Monthly Immigration Newsletter - the Law Office of Jocelyne J. Kim Lew, APC

Employment Based Immigrant Visa Numbers inch forward in March 2010

The March 2010 Visa Bulletin has been released by the U.S. State Department; the 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. Finally, 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 moves forward almost three months to December 15, 2002, while China Second Preference moves forward six weeks 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

The U.S. State Department released its February 2010 Visa Bulletin: 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). 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

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

As of January 1, 2010, the Department of Labor (DOL) requires 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 mmust be submitted electronically or 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) was the only option from January 1 through January 19, 2010 – they did not accept applications by fax or electronic means. To expedite return of the wage determination, if the completed form included an email address for the contact, DOL would 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. Now that this prevailing wage system is up on iCERT, PW Requests may be completed online and submitted electronically.

H-1B cap reached as of 12-21-2009

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.

LCA processing delays

The Department of Labor (DOL) office in Chicago having jurisdiction for processing Labor Condition Applications (LCAs) in support of H-1B visa petitions moved location the second week of December 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 resumed as of 12-15-2009. This delay certainly impacted the ability of employers to timely file H-1B visa petitions.

Some Movement in Employment Based Immigrant Visa Numbers for January 2010

The U.S. Department of State’s Visa Bulletin for January 2010 shows more progressive movement for employment based visa numbers than last month. Third Preference Visa Numbers for the world have moved forward by two months so that the new cut off date is now 08-01-2002 instead of 06-01-2002. This movement is also reflected for Third Preference China. Although India Third Preference has not moved forward as much, it has still progressed by almost two months to 06-22-2001 from 05-01-2001. Second Preference for the world remains current, whereas Second Preference for China now moves forward one month to 05-01-2005 from 04-01-2005; however India Second Preference remains stagnant on 01-22-2005. First Preference for all countries remains current.

Vaccinations Requirements

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

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 of 65,000 - no indication how many petitions it will ultimately accept nor when the cap may be reached. A week earlier, USCIS had received approximately 56,900 H-1B cap subject petitions; whereas by 11-13-2009 USCIS had received 55,600 petitions. In contrast, as of 11-06-2009, approximately 54,700 H-1B cap subject petitions had been filed. A month earlier (as of 10-25-2009), 52,000 H-1B cap subject petitions had been filed. Thus, in approximately one month (10-25-2009 to 11-27-2009), USCIS received 6,900 H-1B cap subject petitions in comparison to 5300 the previous month and only 1,600 in September 2009.

Employer Site Visits

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.

I-9 Audits to Hold Employers Accountable

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.

STATISTICS SINCE THE IMPLEMENTATION OF THE NEW ICE WORKSITE ENFORCEMENT STRATEGY ON APRIL 30, 2009:

* 45 businesses and 47 individuals debarred; For comparison: 0 businesses and 1 individual were debarred during the same period in 2008;
* 142 Notices of Intent to Fine (ITF) totaling $15,865,181; For comparison: 32 NIF totaling $2,355,330 in all of 2008;
* 45 Final Orders totaling $798,179; For comparison: 8 Final Orders totaling $196,523 during the same period in 2008;
* 1,897 cases initiated; For comparison: 605 cases initiated in the same period of 2008;
* 1,069 Form I-9 Inspections; For comparison: 503 Form I-9 Inspections in all of 2008.

In July 2009, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today.

STATISTICS RESULTING FROM THE 654 AUDITS ANNOUNCED IN JULY 2009:

* More that 85,000 Form I-9s were reviewed and more than 14,000 suspect documents were identified (approximately 16% of the total number reviewed);
* 61 NIFs have been issued, resulting in $2,310,255 in fines. 267 cases are currently being considered for NIFs;
* 326 cases were closed after businesses were found to be in compliance with employment laws or after businesses were served with a warning notice in expectation of future compliance.

Little Change in Employment Based Visa Numbers for December 2009

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.

Approval for January 2009 PERM filing

On 11-09-2009, an approval for a PERM filing in January 2009 was received - it appears Department of Labor is starting to make some progress in moving the PERM cases. This may be in large part due to the drop in number of cases which have been filed. However, the progress in adjudicating Audited PERM cases is still very slow.

USCIS Conducts Unannounced Audits of H-1B Visa Employers

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:
* H-1B employer’s type of business;
* H-1B employer’s locations;
* Number of employees;
* A copy of H-1B employer’s tax returns;
* A copy of H-1B employer’s Quarterly wage reports;
* Other documentation to evidence the H-1B employer’s bona fide business;
* Verify that the signature on the H-1B visa petition is genuine;
* Information about the H-1B visa employee (title, job duties, work location, salary, copy of most recent paycheck stubs and last Form W-2);
* Number of H-1B visa petitions filed by the employer; and
* Information about H-1B employer’s immigration counsel.
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

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

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

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

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

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.

Number of pending employment based I-485s

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

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.

Employment Based Visa Numbers for the new Fiscal Year

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.

Permanent Resident Application

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.

Increase in H-1B cap subject petitions filings

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.

2011 Diversity Visa Lottery Program Registration

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)

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.

USCIS New Website

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.

E-Verify Rule Effective for Federal Contractors

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.
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.

Free Consultation For I-9 Sampling Audit

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.

Additional Information on I-90 Receipts

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

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)

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. ASCs 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

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

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

As of 08-14-2009, USCIS had received 45,000 H-1B cap subject visa petitions.

Vermont Service Center Alert

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

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. Of course employment based visa numbers for Third preference continue to be unavailable. First Preference remains current, as does Second preference for the world.

Introductory Immigration Seminar for HR on August 20, 2009

On August 20, 2009 at 10:00 am, The Law Office of Jocelyne J. Kim Lew, APC, will host an Introductory Seminar for HR. An overview of the different types of professional work visas, including F-1 student visas with CPT and/or OPT, J-1 visas, H-1B visas, E-3 visas, TN visas, L-1 visas and O-1 visas will be provided. A brief discussion will also cover the Permanent Residence Application process thru PERM. The seminar is free, however due to limited space, registration is required by sending an email to natasha@lewslaw.com.

H-1B visa numbers continue to be available

As of 07-10-2009, the last count provided by USCIS , 44,900 H-1B cap petitions had been filed - this number was down by 100 from the week before. As previously indicated, numbers could be added to the cap filings because of denials, withdrawals or rejections due to duplicate filings.

August 2009 Employment Visa Numbers

The August 2009 Visa Bulletin confirms that Second Preference Employment visa numbers continue to be current for most countries. Second Preference Employment visa numbers for India and China have moved forward by almost 4 years to 10-01-2003 from 01-01-2000 of last month. Thus, cases with a priority date of before 10-01-2003 may be adjudicated. First Preference Employment visa numbers for all countries continue to be current, while of course Third Preference visa numbers remain unavailable.

New Policy on Adjudicating Pending I-485 Applications Upon the Denial of Underlying I-140

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.

Immigration Seminars

The Law Office of Jocelyne J. Kim Lew, APC, will be hosting Immigration Seminars for individuals 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.
A two hour Immigration Seminar will also be hosted 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.

More than 20,000 H-1B cap numbers still available

USCIS reported on 06-30-2009, that more tha 20,000 H-1B cap visa numbers were still available. More specifically, as of 06-26-2009, a total of 44,800 H-1B cap subject petitions had been filed.

USCIS Updates

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.

USCIS explains H-1B numbers

On 06-10-2009, USCIS provided an explanation why H-1B visa number usage had decreased. On 05-22-2009, USCIS had reported that 47,700 H-1B visa petitions had been counted against the “regular” cap. However, on 05-29-2009, the usage had dropped to 45,800 and then again a further drop to 44,400 was reported on 06-05-2009. The reduction in the H-1B count has been the result of adding back H-1B visa numbers for cap cases which have been denied, revoked or withdrawn. USCIS also reported that H-1B cap filings have been “trickling in” and that the caps for both Master’s and Regular H-1B filings remain open.

USCIS Resumes Premium Processing for I-140s

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;
EB-1 Outstanding Professors and Researchers;
EB-2 Members of Professions with Advanced Degrees or Exceptional Ability (not applicable to National Waiver);
EB-3 Professionals;
EB-3 Skilled Workers; and
EB-3 Workers other than Skilled workers and Professionals.

Premium Processing Service is not available for:

EB-1 Multinational Executives and Managers; nor
EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

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

DOL has provided 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.

Biometrics for Reentry Permit Applications

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.

DOS Updates on Employment Visa Numbers

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:

* EB fourth preference including religious workers and other special immigrants while current in June 2009, could require the establishment of a cut-off date later this summer due to a surge in usage of these numbers.
* EB fifth preference (immigrant investors) is current, however a surge in usage is now being seen.
* EB first preference worldwide will remain current for the rest of the fiscal year, however demand is high.
* EB first preference for India and China is current for the month of July 2009, however a cut-off date may occur in August or September 2009.
* EB second preference for India may become unavailable in August or September 2009. Without legislative relief, the waiting time for Indian EB2 applicants may be measured in years, even decades.
* EB second preference for China may become unavailable in August or September 2009. Without legislative relief, the waiting time for China born applicants may also be many years.
* EB third preference worldwide will be unavailable the remainder of this fiscal year. It is estimated that as of October 1, 2009, this category’s cut-off date may be March 1, 2003. There will be extended delays in this category.
* EB third preference for India, China and Mexico will be unavailable for the remainder of the fiscal year. It is estimated that as of October 1, 2009, the following cut-off dates may be established: China – March 1, 2003; India – November 1, 2001, and Mexico – March 1, 2003.

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.

USCIS REMINDS APPLICANTS FOR ADJUSTMENT OF STATUS TO OBTAIN ADVANCE PAROLE BEFORE TRAVELING ABROAD

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. 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. To obtain Advance Parole, an individual must file Form I-131, Application for Travel Document.

TEXAS SERVICE CENTER (TSC) UPDATES

TSC 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)

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.

Employment Visa Numbers for June 2009

The Department of State’s June Visa Bulletin shows that employment based second preference for the world remain current.
However, visa numbers for second preference employment for India have retrogressed to 01-01-2000. This is apparently due to the heavy demand for visa numbers by USCIS to adjudicate pending Applications for Permanent Residence. It is anticipated that by the fourth quarter (starting July 2009), visa numbers for this category may also be exhausted for the balance of this fiscal year i.e end of September 2009.
However, Second Preference Employment for China remains unchanged at 02-15-2005.

Department of Labor initiates its new iCERT Portal

Labor Condition Applications (LCA) in support of H-1B Visa Petitions under the Department of Labor’s (DOL) new iCERT Portal are being processed usually in three to seven business days.
Department of Labor (DOL) announced that the “old” Labor Condition Application system has not been suspended on 05-15-2009 as originally planned. This system will now continue until 06-30-2009. Thus it will not be mandatory to use the iCERT Portal until 07-01-2009. DOL continues to make fixes to the iCERT Portal in response to issues raised by the stakeholders who use the system.

Change of Filing Location for Form I-90

As 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
P.O. Box 21262
Phoenix, AZ 85036

USCIS
ATTN: I-90
1820 Skyharbor, Circle S Floor 1
Phoenix, AZ 85034

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 U.S. Consulate Operations in Ciudad Juarez, Mexico

U.S. Consulate has re-opened consular operations on a rolling basis. The Consulate’s American Citizen Services unit resumed full operations on May 7, 2009. Immigrant Visa Operations resumed on May 18, 2009. Applicants whose appointments were canceled 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 canceled may contact the call center at no charge by calling Mexico: 01-800-719-2525.