December 2008
The U.S. Department of Security, Citizenship and Immigration Service Revises The Employment Eligibility Verification Form I-9.
The Interim Final Rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. An expansive document list makes it more difficult for employers to verify valid and acceptable forms and to single out false documents compromising the effectiveness and security of the Form I-9 process. The changes included in the Interim Final Rule will significantly improve the security of the employment eligibility verification process.
The Interim Final Rule and an informational copy of the revised Form I-9 will be available for public comment at www.regulations.gov for 45 days after publication in the Federal Register.
August 2008
House of Rep. Immigration Subcommittee Passes Bill to Recapture Employment Based Immigrant Visas
Friday, 01 August 2008
In a move hailed as a remedy to the long delays for employment-based green cards, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law advanced legislation (H.R. 5882) to "recapture" both employment-based (EB) and family-based green cards that Congress authorized in the past but that went unused before the end of the fiscal year because of government processing delays.
July 2008
NEWS FLASH! India and China EB2 Priority Dates Advance 24 months in August
2008!
Tuesday, 15 July 2008
The Department of State Visa Bulletin for August
2008 has some extremely good news and extremely bad news!. The good news is that the employment-based second preference category
(EB2) for India and China has leaped forward from a cut-off date of April 1, 2004 in July 2008 to a cut-off date of June 1,
2006 for the month of August 2008.
What this means is that persons, otherwise to file an application for adjustment of status through filing an I-485 application with USCIS, or eligible for an immigrant visa, may file I-485 applications during August 2008 if the established priority date is prior to June 1, 2006. Of course, tens of thousands of I-485 applications are expected to be filed during August. It is not yet known whether the June 1, 2006 cut-off (priority) date will continue through September. Thus, all eligible persons should file adjustment applications during August 2008.
The bad news is that both employment based third preference and employment based "other worker" categories are expected to be unavailable worldwide until October 1, 2008.
During fiscal year 2009 (October 1, 2008 through September 30, 2009), movement in the India and China EB2 and EB3 categories will be slow. In fiscal year 2009, there will be a worldwide limit of 140,000 to 145,000 employment based immigrant visas, approximately 17,000 fewer employment based immigrant visa numbers that are available during the current fiscal year 2008.
As of October 1, 2008, the June 1, 2008 cut-off dates are expected to apply to EB3 and EW cases worldwide. This means that applicants worldwide, including India and China, who established an EW priority date prior to January 1, 2003, will again be current as of October 1, 2008.
The EB3 cut-off date worldwide will be March 1, 2006; with the exception of China, India, Mexico and the Philippines. The China EB3 cut-off date is expected to be March 22, 2003 as of October 1, 2008; the India EB3 cut-off date is expected to be November 1, 2001; the Mexico EB3 cut-off date is expected to be July 1, 2002 and the Philippines EB3 cut-off date is expected to be March 1, 2006.
Our astute readers born in India or Mexico may wonder why the lower category, EW (Other Worker) has a later priority date than the EB3 and wonder whether they can file an EW I-140 petition, in addition to an EB3 petition based on the same PERM or Alien Labor Certification. The answer is yes. One can always fall down, but it is more difficult to fall upward in the immigrant visa number pool. Thus, those patiently waiting in the EB3 Indian or Mexican queue for a green card can file an additional I-140 petition in the EW category.
H-2B CAP FOR "SEASONAL WORKERS" REACHED FOR HALF OF FY2009
On July 30, 2008, USCIS announced that it reached the H-2B cap for the first half of fiscal year 2009, and that July 29, 2008 is the "final receipt date" for new H-2B worker petitions requesting employment start dates prior to April 1, 2009. Accordingly, USCIS will reject petitions for new H-2B workers seeking employment start dates prior to April 1, 2009 that arrive after July 29, 2008. The H-2B visa category allows U.S. employers in industries with peak load, seasonal, or intermittent needs to augment their existing labor force with temporary workers. Congress set a numerical limitation of 66,000 visas per fiscal year.
Typically, H-2B
workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food
service/processing, and resort/hospitality services. In 2005, the annual numerical limitations of 66,000 were divided into
two halves. USCIS regulations allow for filings six months in advance. However, H-2B petitioners first must obtain a temporary
labor certification from the Department of Labor (DOL). DOL regulations stipulate that the application for temporary labor
certification may not be filed more than 120 days in advance. Thus, USCIS normally begins receiving H-2B petitions with employment
start dates for October in June or July. H-2B visas are still available for those with start dates beginning on April 1, 2009.
The caps for both H-1B professionals and H-1B foreign nationals with advanced
degrees from U.S. institutions were reached on April 7, 2008.
LCA AND PERM BACKLOGS REAPPEAR AT DOL
The
specter of significant backlogs, which plagued the Department of Labor (DOL) for many years, looms again in the realm of PERM
labor certification applications. After eliminating the monstrous backlog filed before March 28, 2005, it seems the DOL apparatchik
- at least from where we sit - is more focused on ensuring job security for DOL employees than for workers in the United States
and the businesses that need them to continue to operate in America. In recent weeks, labor condition attestations needed
for H-1B petitions and PERM labor certifications needed for immigrant visas have become log jammed at DOL. DOL has stated
that labor condition applications are likely to take up to seven days for adjudication. PERM labor certification cases being
audited by DOL are facing almost an 18-month wait, with DOL now reviewing cases with priority dates of March 2007. Even in
PERM cases where motions to review have been filed for clear government error, the wait is not significantly shorter. Beyond
the obvious, the delays in PERM cases may cause significant status problems for those who wait, including "porting"
problems for some H-1B workers. PERM labor certification delays are not likely to improve anytime soon and are predicted to
get worse before they get better. Moreover, automatic denials are becoming more and more prevalent even for cases that heretofore
were routinely approved. In light of these disheartening trends, human resource and other managers should monitor applicable
cases closely.
NEW PASSPORT CARD BEING ISSUED
BY DOS AND DHS FOR BORDER CROSSERS
The Departments of State
(DOS) and Homeland Security (DHS) have finally begun issuing the new U.S. passport card to some 350,000 Americans who preordered
them. The passport card is a wallet-sized document to be used for land and sea travel between the United States and Mexico,
Canada, the Caribbean, and Bermuda.
Beginning in June 2009, travelers will be required to present a single Western Hemisphere Travel Initiative (WHIT)
compliant document denoting both citizenship and identity when entering the United States through a land or sea border. While
the new card is WHIT compliant for this purpose, it is not valid for international travel by air where regular passport books
must be used. (It is acceptable as a "List A" document for I-9 purposes.) The passport card is available for $45
for first-time adult applicants and $35 for children under 16. Adults who currently have valid passports can apply for the
passport card by mail for $20. DOS expects to issue passport cards within four weeks of application.
Implementation of the passport card is one of several initiatives that DOS must undertake
in order to implement new document requirements for travelers entering the United States from within the Western Hemisphere
under WHIT. In 2007, in response to new air travel document requirements, DOS received a record number of passport applications
- which it was unprepared to process. With further document requirements scheduled to go into effect in June 2009, DOS has
been advised to undertake a comprehensive strategy to improve long-term passport operations.
NEW TB TESTING AND OTHER VACCINATION REQUIREMENTS (FORM I-693) FOR ADJUSTMENT
OF STATUS APPLICANTS
U.S. Citizenship and Immigration Services
(USCIS) has revised its list of vaccines required for applicants seeking to adjust status to become legal permanent residents,
and changed its Tuberculosis (TB) testing and treatment requirements. The requirements for new vaccines for Rotavirus, Hepatitis
A, Meningococcal, Human papillomavirus, and Zoster went into effect on August 1, 2008. These new vaccinations must be administered
in order for USCIS to approve the applicant for adjustment of status. USCIS's new Tuberculosis (TB) testing and treatment
requirements, effective June 1, 2008, now include a requirement for chest x-rays for applicants with a skin test reaction
(TST) and the completion of a full course of TB treatment before receiving medical clearance for adjustment of status.
USCIS advises that, generally, adjustment applicants who have had their medical
exam before the new TB or vaccination requirements went into effect will not be required to have a new medical exam. All new
medical examinations completed on or after August 1, 2008, however, must comply and must be recorded by civil surgeons on
USCIS's revised, June 5, 2008 edition of Form I-693, Report of Medical Examination and Vaccination Record.
HIV GROUND OF INADMISSIBILITY REMAINS LAW EVEN THOUGH PROVISION
IS EXPRESSLY ELIMINATED IN INA
On July 30, 2008, President
Bush signed into law an emergency AIDS relief bill, which amends and eliminates from one section of the immigration laws a
provision that includes Human Immunodeficiency Virus (HIV) as a basis to deny admission to the United States. However, rather
than repealing outright this ground of inadmissibility for those who are HIV-positive, the amendment returns the authority
to the Department of Health and Human Services (HHS) to determine whether individuals with HIV have been "determined
to have a communicable disease of public health significance" and should be permitted to travel to the United States.
HIV continues to be listed as a communicable disease of public health significance under HHS regulations; thus, HIV-positive
foreign nationals remain inadmissible and the requirements for the waiver of inadmissibility remain unchanged. Nonetheless,
this is an essential step towards eliminating the bar to admission for HIV-positive foreign nationals.
Over the years, the HIV ground of inadmissibility has barred thousands of nonimmigrants
from entering the United States, including medical professionals and researchers who, for example, sought to enter to attend
international HIV conferences and workshops. Others who gained entrance have had to apply for and obtain a costly waiver of
inadmissibility, which also added months of waiting. While visitors, temporary workers and other nonimmigrants to the U.S.
currently are required to apply for this waiver, they are not required to have a qualifying relative in order to be eligible
for such a waiver. Conversely, green card applicants infected with HIV must have a relationship with a qualifying relative
in order to apply for a waiver and then obtain approval before they can adjust to permanent resident status and obtain lawful
permanent residence. Thus, a waiver of this medical ground of inadmissibility is only available to an immigrant visa applicant
who has a close family member (spouse, child, or parent) who is a U.S. citizen or lawful permanent resident, or recipient
of an immigrant visa. So, for example, an unmarried world-renown AIDS/HIV researcher working at the National Institutes of
Health whose foreign national parents live abroad could not attain lawful permanent resident status despite sponsorship from
NIH.
Advocates have been lobbying to eliminate HIV as a ground
of inadmissibility for years, given that other measures are already in place to ensure that persons infected with HIV do not
pose a medical or economic risk to the United States. Opponents have alleged that HIV infected individuals might seek public
benefits even though those individuals, like all other applicants for admission to the United States, also must prove that
they will not become a public charge. This ban on travel for such individuals created one of the world's harshest immigration
policies, and placed the U.S. with the likes of Iraq, Libya, Syria and eight other countries that also ban such travel.
HHS must remove HIV from its regulatory list before prospective nonimmigrants
and immigrants will no longer be required to obtain a waiver of health-related inadmissibility for HIV.
HOUSE OF REPRESENTATIVES PASSES E-VERIFY EXTENSION FOR FIVE
YEARS
In late July 2008, the House of Representatives
passed a five-year reauthorization of the E-Verify program, the government-run electronic employment verification system.
The voluntary program is due to expire at the end of November.
Rep.
Zoe Lofgren (D-CA), chair of the House Immigration Subcommittee, and other House leaders expressed their concerns with the
enforcement-only program and have wanted to change it fundamentally. But, concerned that that would entail a more contentious
debate among lawmakers and require more legislative time, they also felt that it would be counterproductive to let E-Verify
expire. Lawmakers will have to wait until next Congress to determine whether E-Verify should be expanded, overhauled or terminated.
By proposing and passing an extension of the current system, the Democratic leadership forestalls at least one pending bill
that would make E-Verify permanent and mandatory for all employers.
In
addition to extending the program, the bill that was passed authorizes the Government Accountability Office (GAO) to conduct
two studies of the E-Verify system, one to examine the causes and effects of errors in the program, and the other to study
the experiences that small businesses, nonprofit organizations and municipalities have using the program. The bill now goes
to the Senate for its consideration.
In the absence of more comprehensive
immigration reform, the Bush administration, many Republicans and conservative Democrats have emphasized work-site enforcement,
and several states have implemented E-Verify mandates with varying results. Employers, however, have voiced their criticism
of E-Verify, calling it inefficient, prone to error and unable to detect identity theft. Others have argued that mistakes
in the Social Security database could lead to millions of Americans mistakenly being declared ineligible to work. So far,
69,000 companies have signed up for the voluntary program.
As the chance
for enactment of a stand-alone employment verification bill fades, so too fades the prospect for a bill to expand immigration
for highly skilled workers before the November elections. And, it now appears unlikely that the Defense Authorization bill
will be a viable legislative vehicle for targeted immigration measures
June 2008
Premium
Processing To Be Restored to some I-140 Petitions on July 16, 2008!
Wednesday,
11 June 2008
USCIS announced on June 11, 2008 that I-140 petitions may be processed under
Premium Processing on payment of an additional fee of $1000.00.
Premium
processing should be available for those beneficiaries whose H will expire within 60 days of filing the request, and who need
the I-140 approval to become eligible for that additional H time. An official notice has not yet been issued by USCIS. Further
details will be posted as they become available. It is not clear whether this ruling applies to all categories of I-140 petitions
or only those I-140 petitions previously accorded the premium processing option (EB1 outstanding researchers or professors,
EB1 Extraordinary Ability, EB2 (other than NIW petitions) and EB3).
H-1B Lottery Completed for this Year!
Tuesday, 10 June 2008
USCIS has announced that it has selected all winners of the H-1B lottery for fiscal year 2009. The winners
should have received receipts by mid-June.
It is a sad commentary that so many U.S. businesses will be left out in the cold for yet another year, costing our economy thousands of jobs for U.S. workers which are created by the employment of H-1B workers. Our readers should contact their Congressman and tell their personal story of hardship as a result of the annual 14-16 month blackout on H-1B visas. You may locate your Congressman at: www.congress.org.
May 2008
News Flash! J-1 Physician Legislation Passes House of Rep. on May 21, 2008
Tuesday, 27 May 2008
The House of Representatives passed H.R. 5571 on the suspension
calender on May 21, 2008. The bill extends the Conrad State 30 J-1 Physician Waiver Program for an additional five years,
until June 1, 2013.
It also increases the number of FLEX 5 slots from five slots per year to ten slots per year per
state. Each state department of health may award five of the annually allotted 30 J-1 physician waiver slots per year to physicians
not physically located in medically underserved areas but who treat patients who reside in underserved areas. The increase
will benefit states who do not currently use their thirty slots and teaching hospitals.
A similar bill has been introduced in the Senate (S. 2672) which has a number of more beneficial provisions and we would urge all our readers to contact their Senators and Congressperson and urge them to support the Senate Bill. We suggest you email, call and fax your Congressional representatives. You may locate your Congressperson by clicking on: www.congress.org.
The provisions include:
1)Permanent reauthorization of the Conrad State 30 program. We are all relieved to finally have this wonderful program up for permanent reauthorization.
2) Allowing physicians who completed residency and fellowships in H-1B status to use State 30 slots. In return for working in medically underserved areas, the H-1B physician can obtain the following benefits:
-Exemption from the H-1B Cap. This is particularly valuable when physicians will be employed by for-profit groups.
-Exemption from the six year limit of time permitted in H-1B status.
-Exemption from the employment-based green card quotas.
3) Increase in Flex 5 slots from 5 to 10. The total annual limit of Conrad State 30 physician Waiver would continue to be 30, but 10 of the 30 could be used for physicians employed at facilities not physically situated in underserved areas, as long as the physician serves patients who live in an underserved area.
4) Increase in per state allotment. If 90% of the national total of State 30 waivers are filled in a given year, the number of physician waivers allowed per state would increase to 35. Then if 90% of the adjusted total of nationwide waivers were filled, the per state allotment would increase to 40, with upward adjustments permitted under the formula. The per state cap would reset to 30 at the beginning of each year.
A full summary follows:
Conrad State 30 Improvement Act
The Conrad State 30 program allows foreign doctors on J-1 visas to obtain a waiver of the J-1 requirement to return to their home country for two years, if they agree to serve for 3 years in an underserved area in the U.S. Each state is allowed 30 such waivers. In recent years, almost 1000 additional doctors have annually begun practicing in underserved communities in all 50 states as a result of the Conrad 30 program. The Conrad State 30 Improvement Act would make this successful program permanent and implement various reforms intended to increase the number of the doctors in underserved areas. Below is a section-by-section summary of the bill.
Section 1. Title- Conrad State 30 Improvement Act
Section 2. Permanent Authorization- Make the Conrad 30 program permanent. Since its inception in 1994, the program has been repeatedly reauthorized on a temporary basis.
Section 3. H-1B Participation & Increase in Per State Allotment
H-1B Participation- Allow doctors who come to the U.S. on an H-1B visa to obtain a Conrad 20 waiver slot. Currently, only J-1 doctors are eligible for the program. There would be no new slots created initially; the H-1B doctors would simply be incorporated into the current 30 waiver per state system. H-1B doctors do not have a requirement to return home, so in return for their 3 years of service in the Conrad 30 program, these doctors would receive an exemption from:
a) H-1B caps (helpful for those doctors who originally obtained an H-1B visa through a cap-exempt employer, but wish to stay in the U.S. when their employment with such employer terminates, and would thus be subject to the H-1B caps if seeking employment with a nonexempt employer);
b) the 6-year limit on H-1B visas; and
c) green card caps (see section 4 below).
Increase in Per State Allotment- If 90% of the nationwide waivers are filled in a given year, the number of waivers allowed per state would increase to 35. then if 90% of the adjusted total of the nationwide waivers were filled, the per state allotment would increase to 40, and so on indefinitely. Only states that received at least 5 waivers in any of the three pervious years would be included when calculating the 90% threshold. The per state cap would reset to 30 at the beginning of each year.
Section 4. Green Card Cap Exemption- Green card cap exemptions for doctors who have completed the Conrad 30 Program. Due to current caps, many doctors face extremely long waits to obtain green cards, because a very high percentage of doctors come from heavily oversubscribed countries, such as India. A cap exemption would provide an important incentive for doctors to practice in underserved communities.
Section 5. Increased
Flex Slots- Increase the number of "flex slots" from 5 to 10. Currently, states can use 5 of their 30 slots for
doctors employed at facilities not actually located in an underserved area, as long as such facilities serve patients who
live in an underserved area.
New Application Form for Nonimmigrant Visas
Being Phased In at Consular Posts!
Friday, 02 May 2008
Effective April 29th, 2008, the Department of State has introduced Form DS-160, an electronic Non-Immigrant Visa (NIV) application,
as an alternative and eventual replacement to Electronic Visa Application form ("EVAF") DS-156. Form DS-156 has
long been the application that foreign nationals submit for visa issuance at US Consular Posts and remains available unless
otherwise noted by a US Consulate.
The procedure for completing the new DS-160 remains the same except, the visa applicant will no longer be required to print and sign the form to submit at the time of visa interview. The applicant will be required to submit an electronic signature instead. The electronic signature is binding on the applicant and sereves as an attestation by the applicant under penalty of perjury.
While a third party may help in the preparation of the new form, the applicant must electronically sign the application themselves. Those applicants that are under the age of 16 or physically incapable may have their applications executed by a parent, guardian or any person having legal custody or legitimate interest in the application.
Biometrics will serve to authenticate identity and any additional statements made by the applicant at the time of interview will become a part of the visa application as recorded by the consular officer.
The new form DS-160 is not in wide use at this time and is only being required at select US consular posts. Prior to attending a visa interview foreign nationals should ascertain whether the post has implemented use of Form DS-160.
USCIS
Modifies Report of Medical Examination
Friday, 02 May 2008
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has revised Form I-693, Report of Medical Examination and Vaccination Record. The revision was necessitated by changes to the Tuberculosis (TB) Component of the Centers for Disease Control and Prevention’s Technical Instructions for Civil Surgeons.
This revised form (edition
date 04/02/08) must be used for any medical examination completed on or after May 1, 2008. Previous editions of the Form I-693
may not be used on or after that date.
The medical examination Form I-693 provides USCIS results of a medical examination for applicants filing for adjustment of status to become permanent residents. The examination is required to ensure that an applicant is not inadmissible to the United States on public health grounds.
The new form lists seven TB classifications at the bottom of its first page. Civil surgeons must record the results of all medical examinations conducted on or after May 1, 2008, on the new form. Additionally, the current vaccination supplement will not be accepted for any vaccination assessment completed on or after May 1, 2008. An updated vaccination supplement has been included in part 2 of the revised form.
The
revised TB Component of the Technical Instructions is available for review at www.cdc.gov/ncidod/dg/civil.htm. For more information on the revised Form I-693, visit USCIS’ Website at www.uscis.gov or call the National Customer Service Center at (800) 375-5283.
For May, 2008
USCIS
PROPOSAL TO INCREASE INITIAL PERIOD OF STAY FOR CANADIAN AND MEXICAN TN PROFESSIONALS TO THREE YEARS
Canadian and Mexican citizens seeking temporary employment
in the United States may be admitted in TN nonimmigrant status under the North American Free Trade Agreement (NAFTA). Although
somewhat similar to H-1B classification, individuals granted TN status can only remain in the United States for one year before
seeking readmission or obtaining an extension of stay. In its new proposal, USCIS would extend the maximum period of admission
to three years, the same term USCIS currently may grant to H-1B professional workers. The rule would also allow TN nonimmigrants
to be granted an extension of stay in increments of up to three years. Current rules only permit a maximum of one year. Thus,
TNs must currently seek readmission or extensions every year. The proposed rule is a much needed and welcome change, one that
will ease administrative and financial burdens on employers and employees, alike.
NEW MEDICAL FORM MUST BE USED AFTER MAY 1, 2008
USCIS announced in mid April that
its revised Form I-693, Report of Medical Examination and Vaccination Record (dated 4/02/08), must be used for any medical
examinations completed on or after May 1, 2008 because the new form includes changes to the TB component of the medical exam,
as required by the Centers for Disease Control. Those individuals that have received an older medical form but have not yet
seen a doctor must now obtain a new form.
SLIGHTLY SHORTER NATURALIZATION PROCESSING TIMES
USCIS reported in early April that it projected a 13-15 month window for
processing naturalization cases, an improvement over earlier projections of up to 18 months. An expanded workforce is largely
responsible for the agency's ability to shave off months from more than a year long wait. Additionally, USCIS and the
FBI are placing a priority on the reduction of backlogged naturalization cases - a welcome show of interagency cooperation
- which certainly must be attributing to greater efficiency. As previously reported, USCIS saw a surge of 1.4 million additional
naturalization applications in 2007 - 3 million naturalization applications were filed during the summer of 2007 compared
to 1.8 million during the same period in 2006. Before this surge, the time it normally took to adjudicate naturalization applications
was seven months.
ICE PROPOSES TO INCREASE FOREIGN STUDENT AND EXCHANGE VISITOR FEES
Immigration and Customs Enforcement (ICE) issued a proposed rule to increase
fees that will affect F-1 foreign students and J-1 exchange visitors. Under the proposal, SEVIS application fees will increase
to $200 for F-1 students and $180 for most J-1 exchange visitors. ICE expects to finalize its proposals and make them effective
October 1, 2008.
DHS PROPOSAL WOULD REQUIRE AIRLINES AND VESSELS TO COLLECT BIOMETRICS FROM EXITING FOREIGN NATIONALS
The Department of Homeland Security (DHS) has proposed a rule that would
require commercial airline and vessel carriers to collect biometrics from foreign nationals subject to US-VISIT requirements
upon their exit. Currently, the majority of non citizens are required to submit biometrics upon admission into the country.
This new rule would require such individuals also to provide biometrics when departing the country. DHS expects to implement
air and sea biometric exit procedures by January 2009.
DOS TO ROLL OUT NEW ELECTRONIC NONIMMIGRANT VISA APPLICATION,
FORM DS-160
The Department of State (DOS)
recently announced, by final rule, its plan to begin using a new fully electronic nonimmigrant visa application, Form DS-160.
The new form will be rolled out over time and is being tested as a pilot in Monterrey and Nuevo Laredo, Mexico. The new form
is designed to remedy flaws with the current nonimmigrant visa application form, DS-156, which applicants fill out on the
DOS web site.
The current electronic system generates
a bar code containing only certain fields of data, and the government site does not electronically collect or retain the data
entered on the form. The applicant must print out a hard copy of the form for his or her interview. When the applicant presents
the printed form at visa interview, she or he also presents the bar code page, which is then scanned in the system, the DOS
Consular Consolidated Database (CCD).
With the DS-160,
an applicant will fill out the DS-160 and actually submit the data online. Moreover, the data will be stored into a government
database, presumably the CCD, as a nonimmigrant visa application. In addition, the DS-160 has been designed as a "smart"
form; in other words, the data the user provides in particular fields can populate other sets of data fields that may also
be required on other applications. Unlike the current DS-156, draft forms can be saved and forwarded back and forth between
applicant and attorney. However, the rule requires that the applicant - not the attorney - actually submit the form (click
the "submit" button), which also serves as an electronic signature. The new form also consolidates information contained
in other DS forms, including DS-157 and DS-156E forms.
For
the current time, Form DS-156 will continue to be accepted as DOS tests and rolls out its new fully electronic form at other
consular posts.
For April, 2008
USCIS Conducts Random Selection Processes for All Cap Subject H-1B Petitions
April 15, 2008 - On April 14, 2008, U.S. Citizenship and Immigration Services (USCIS) conducted the computer-generated random selection process for all FY2009 cap-subject H-1B petitions, first on petitions qualifying for the 20,000 advanced degree category, and second on the general H-1B pool of petitions for the 65,000 cap. (Advance degree petitions that were not selected during the first selection were combined with the general pool of H-1B petitions.) According to USCIS, approximately 163,000 petitions were received during the five-day filing period - about the same number as last year but somewhat lower than what had been anticipated.
USCIS also advised that the 15-day adjudication period for cases filed for "premium processing" began on April 14th. Non-premium cases selected for adjudication, according to USCIS, will be processed within six to eight weeks, and petitioners should receive a receipt notice dated no later than June 2, 2008.
Finally, USCIS has "wait-listed" certain H-1B cap filings; in other words, these wait-listed filings may replace those petitions chosen to receive an FY2009 cap number but that have been subsequently denied, withdrawn, or otherwise found ineligible. According to USCIS, a letter will be sent to wait-listed petitioners advising them of their status, and USCIS expects that it will issue either a receipt notice or return the petition with fees within six to eight weeks.
We will provide further updates on this topic as they become available.
H-1B Cap Reached For General and "Advanced Degree" Petitions For FY 2009
April 08, 2008 - U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009, both in the general category (65,000) and under the "advanced degree" exemption (20,000). This means that no additional, general, cap-subject H-1B petitions for temporary professional workers can be filed until April 1, 2009, absent a legislative fix. (H-1B petitions for cap-exempt visas remain available.)
What happens next? USCIS will now run its computer-generated random selection process, but it first will complete initial data entry for all filings received during the filing period that ended on April 7, 2008. According to its March rules, the selection process for "advanced degree" exemption petitions will be run first, and all "advanced degree" petitions not selected will be part of the random selection process for the 65,000 general category limit. USCIS has not yet announced when it expects to conduct these random selection processes.
As previously announced, USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate. Duplicate petitions will be denied, i.e., the filing fees will not be returned.
DHS Rule Extends OPT for Certain F-1 Students
On April 4, 2008, the U.S. Department of Homeland Security
(DHS) issued an interim final rule which allows for the extension of post-graduation optional practical training (OPT) employment
authorization for many F-1 students, including individuals whose OPT would expire prior to the effective date of a cap-subject
H-1B.
Perhaps most significantly,
the rule alleviates the so-called "cap-gap" problem for individuals whose F-1 status expires after the filing of
a cap-subject H-1B petition but prior to its effective date. The rule automatically extends the F-1 status and OPT employment
authorization of all F-1 students who are beneficiaries of approved or pending cap-subject H-1B petition and change of
status applications with a requested start date in the next fiscal year. Under the rule, such individuals' OPT is automatically
extended until October 1 of the fiscal year for which the H-1B has been requested, thus avoiding a gap in authorized stay
and continuous employment. Importantly, the automatic extension is only available for F-1 students who have been selected
for adjudication under the H-1B cap. Thus, individuals who are not beneficiaries of approved or pending H-1B petitions may
not avail themselves of this benefit. Note that per the language of the final rule, the foreign national's employer must
have requested a change of status on the H-1B petition. Thus, it appears that this provision does not apply to foreign nationals
whose employers have filed the H-1B petition with a request for consular notification. However, it may be possible to request
an amendment, from consular notification to change of status, and avail oneself of this benefit. Also note that the automatic
extension terminates immediately if the H-1B petition filed on the F-1 student's behalf is rejected, denied, or revoked.
Although not addressed in the final
rule, international travel before an H-1B change of status request is approved would invalidate the change of status, per
current DHS policy, and therefore may also invalidate an automatic extension of OPT. This is because the final rule states
that the automatic OPT extension is only available so long as a change of status request is pending or approved.
In addition, the interim final rule expands the maximum period
of available OPT from 12 months to 29 months for F-1 students who have earned a bachelor's, master's or doctoral degree
in a science, technology, engineering, or mathematics (STEM) field in the U.S. To be eligible for this additional period,
the STEM degree for which the F-1 student has secured his or her OPT must have been in one of the degree programs on the current
STEM Designated Degree Program List. Also, the student must be employed by an organization which is enrolled in DHS' "E-Verify"
program.
To obtain such an extension,
eligible F-1 students must request a recommendation from their Designated School Official (DSO) and thereafter file a Form
I-765, Application for Employment Authorization, prior to the expiration date of their current OPT employment authorization.
So long as the extension application is timely filed, the F-1 student's OPT is automatically extended for up to 180 days
until a final decision is made by DHS. Employers of such F-1 students are required to inform the student's DSO if the
student's employment ends prior to the expiration of the OPT. Similarly, students with approved 17-month extensions must
notify their DSO within ten days of any change in legal name, address, or employment status. They must also make a validation
report to the DSO every six months.
In addition to the above, the final rule implements changes related to the timing of initial OPT requests,
as well as periods of unemployment during approved OPT. Specifically, F-1 students may now apply for OPT during the 60-day
grace period following the completion of their studies. Previously, F-1 students were required to apply for post-completion
OPT prior to completing their degree requirements. Further, the rule limits the time in which an F-1 student may be unemployed
during the validity of their OPT. F-1 students who have been approved for a 12-month OPT now fall out of status if they are
unemployed for an aggregate period exceeding 90 days during their OPT time. Students who have been approved for a total period
of 29 months of OPT fall out of status if they have an aggregate period of unemployment of more than 120 days during the OPT
validity.
For March 2008
Urgent! H-1B Numbers Could Double! Contact Your Congressional Representative Today!
| Friday, March 21, 2008 | |
| A bill introduced last week by U.S.
Rep. Gabrielle Giffords would double the number of H-1B visas that allow immigrants to legally work in the United States. The Tucson Democrat's bill, known as the Innovation Employment Act, calls for increasing the limit of H-1B visas from 65,000 to year to 130,000 a year. The bill will eliminate the 20,000-a-year cap on visas for foreign graduate or doctoral- program graduates who study science, technology, engineering or math so this category will have an unlimited number of visas. Another bill submitted by U.S. Rep. Lamar Smith, R-Texas, would expand the annual visa limit even further to 195,000 for fiscal years 2008 and 2009." Arizona Republic, Mar. 19, 2008. To call your congressional representative please visit: http://www.congress.org/congressorg/officials/congress/?lvl=C Type in your zip code to find which member of congress represents your district. Once you have your congressman on the phone please tell them about the hardship to American businesses because of an inability to obtain the services of qualified H-1B workers. |
FY 2009 H-1B Filing Deadline of April 1, 2008:
Owing to the limited number of H-1B Visas available each fiscal year (65,000), plus 20,000 visas for H-1B filed for aliens with at least a Masters Degree from an Institution of Higher Education in the US, for H-1B Cap non-exempt cases, we are expecting the repeat of the previous two years when employers had to file their H-1B Petitions on April 01 with October 01 as the starting date of employment when the visa for the fiscal year becomes available. Thsi year will not be any different and anyone wishing to file an H-1B Petition, must file on April 1, 2008 with October 01, 2008 as the start date of employment. The foreign national must maintain his or her immigration status in the meantime until October 01, 2008.
USCIS Announces Interim Rule on H-1B Visas
Rule
Modifies Selection Process and Prohibits Multiple Filings
Washington
- March 19, 2008. U.S. Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal
Register today that prohibits employers from filing multiple H-1B petitions for the same employee. These changes will ensure
that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an
H-1B worker. To ensure a fair 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 and will not refund the filing fees submitted with multiple or duplicative petitions.
This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions
on behalf of the same alien for different positions, based on a legitimate business need. The interim final rule becomes effective
upon publication in the Federal Register.
Last August, President Bush announced that the Administration
would be undertaking a series of immigration and border security reforms. The changes to the H-1B filing process under this
rule are an important part of that initiative.
On April 1, 2008, employers may file petitions requesting H-1B workers
for fiscal year 2009 employment starting on October 1, 2008. For fiscal year 2009, Congress has set a limit of 65,000 for
most H-1B workers. Additionally, the first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt
from the cap. Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens
with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000
cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further
petitions subject to the cap.
This rule also stipulates that if USCIS determines the number of H-1B petitions
received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will
apply a random selection process among all H-1B petitions received during this time period. If the 20,000 advanced degree
limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting
the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random selection
will be considered with the other H-1B petitions in the random selection for the 65,000 limit.
The rule
further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits. Those
filing fees will not be returned.
This interim final rule can be viewed, along with additional information
on this rule and the H-1B program, at USCIS’ website at www.uscis.gov.
USCIS Issues TPS Extension Notice for Somalis
March 12, 2008 - In the Federal Register published on March 12, 2008, USCIS has issued a
Notice of TPS designation extension Notice to Somali nationals for 18 months through September 17, 2009, from its
current expiration date of March 17, 2008. It also sets forth procedures necessary for nationals of Somalia (or aliens
having no nationality who last habitually resided in Somalia) with TPS to re-register and to apply for an extension of their
employment authorization documents (EADs) for the additional 18-month period. Re-registration is limited to persons who have
previously registered for TPS under the designation of Somalia and whose applications have been granted or remain pending.
Certain nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) who have not previously
applied for TPS may be eligible to apply under the late initial registration provisions.
New
Conrad State 30 Legislation Introduced
Monday, 03 March 2008 | |
| Senator Conrad introduced a bill to reauthorize and improve the Conrad State 30 Physician
Waiver Program on February 27, 2008. Key points of the new legislation are: 1. The bill would permanently reauthorize the Conrad State 30 program. 2. The bill would allow physicians who completed residency and fellowship in H-1B status to use State 30 slots. In return for working in medically underserved areas, the H-1B physicians can obtain the following benefits:
a) H-1B caps (helpful for those doctors who originally obtained an H-1B visa through a cap-exempt employer, but wish to stay in the U.S. when their employment with such employer terminates, and would thus be subject to the H-1B caps if seeking employment with a nonexempt employer); Increase in Per State Allotment – If 90% percent of the nationwide waivers are filled in given year, the number of waivers allowed per state would increase to 35. Then if 90% of the adjusted total of nationwide waivers were filled, the per state allotment would increase to 40, and so on indefinitely. Only states that received at least 5 waivers in any of the three previous years would be included when calculating the 90% threshold. The per state cap would reset to 30 at the beginning of each year. Section 4. Green Card Cap Exemption – Green card cap exemptions for doctors who have completed the Conrad 30 program. Due to current caps, many doctors face extremely long waits to obtain green cards, because a very high percentage of doctors come from heavily oversubscribed countries, such as India. A cap exemption would provide an important incentive for doctors to practice in underserved communities. Section 5. Increased Flex Slots – Increase the number of “flex slots” from 5 to 10. Currently, states can use 5 of their 30 slots for doctors employed at facilities not actually located in an underserved area, as long as such facilities serve patients who live in an underserved area. |
Phone : 202-293-6198 Fax : 202-293-6198
E-mail: dhashim@hashim-immigration.com