Archive for June, 2009
Thursday, June 25th, 2009
USCIS announced this week that, effective June 29, 2009, the Service will resume Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker applications involving EB-1 Aliens of Extraordinary Ability, EB-1 Outstanding Researchers and Professors, EB-2 Members of Professions with Advanced Degrees, EB-3 Professionals, EB-3 Skilled Workers and EB-3 Workers other than Skilled Workers and Professionals.
Premium Processing will not be available to individuals applying for classification as an EB-1 Multinational Executive and Manager or those individuals applying for an EB-2 National Interest Waiver.
Under the program, USCIS guarantees petitioners that for a $1,000 premium processing fee they will issue a decision on the case within 15 calendar days of receipt.
Monday, June 22nd, 2009
Kweku from New Jersey just submitted a question about a pilot program at the USCIS Texas Service Center, which makes decisions in employment-based green card applications from residents of the Eastern United States:
I read about a PLUS Pilot program employed at the Texas service center (TSC) under which the entire I-140 and I-485 package is reviewed by one officer? Does this translate into faster processing times for the I-485 especially if your PD is current?
The aim of TSC’s PLUS Pilot Program is to adjudicate concurrently filed I-140/I-485 petitions within 90 days. To accomplish this, the same officer is adjudicating both the I-140 and the I-485. However, we have been told that the I-140 and I-485 units have not been merged, and not every concurrently filed petition is adjudicated under “the Plus.”
In our experience, only about 50% of concurrently filed petitions tend to receive this expedited review, which can result in a decision on permanent residence only three to four months after filing.
Readers are also well advised to consider that the faster decision may not be a grant, but may be a Request for Evidence, and that the purpose of the PLUS program is to make a fast decision whether to RFE the I-140 so as to avoid giving the applicant an employment authorization document and advance parole document if the officer is not sure that the I-140 can be approved.
Monday, June 22nd, 2009
This is a reminder from Klasko, Rulon, Stock & Seltzer that the days of the instant labor condition application (LCA) are over. Effective June 30, 2009, the new U.S. Department of Labor (DOL) iCert system for LCAs will completely replace the previous web-based system, eliminating same day LCA approvals. Instead, under the new system, DOL will use up to seven business days (or more) to certify the LCA, and early experience with the system indicates that DOL is taking all seven business days.
In a recent meeting of the American Immigration Lawyer’s Association (AILA), a top-level DOL official indicated that, if non-obvious errors or other problems with the LCA are detected, the decision on the LCA could extend beyond the seven days. At this meeting, Klasko Partner, Bill Stock urged the DOL to adhere to their own regulations and either deny or certify LCAs within the seven day period allotted by the regulations. However, DOL officials insisted that they could not currently provide processing times for LCAs that require further review.
What does this mean for employers? Well, this system change means that it will no longer be possible to prepare and file H-1B applications on short notice. Every employer filing an H-1B petition with the United States Citizenship and Immigration Service (“USCIS”) must first obtain an approved LCA from the DOL. In the LCA the employer is required to attest to paying the higher of the actual or prevailing wage, to providing working conditions that will not adversely affect the working conditions of workers similarly employed, that there is no strike or lockout in the course of a labor dispute in the occupational classification at the place of employment, that the employer has provided appropriate notice to bargaining representatives or employees and that the employer has completed and made available a file for public examination. A DOL approved LCA is a precondition to filing an H-1B petition with the USCIS, and as such is integral to obtaining H-1B status for employees.
In the era of iCert, advance planning will be a must. Employers should monitor the expiration dates of H-1B employees and allow sufficient time for the preparation and filing of H-1B extensions and amendments. This delay in filing will also impact the usefulness of H-1B portability, since an individual in H-1B status can only be authorized to work for the new employer upon the filing of the new petition, which requires a certified LCA. Under the new system, certification will add at least a week to ten days to that process. Unfortunately, employees who fall victim to the economy will also feel the impact of the delayed LCA certification timing, as it will delay their ability to file a new H-1B petition once they have obtained new employment.
Employers and employees can also expect that in the first weeks of use, there will continue to be technical glitches in the software. The delay in implementation of the iCert program reflects this fact.
If you have further questions on how iCert impacts your workforce, please schedule a consultation or contact one of the attorneys for more information.
Monday, June 15th, 2009
On June 10, 2009 the Department of Justice (“DOJ”) filed a request with the U.S. District Court for the Northern District of California for an extension until July 10, 2009 to file a memorandum in support of lifting the injunction against the implementation of the Social Security No-Match regulation. DOJ also requested an extension for filing its response to the plaintiffs’ motion for summary judgment.
In August 2007, a group of immigrant rights organizations as well as business and employer groups asked the federal court to enjoin the regulation from taking effect. In October of that year, a federal judge granted a preliminary injunction. Since that time the case has been in litigation.
Since taking office, Department of Homeland Security Secretary Janet Napolitano has requested the court to grant several extensions of time so that the government could prepare their pleadings in the case. According to court records, the extensions are aimed at providing Secretary Napolitano with sufficient time to review the regulation in the “context of the Obama Administration’s overall immigration enforcement policies.” Since the Obama Administration took office they have taken a step back from the Bush Administration’s focus on enforcement actions against unauthorized aliens. Rather, they have stated that their top immigration enforcement priorities are towards employers who hire unauthorized workers in violation of federal immigration law.
The Social Security No-Match regulation provides that an employer’s failure to take reasonable steps after receipt of a Social Security No-Match letter can lead to a finding that an employer had “constructive knowledge” of the fact that an employee is an unauthorized alien. Under the Rule, employers would be exposed to increased liability if they fail to take a prescribed course of action termed a “safe harbor” upon receipt of a no-match letter.
The rule, while temporarily prevented from going into effect by a federal court in California, in many ways is only a codification of obligations employers have had since 1986. The Rule requires employers to take certain affirmative steps to resolve questions about an employee’s employment authorization; if the employer fails to take those steps, it can be found to “know” that the employee was not authorized.
For more information on the no-match regulation and how I-9 compliance requirements affect your business please visit our website http://www.worksite-compliance.com.
Monday, June 15th, 2009
On June 10, 2009 the Department of State (DOS) issued an update on the number of employment based visas that will be available for the remainder of the fiscal year. The government’s fiscal year runs from October 1, 2008 until September 30, 2009. Each fiscal year there are a total of 140,000 employment based immigrant visas available across five preference categories.
As the result of a recent surge in applications in the employment based fourth preference (EB-4) religious worker and employment based fifth preference (EB-5) immigrant investor categories a cut-off date could be established at the end of the year. Moreover, usage of the EB-4 and EB-5 categories impacts the entire pool of visa numbers, as past practice has been to transfer unused number in these categories to meet demand for visas in the employment based first (EB-1) and second preference (EB-2) categories. This is particularly significant for nationals from China and India, as it permitted cut-off dates to advance further than it would have been possible if these categories were subject to only their annual limits.
The long term implications of EB-4 and EB-5 usage are that EB-2 China and India applicants will likely experience even longer delays in obtaining permanent residence status than they currently do. Both India and China have an annual limit of 2,800 EB-2 numbers plus any leftover EB-4, EB-5 and EB-1 visa numbers. Therefore, without legislative relief, the waiting time for Chinese and Indian EB-2 applicants may be many years or even decades, according to DOS.
DOS has indicated the following figures for the remainder of fiscal year 2009 per category:
EB-1 will remain current for the rest of the fiscal year. However, EB-1 applicants from China and India could be subject to cut-off in August or September if demand remains high.
EB-2 India and China have 1/1/2000 cut-off dates for July 2009 and may become unavailable in August or September 2009.
EB-3 worldwide will remain unavailable for the rest of the fiscal year. EB-3 cut-off dates for the next fiscal year beginning on October 1, 2009 will have cut-off dates from 3/1/2003, and EB-3 applicants can expect extended delays in this category.
EB-3 visas for India, China and Mexico applicants will be unavailable for the remainder of the fiscal year. It is estimated, based on current demand for visa numbers that as of the 2010 fiscal year, the following cut-off dates could be established: China will be March 1, 2003; India will be November 1, 2001; and Mexico will be March 1, 2003.
Saturday, June 13th, 2009
On June 9, 2009, a landmark change in U.S. immigration policy related to the “widow penalty” was issued in a press release from Department of Homeland Security Secretary Janet Napolitano. In it, she described a complete reversal on the part of the government that allows some benefits to the spouses of US citizens, who are penalized under current law if the U.S. citizen passes away before the couple has been married for two years.
Under current law, a foreign national who is married to a U.S. citizen can be the beneficiary of an immigrant visa petition, and on that basis can apply for a green card. The U.S. citizen can also petition for children who are unmarried and under the age of 18 in the same manner. However, the law provides that the widow/widower of a U.S. citizen can only benefit based on the marriage if they had been married for two years prior to the death of the citizen, they were not at that time legally separated, and the citizen actually filed an immigrant visa petition on their behalf. The rule is the same for children. The law allows for those married for more than two years prior to the death of their spouse to self-petition for an immigrant visa and then green card.
Litigation in several circuit courts has challenged this disparate treatment on behalf of widows whose US spouse passed away – some even killed in the line of duty – during DHS adjudication delays, and courts have held that DHS’s interpretation was not reasonable. The new policy partly implements these court decisions by providing some relief to these innocent spouses. (more…)
Tuesday, June 9th, 2009
The regional center EB5 program has increased in popularity significantly during the last couple of years. Perhaps this is a direct result of restrictive interpretations and quota delays in other immigration categories. But for many foreign nationals — retirees, graduating students with no jobs, employees whose employers will not sponsor them, and many others — it is not only the option of choice, but rather the only option.
At the same time, regional center EB-5 is a program that fits perfectly with the needs of our country in 2009.
- Providing capital at a time when capital is so tight
- Building infrastructure projects
- Creating employment at a time of massive unemployment
However, it is critical that both Congress and the Administration do what is necessary to make certain that this program thrives and doesn’t get relegated to the trash heap of failed government programs. My ideas for improving the program are after the jump. (more…)
Thursday, June 4th, 2009
KRSS’ attorneys will be in Las Vegas today through Saturday, attending the 2009 Annual Conference of the American Immigration Lawyers’ Association (AILA). This is the premier conference on immigration law in the country. Four of our attorneys will be featured speakers, educating other immigration attorneys about some of the nuances of immigration practice. Ron Klasko has been invited to speak on EB-5 investors; yours truly will serve as a panelist discussing resolution of conflicting guidance from different immigration agencies involved in employment-based immigration; Suzanne Seltzer will conduct a Q&A on bi-specialization of service center operations; Elise Fialkowski will be part of a panel discussion on immigration compliance and worksite enforcement; and Jonathan Willmoth will serve as a panelist on marriage-based adjustment of status and naturalization interviews.
Wednesday, June 3rd, 2009
Over on the Firm website, we’ve now got podcasts of our April 30, 2009 seminar for employers. If you weren’t able to attend, you can download segments of the program and listen to them here.
Tuesday, June 2nd, 2009
Deborah from the UK just submitted a wonderful question to the blog, which gets at a very important set of concepts one must understand about the rules for visiting the US. While the question is about entering on the Waiver Program (for nationals of countries that do not need a B-2 visa to visit the US), the answer applies equally to visitors who have obtained B-2 visas in their countries.
The question, how often can one come to the US as a visitor, and how long can one stay, plus the answer, after the jump.