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

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.

H-1B visa numbers remain available

To the surprise of most, one month since H-1B visa numbers became available to file new H-1B petitions, these numbers have not yet been exhausted. However, with new graduates completing their degrees in May/June, one could expect the number of H-1B visa petitions being filed to increase significantly.

Filing LCAs under new iCERT Portal

Department of Labor (DOL) has a new system, iCERT Portal, which began 04-15-2009 for filing Labor Condition Applications (LCAs) to support H-1B visa petitions. This new system is optional until 05-15-2009, at which time all LCAs must be filed under this system. No longer will LCAs be endorsed within seconds, so as to allow the filing of H-1B visa petitions potentially within one day. It appears with this new system, an LCA may take approximately 7 to 10 days to be processed.

Employment Immigrant Visa Numbers for the month of May 2009

U.S. Department of State’s May Visa Bulletin shows that visa numbers are no longer available for the Third Preference Employment category and will remain unavailable until 10-01-2009, due to the heavy demand for Third Preference Employment Visa Numbers by USCIS. 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 for the “World” remains current, while India and China remain unchanged at 02-15-2004 and 02-15-2005 respectively.

Cap Gap relief for F-1 students

The Cap Gap Regulation passed in the spring of 2008 has brought welcome relief to F-1 student visa holders whose F-1 status would normally have expired prior to October 1. If an H-1B visa petition and application to change status to H-1B visa have been timely filed/pending/approved, F-1 student status or work authorization is extended, including Optional Practical Training, until September 30. However, this cap gap does not allow F-1 students to travel outside the U.S. and return to the U.S. on F-1 status during the cap gap period.

New Form I-9 required as of 04-03-2009

USCIS’ Interim Final Rule published December 17, 2008 became effective April 3, 2009. This new rule specifies that expired documents are no longer acceptable forms of identification or employment authorization. However, if a document does not have an expiration date, for example a Social Security Card, it is considered unexpired. When completing a Form I-9 on or after April 3, 2009, whether it is for a new hire or re-verification - the new Form I-9 with a revision date of February 2, 2009 must be used.

New H-1B visa petitions can be filed 04-01-2009

Starting April 1, 2009, USCIS will begin accepting new H-1B visa petitions subject to the fiscal year cap of 2010 (i.e. a start date of 10-01-2009). The numerical limitation of H-1B visa petitions is 65,000 with an additional 20,00 available for U.S. master’s degree or higher. If enough petitions are received to reach the statutory limit during the first five filing days - USCIS will accept all properly filed H-1B visa petitions during these first five filing days and then conduct a lottery selection. The first lottery will be for the 20,000 H-1B visas (U.S. master’s degrees or higher) and those who are not selected in that lottery will then be put with the pool for the 65,000 limit.

If the limit is not reached during the first five days of filing, USCIS will continue to accept properly filed H-1B petitions until the day the limit is reached. This last day of filing when the limit is reached - properly filed petitions will be accepted and then subjected to a lottery selection for this last day of filing.

Background Checks Update

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.

Since the FBI is eliminating its backlog in processing name checks, USCIS previous policy of automatically approving certain cases for which name checks have been pending for more than 180 days has been revised.

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).

Nebraska Service Center (NSC) Updates

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. As of February 26, 2009, NSC’s processing times were as follows:
Third Preference Employment EB-3: October 1, 2007
Second Preference Employment EB-2: July 1, 2008
First Preference Employment EB-1 Extraordinary Ability: April 1, 2008
First Preference Employment EB-1 Outstanding Researcher: March 1, 2008
First Preference Employment EB-1 Multinational Executive/Manager: June 15, 2008

NSC operates a two-track distribution system for Applications for Permanent Residence (I-485s). The first track includes “viable” cases where a visa number is available and fingerprints and name checks have cleared. The second track includes cases where visa numbers are not available. For these latter cases, the preliminary work is done and then they are placed on the shelf to await visa number availability. NSC performs regular sweeps to identify which cases have current priority dates.

NSC has announced that it will no longer send a second or third Fingerprint Notice in cases where there is no visa available, even if more that 15 months have passed after the first fingerprinting. 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.

The common reasons for referring a pending I-485 case to a District (local) office for an interview include past criminal record, entry into U.S. without inspection, insufficient documentation of bona fide marriage and validity of job offer. NSC also confirmed that it transfers cases even if the priority date is not current for processing.

This Newsletter will be updated on a monthly basis by Jocelyne J. Kim Lew.   The first Newsletter will be published at the end of March and at the end of each month thereafter.