U.S. Immigration Updates - 2008
USCIS Offices Update (12-17-2008) [Top]All USCIS offices and Application Support Centers will be closed on December 25 and Friday December 26, 2008 in observance of the Christmas holiday. Applicants scheduled at the Application Support Centers will be automatically rescheduled. If a new appointment is not received within 45 days, an Infopass appointment should be made. ADIT stamps will no longer be given by officers after an adjustment interview. Applicants who can establish an urgent need to have proof of LPR status will be given a pass to the Information Unit to be processed for an ADIT stamp. Since most applicants should receive their card in approximately 10 days, it is unlikely that they will need a stamp. Starting early December 2008, the California Service Center will forward all Naturalization (N-400) applications to the lockbox in Phoenix. Applicants are to continue submitting the N-400 applications to the appropriate Service Center. DOL PERM System Problems (12-04-2008) [Top]DOL advised that the PERM online system requires the use of Adobe 7.0 or higher. It is possible that some of the reported problems with the usage of the system may be related to the use of an older Adobe version. If you are the employer having a problem accessing the sponsorship email link (to respond to the DOL questionnaire/confirm PERM filing), there are two options. If you do not respond to the sponsorship email, the DOL will telephone the employer to verify sponsorship. Since there have been many reports in using the sponsorship link, it may take DOL some time to make all the required calls. Another option is to withdraw and re-file the case. It could take some time to receive a confirmation of withdrawal from DOL. Also, if the recruitment goes stale between the first filing and the re-submission, there is no way to avoid an auto-denial timeline violation. New Application for Non-Immigrant Visas DS-160 (12-04-2008) [Top]Some U.S. Consulates abroad are requiring the use of Form DS-160 for Non-Immigrant Visas (Nuevo Laredo, Monterrey, Montreal, and Vancouver). The U.S. Consulate in Hong Kong also requires the use of this new form for petition based applicants of H, L, O, P, and Q visas. This electronic application process for Non-Immigrant Visas will eventually replace the current DS-156 application paper process. Link to Form DS-160: https://ceac.state.gov/genniv/ Visa Waiver Program Expansion (11-20-2008) [Top]The Visa Waiver Program (VWP) enables eligible citizens or nationals of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. Department of Homeland Security (DHS) has expanded the number of participating countries in the Visa Waiver Program (VWP). The seven newly added countries are: the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, and Slovakia. Citizens of countries eligible to travel to the U.S. under the VWP prior to November 17, 2008 are: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. To be admitted to the VWP, a country must meet various security requirements, such as enhanced law enforcement and security-related data sharing with the United States and timely reporting of both blank and issued lost and stolen passports, and document security standards. As a result of these measures, DHS is able to screen arriving passengers. Beginning November 17, 2008, eligible citizens or nationals from the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, and Slovakia must obtain approval through the Electronic System for Travel Authorization (ESTA) prior to traveling to the United States under the VWP. Beginning January 12, 2009, eligible citizens or nationals from all VWP countries must obtain approval through ESTA prior to traveling to the United States under the VWP. Naturalization Processing Times (11-13-2008) [Top]Recently, USCIS announced that the processing times for Naturalization Applications (N-400) as of 09-30-2008 are as follows: San Francisco, CA – 5.9 months DOL Updates (11-13-2008) [Top]On October 27, 2008, DOL announced that in light of the current state of the economy, it would focus its attention on companies in certain industries that are negatively impacted by the economic downturn. DOL mentioned that if a company files PERM applications after having had recent layoffs or experienced downsizing, DOL will look at U.S. worker availability. These cases will be reviewed with extra scrutiny. DOL may then require supervised recruitment as a result. DOL will also look at the existence of industry layoffs, which can affect U.S. worker availability generally, in scrutinizing whether recruitment reports are credible. DOL will be posting periodic reports including PERM processing summaries. DOL is currently processing “clean cases” with a priority date of March 2008 and audits with a priority date of July 2007. DOL is currently processing 120+ cases in supervised recruitment, and these cases are processed based on priority date. Supervised recruitment is currently being handled by DOL Headquarters with a small staff, so that there are some delays in processing. USCIS Procedure for Advance Parole Documents at the Port of Entry (11-13-2008) [Top]Currently, USCIS issues 2-3 copies of an advance parole document. The protocol for first-time use of the document is for the CBP Officer at the port of entry to stamp all copies, keep one copy for the Files Control Office and return the remaining copy/copies to the traveler (assuming this is a multiple entry document). For subsequent travel using the same parole document, the document is stamped and returned to the traveler. Processing of I-485 Applications (11-13-2008) [Top]Currently, approximately 172,000 employment based applications (total) are pending at the Nebraska Service Center. ESTA Update (11-13-2008) [Top]The Department of Homeland Security has established a new Electronic System for Travel Authorization (ESTA), that is part of the Visa Waiver Program (VWP). Once the system is mandatory, all nationals or citizens of VWP countries, who plan to travel to the United States for temporary business or pleasure, will require an approved ESTA prior to boarding a carrier to travel by air or sea to the United States under the VWP. The system will become mandatory on January 12, 2009. DOL Statistics for PERM Labor Certifications (11-13-2008) [Top]During the fiscal year ending September 30, 2008, DOL received 90,039 PERM Labor Certification Applications, of which 61,997 were completed: 49,205 were certified, 10,729 were denied and 2,063 were withdrawn. Since the beginning of PERM program in March 2005, DOL has processed a total of 286,644 cases: of which 220,883 were certified, 60,221 were denied, and 5,540 were withdrawn. As of September 30, 2008, DOL had 57% of PERM cases under final review, 32% under audit, 8% under reconciliation and 3% under sponsorship. DOL announced that the implementation of the new PERM Form 9089 is delayed until Spring 2009. GLOBAL ENTRY ENROLLMENT CENTERS (11-13-2008) [Top]Global Entry is a program that began on June 6, 2008, which allows U.S. Citizens and Lawful Permanent Residents entering the U.S. to use the Global Entry kiosk as an alternative to the regular passport control line. Enrollment in the program is required prior to participation. The following is a list of currently participating airports: Los Angeles (LAX), Atlanta (ATL), Chicago (ORD), Miami (MIA), New York (JFK), Houston (IAH) and Washington D.C. (IAD). For more information, go to www.GlobalEntry.gov. USCIS Increases TN Period of Stay to Three Years (10-21-2008) [Top]USCIS published a final rule increasing from one year to three years the maximum allowable period of admission for TN visa holders (for Canadian and Mexican citizens). Spouses and unmarried children under 21 years of age of TN nonimmigrants also benefit, so that they may hold TD visas for a corresponding period of time. The final rule became effective October 16, 2008. This new rule does not expand the principle of “dual intent”. This rule simply increases the amount of time granted to a TN/TD nonimmigrant visa holder, once eligibility requirements are established. Mexican nationals are still required to apply for the TN/TD visa stamps at a U.S. Consulate. If a TN nonimmigrant was erroneously admitted for more than one year prior to October 16, 2008, USCIS encourages this individual to correct the Form I-94 to ensure compliance with regulations in effect at the time of admission. 2010 Diversity Visa Lottery (10-02-2008) [Top]Applications for the 2010 Diversity Visa Lottery Program will be accepted from October 2, 2008 to December 1, 2008. Entries for the lottery must be submitted electronically between noon EDT October 2, 2008 and noon EST December 1, 2008. Paper entries will not be accepted. The Immigration and Naturalization Act provides that a maximum of 55,000 Diversity Visas be made available each fiscal year to persons from countries with low rates of immigration to the United States. A computer generated random lottery drawing chooses selectees for the Diversity Visas. The visas are distributed among six geographic regions, with a greater number of visas going to countries with lower rates of immigration and with no visas going to nationals of countries sending more than 50,000 immigrants to the U.S. over the past 5 years. Within each region, no single country may receive more than seven percent of the available Diversity Visas in any one year. For Diversity Visa 2010, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the U.S. in the previous five years: Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India. Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. Russia has returned to the list of eligible countries. Kosovo has been added to the list of eligible countries. In the Diversity Visa 2010, for the first time, those who submit entries may check the status of entries online and determine if their entries are selected or not selected. Successful entrants will continue to receive notification letters by mail. For detailed information about entry requirements, please see the instructions for the Diversity Visa 2010 on the Department of State website: http://travel.state.gov/visa/immigrants/types/types_1318.html Diversity Visa Lottery Instructions (09-22-2008) [Top]The Diversity Visa Lottery begins at on October 2, 2008 at noon EDT and ends on December 1, 2008 at noon EST. Please check this website for visa lottery instructions: http://travel.state.gov/visa/immigrants/types/types_1318.html The results for the DV-2008 lottery can be viewed online (see link above). DV-2009 Lottery winners were notified by mail between May and July 2008. Some unofficial translations are available in several languages; however the English language version of the 2009 lottery instructions is the only official version. Visa Waiver – Need for Pre-Screening (08-13-2008) [Top]On August 1, 2008, the Department of Homeland Security introduced an electronic security system for screening passengers before travel to the United States under the Visa Waiver Program. On January 12, 2009, this travel authorization will become mandatory for travelers entering the United States under the Visa Waiver Program. All such travelers will have to apply for authorization by submitting an electronic application at: The Electronic System for Travel Authorization (ESTA) performs checks against law enforcement databases. If an electronic travel authorization application is approved, it establishes eligibility to travel, but does not confirm admissibility to the United States under the Visa Waiver Program. Upon arrival to the United States, an inspection by a United States Customs and Border Protection Officer at a port of entry will determine applicant’s admissibility. A determination of ineligibility for electronic travel authorization does not preclude one from applying for a visa at a U.S. Consulate. All information provided by an applicant, or on an applicant’s behalf by a designated third party, must be true and correct. An electronic travel authorization may be revoked at any time and for any reason, such as new information influencing eligibility. An applicant may be subject to administrative or criminal penalties if knowingly and willfully making a materially false, fictitious, or fraudulent statement or representation in an electronic travel authorization application submitted by the applicant or on applicant’s behalf. USCIS Updates Naturalization Processing Times (08-12-2008) [Top]On August 11, 2008, USCIS announced that it continues to make progress in processing N-400 (naturalization) applications received last year. USCIS anticipates that by the end of September 2008, naturalization application processing will average 10-12 months nationally. USCIS field projections indicate that as of the end of September 2008, it will take approximately 5.5 months for the San Francisco office and approximately 5 months for the San Jose office to complete a naturalization case. DOL Updates (08-11-2008) [Top]DOL recently confirmed that the new portal for PERM Labor Certifications and LCAs for H-1B visas is scheduled for roll out on January 1, 2009. New forms will also be updated. The new portal will have one registration for the company for both PERM filings and LCAs for H-1B visas. The new portal will have a registration for the attorney, so the attorney can access all cases through one place, not just through separate client logons. DOL also advised that LCAs for H-1B visas will be scrutinized more closely in the future and it may take DOL up to 7 days to review an LCA for H-1B (instead of 7 seconds at present). Moreover, if an alternative wage survey is provided with a prevailing wage request, it could take even longer. DOL is also redeploying its resources to focus on parts of the PERM regulations that were not the focus earlier, including audits and supervised recruitment. DOL confirmed that both targeted and random PERM audits will continue. Audited cases are handled according to date of filing. Thus the audit being conducted on the Fragomen cases are in line with the rest of the audited cases. There is no special queue for the Fragomen cases. DOL pointed out that it could debar an employer or agent or attorney without prior notice. Currently DOL is working on audited cases with priority dates of March 2007. As of July 15, 2008, DOL is working on “clean cases” filed in April 2008 and will soon be reviewing May 2008 filings. USCIS Changes to Tuberculosis and Vaccination Requirements (07-29-2008) [Top]USCIS has made some major changes to the Tuberculosis (TB) testing and treatment. A chest X-ray is required for all applicants with a tuberculin skin test (TST) reaction of less than 5 mm who have signs or symptoms of TB or immuno- suppression. A chest X-ray is also required for all applicants with a TST reaction of more than 5 mm including pregnant women. All applicants, two years of age or older, are required to have a tuberculin skin test (TST). Children younger than two years of age are required to have a TST only if there is evidence of contact with a person known to have a TB or if there is another reason to suspect TB. The new TB testing treatment requirements became effective on May 1, 2008. If the civil surgeon performs a chest X-ray without giving the applicant the TST, the reason for omitting the TST must be noted on Form I-693. As of July 1, 2008, the following additional vaccinations are required in order to adjust status to legal permanent resident: Rotavirus The applicant must have received all the required age-appropriate vaccines that could be given at the time of the medical exam. If the applicant has started the vaccination series, but is not able to complete all the required shots because, at he time of the medical exam, the minimum time interval between shots has not passed, the applicant may still apply for adjustment of status. A waiver is available in cases where due to required time intervals, it is impossible for the applicant to receive all shots in the series before submitting the application for adjustment of status. However, the applicant must have received at least the first dose of the vaccine, if appropriate, before applying for adjustment of status. The revised Form I-693, Report of Medical Examination and Vaccination Record (edition date April 2, 2008) became effective on May 1, 2008. Any medical exam conducted on or after June 1, 2008 must be recorded on this revised Form I-693. Combined EAD and Advance Parole Cards Issued in Error (07-22-2008) [Top]USCIS announced that recently issued EADs with a notation “Serves as Advance Parole” have been issued in error. The employment authorization is valid; however this document is not valid for return to the United States after international travel. Two-Year EADs (07-22-2008) [Top]USCIS confirmed that an EAD card will be issued for two years, if at the time of filing and at the time of adjudication visa numbers are backlogged. However, USCIS will use discretion in the following instances:
I-140 Premium Processing (07-22-2008) [Top]USCIS announced that it receives numerous requests for I-140 Premium Processing which are rejected (60%). At this time, I-140 Premium Processing is only available for:
I-140 Premium Processing is NOT available for
UPDATES from DOL (07-16-2008) [Top]DOL announced that it received 61,800 PERM applications between October 2007 and May 2008. Of these: 28,773 were certified; 7,779 were denied; 1694 were withdrawn. Total completed cases comprised 38,246. May 31, 2008, DOL had 41% of cases are under Final Review; 44% under Audit Review; 12% under Appeal and 3% under sponsorship/review. DOL is planning on implementing a new ETA Form 9089 on January 1, 2009. USCIS Biometric Changes for Re-Entry Permits and Refugee Travel Documents (07-16-2008) [Top]USCIS announced that it has revised its instructions for Form I-131 (Application for Travel Document). The changes require that an applicant (ages 14 – 79) for a re-entry permit or refugee travel document to provide biometrics (e.g. fingerprints and photographs) before departure at a USCIS Application Support Center for background and security checks and to meet requirements for secure travel and entry documents containing biometric identifiers. The biometrics service fee is $80.00. If expedited processing is required, a pre-paid express mailer with Form I-131 for USCIS to send the applicant a receipt and ASC appointment notice should be used. Additionally, the applicant must explain the reasons for expedited processing. An applicant filing for a re-entry permit must be physically present in the United States when filing the re-entry permit application. If the applicant departs USA before the biometrics are collected, the application may be denied. USCIS to Issue Two-Year EADs (06-18-2008) [Top]USCIS announced that starting June 30, 2008, it will issue Employment Authorization Documents (EADs) valid for two years. These two-year EADs are available only to individuals who have a pending I-485 and file a request for an EAD under section 274a.12(c)(9) 8C.F.R., but are unable to become permanent residents because immigrant visa numbers are not currently available. USCIS will determine whether to renew an EAD for either one or two year period based on the most recent Department of State Visa Bulletin (http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html) available at the time of adjudicating the EAD application. Applicants for whom immigrant visa numbers are available, USCIS will continue to issue one year EADs. USCIS may issue a two-year EAD if the applicant’s immigrant visa availability date retrogresses after an I-485 is filed. Immigrant Visa Numbers - EB-3 Category Becomes Unavailable (06-12-2008) [Top]USCIS confirmed that adjustment of status applications (I-485s) will continue to be accepted until June 30, 2008. Beginning July 1, 2008 until September 30, 2008, the Employment Based Third Preference Category (EB-3) visa numbers will be unavailable for all countries and thus no I-145 will be accepted for filing. Cap H-1B Visa Update (06-12-2008) [Top]USCIS confirmed that all receipts have been issued for those cases selected in the random lottery. The data entry has been completed on all selected cases and mailing of the receipts was completed on May 24, 2008. Filings that are thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. USCIS has determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. USCIS has begun to mail out rejections this week. Premium Processing for Designated I-140 Petitions (06-11-2008) [Top]USCIS announced today that as of June 16, 2008 Premium Processing will become available for designated I-140 petitions meeting all of the following criteria:
Section 104(c) of AC21 permits applicants to extend their stay in H-1B status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B status in increments of up to one year, provided an I-140 petition or underlying labor certification has been pending for at least 365 days. Visa Bulletin Update (06-10-2008) [Top]The July 2008 Visa Bulletin published by the Department of State indicates that visa numbers are unavailable for all countries under the Third Preference Employment Classification. It is expected that this will remain unchanged until the end of the fiscal year September 30, 2008. Thus from July 1, 2008 until September 30, 2008, no Adjustment of Status Application (I-485) can be filed. Additionally, all Third Preference Employment Based pending adjustment cases cannot be adjudicated, since no visa number is available. Visa numbers remain available for Second Preference Employment. This became possible after a re-valuation was done to utilize unused visa numbers for “All Other Countries” category. These expected unused numbers are being allocated to India and China. Two-Year EAD Extensions (06-10-2008) [Top]USCIS announced on June 9, 2008, that it will start issuing 2-year EADs at the end of June 2008 for all adjustment of status applicants with pending I-485s. I-140 Premium Processing (06-10-2008) [Top]USCIS unofficially announced that Premium Processing for I-140s will resume on July 16, 2008. However, Premium Processing will only be available initially for beneficiaries whose H-1B visas will be expiring within 60 days of filing the request and who need the I-140 approval to become eligible for additional H time. USCIS is working on finalizing the details. Chicago and Atlanta PERM Centers Processing Update (06-02-2008) [Top]Effective June 1, 2008, the Chicago National Processing Center (NPC) will complete the processing of any pending PERM cases located there including any audits issued before April 15, 2008 or pending appeal cases field before April 15, 2008. Responses to all audits and denials issued since April 15, 2008, should be submitted to the Atlanta National Processing Center (NPC). The DOL expects that the Chicago NPC will complete the cases in a short period of time after June 1, 2008. Summary of the AILA CSC Liaison Meeting on May 28, 2008 (05-28-2008) [Top]California Service Center (CSC) has confirmed that all receipts for H-1B visa cap cases, which were selected as a result of the lottery, have been issued and mailed out. CSC will be returning H-1B visa cap petitions, which were not selected during the process. It is expected that non-selected petitions will be returned by June 15, 2008. Currently, CSC is determining if there were any duplicate petitions filed. Duplicate petitions will be denied and visa numbers re-assigned to the pool of H-1B visa petitions, not selected but waiting in line, in case any petitions are rejected/numbers re-assigned. CSC confirmed that for family based permanent residence applications filed with the National Benefits Center in Missouri, interview waivers are available to the following groups: fiancés of U.S. citizens, parents of U.S. citizens and Cubans. California Service Center (CSC) Updates on H-1B Visa Processing (05-06-2008) [Top]On April 30, 2008, CSC reported that it expects to issue all Receipt Notices for all H-1B cap cases selected under the random selection process by June 2, 2008. CSC’s target date for returning non-selected/rejected H-1B visa cap cases is June 5, 2008. At present, in order to file a Premium Processing request, a receipt number must have been received, so that the number may be indicated on the request form. CSC also announced that the processing times for non-cap H-1B visa petitions (transfers and extensions) should not be affected by the large volume of H-1B cap cases received in the beginning of April 2008. These non-cap cases should be processed within the published time frames. H-1B Visa Cap Receipt Notices (05-01-2008) [Top]On April 28, 2008, this office started receiving Notice Receipts for Cap H-1B visa petitions filed on April 1, 2008 for regular processing (without a request for Premium Processing). At this time, this office continues to receive Receipt Notices. UCSIS Allows F-1 Students to Request Change of Status (04-22-2008) [Top]USCIS announced that it would allow an H-1B petitioner, whose H-1B petition was randomly selected to receive an H-1B visa number, to now request a change of status for the F-1 student beneficiary. Such a request must be received within 30 days of the H-1B visa petition receipt notice issuance. A request for a change of status in lieu of consular notification may be made by sending an email with the request to the USCIS Service Center where the H-1B visa petition is pending. Email addresses for this request for change of status are: Vermont Service Center: Premium Processing cases:
VSCPPCAPGAP.Vscppcapgap@dhs.gov California Service Center: Premium Processing cases:
CSC.ppcapgap@dhs.gov USCIS Runs Random Selection Process for H-1B Visa Petitions (04-14-2008) [Top]On April 14, 2008, USCIS conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” exemption and second on the remaining advance degree petitions with the general H-1B pool of petitions for the 65,000 cap. Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice no later than June 2, 2008. The total adjudication process is expected to take approximately eight to ten weeks. For cases selected through the random selection process and initially filed with a request for premium processing, the 15-day premium processing period begins on April 14, 2008, the day of the random selection process. USCIS has “wait-listed” some H-1B visa petitions; these petitions may replace petitions chosen to receive a cap number but are subsequently denied, withdrawn or found to be ineligible. USCIS will send a letter to the wait listed petitioners to inform them of this status. USCIS expects a resolution for each of the wait-listed petitions within six to eight weeks. Preliminary Numbers on H-1B Cap Filings (04-10-2008) [Top]On April 10, 2008, USCIS announced a preliminary number of nearly 163,000 H-1B petitions received during the filing period from April 1 to April 7, 2008. Of these, more that 31,200 were advanced degree petitions. USCIS expects to conduct a computer-generated random selection process next week. The selection will begin with the 20,000 advanced degree petitions. Petitions not selected under the advanced degree category will join the random selection process for the cap-subject 65,000 limit. USCIS will reject and return filing fees for all cap subject petitions not randomly selected, unless found to be a duplicate. H-1B Visa Cap Has Been Reached for Fiscal Year Starting October 1, 2008 (04-09-2008) [Top]On April 8, 2008, USCIS announced that it has received enough H-1B visa petitions to meet the congressionally mandated cap for fiscal year beginning October 1, 2008. USCIS has also received more than 20,000 H-1B visa petitions filed under the “advanced degree exemption”. USCIS will complete the initial data entry prior to running the random selection process. Due to the high number of petitions received, the date on which the selection process will be completed is not known. USCIS will conduct the selection process for “advanced degree” exemption petitions first. The “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit. USCIS Expands Cap-Gap Relief for all F-1 Students with Pending H-1B Petitions (04-09-2008) [Top]An interim final regulation published on April 8, 2008 extends the authorized period of stay for all F-1 students who have a properly filed H-1B visa petition and change of status request. If USCIS approves the H-1B visa petition, the student will have an extension of stay and authorization to work until the requested start date indicated on the H-1B visa petition. The extension of status and work authorization of OPT terminates on October 1 of the fiscal year for which the H-1B visa has been requested. The automatic extension of an F-1 student’s duration of status and employment authorization will immediately terminate upon the rejection, denial, or revocation of the H-1B petition filed on such student’s behalf. USCIS Extends Certain Optional Practical Training (OPT) by 17 months (04-09-2008) [Top]USCIS published an interim final regulation on April 8, 2008 which extends the maximum period of OPT from 12 months to an additional 17 months totaling 29 months for F-1 students who:
The student’s degree must be a bachelor’s, master’s or doctorate degree with a degree code that is on the current STEM Designated Degree Program List (http://www.ice.gov/sevis/). A student who wishes to extend OPT must request that the DSO (Designate School Official) recommend the 17-month OPT extension. Once the DSO recommends a student for the extension, the student must submit a Form I-765 and appropriate fee to USCIS. The new regulation allows an F-1 student who has a properly filed Form I-765 prior to the end date of his/her OPT to maintain continuous employment for up to 180 days while USCIS adjudicates the request for an extension. An F-1 student is required to report any change in name, address and/or employer’s name and address. The student must also report to DSO every six months from the date the 17 month OPT extension starts to verify this information. Failure to report is a basis for terminating the student’s status and can impact a student’s future visa program and OPT eligibility of the school, employer and student. An employer of an F-1 student with an extension of post-completion OPT is required to report to the student’s designated school official within 48 hours after the OPT student has been terminated from or otherwise leaves his employment prior to the end of authorized period. The new regulation also specifies an aggregate maximum allowed unemployment period of 90 days for a student on 12-months OPT. This maximum period is increased by 30 days for an F-1 student who has an additional approved 17-month OPT period. An employer participating in e-Verify must still complete a Form I-9 for each newly hired employee. Following completion of Form I-9, the employer must enter the newly hired worker’s information into the e-Verify website and that information is then checked against information contained in SSA and USCIS databases. Once the employer enrolls in e-Verify, that employer is responsible for verifying all new hires, including newly hired OPT students with 17-month OPT extensions. New hires must be verified to be authorized to work in the U.S. through e-Verify within three days of hire. Employers can register for e-Verify on-line at www.uscis.gov/E-Verify. UPDATES from DOL (04-09-2008) [Top]DOL announced that it received 44,090 PERM applications between October 1, 2007 and March 31, 2008. Of these: 25,284 were certified; 5,713 were denied; 1480 were withdrawn. As of March 23, 2008, DOL had 38% of cases are under Final Review; 45% under Audit Review; 14% under Reconciliation/Appeal and 3% under sponsorship. During the first quarter of fiscal year 2008 (which began October 1, 2007), approximately 12,600 PERM LC cases were certified: 66% of these cases are foreign workers on H-1B visas. These cases were geographically distributed as follows: 3,135 from California, 1,293 from New York, 1,057 from New Jersey, 901 from Texas, and 774 from Florida. PERM Labor Certification Applications were processed for alien beneficiaries representing 135 different countries. The top 10 countries of citizenship of alien beneficiaries included India (4,074), China (993), South Korea (875), Philippines (804), Mexico (690), Canada (669), United Kingdom (267), Taiwan (234), Brazil (233), and Pakistan (227). The top titles certified for permanent employment included Computer Software Engineers (2,147), Computer Systems Analysts (734), Computer and Information System Managers (470), Electronics Engineers (266), Computer Programmers (251), Market Research Analysts (238), Mechanical Engineers (185), Financial Analysts (182), Accountants (178), and Engineering Managers (175). USCIS Update on FBI Name Checks (04-03-2008) [Top]USCIS and FBI announced on April 2, 2008 a joint plan to eliminate the backlog of name checks pending with the FBI. The FBI has already eliminated all name check cases pending more than four years. The goal is to complete 98% of all name checks within 30 days. FBI intends to resolve the remaining 2%, which represent the most difficult name checks and require additional time to complete, within 90 days or less. The plan will focus on resolving the oldest pending FBI name checks first. USCIS also requested that the FBI prioritize resolution of approximately 29,800 pending name checks from naturalization applicants submitted to the FBI before May 2006. Update on Naturalization Cases Processing Time (04-03-2008) [Top]On April 2, 2008, USCIS announced that it would finish more than one million naturalization cases during fiscal year 2008 – far exceeding the number of cases processed the previous year. USCIS is projecting that the processing time for naturalization cases will be on an average 13-15 months. Revised Filing instructions for Family Based Visa Petitions (I-130) (03-27-2008) [Top]USCIS has revised the filing instructions for Family Based Visa Petitions (Form I-130). Effective immediately, all petitioners filing stand-alone I-130s must file them with the Chicago Lockbox instead of a USCIS Service Center. As of April 30, 2008, all stand alone Form I-130s submitted to any location other than the Chicago Lockbox will be rejected. Petitions filed with the Chicago Lockbox will be routed to, and adjudicated at, the appropriate USCIS Service Center. This routing will be based on the petitioner’s place of residence in the United States. Two separate P.O. Box addresses have been established that correspond to the appropriate USCIS Service Center (Vermont or California) that will process and adjudicate the petition. Petitioners who reside in Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin or Wyoming must file stand alone Form I-130s with the Lockbox using the following address:
USCIS Petitioners who reside in Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, West Virginia or District of Columbia must file their stand-alone Form I-130 with the Lockbox using the following address:
USCIS Interim Rule on H-1B Visas (03-19-2008) [Top]On March 19, 2008, USCIS transmitted an interim final rule to the Federal Register concerning the filing of H-1B visa cap petitions. These regulations are intended to ensure an equal chance and orderly distribution of available H-1B visas. USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker (even if the filings are for different jobs) and will not refund the filing fees submitted with multiple or duplicate petitions. USCIS announced that assuming the H-1B visa cap is reached within one of the first five days of filing, H-1B visa petitions will be accepted during these first five days (not two days as established previously). Then a “lottery” will occur for these five days of filings. USCIS will first select the 20,000 U.S. advanced degree cap cases. The cases not selected will then participate in the lottery for the 65,000 visas. USCIS will deny any petitions that incorrectly claim an exemption from any H-1B numerical limit. No refund will be made on such cases. Cap subject petitions requesting Premium Processing will not be processed until after the random selection has been completed. The Premium Processing 15-day adjudication period will only begin once the random selection process has been completed.
UCSIS Update on Processing of Naturalization Applications (03-18-2008) [Top]On March 11, 2008, USCIS announced that it has lowered its original projections for processing of naturalization (N-400) applications. Individuals who filed for citizenship in the summer of 2007 can now expect an average processing time of 14-16 months for these applications. That is an improvement from the 16-18 months projection announced in January 2008. During fiscal year 2007, USCIS received approximately 1.4 million naturalization applications. In the months of June and July alone there was an increase of nearly 350 percent compared to the same period in 2006. Visa Bulletin for April 2008 (03-18-2008) [Top]There have been some movement in terms of visa numbers availability according to the new bulletin recently released by the DOS. The visa numbers cut off dates are as follows: Second Preference All Countries – current Third Preference All Countries – July 1, 2005 H-1B Cap Filings (03-18-2008) [Top]A regulation titled “Petitions Filed on Behalf of H-1B Temporary Workers Subject to the Annual Numerical Limitation” has been cleared by the Office of Management and Budget (OMB) for publication. This publication must be finalized and then forwarded to the Federal Register for publication. This process can take a few days, few weeks, or sometimes longer. USCIS is hoping to have this regulation published in advance of the expected April 1 onslaught of petitions. USCIS has confirmed that receipts will only be issued to H-1B cap cases that receive a cap number. Biometric Changes for Re-Entry Permits (03-11-2008) [Top]USCIS announced that effective March 5, 2008, applicants for re-entry permits and refugee travel documents will now need to provide biometrics (e.g. fingerprints and photographs) at USCIS Application Support Centers (ASC) for background and security checks. USCIS will notify applicants of their appointment at the designated ASC by sending a receipt notice and an ASC scheduling notice. The new instructions require that applicants for re-entry permits and refugee travel documents between the ages 14 through 79 provide biometrics before departing from the United States. The applicants must pay a $80.00 biometrics fee. DOL Statistics for 2007 PERM Cases (02-28-2008) [Top]On February 1, 2008, the Department of Labor’s Employment and Training Administration released its PERM data for the fiscal year ending September 30, 2007. During the fiscal year 2007, approximately 86% of the PERM cases were certified (85,112 out of 98,753 cases processed). Of these, 55,214 held H-1B visas. Of the certified cases, 29.8% required a Bachelor’s degree, whereas 47.7% required a Master’s/or higher degree. The top occupations for which PERM cases were certified included Computer Software Engineers, System Software Engineers and Computer System Analysts. The top states for which PERM cases were approved included California (20,222), New York (8,843), New Jersey (6,594), Texas (6,534), and Florida (5,128). Foreign workers represented 176 countries: India - 24,573; China - 6,846; Mexico - 6,442; South Korea - 5,159; and Canada - 4,837. Name Checks/Fingerprints Update (02-28-2008) [Top]USCIS announced that as of February 20, 2008, approximately ten thousand I-485 applications were awaiting name checks only. It is estimated that in the next three months, an additional 15,000 cases will fall into this category. Fingerprint results expire after 15 months. Applicants whose fingerprints have expired would need to have new fingerprints taken, usually clear within one week or so. Note that as of July 2007, biometrics are now stored under a new system and new fingerprints should be able to be “refreshed”, so that new prints would no longer need to be re-taken. USCIS Allows Earlier Inquiries on I-485s Pending Background Check (02-26-2008) [Top]USCIS has announced that after March 30, 2008, inquiries may be made on employment based Adjustment of Status Applications (I-485s) beyond processing times pending background checks. FBI Name Check Clarification (02-26-2008) [Top]USCIS has not changed its background policies relating to naturalization applications (N-400). FBI fingerprint check, Interagency Border Inspection Services (IBIS) check and FBI Name Check must all be completed with favorable resolution in order to complete an N-400 case. The recent USCIS change affects only certain applications including permanent resident applications (I-485): once the FBI Fingerprint Check and Interagency Border Inspection Services (IBIS) check have been completed, if a case has not completed the FBI Name Check, but this check was initiated more than 180 days ago, the case may be approved. In the event actionable information is received from the FBI Name Check after an application has been approved, DHS will initiate removal proceedings USCIS anticipates that the majority of cases subject to this policy modification will be processed by mid-March 2008. Address Change Update (02-20-2008) [Top]USCIS is requesting that the following steps be followed when a change of address occurs while an application for permanent residence (I-485) is pending:
The address must be updated for each family member/case. EAD Extension Applications (02-20-2008) [Top]USCIS has clarified its position on the filing of EAD extension applications: EAD extensions filed between 120 and 180 days prior to the expiration date will not be denied. However, USCIS will reject the applications filed earlier than 120 days prior to the expiration date. USCIS Consolidates Biometrics Appointment (02-20-2008) [Top]USCIS announced that effective February 15, 2008, it will begin consolidating biometrics collection when an employment-based adjustment of status application and an EAD application is filed concurrently (at the same time) at one of the Service Centers. USCIS will collect biometrics for both applications (I-485 and I-765) in one visit to the Application Support Center ensuring that each application is processed in a timely manner. Filing Instructions for Alien Relative Petitions (I-130) Revised (02-20-2008) [Top]USCIS has revised the filing instructions for a Petition for Alien Relative (I-130). Effective February 19, 2008, all stand alone 1-130 petitions must be filed with the Chicago Lockbox instead of a USCIS Service Center. Petitions filed at the Chicago Lockbox will then be routed to and adjudicated at the appropriate USCIS Service Center. This routing will be based on the petitioner’s place of residence in the United States. The petitioners will receive receipt notices from either Vermont or California Service Centers. Processing of Adjustment of Status Applications (02-13-2008) [Top]USCIS announced that the Service Centers are conducting “sweeps” to find adjustment of status cases (I-485), which may be adjudicated under the recent changes in background check procedures (announced on February 4, 2008). USCIS is requesting that no inquiry about such a case be submitted until April 30, 2008. USCIS is hoping that by then it will have identified and taken action on cases that can be adjudicated. New Pilot Adjustment Processing System (02-13-2008) [Top]Until recently, each application in a concurrently filed package (I-140 and I-485 including I-131/I-765, if any) was separated and reviewed by a different officer. Recently, USCIS at the Texas Service Center established a “PLUS Pilot” Program for adjudicating concurrently-filed adjustment of status applications. Under this program, one officer will review the “package” as a whole. This will eliminate repetitive steps in the adjudication process. An attorney/applicant may now receive a Request for Evidence (RFE) that requests information on more than one application in the same envelope. Approximately two weeks have passed since this program began. USCIS has indicated that more recently filed cases may be completed more quickly than “older” cases. USCIS is requesting that no inquiry about case status be sent unless an application is beyond the published processing times. H-1B Cap Filings (02-13-2008) [Top]USCIS expects that the cap-subject H-1B visa petition volume will be similar to last year. Although, H-1B Premium Processing is still available, it may be suspended for a period of time. USCIS will notify of any changes in filing Premium Processing of H-1B cap subject petitions. USCIS advises that if a case is filed with Premium Processing it may not necessarily adjudicated in the fifteen-day period, if the program changes. USCIS is developing a regulation prohibiting the filing of duplicate H-1B cap subject petitions. This regulation will define what is considered a “duplicate petition”. Cap subject H-1B visa petitions should be filed based on the jurisdiction of the worksite. Cases that are filed at a wrong Service Center will be rejected. E-filing will not be available for H-B petitions, including cap exempt. Revised DHS Policy on FBI Name Checks (02-12-2008) [Top]USCIS conducts background checks on all applicants, petitioners, and beneficiaries seeking immigration benefits. A recent USCIS Memorandum from Michael Aytes (Associate Director, Domestic Operations) dated February 4, 2008 modifies the existing procedure for adjudicating certain pending applications (including I-485s) in cases where the FBI name check has been pending for more than 180 days. According to this new guidance, an application otherwise approvable, which has been pending for more than 180 days since the date of the name check initiation (in most cases is the same as the filing date, however, not always), may be adjudicated. If derogatory or adverse information is received from the FBI after the application is approved, the USCIS will determine if rescission or removal proceedings are appropriate and warranted. However, there is no change in the requirement that the FBI fingerprint check, IBIS check and FBI name check results be obtained and resolved prior to the adjudication of an Application for Naturalization (N-400). USCIS Update on Filing EAD Extensions (02-05-2008) [Top]USCIS announced that an EAD extension (Form I-765) may be filed no earlier than 120 days from the date of current EAD expiration. Applications for EAD extensions filed more than 120 days from the date of expiration received by USCIS on or after January 29, 2008 will be denied. Centralized filing for certain H-1B Cap Exempt Petitions (01-31-2008) [Top]USCIS announced on January 30, 2008, that it would employ a special unit at the California Service Center dedicated to processing all H-1B cap exempt cases (cases not subject to the H-1B visa numerical limitations). H-1B “cap exempt” petitions include the following:
These H-1B “cap exempt” visas are encouraged to be filed at the following mailing address: U.S. Citizenship and Immigration Services DOL Backlog Elimination Centers Update (01-23-2008) [Top]DOL announced that nearly 364,000 cases have been processed at the Backlog Elimination Centers. Over 200,000 cases were certified, 17,000 cases were denied and the remaining balance of the cases were withdrawn/abandoned. Appeal levels were extremely low. Currently only approximately 200 cases are left that are in recruitment or awaiting Notice of Findings (NOF) response. These cases are being handled at the DOL National Office in Washington. The Dallas and Philadelphia Backlog Elimination Centers (BEC) are now closed and all completed cases have been transferred to federal records centers. Specialization of National Processing Centers (NPCs) (01-23-2008) [Top]In order to effectively manage the TEMP and PERM programs, DOL is planning to specialize the work of the two National Processing Centers (NPCs) beginning in the summer of 2008. Chicago will handle only temporary cases and Atlanta will handle only permanent cases. DOL acknowledged that the NPCs have been issuing more audits in the last few months. DOL also stated that the normal processing time of a “clean” case is still within 45-60 days. New Entry Requirements (01-23-2008) [Top]The U.S. Department of Homeland Security reminds travelers that beginning January 31, 2008, when seeking to enter the U.S., travelers who are 19 years and older can no longer give an oral declaration alone to prove identity and citizenship. Travelers will be asked to present documentation from a specified list of acceptable documents when entering the U.S. at land and sea ports of entry. Examples of such documents may be birth certificates and driver’s licenses. A complete list of acceptable documents is available to travelers at ports of entry and is also available at www.cbp.gov. Travelers who do not present one of these documents may be delayed while U.S. Customs and Border Protection (CBP) Officers attempt to verify identity and citizenship. Children who are 18 years and under will only need to present a birth certificate. UPDATES from DOL (01-14-2008) [Top]DOL announced that from October to December 2007, it received 20,667 PERM Labor Certification (LC) Applications. Of these: 12,532 were certified; 2,802 were denied; 819 were withdrawn. As of December 31, 2007, DOL had 23,000 active PERM cases: 37% of these cases are under Final Review; 44% under Audit Review; 14% under Reconciliation/Appeal and 5% under sponsorship. During the period of October 1, 2006 to September 30, 2007, approximately 85,112 PERM LC cases were certified: 65% of these cases are foreign workers on H-1B visas. These cases were geographically distributed as follows: 20,222 from California 8,843 from New York, 6,594 from New Jersey, 6,534 from Texas, and 5,128 from Florida. PERM Labor Certification Applications were processed for alien beneficiaries representing 176 different countries. The top 10 countries of citizenship of alien beneficiaries included India (24,573), China (6,846), Mexico (6,442), South Korea (5,159), Canada (4,837), Philippines (4,821), United Kingdom (1,811), Taiwan (1,503), Pakistan (1,486) and Columbia (1,482). DOL is expecting to implement the re-engineered ETA Form 9089 by summer of 2008. VISA BULLETIN UPDATE FOR FEBRUARY (01-09-2008) [Top]The Department of State (DOS) published its Visa Bulletin for February 2008. Due to the high demand for visas, starting February 1, 2008, no visa number will be available for the Second Preference Employment Based cases for India until October 2008. Therefore, USCIS will not be able to adjudicate any pending Permanent Residence Applications (I-485s) for this category for India starting February 2008, unless a visa number was obtained in the file previously during case review, for example where a case is pending a response to an RFE (Request For Evidence). Visa Number availability for Third Preference Employment Based cases for all countries has not substantially changed: http://travel.state.gov/visa/frvi/bulletin/bulletin_3925.html Updates Provided by USCIS on 12-13-2007 (01-08-2008) [Top]Delays in Issuing Receipt Notices Due to the significant increase in filings in July 2007, USCIS is still working on issuing some receipt notices for I-751, N-400 and I-130 applications. It is anticipated that USCIS will complete issuing the remaining receipts in January 2008. USCIS has assigned staff to work on the issue of creating an EAD/AP joint document that may be issued in multiple year increments. USCIS would likely to grant multiple year documents to those applicants affected by visa quota retrogression. H-1B Cap Filing Procedures for Fiscal Year 2008 USCIS will make minor changes related to filing procedures such as envelope identification information, cap vs. non-cap, address information, etc. There is not enough time for USCIS to request any significant regulatory changes to the filing procedures. However, USCIS has requested a regulatory change to allow USCIS to deny both the initial and the second filing of an H-1B petition, if it is determined that the petitioner has filed a “duplicate” petition. At this time, USCIS is not permitting skeletal H-1B cap case filings. Security Checks Update As a result of joint efforts of the FBI and DHS, USCIS has seen some progress in the clearance of long pending security checks. USCIS indicated that the inventory of pending security checks is down by 8%. Reinstatement and Expansion of Premium Processing USCIS announced that I-140 processing will be reinstated after the receipting backlog is eliminated. USCIS also indicated that an expedite request made solely on the basis that a beneficiary’s H-1B visa status will expire without I-140 approval does not qualify for expedited handling under established USCIS expedite criteria. In the future, USCIS may create a second tier of premium processing service – less expensive with a slightly longer processing time. This idea is under discussion only, not an imminent change. |