example, that China is limited to a total of 9,800 visas per year for all five employment categories. For third preference and second preference, each of these categories would receive a maximum of approximately 2,802 visas per category. Of the 234,000 employment based I-485s pending, there are 4,050 for first preference, 74,932 for second preference and 151,231 for third preference. Most of the second and third preference cases have priority dates of 2006. Without China, India, Mexico and the Philippines, the number of pending I-485s under second preference total 7,150 - which would indicate that second preference for the world is likely to remain current for this next fiscal year. Whereas for third preference, there are 62,840 cases - more than the 40,040 visas available. When looking at the breakdown, I would extrapolate that third preference for the world may progress to 2005 during this next fiscal year. For India, based on the number of cases pending - I would guess that the dates may progress through February 2002 and China may move to 2005 to match the world cut off date. Second preference for China may progress to mid 2005; while second preference India may remain in 2005 or even retrogress to 2004. Employment-Based Immigrant Visa Numbers Exhausted (09-24-2009) [Top] The State Department has advised that due to the large number of approvals for employment based permanent residence applications in the past few weeks; all employment-based visa numbers are no longer available for the balance of this fiscal year which ends on 09-30-2009. This affects ALL employment based categories. Visa numbers will become available again on 10-01-2009. However, USCIS will continue to accept Employment Based Permanent Resident Applications through the month of September based on the September Visa Bulletin. USCIS will be able to approve pending applications if a visa number was previously obtained. Scheduled appointments at the US Consulates will continue as visa numbers would have been allocated to the cases at the time of scheduling the appointments. Significant increase in H-1B cap subject petitions filings (09-24-2009) [Top] As of 09-18-2009, USCIS reported that approximately 46,000 H-1B cap-subject visa petitions had been received. In a three week period, 900 additional petitions had been filed. This is a significant increase in the rate of filings previously reported i.e. 100 in the previous two week span. Although many H-1B cap numbers remain - if the filings continue to increase, H-1B cap subject visa numbers may become exhausted by the end of calendar year 2009 or early 2010. USCIS New Website (09-22-2009) [Top] On September 22, 2009, USCIS launched a redesigned website now available in English and Spanish. The new website offers enhanced navigation tools for the public to access immigration information and review case status. The new USCIS website provides a one-stop location for immigration services and information including an innovative service called My Case Status, which allows immigration customers to receive alerts on the status of their applications via text message and email. Other new features include a Where to Start tool to guide users through the navigation process; a simplified way to track individual case status; local and national case processing times; an improved search engine; and a new Information Dashboard feature allowing users to access national immigration trends associated with immigration petitions and applications. Employment Based Visa Numbers for the new Fiscal Year (09-10-2009) [Top] On 09-09-2009, the State Department published the long awaited Visa Bulletin for the new fiscal year beginning October 2009. Employment Based Visa Numbers continue to be significantly backlogged. Third Preference for the world has a cut of date of 06-01-2002 - and not a cut off date of 2005 (where it had reached in March 2009). China Third Preference has a cut off date of 02-22-2002; whereas Third Preference for India has returned to 2001 - but not to November - instead to April 15, 2001. India Second Preference has remained in 2005 - specifically 01-22-2005 and China has also stayed in 2005, i.e. 03-22-2005. The world Second Preference and of course all First Preference remain current. E-Verify Rule Effective for Federal Contractors (09-09-2009) [Top] Effective September 8, 2009, federal contractors and subcontractors may be required to use the E-Verify system to verify their employees’ eligibility to work in the U.S. if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause. In July 2009, the Department of Homeland Security (DHS) announced that it would support the regulation to award federal contracts only to employers who use E-Verify to check employee work authorization. The E-Verify Federal Contractor Rule extends use of the E-Verify system to cover federal contractors and subcontractors including those who receive American Recovery and Reinvestment Act funds. Companies awarded a contract with the E-Verify clause on or after September 8, 2009 will be required to enroll in E-Verify within 30 days of the contract award date. With certain exceptions, E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States and thus must complete a new Form I-9 and be entered into the E-Verify System. Free Consultation For I-9 Sampling Audit (09-08-2009) [Top] On July 1, 2009, U.S. Immigration and Customs Enforcement (ICE) launched a new I-9 audit initiative by issuing Notices of Inspection (NOIs) to 652 businesses nationwide on that one day alone. This contrasts sharply with the 503 similar notices issued for the whole 2008 fiscal year. John T. Morton, the new Assistant Secretary of ICE, has stated that many more employers would be notified in the coming months that their I-9s and company records will be audited. These notices alert businesses that ICE will inspect I-9 records to determine whether or not employment eligibility verification laws and regulations are being followed. Inspection is the most powerful tool the federal government has to enforce employment and immigration laws. Employers are required to complete and retain a Form I-9 for each individual hired for employment in the U.S. This form requires employers to review and record the individual's identity/employment authorization document(s) and determine whether the document(s) appears to be genuine and relate to the individual. Due to this surge by ICE to issue Audit Notices, this is a reminder that corporate Form I-9 records should exist for each employee and an internal audit should be conducted periodically to ensure compliance. This office is prepared to conduct a free sample audit of a business' I-9 Forms. Choose one of the options below: Option 1: Scan and forward to jjkl@lewslaw.com a sampling of twenty (20) randomly selected I-9s for review. Following the review, a free 30-minute phone consultation will be scheduled to discuss any mistakes/inaccuracies found. Option 2: Schedule a free one-hour appointment at this office by calling Scott at (650) 573-1065 and bring twenty (20) completed I-9s for review/discussion. Option 3: Send an email to jjkl@lewslaw.com or call Scott at (650) 573-1065 and schedule an on-site visit at your location (must be within a thirty mile radius of this office) and a free one-hour review of twenty (20) randomly selected I-9 records will be conducted. H-1B cap number usage inches forward (09-08-2009) [Top] As of 08-28-2009, USCIS reported that approximately 45,100 H-1B cap subject visa petitions had been received. Thus in a two week period, only 100 additional petitions had been filed. If filings continue at this rate - numbers could remain available until 10-01-2010 when a new allotment of H-1B visa numbers are released. USCIS New Website (09-03-2009) [Top] A new USCIS website is to be launched on September 22, 2009. This new website will provide greater transparency on case status and how case processing time relates to similar pending cases. New online tracking system will allow users to sign up for e-mail, text messages, and online updates. The new web design will improve case status visibility and navigation. It will provide additional information on case status, including processing steps, where the case is in the process processing times and goals. The national dashboard will show number of receipts and pending applications. Permanent Resident Application (I-485) (09-03-2009) [Top] USCIS has announced that 180,000 I-485 employment based cases have been pre-adjudicated. These cases are awaiting visa availability from the Department of State. The pre-adjudication process involves USCIS conducting periodic backlog checks without requiring new ACS biometrics appointments. It is likely that Requests For Evidence (RFEs) will be issued a few months before expected visa number availability to update current employment status and confirm continuing eligibility. Case status online is being updated to eventually reflect where in the process a case is, such as I-485s that have been pre-adjudicated. H-1B Cap Petition Update (09-03-2009) [Top] USCIS announced that it has approved approximately 33,828 fiscal year 2010 H-1B cap petitions. Approximately 12,600 petitions are still pending of which 6373 are at the Vermont Service Center (VSC). USCIS is receiving approximately 80 H-1B cap petitions each day (60 regular processing; 20 premium processing). USCIS headquarters maintains the H-1B cap count, which changes due to various reasons such as denials, multiple filings by an employer for the same beneficiary resulting in denials or revocations. USCIS Requires Federal Contractors to Use E-Verify System (09-02-2009) [Top] USCIS is reminding federal contractors that effective September 8, 2009, they will be required to use the E-Verify system to verify their employees’ eligibility to work in the United States. E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system’s goal is to facilitate compliance with federal immigration laws and help deter unauthorized individuals from attempting to work and also help employers avoid employing unauthorized aliens. The E-Verify federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Applicable federal contracts awarded and solicitations issued after September 8, 2009 will include a clause committing government contractors to use E-Verify. Companies awarded a contract with the E-Verify clause after September 8, 2009 will be required to enroll in E-Verify within 30 days of the contract award date. E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States. However, on September 1, 2009, counsel in Chamber of Commerce of the U.S.A. et. al. vs. Napolitano has sought an emergency injunction pending the appeal of the district court’s decision regarding delayed implementation of the Federal Contractor E-Verify Rule. More information on the E-Verify program is available on the E-Verify Web site at http://www.dhs.gov/e-verify . E-Verify support is also available by calling toll free (888) 464-4218. Additional Information on I-90 Receipts (09-01-2009) [Top] From August 10 to 19, 2009, the USCIS Phoenix Lockbox sent 8,952 Forms I-797C Notice of Action, to applicants who submitted Form I-90 (Application to Replace Permanent Resident Card). Due to a processing error, these notices contained receipt numbers that had already been assigned to other, previously filed Forms I-90. The duplicate receipt numbers ranged from MSC0990000001 through MSC0990027317. On August 28, 2009, USCIS sent I-797Cs with corrected and unique receipt numbers along with a letter of explanation to each of the affected applicants. Applicants may contact USCIS at lockboxsupport@dhs.gov if they have any questions or concerns about this matter. If applicants do not receive a corrected notice by September 4, 2009, it is because there was no issue associated with the original I-90 receipt number provided to them. Upon receipt of the second (corrected) notice, applicants should discard the first notice. Applicants should use the corrected receipt number in all future correspondence with USCIS. No further action is required on the part of applicants who initially received rejection notices and have subsequently re-submitted their corrected I-90 applications. All necessary corrections will be made at the USCIS Phoenix Lockbox. Applicants who received a notice that their I-90 application was accepted but processing of their application was suspended due to non-receipt of the biometric fee should send a copy of the second (corrected) notice with their biometric fee. No further action is required on the part of applicants who have already submitted their biometrics fees. All necessary corrections will be made at the Phoenix Lockbox. Processing of the I-90 applications will not be affected. Extension of Expiration Date of Form I-9 (08-31-2009) [Top] On August 27, 2009, USCIS announced that the Office of Management and Budget has extended its approval of Form I-9 to August 31, 2012. Consequently, USCIS has amended the form to reflect a new revision date of August 7, 2009. Employers may use Form I-9 with the revision date of either August 7, 2009 or February 2, 2009. The revision dates are located on the bottom right-hand portion of the form. To obtain Form I-9 and the Handbook for Employers, visit www.uscis.gov/I-9. Change of Schedule for Stand Alone Application Support Centers (ASC) (08-26-2009) [Top] USCIS announced that as of November 2, 2009 stand alone Application Support Centers (ASC) will be open Monday through Friday from 8 a.m. to 4 p.m. All stand alone ASCs will be closed on Saturday, October 31, 2009 and will reopen on Monday, November 2, 2009 under the new Monday to Friday schedule. The last Saturday that stand-alone ASCs will be open for business is Saturday, October 24, 2009. Application Support Centers capture biometrics – fingerprints, photographs and signatures in order to verify the identity of and conduct background checks on immigration benefit applicants. Temporary Suspension of Non-Immigrant Visa Services in Honduras (08-26-2009) [Top] Effective August 26, 2009, due to the political crisis in Honduras, U.S. Department of State is suspending non-emergency, non-immigrant visa services in the consular section of U.S. Embassy in Honduras. Duplicate Receipt Numbers on I-90s (08-25-2009) [Top] The National Benefits Center (NBC) discovered this week that the Phoenix Lockbox inadvertently issued already-used receipt numbers to new I-90 (replacement of I-551s – “green cards”) filings. On August 8, 2009, the Lockbox converted to a new data center and the counter for receipt numbers was turned back to “0”. As a result, 8900-9300 I-90s were issued receipt numbers that had already been issued in May. The series of receipt numbers affected is MSC 09 900 00000 to MSC 09 900 27319. The Lockbox is re-issuing receipt or reject notices to applicants with new/correct receipt numbers, as appropriate. New numbers were assigned beginning August 24, 2009 and it is hoped that this activity will be completed by Wednesday, August 26, 2009. Letters of explanation will accompany the new notices.H-1B cap subject numbers reach 45,000 (08-19-2009) [Top] As of 08-14-2009, USCIS had received 45,000 H-1B cap subject visa petitions. Thus in one week, 100 more petitions had been counted against the cap. Vermont Service Center Alert (08-18-2009) [Top] The Vermont Service Center (VSC) has advised that approximately 1000 Requests for Evidence (RFEs) were prepared on June 4, 2009, but mistakenly never sent. Approximately 300 of these cases, which were supposed to receive RFEs, have been denied based on abandonment. For these denied cases, VSC will re-open the case on service motion and re-send the RFE. If a motion was filed, on these cases, VSC will refund the fee. VSC believes that this error was isolated to June 4, 2009. September 2009 Employment Visa Numbers (08-17-2009) [Top] The State Department's Visa Bulletin for September 2009 indicates that
Second Preference Employment Based Visa Numbers for China and India have
progressed to 01-08-2005 (a 15 month jump) from the previous cut off date of
10-01-2003. However, with the new fiscal year beginning on 10-01-2009, the
next visa bulletin may show that 2nd preference visa numbers for India and
China may settle back to 2003 and then progress slowly forward. This fifteen
month jump is likely to enable USCIS to adjudicate pending I-485s with the
hope of using visa numbers which continue to be available before the end of
this fiscal year, i.e. 09-30-2009. H-1B cap visa numbers remain unchanged (08-17-2009) [Top] As of 08-07-2009, approximately 44,900 H-1B cap visa petitions had been received by USCIS. This nubmer has remained unchanged since 07-10-2009. Registration Open for HR Representatives Immigration Seminar on 08-20-2009 (07-21-2009) [Top] The Law Office of Jocelyne J. Kim Lew, APC is hosting an introductory two hour Immigration Seminar for HR Representatives on Thursday, August 20, 2009 at 10:00am. A brief overview of temporary work visas (including student OPT/CPT visas, H-1B visas, TN visas, L-1 visas, O-1 visas and J-1 visas) will be presented along with a summary of the process to pursue permanent residence through the PERM process. Additionally, the steps involved to pursue a PERM application, the I-140 petition and ultimately the last step of the "green card" process will be discussed. Theer will be an opportunity to ask questions during the presentation. This seminar is free; however advance registration is required, as seating is limited. To register, send an email to natasha@lewslaw.com. A registration confirmation will be returned. New Policy on Adjudicating Pending I-485 Applications Upon the Denial of Underlying I-140 (07-07-2009) [Top] USCIS Headquarters has instructed the Texas Service Center (TSC) and the Nebraska Service Center (NSC) to immediately deny (no discretionary waiting 30 day period) a pending I-485 application upon the denial of the underlying I-140 petition. USCIS Resumes Premium Processing for I-140s (06-22-2009) [Top] USCIS has announced that as of June 29, 2009, it will resume Premium Processing of I-140s for certain categories. Premium Processing will be available for the following categories:
EB-1 Extraordinary Ability; Premium Processing Service is not available for:
EB-1 Multinational Executives and Managers; nor Under the Premium Processing Service, USCIS guarantees that for a $1,000 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation within 15 calendar days of receipt. DOL Updates (06-22-2009) [Top] DOL provided current statistics regarding PERM Processing: about 58,000 applications are currently pending. Of these, 54% are under final review, 38% are in audits, 6% are on appeal, and the remainder is awaiting business existence checks or other. Current statistics regarding supervised recruitment are as follows: 25% of the cases were withdrawn after supervised recruitment was ordered, about 45% have been denied, about 11% have been certified and about 20% are pending. DOL advised that if a PERM application was filed one year earlier than announced processing times and has not received an audit, approval, or denial, an email inquiry may be sent to DOL. USCIS Updates (06-22-2009) [Top] During the AILA Conference early June 2009, USCIS announced that sometime this summer they will re-start I-140 Premium Processing for the same type of petitions that were previously eligible. USCIS is re-engineering the H-1B application process for April 2010 filings. Potential H-1B petitioners may only need to file a petition online with limited information. If the petition is selected, then the remaining forms and full documentation would be submitted. The Nebraska and Texas Service Centers are pre-adjudicating adjustment of status cases, so that when a visa number is available, the case can be adjudicated. As of May 30, 2009, USCIS pre-adjudicated 110,000 employment-based adjustment cases awaiting visa numbers. USCIS is in the process of introducing a new I-551 card (“green card”) and they are updating equipment for the enhanced features. As a result, there is a delay in issuing I-551 cards. Field offices are being authorized to issue temporary I-551 stamps in family based cases at the conclusion of interviews when the case is approved. Employment-based I-551s are being issued first as these individual are not generally interviewed. Employment-based immigrants may obtain a temporary stamp by making an InfoPass appointment at the local USCIS office. Biometrics for Reentry Permit Applications (06-18-2009) [Top] The Nebraska Service Center (NSC) recently announced that Re-Entry Permit Applications are being denied where the applicant’s biometrics /fingerprinting have not been taken within 120 days of filing. Applicants must appear for biometrics by their appointment date or request rescheduling prior to their appointment date. The Application Support Centers (ASCs), where the fingerprints are taken, are not able to reschedule applicants who request dates out further than 30 days. Applicants who request more than 30 days will receive only up to 30 days. Applicants, who go overseas without completing the initial biometrics appointment and who do not timely file a request for their biometrics to be rescheduled, will likely face a denial. Applicants, who do not follow up on their reschedule request with the ASC to ensure they are actually rescheduled, will likely also face denial, regardless of any evidence of a timely attempt to reschedule. Applicants, who ask for rescheduling several times and never complete the biometrics within 120 days of the initial filing date, will also face a denial. NSC reviews all applications up front, upon date entry, for the departure date of the applicant, and makes every attempt to schedule an appointment date prior to the applicant’s departure. Approximately 20,000 H-1B cap numbers remain (06-11-2009) [Top] USCIS recently announced that as of June 5,2009, 44,400 H-1B cap subject petitions had been filed. This number is actually less than the number previously announced by USCIS on May 29,2009 when USCIS indicated that 45,800 H-1B cap filings had been received. Regardless of this variation, there still remains approximately 20,000 H-1B cap numbers available. DOS Updates on Employment Visa Numbers (06-10-2009) [Top] Mr. Charles Oppenheim of the Department of State (DOS) Visa Office has made the following predictions concerning the movement of Employment Based (EB) priority dates for the remainder of Fiscal Year 2009 and beyond:
DOS estimates that there are approximately 25,000 EB2 and 25,000 EB3 applicants currently queued at the DOS awaiting visa numbers. There could be 50,000 employment-based applicants on the waiting lists for consular processing. Currently, almost 90% of all employment-based visa numbers are used by USCIS. Immigration Seminars (06-10-2009) [Top] The Law Office of Jocelyne J. Kim Lew, APC, will be hosting Immigration Seminars on a quarterly basis beginning August 2009. The first seminar scheduled for Wednesday August 19th will be presented by Jocelyne J. Kim Lew; she will provide an overview of the process to pursue permanent residence through the PERM process with an emphasis on the impact of visa number (un)availability. The cost of the seminar will be $20 for existing clients and $40 for others. Advance registration will be required as seating is limited. Details for registration will be posted on July 20th. Immigration Seminars for HR Representatives (06-10-2009) [Top] The Law Office of Jocelyne J. Kim Lew, APC, will be hosting a two hour Immigration Seminar for HR Representatives in August 2009. This seminar is planned to be the first of a series of seminars to be held twice a year: August and February. The first seminar scheduled for Thursday August 20th will be presented by Jocelyne J. Kim Lew; she will provide an overview of temporary work visas and the process for employees to pursue permanent residence through the PERM process. Although this first seminar will be free, advance registration will be required as seating is limited. Details for registration will be posted on July 21st. PERMANENT RESIDENT CARD PRODUCTION DELAYS (06-01-2009) [Top] USCIS announced on May 29, 2009 that it is upgrading its card production equipment and therefore an applicant may expect up to an eight week delay in the delivery of a permanent resident card. As a result, USCIS Field Offices will now be issuing temporary evidence of permanent residence in the form of an I-551 stamp to an applicant approved for permanent residence at the time of interview. An applicant will need to bring a valid passport to the interview appointment. If one does not have a passport, a passport style photo and a government issued photo ID will be needed to receive temporary evidence of permanent residence. If an application is approved after the interview or by a Service Center or the National Benefit Center, an applicant should bring the above document(s) to an INFOPASS appointment to be issued temporary evidence of permanent residence in the form of an I-551 stamp. USCIS REMINDS APPLICANTS FOR ADJUSTMENT OF STATUS TO OBTAIN ADVANCE PAROLE BEFORE TRAVELING ABROAD (06-01-2009) [Top] USCIS reminds everyone with a pending application for adjustment of status to lawful permanent resident (I-485) that an Advance Parole Document is needed before traveling internationally. To obtain Advance Parole, an individual must file Form I-131, Application for Travel Document. Advance Parole is permission to reenter the United States after traveling abroad. By law, certain individuals must apply for this travel document and have advance parole approved before leaving the United States. Attempts to reenter the United States without prior authorization may have severe consequences since an individual requiring advance parole may be unable to return to the United States and a pending application may be denied or administratively closed. An applicant planning to travel abroad should plan ahead to anticipate processing times of approximately 90 days, depending on USCIS location. TEXAS SERVICE CENTER (TSC) UPDATES (06-01-2009) [Top] NTSC has been processing 3,500 to 4,500 employment-based cases per month. The filings of I-140s and I-485s have been in the range of 3,000 to 4,000 per month. TSC has almost completed adjudication of the I-140s filed during July and August 2007. TSC’s goal is to adjudicate cases within 4 months. TSC expects to reach this goal on I-140s by the end of June 2009. TSC has also pre-processed 85,000 Permanent Residence Applications (I-485s), which are now in queue for immigrant visa numbers. Updates from Nebraska Service Center (NSC) (05-26-2009) [Top] NSC announced that at the end of December 2008, its backlog was 250,000 cases. This backlog was reduced to 87,500 cases by the end of March 2009. NSC also confirmed that it is working on I-485 employment-based cases even though the priority dates are not current. Requests for Evidence (RFEs) are being issued or cases are being transferred to the local offices even if visa numbers are not available to adjudicate cases. NSC is now able to refresh fingerprints internally for about 95% of cases where the initial fingerprints were taken after January 1, 2006. However, there were system breakdowns for fingerprints taken between late 2007 and early 2008; for those situations, new biometric appointments will be scheduled. Additionally, sometimes fingerprint data is missing from the system, so appointment notices will also be sent out. Only about 5% of all cases need to be rescheduled for re-fingerprinting. NSC is also sending out Requests for Evidence on pending adjustment applications asking the applicant to demonstrate employment authorization after the expiration date of the work authorization noted on the I-485. Although officers do have access to systems for checking that an employer has filed an H-1B extension, the systems do not always work: there may be data errors or conflicts. For employment based cases where a derivative spouse has been married to the principal applicant for less than 2 years, NSC will look for documentation of a bona fide marriage and may either issue an RFE or refer the spouse’s application to a local office for an interview, where such documentation is absent. Update on U.S. Consulate Operations in Ciudad Juarez, Mexico (05-11-2009) [Top] U.S. Consulate will re-open consular operations on a rolling basis. The Consulate’s American Citizen Services unit resumed full operations on May 7, 2009. Immigrant Visa Operations will resume on May 18, 2009. Applicants whose appointments were cancelled have been rescheduled for the period June 5 – June 12, 2009. The Consulate General’s non-immigrant (visitor) visa unit resumed normal operations on May 11, 2009. Applicants who have completed processing at the Applicant Service Center and had their consular interviews cancelled may contact the call center at no charge by calling Mexico: 01-800-719-2525. Change of Filing Location for Form I-90 (04-29-2009) [Top] OAs of April 28, 2009, the filing location for Form I-90, Application to Replace Permanent Resident Card (commonly referred to as a “green card”) is as follows: Mailing address:
USCIS
USCIS The revised filing instructions require applicants to submit supporting documentation with their applications. The change in filing location affects all I-90 applicants filing a paper form, including those applicants filing the I-90 because their previously issued card was never received or because their existing card has incorrect data due to a USCIS error. This notice does not affect applicants filing an I-90 electronically or whose place of residence is outside the United States. Update on “Swine Flu” Outbreak in Mexico (04-29-2009) [Top] On April 27, 2009, the U.S. Center for Disease Control (CDC) recommended that U.S. citizens defer all nonessential travel to Mexico because of the outbreak of H1N1 “swine flu”. The Government of Mexico also announced that as a precautionary measure, all schools throughout the country from kindergarten to university level would remain closed until May 6, 2009. All government sponsored events involving large crowds in Mexico City have also been canceled, museums and most tourist attractions are closed. The U.S. Embassy in Mexico City and all U.S. Consulates throughout the country have suspended all non-essential services to the public until May 6, 2009. Consular services for U.S. citizens will be limited to emergency assistance and to citizenship applications. The Embassy will monitor this situation continuously during the week and advise before May 6, 2009 if this situation needs to be extended. The Embassy’s visa unit has suspended all nonimmigrant visa appointments until May 6, 2009. The Embassy will reschedule all nonimmigrant appointments, which have been made between April 27 and May 5, 2009. The Embassy’s scheduling center will call or e-mail applicants to reschedule appointments. Alternatively, applicants may re-schedule visa appointments without being charged by calling 01-800-719-2525. If there is an emergency visa issue please email visas_mexico@state.gov. 20,000 H-1B cap numbers still available as of 04-27-2009 (04-28-2009) [Top] USCIS announced on 04-27-2009, that it had received approximately 45,000 H-1B cap petitions. In one week (April 20th to 27th), USCIS received approximately 1,000 more petitions (whether they be regular petitions or MS or higher degree petitions). Thus still 20,000 numbers remain available. Change of Filing Location for Form I-90 (Application to Replace Permanent Resident Card) Advance Notice (04-27-2009) [Top] USCIS announced it is changing the filing location for Form I-90, Application to Replace Permanent Resident Card (commonly referred to as a “green card”). The effective date of this announcement is to be determined (the date of publication in the Federal Register). All paper versions of Form I-90, including any evidence or supporting documentation must be mailed to the designated Lockbox facility located in Phoenix, Arizona, instead of the Lockbox facility in Los Angeles, California or any USCIS Service Center. This notice affects any lawfully admitted permanent resident filing a paper Form I-90 to apply for renewal of his/her Permanent Resident Card. Instructions for filing Form I-90 electronically remain unchanged. The Phoenix Lockbox address will be:
USCIS USPS Express/Courier deliveries will use the following address:
USCIS “Swine Flu” Precautions by the U.S. Embassy in Mexico (04-27-2009) [Top] Mexico and the United States are closely cooperating to contain the current outbreak of H1N1 influenza (Swine Flu). In accordance with measures announced by the City of Mexico to limit the congregation of large crowds, the U.S. Embassy in Mexico City has decided to suspend processing of the approximately 5100 non-immigrant visa appointments scheduled Monday, April 27, 2009 through Wednesday, April 29, 2009. The U.S. Embassy’s offsite visa appointment scheduling center will call or e-mail all of the applicants affected to reschedule their appointments for after May 5, 2009. Visa applicants may also call 01-800-719-2525 to reschedule their appointments without charge. If there is an emergency visa issues, please email visas_mexico@state.gov for assistance. U.S. Embassy’s services to American citizens will be limited to citizenship requests (passports and consular reports of birth abroad, or CRBA) and emergency assistance only. H-1B cap visa numbers still available (04-20-2009) [Top] Approximately 21,000 H-1B cap visa numbers remain available as of 04-20-2009. One week ago, USCIS advised that it had received approximately 43,000 H-1B visa petitions towards the 65,000 regular cap and approximately 20,000 H-1B visa petitions for the U.S. Master's or higher degree allotment. This is in comparison to the 42,000 cap petitions USCIS had indicated it had received as of 04-09-2009. USCIS announced today, that it has received approximately 44,000 H-1B cap petitions. So it appears that in one week (April 13th to 20th), USCIS received approximately 1,000 more petitions (whether they be regular petitions or MS or higher degree petitions). Thus still 21,000 numbers remain available. New iCERT System at DOL (04-15-2009) [Top] On April 15, 2009, Department of Labor (DOL) released its new iCERT Portal System for Temporary and Permanent Labor Certification Applications. Initially, the system only deals with Temporary Labor Certification Applications (LCAs) and the second phase to be released 09-01-2009 will deal with Permanent Labor Certification (PERM) Applications. Temporary Labor Certification Applications (LCAs) are needed to file an H-1B/H-1B1/E-3 visa petition. Although the iCERT System is available 04-15-2009, it is not mandatory to use until 05-15-2009. The old LCA system, which is still in place until 05-14-2009, allows one to obtain a required LCA virtually instantaneously. However, with the iCERT system, an LCA may not be issued for 5 to 10 days. The second phase of the iCERT system will involve the filing of Permanent Labor Certification (PERM) Applications. This part of the portal will become available 09-01-2009 and mandatory to use by 10-01-2009. This new iCERT system enables an individual to check the status of an LCA and/or PERM Application filed under this new system. One goes to the iCERT home page (http://icert.doleta.gov) and types in the Case Number in the box entitled "iCERT Case Status Check". There is no need to log into the system - a similar feature to what USCIS has available on its website. However cases filed under the "old" system cannot be checked here. New Non Immigrant Visa Procedures at Ciudad Juarez, Mexico (04-09-2009) [Top] As of April 6, 2009, non-immigrant visa applicants must obtain an Application Support Center (ASC) appointment for biometrics prior to attending the non-immigrant visa interview at the U.S. Consulate in Ciudad Juarez, Mexico. The ASC is located at the old consular post site at Avenida Lopez Mateos 924 N. Fracc. La Playa in Building C. The office is open from 8 a.m. to 1:30 p.m., Monday through Friday. Thus, one should plan to have one day to do the biometrics at the ASC and the following day for the nonimmigrant visa interview at the U.S. Consulate. This Consulate requires submission of the new DS-160 electronic form. Currently, there are more ASC appointments each day than non-immigrant visa consular appointments. The ASC and consular appointments do not have to be scheduled on consecutive days. It is hoped that in the future the appointments could be held on the same day. US Master's Degree Cap Reached (04-09-2009) [Top]On 04-09-2009, USCIS advised that approximately 20,000 petitions for aliens with U.S. advanced degrees have been received; however USCIS will continue to accept advanced degree petitions since not all petitions would be approved. Additionally, these U.S. advanced degree petitions can also be counted against the regular cap - thus these types of petitions would continue to be accepted until the regular cap is reached. To date, approximately 42,000 H-1B petitions have been received which count against the 65,000 cap. H-1B Cap Filings Drop Dramatically From 2008 (04-08-2009) [Top]USCIS announced on 04-08-2009 that it has received approximately half of the petitions needed to reach the 65,000 regular cap. However, it has received almost enough petitions for the master's cap. Once the master's cap is reached, those filing petitions with U.S. master's degrees or higher can use the regular cap. The 15-day clock for Premium Processing cases began on 04-07-2009. Receipts for petitions are being issued as of 04-08-2009. Although some receipts were issued prior to 04-08-2009, this is not an issue since the cap has not been reached. No More Third Preference Employment Visa Numbers (04-08-2009) [Top]The U.S. Department of State published the May Visa Bulletin on 04-08-2009. Due to the heavy demand for Third Preference Employment Visa Numbers by USCIS, visa numbers are no longer available for this category and will remain unavailable until 10-01-2009. This means that Permanent Residence Applications based on this category will remain pending until at least 10-01-2009, when visa numbers will become available. Second Preference Employment Visa Numbers for the "World" remains current, while India and China remain unchanged at 02-15-2004 and 02-15-2005 respectively. USCIS Announces H-1B cap not reached (04-08-2009) [Top]On April 8, 2009, USCIS announced that it is continuing to accept H-1B cap cases. Although USCIS has not specifically stated it has not reached the cap, this news would strongly indicate that the cap was not reached during the first five days of filing and that those cases received as of 04-07-2009 - will not be subject to a lottery. USCIS also mentions that it will continue to monitor the number of H-1B cap cases for both the 65,000 regular cap and the 20,000 U.S. master's degree or higher educational exemption cap. Once USCIS receives the necessary number of petitions to meet the caps, it will provide an update to advise the public that the caps have been reached. On the day that the caps have been met, this day will be the "final receipt date" and USCIS would then conduct a lottery of the petitions received on the "final receipt date" to fulfill the cap. Cap Gap Extension of Optional Practical Training (OPT) (04-07-2009) [Top]On April 8, 2008, the Department of Homeland Security published an Interim Rule extending OPT by 17 months for F-1 students with STEM degrees and expanding cap-gap relief for all F-1 students with approved or pending H-1B petitions. F-1 students, who are the beneficiaries of a pending or approved H-1B petition (subject to the annual cap), have their F-1 status automatically extended. For those with post-completion OPT, the OPT employment authorization is extended until September 30. The cap-gap extension is automatic for eligible students. A student does not file an application for the extension nor receive a new EAD to cover the gap. The only proof of continued employment authorization available is an updated Form I-20 showing an extension of OPT, on Page 3. This document issued by the Designated School Official (DSO) serves as proof of continued employment authorization. The automatic extension of an F-1 status and employment authorization is terminated upon the rejection, denial, or revocation of the H-1B petition filed on behalf of the student. A student who is eligible for the cap-gap extension must work with a DSO at the student’s school to receive an updated Form I-20. If the student is eligible for the cap-gap extension of OPT, the student can continue to work while the update to his/her Form I-20 is being processed. Since the cap-gap is automatic, the updated Form I-20 is not required for a student to continue working, it merely serves as proof of the OPT employment authorization extension. All U.S. Employers are to Use Revised Form I-9, Employment Eligibility Verification (04-07-2009) [Top]Starting April 3, 2009, all U.S. employers must use revised (February 2, 2009) Form I-9 for employment verification. The revision date can be found in the lower right-hand corner of the form. Employers may no longer use previous versions of Form I-9. The new form has a revised list of documents acceptable for employment verification. Expired documents are no longer acceptable forms of identification or employment authorization. If a document does not have an expiration date, such as a Social Security Card, it is considered unexpired. When an employee must be re-verified because employment authorization has expired, employers must use the revised Form I-9 with its new List of Acceptable Documents. An employer may not re-verify the employee by completing Section 3 – Updating and Re-verification on a previous version of Form I-9. The revised Form I-9 can be found at www.uscis.gov/I-9. The handbook for Employers, Instructions for Completing Form I-9 has been updated to reflect these revisions and is found at www.uscis.gov/files/nativedocuments/m-274_3apr09.pdf. PERM Labor Certification Processing Dates (04-07-2009) [Top]On March 20, 2009, DOL announced that they are currently working on PERM (Labor Certification) cases with priority dates (filing dates) as following: New cases: July 2008 Audit cases: September 2007 Appeal cases: June 2007 Western Hemisphere Travel Initiative (WHTI) (03-19-2009) [Top]On June 1, 2009, the Western Hemisphere Travel Initiative (WHTI) takes effect at U.S. land and sea ports of entry requiring a traveler to present an approved travel document to enter the United States. Travelers including citizens of Canada, U.S. and Bermuda (previously excluded) at the land/sea ports of entry will be required to present an appropriate document which include:
Since these new travel requirements begin on June 1, 2009, travelers are encouraged to apply for the needed travel documents ahead of time (now). Travelers under age 16 need to present only a birth certificate or alternative proof of citizenship. Both today and after June 1, 2009, lawful permanent residents of the United States should present acceptable evidence of their lawful residence status when entering the country, such as a Permanent Resident Card (I-551). A passport is not required. Electronic System for Travel Authorization (ESTA) (03-19-2009) [Top]The Visa Waiver Program (VWP) is administered by the Department of Homeland Security (DHS) and enables eligible citizens or nationals of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa stamp in their passports. Additional information regarding the VWP is available at: http://www.customs.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/vwp.xml Electronic System for Travel Authorization (ESTA) is an automated system that assists in determining eligibility to travel to the United States under the VWP. ESTA adds another layer of security that allows DHS to determine, in advance of travel, if an individual is eligible to travel to the United States under the VWP and if such travel poses a law enforcement or security risk. Upon the completion of an ESTA application, a VWP traveler is notified of his/her eligibility to travel to the United States under the VWP. ESTA is generally valid for two years or until the traveler’s passport expires. Accompanied or unaccompanied children, regardless of age, are also required to obtain an independent ESTA approval. Third parties, such as relatives, friends, or travel agents are permitted to submit an ESTA application on behalf of a VWP traveler. Nationals and citizens of countries that participate in the VWP are required to have ESTA even if they are only in transit by traveling through the United States to a different country. The United States no longer has a Transit Program Without Visa program. A traveler planning to only transit through the United States, should indicate on the ESTA application ”In Transit” and enter his/her final destination location in the line “Address While in the United States”. Citizens of Bermuda, Canada and the Marshall Islands or Micronesia do not need to apply for ESTA. Nebraska Service Center (NSC) Updates (03-11-2009) [Top]I-140 Processing Times: Nebraska Service Center (NSC) announced on February 26, 2009 that it expects by June 2009 all I-140 petitions to be processed within 4 months. Processing times for I-140s at NSC are as follows as of February 26, 2009: EB-3 – October 1, 2007 EB-2 – July 1, 2008 EB-1 (Extraordinary Ability) – April 1, 2008 EB-1 (Outstanding Researcher) – March 1, 2008 EB-1 ((Multinational Executive/Manager) – June 15, 2008 USCIS Headquarters is developing a new system to electronically refresh fingerprint checks, which should eliminate the need for manual rescheduling for most cases. The new system retrieves previously submitted fingerprints electronically and refreshes the background check results. USCIS Provides Data on FBI Name Check Backlogs (03-05-2009) [Top]On March 4, 2009, USCIS announced that the backlog for FBI name checks pending more than six months has been eliminated. Just 16 months ago, more than 349,000 FBI name checks were pending. Of that, nearly 150,000 had been pending for more than six months. As of February 28, 2009, all USCIS requests pending for six months or more have now been responded to by the FBI’s National Name Check Program (NNCP). USCIS and FBI are on schedule to meet the next two goals: all name check requests pending longer than 90 days to be completed by May 30, 2009 and by the end of June 2009, the FBI will complete 98% of USCIS name check requests within 30 days and process the remaining two percent within three months. Background Checks Update (03-04-2009) [Top]USCIS announced that since the FBI has eliminated its backlogs in processing name checks, the previous policy of automatically approving certain cases for which name checks have been pending for more than 180 days has been revised. FBI is currently returning name check results on average in 90 days. Few, if any name checks remain pending at the FBI for 180 days. USCIS adjudicators will now be required to contact headquarters and obtain authorization to approve a pending application, if FBI name check results are not received. A definitive FBI fingerprint check and IBIS check must be obtained and resolved before an Application for Permanent Residence (I-485) is approved. USCIS advised that it would continue to initiate FBI name checks at the time an application is received. If the application is otherwise approvable, and the FBI name check has been pending for more than 150 days, the adjudicator shall notify a designated point of contact at USCIS Headquarters. If derogatory or adverse information is received from the FBI after an application is approved, USCIS will determine if rescission or removal proceedings are appropriate and warranted. There is no change in the requirement that FBI fingerprint check and FBI name check results must be obtained and resolved prior to the approval of an Application for Naturalization (N-400). I-485 Processing Time (02-25-2009) [Top]On 02-20-2009, USCIS published new processing times for the four Service Centers. However, on 02-25-2009, USCIS advised that the processing time listed for I-485s pending at NSC of four months was incorrect. The correct processing date for I-485’s pending at NSC is 08-15-2007. However, one must remember that the underlying I-140 must first be approved and a visa number available before an I-485 may be adjudicated. DOL Updates (02-17-2009) [Top]During the liaison meeting with AILA on February 3, 2009, DOL announced that it is processing PERM cases with priority dates of June 2008, audit cases with priority dates of August 2007 and appeal cases with priority dates of April 2007. DOL announced that only 4,571 PERM applications were completed during the three-month period of October-December 2008. However 3,500 PERM applications were completed in January 2009. However, DOL expects that LC filings will level off and processing rates will slow down again. In December 2008, DOL received a number of PERM applications for the occupation of Financial Analyst for jobs located in New York City. It is considered that in this particular occupation and location there might be qualified U.S. workers available due to recent financial industry layoffs. As a result, DOL is issuing notices on some of these cases to undergo supervised recruitment, which is being handled at the Washington, D.C. office with a plan to transfer to the Atlanta office next year. There are now approximately 200 applications in the supervised recruitment queue compared to 50 applications a few months ago. DOL pointed out that a change in the pre-filing market conditions by the time of adjudication may now make supervised recruitment appropriate. In response to continued layoffs, DOL will likely increase the number of cases being put into supervised recruitment. To date, when DOL has issued supervised recruitment notices, more than half the cases have been withdrawn by the employer, which DOL perceives as suspect. On April 15, 2009, DOL will start receiving LCAs through the new iCERT portal. On May 15, 2009, all new LCAs must be filed using iCERT, though the old LCA online system will stay up for case status checks and withdrawals. On July 1, 2009, DOL will start receiving PERM applications through the new iCERT portal. On August 1, 2009, all new PERM cases must be filed using iCERT, though the existing system will stay up for case status checks and withdrawals. DOL plans on rolling out the iCert portal prior to April 15, 2009 in order to allow attorneys, agents and employers to register as users. DOL confirmed that its present system does not use the “appeal” online status indicator. If an employer files a Request for Reconsideration and/or Request for Review, DOL changes the online status indicator from “denied” to “in process”. Once rolled out, the new iCERT portal will provide more detailed status information. Filing Tips for 17 month STEM OPT Extension (01-29-2009) [Top]USCIS Nebraska Service Center has offered the following tips on filing STEM (Science, Technology, Engineering and Mathematics) OPT (Optional Practical Training) 17 month extensions:
Notate “C3C” on Line #16 on Form I-765. Expansion of US-VISIT Procedures to Additional Travelers (01-22-2009) [Top]The U.S. Department of Homeland Security has expanded the categories of non-US citizens required to provide biometrics – digital fingerprints and a photograph – upon entry or re-entry to the US through the US-VISIT Program. Effective January 18, 2009, the following additional non-US citizens will be required to provide biometrics when entering or re-entering the United States:
These additional procedures are not expected to impact processing or wait time at US ports of entry. US Customs and Border Protection Officers will retain the discretion to refer travelers for secondary inspection. New Form I-9 (Employment Eligibility Verification Form) (01-08-2009) [Top]Starting February 2, 2009, all employers must use a new revised Form I-9 for all new hires and when re-verifying any employee with expiring employment authorization. This is pursuant to an Interim Rule published in the Federal Register on December 17, 2008. This new form should be available at the USCIS website on or before February 2, 2009. The intention of the new rule is to improve the security of employment eligibility verification process. The rule narrows the list of acceptable documents for employment eligibility verification. The interim rule introduces a new requirement that all documents presented must be unexpired; expired documents will no longer be acceptable for completing Form I-9. For example, an expired U.S. passport will no longer be acceptable. Documents such as a Social Security account number card, which does not have an expiration date, will be deemed unexpired. If one of the acceptable documents has been lost or stolen, an employee may present a “receipt” as proof of having applied for a replacement document. The receipt satisfies the document presentation requirement for 90 days, at the end of which time the employee must present the actual document. |