H-1B CAP EXHAUSTED DURING INITIAL FILING PERIOD, FOLLOWED BY LOTTERIES
On April 8, 2008 U. S. Citizenship and Immigration Services (USCIS) issued a notice indicating that it had received enough H-1B petitions to exhaust both the 65,000 H-1B quota and the 20,000 exemption from the quota for graduates of U.S. universities with a master’s degree or higher. The preliminary count indicated that approximately 163,000 H-1B petitions had been received, and approximately 31,200 of those petitions were for the advanced degree quota. In other words, both the “bachelor’s degree cap” and the “master’s degree cap” were exhausted during the April 1—April 7 filing period for Fiscal Year 2009 H-1Bs.
On April 14 USCIS began the lottery process, first selecting 20,000 petitions for the “master’s cap.” Any petitions not selected in the “master’s cap” lottery were considered in the “bachelor’s cap” lottery. The selection process should have concluded on June 2. A few thousand petitions will be “waitlisted” to replace those denied or revoked. Petitions not selected for processing will be returned (with filing fees). For additional information about this year’s significantly revised lottery process, see 73 Fed. Reg. 57, 15389—15395 (March 24, 2008).
DHS PROVIDES CAP-GAP RELIEF AND ALLOWS EXTENDED PERIOD OF OPT FOR SOME STUDENTS
On April 8, 2008 U. S. Department of Homeland Security (DHS) issued an interim final rule (73 Fed. Reg. 68, 18944-18956 (April 8, 2008)) making several important changes to the Optional Practical Training program for F-1 students. The new rule:
(1) allows students up to 60 days after completion of their academic programs to apply for Optional Practical Training (OPT)
Each year many students on OPT face a gap in status, known as the “cap gap,” between the end of their OPT plus grace period, and the start date of their H1B, usually October 1, the beginning of the fiscal year. As a consequence, they must stop working when their OPT expires and they cannot start working again until October 1. If their 60-day grace period can’t carry them to October 1, many have to leave the U.S., reenroll in school, or change status until they can begin employment as H-1Bs. The rule takes care of this problem, by extending “duration of status,” as well as OPT work authorization, until October 1, for any student engaged in OPT who is the beneficiary of a properly filed (“accepted”) H-1B petition requesting change of status to H-1B on October 1. In other words, a student whose OPT expires during the summer and faces a cap gap until the H-1B status starts on October 1 would be considered to continue in F-1 status, remain employed on OPT, remain in the U.S. to begin H-1B status. F-2 dependents of F-1 students are granted the same extension of “duration of status” as the F-1 principal.
Under prior regulations a student had to apply for OPT prior to completion of all academic requirements for a degree. Accepted practice has permitted students to apply up to 120 days in advance of completion. The new rule allows students to apply for OPT up to 90 days prior to completion, and up to 60 days following completion. The student is required to file Form I- 765 within 30 days of the DSO’s recommendation of OPT in the SEVIS system and on Form I- 20.
Students who are engaged in OPT after completing a program of study and who have earned a bachelor’s, master’s or doctoral degree in a Science, Technology, Engineering, or Math (STEM) field may apply for a 17-month extension of OPT, giving them a 29-month total period of OPT. The “Stem Designated Degree Program List” is available at www.ice.gov/sevis . The eligible fields are associated with specific “CIP codes” in SEVIS and include Actuarial Science, Computer Science, Engineering, Engineering Technologies, Biological and Biomedical Sciences, Mathematics and Statistics, Military Technologies, Physical Sciences, Science Technologies, and Medical Sciences.
In addition to completing a STEM field bachelor’s or graduate degree at a SEVIS-approved university (in the U.S.), a student must meet several other conditions. The student must have a job offer from an employer registered in the federal government’s E-Verify system (see www.dhs.gov/ximgtn/programs/gc_1185221678150.shtm). Many employers will be reluctant to register since they must agree to inspections of their records by federal agencies and since the system has experienced data accuracy problems. Some states, such as Arizona and Mississippi, require employers to register. The student’s job offer must be in a field related to the degree. The student’s employer must also agree to notify the Designated School Official (who manages the student’s SEVIS record) when the student’s employment is terminated. The process for notifying employers of this requirement and having them agree to it, and the process for managing such notifications remains unclear.
To apply for the 17-month extension, the student will file form I-765 (as for the initial period of OPT) prior to completing the initial period of OPT. Apparently the application can be filed up to 90 days prior to expiration of the initial period of OPT. If the application is timely and properly filed, the student will be allowed to continue employment—even if the prior period of OPT expires—for up to 180 days, while waiting for the application to be approved. A student would be eligible for only one 17-month extension of OPT.
The rule also adds a new provision that would clarify a position informally held by DHS in recent years, that students who are unemployed while on OPT are in violation of status. Students who engage in a period of OPT up to one year and are unemployed for more than 90 days would be considered in violation of status. Students granted a 17 month extension would violate status if they are unemployed for more than 120 days during the initial and extension period of OPT. SEVP indicated to NAFSA that this portion of the rule instituting penalties for students who are unemployed while on OPT will not apply to students whose OPT was approved prior to April 8, 2008 and that this would be clarified in written operating instructions. The “SEVP Policy Guidance 0801-01” issued by SEVP on April 25, 2008 indicates that this provision does, in fact, apply to students whose OPT was approved before April 8, 2008 but that only unemployment occurring after April 8, 2008 would be considered in determining whether or not a violation of status has occurred.
USCIS ALLOWS COS FOR CAP-GAP PROTECTED STUDENTS
Since the filing period for FY2009 H-1Bs closed on April 7, 2008 and the interim final rule providing cap-gap relief for students was published on April 8, 2008, petitioners had no way of knowing that they could request change of status for students facing a cap-gap or that this would be a requirement for students to benefit from the cap-gap relief measure. Instead, most petitioners requested consular processing for students who would no longer have F-1 status on September 30. USCIS announced on April 18, 2008 that it would “allow F-1 students who are the beneficiaries of selected H-1B petitions for fiscal year (FY) 2009 to request a change of status in lieu of consular notification.” The notice erroneously indicates that the student could make the request. Later in the notice, USCIS more properly instructs that “to request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice.” The e-mail request “should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.” It is likely that USCIS meant to require only the date of birth of the beneficiary, and not the petitioner’s date of birth. The e-mail addresses for requesting change of status are:
The notice also indicates that students who had filed a change of status request to bridge the cap-gap, for instance a request for B-2 status to start after OPT and last until September 30, “should withdraw the previously filed change in accordance with established regulations.” The simplest way to accomplish this is to send a short letter requesting withdrawal of the Form I-539, attaching a copy of the receipt notice, by courier to the service center where the application is pending.
Later guidance also indicates that students whose cases were received at the Sevice Center can obtain an extension of OPT until June 2 via a data fix; those whose cases are “waitlisted” can obtain a “data fix” extension until July 28. Each extension extends D/S for 60 days thereafter.
NEW USCIS FORM I-765 REQUIRED AFTER MAY 8
On April 8, 2008 USCIS issued a revised Form I-765 application (“Rev. 4/08/08”) for work authorization. The prior version (“Rev. 7/30/07”) was accepted by USCIS through May 8, 2008. The form and instructions have been revised to implement the recent Optional Practical Training rule. The prior eligibility code (c)(3)(i) has been replaced by three codes: (c)(3)(A) for pre-completion OPT; (c)(3)(B) for post-completion OPT, and (c)(3)(C) for a 17-month STEM extension of OPT. Item 17, which is to be completed only by applicants for a 17-month STEM extension (code (c)(3)(C)), requires information about the degree conferred and the employer's E-Verify Company or Client Identification Number. The new I-765 instructions indicate that a student applying for a 17-month STEM extension must also submit “a copy of your degree and the USCIS web site further indicates that a student must submit “a copy of your degree reflecting the conferred degree as well as your major field of study.”
Last year USCIS launched E-Verify, formerly known as the Basic Pilot Program. It provides enrolled employers internet-based access to Social Security Administration (SSA) and U. S. Department of Homeland Security (DHS) databases, through which USCIS says that employers may “verify employment eligibility” of newly-hired employees. The system simply compares the employee’s name, Social Security Number, and other I-9 information to information in the SSA and DHS databases, to ensure to confirm that the information provided by the employee matches information in the databases. The system includes a “photo tool” that allows the employer to electronically verify a non-citizen’s employment authorization card or permanent resident card. The system does not verify an employee’s immigration status.
By February of 2008 only about 52,000 of approximately 5.9 million employers in the U. S. had enrolled in E-Verify and, although federal agencies were under a mandate from the administration to enroll, 24 of the largest federal agencies had not enrolled as this report was being prepared. Several states have passed legislation requiring all public contractors to enroll, and other states have passed legislation requiring all employers to enroll.
Within three days of hiring an employee, an enrolled employer must submit the employee’s information to E-Verify, and the system returns one of three results:
If a tentative non-confirmation is received from either SSA or DHS, the employer must notify the employee and provide information on how to resolve the mismatch, including a written notice and referral letter generated by E-Verify that contains specific instructions for challenging the mismatch and contact information. The employee will have eight federal government work days to contact the appropriate federal agency to contest and resolve the mismatch. Employers may not take any adverse action against an employee during this period, includes firing, suspending, withholding pay or training, or otherwise infringing upon the employment. Apparently, in order to contest an SSA mismatch, an employee will have to visit a district office, and in order to contest a DHS mismatch, an employee will have to contact the USCIS Customer Service line.
An employer may enroll in E-Verify through the E-Verify section of the USCIS web site at www.uscis.gov . The employer completes an application and executes a nine-page Memorandum of Understanding with SSA and DHS.
Early in its consideration of whether or not to participate in E-Verify, an employer should carefully review the Memorandum of Understanding that it will be required to sign in order to enroll. Article II, paragraph 15 requires the employer to agree to make E-verify-related records available to DHS and SSA, “to allow the Department of Homeland Security and SSA, or their authorized agents or designees, to make periodic visits to the employer for the purpose of reviewing E-verify-related records,” and to allow DHS and SSA agents or designees to interview the employer and employees and verify their records.
An Inspector General report estimates that 4.1% (17.8 million) of SSA records have discrepancies that could result in incorrect E-verify mismatches. E-Verify failed to meet federal standards last year, and initially misidentified 10% of foreign-born U.S. citizens (who were actually work-eligible). In a letter to Congress, Representatives Michael McNulty and Charles Rangel cited Congressional testimony from SSA in 2007 indicating that under E-Verify “6 of every 100 workers would need to visit an SSA field office in person in order to correct their records, or lose their job.” The letter stated that since “there are 60 million new hiring decisions made each year, according to the Bureau of Labor Statistics. . . 3.6 million Americans would have to visit an SSA field office each year in order to keep their jobs.” Many employer groups and associations have expressed concerns over the potential harmful results that the system might produce and the additional administrative burden it places on employers. The Indianapolis Star summed up the common opinion among employers, stating that human resources managers have called the system “not ready for prime time” and “fatally flawed.”
These problems will make many employers hesitant to enroll in E-Verify. Even the most scrupulous and meticulous will be reluctant to sign the Memorandum of Understanding inviting DHS and SSA to—without other cause—inspect their records and interview their employees. Large employers who hire frequently may find that, even given the low percentage of inaccurate records, their workforce is seriously impacted by erroneous mismatches. Employees will certainly find it burdensome to visit an SSA district office or navigate the USCIS automated customer service line in order to resolve an erroneous mismatch in the brief time period allowed. Many employers have noted the time and resources that will be allocated to conducting the E-verify check of each employee and handling the mismatch processes as mismatches occur.
MISSISSIPPI REQUIRES EMPLOYERS TO ENROLL IN E-VERIFY
On March 17, 2008, Mississippi Governor Haley Barbour signed into law Senate Bill 2988, known as the Mississippi Employment protection Act, requiring employers in the state to enroll in E-Verify. In his press release, Governor Barbour explained “I am concerned about mandating [use of] the E-Verify system . . .” and “I have serious concerns about provisions of the bill that could have unintended consequences.” No doubt Governor Barbour has heard about the problems with Social Security Administration’s data and the E-Verify system’s frequent false identification of a U.S. citizen as a person unauthorized to work in the U.S.
Under this new law which takes effect July 1, 2008, discharging a U.S. citizen or permanent resident, “while retaining an employee who the employing entity knows, or reasonably should have known, is an unauthorized alien hired after July 1, 2008 . . .” would be considered a discriminatory practice.
Employers face the following deadlines to comply:
Access the law at http://billstatus.ls.state.ms.us/2008/pdf/history/SB/SB2988.xml
See the governor’s press release at
For more information on E-Verify, see http://www.uscis.gov/portal/site/uscis
DEPARTMENT OF STATE TO OFFER COMPLETELY ELECTRONIC NONIMMIGRANT VISA APPLICATION
On April 29, 2008 U. S. Department of State (DOS) issued a final rule that will allow it to “offer a completely electronic visa application procedure . . .” and “eventually eliminate the Form DS-156 entirely and replace it with the Form DS-160, an electronic form designed to be completed and signed electronically.” When the DS-156 is filled out on the DOS web site, the DOS system simply generates a bar code containing certain fields of data when the user prints it, but the system does not electronically collect or retain the data entered in the form. The DS-156 is submitted at the visa interview, and the bar code is scanned, completing certain data fields in the DOS Consular Consolidated Database (CCD). The DS-160 will be submitted electronically, and apparently the data will be collected in the CCD. The DS-160 is a "smart form,” in that the data the user provides in particular fields affects what further sets of data fields are presented to the applicant for completion. An applicant or attorney can complete a draft form and save it to an electronic file on his or her own computer, forward it to the other person to review (by uploading it to view with DOS' system), and then submit it. The applicant must actually click the "submit" button, which is an electronic signature. The system does not collect or retain data from a draft form. Form DS-160 includes data fields from the DS-156, DS-156E, DS-156K, DS-156V, DS-157 and DS-158, and requires extensive information. AILA has been informed that DOS is experimenting with off-site biometrics collection in privately contracted facilities similar to USCIS Application Support Centers in order to reduce physical traffic of applicants at consular posts. Apparently DOS will continue to utilize the DS-156 as it implements the DS-160 over time at various posts. Currently the DS-160 is being piloted only at two posts, Nuevo Laredo and Monterrey, Mexico. DOS has not provided a time frame for fully implementing the DS-160 at all posts. The form can be accessed at https://ceac.state.gov/genniv/ (be sure not to submit if you practice with the form). See the rule at 73 Fed. Reg.. 62, 23067-23069 (April 29, 2008) through http://www.gpoaccess.gov/fr/index.html.
DEPARTMENT OF STATE ISSUES F, J, AND M ANNUAL UPDATE
Recently U. S. Department of State issued its “Student (F and M visa) and Exchange Visitor (J visa) Annual Update,” reminding consular officers to prioritize student and exchange visitor visa applications, among other things. Access the cable at: http://www.travel.state.gov/visa/laws/telegrams/telegrams_1446.html
ADVANCE COPY OF PROPOSED SEVIS FEE AND RECERTIFICATION RULE
U. S. Immigrations and Customs Enforcement (USICE) has posted on its web site an advance copy of a proposed rule that would increase SEVIS fees as follows:
You can access the advance copy of the rule and other information about it at http://www.ice.gov/sevis/ .
DOL FINAL RULE ON E-3 LABOR CONDITION APPLICATIONS
The REAL ID Act of 2005 established the E-3 category to allow employers to bring persons to the U.S. "solely to perform services in a specialty occupation in the United States if the alien is a national of the Commonwealth of Australia." The employer must file a labor condition application (ETA-9035) with the U. S. Department of Labor in order to facilitate the process, and until now we’ve had no regulation and only informal guidance in this regard. On April 4, 2008 DOL published a final rule amending the labor condition application regulations, which addressed H-1Bs, to address E-3s and H-1B1s as well. In light of this year’s H-1B shortage, please remember that E-3 may be an alternative to H-1B for Australians, as H-1B1 is an alternative to H-1B for nationals of Chile and Singapore, and TN for citizens of Canada and Mexico. Other work-related statuses may provide alternatives as well. Consult an experienced immigration attorney for individual advice. The final rule is effective immediately. See the rule at 73 Fed. Reg. 71, 19943-19950 (April 11, 2008) through http://www.gpoaccess.gov/fr/index.html.
NEW USCIS FORM I-693 MEDICAL EXAMINATION
USCIS has posted on its web site a new version of Form I-693, Medical Examination of Aliens Seeking Adjustment of Status (“Rev. 4/2/08” edition). This revised edition must be used for any medical exam completed on or after May 1, 2008. USCIS will continue to accept the old form if the exam was completed before May 1, 2008. The form must be filed within one year of taking the exam. Once a Form I-693 is filed with USCIS in support of an I-485 application for adjustment of status, it does not expire, pursuant to an annual CIS memo.
On April 11, 2008 U. S. Customs Enforcement and Border Patrol (USCBP) announced that it has implemented a pilot program called “Global Entry” which provides expedited clearance to pre-approved (“low risk”) travelers who re-enter the U. S. and may process admission to the U. S. at an automated kiosk. Participants will present their machine-readable U.S. passport or permanent residency card, submit fingerprints for biometric verification, and use the kiosk’s touch-screen to make a customs declaration. They will be issued a transaction receipt and directed to baggage claim and the exit, unless chosen for a “selective or random secondary referral.” In this initial phase, the program is available at John F. Kennedy International Airport (JFK), Washington-Dulles International Airport (IAD), and George Bush Intercontinental Airport (HOU). " See USCBP’s press release at http://www.cbp.gov/xp/cgov/newsroom/news_releases/04112008_5.xml
USCIS MODIFIES POLICY ON SECURITY CHECK CLEARANCE
Associate Director of USCIS Domestic Operations, Michael Aytes, recently issued a memo to USCIS officials modifying the security check clearance process. If properly implemented, the new policy should limit to 180 days the “name check” delays in the most common permanent residence processes. It will not limit the delays associated with naturalization applications.
The memo advises that, in situations in which the “name check” request has been pending for more than 180 days, and the application awaiting adjudication is otherwise approvable, the adjudicator may approve the application. The memo indicates that “the F.B.I. has committed to providing name check results within this time frame.” This new policy applies to Applications for Adjustment of Status (Form I-485), Applications for Waiver of Ground of Inadmissibility (Form I-601), Applications for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act (Form I-687), and Applications to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603) (Form I-698). It does not apply to Applications for Naturalization (Form N-400), so USCIS will continue to wait for name checks to clear (even beyond 180 days) before approving naturalization applications.
The memo indicates that if an application is approved prior to clearance and negative information is later obtained about the applicant, “USCIS will determine if rescission or removal proceedings are appropriate and warranted.”
H, L, O, P, AND Q PETITIONS TO GET FATTER?
Several months ago, U. S. Department of State (DOS) rolled out its Petition Information Management System (PIMS), through which it can collect information from U. S. Citizenship and Immigration Services (USCIS) about approved petitions and make that information available to consulates. The purpose of PIMS seems to be both detection of fraud and streamlining the visa process by providing necessary information directly to consular officers. Getting the necessary information into PIMS apparently involves USCIS providing information about a petition to DOS’ Kentucky Consular Center, where the information is then entered into PIMS and made available to consulates. For reasons that remain unclear to most of us, PIMS receives information only about petitions requesting consular notification; PIMS does not receive information about petitions requesting a change of status, extension of status, or an amendment.
This has given rise to questions about whether beneficiaries of an extension or change of status petition would have difficult later obtaining visas, since PIMS would contain no information concerning the petitions filed on their behalf. USCIS and DOS have agreed that they will enter information about change of status, extension, and amended petitions in PIMS if requested by the petitioner. They have instructed petitioners to include a copy of the petition and attach to it a brightly-colored sheet of paper marked “Please send this copy to KCC upon approval.”
Since almost every beneficiary of a petition will eventually need to travel and obtain a visa, most petitioners will want to implement this as a routine process. This is a burden for petitioners who file many H-1B petitions, for example. Let’s hope that the agencies will improve PIMS so that information about every petition is automatically entered and this request process can be abandoned.
DHS AND AIRLINES BATTLE OVER WHO SHOULD COLLECT US-VISIT BIOMETRICS
On April 24, 2008 DHS issued a proposed rule that would require airlines collect biometric data from passengers in furtherance of the US-VISIT program. The notice summarizes the rule as follows: “The Department of Homeland Security (DHS) proposes to establish an exit program at all air and sea ports of departure in the United States. This proposed rule would require aliens who are subject to United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) biometric requirements upon entering the United States to provide biometric information to commercial air and vessel carriers before departing from the United States at air and sea ports of entry. This rule proposes a performance standard for commercial air and vessel carriers to collect the biometric information and to submit this information to DHS no later than 24 hours after air carrier staff secure the aircraft doors on an international departure, or for sea travel, no later than 24 hours after the vessel's departure from a U.S. port.” The airlines have fiercely objected, stating that it would cost them billions of dollars to implement such processes and that collection of US-VISIT biometric data is a DSH responsibility. The DHS policy chief has cautioned that requiring DHS to collect the data would probably result in flight delays and disruptions. See the rule at 73 Fed. Reg. 80, 22065-22088 (April 24, 2008) through http://www.gpoaccess.gov/fr/index.html. Comments due by June 23, 2008.
DOL PROPOSES NEW FORM ETA-9089
Following an initial comment period and stakeholder meetings, Department of Labor (DOL) announced on March 31, 2008 submission of a proposed new Form ETA-9089 Application for Permanent Employment Certification to the Office of Management and Budget (OMB) for review and approval. Among other changes, the new form would allow inclusion of primary job requirements and three sets of alternative requirements, including separate sections for education, experience, and training. See the proposed form and instructions for commenting to DOL on the NAFSA web site under “Regulatory Information.”
USCIS CENTRALIZES NATURALIZATION APPLICATION PROCESSING
On June 5, 2008 USCIS announced that the National Benefits Center in Missouri will process all initial N-400 naturalization applications. This move does not change the filing process, and applicants must file the application with the service center having jurisdiction over their place of residence. See the form instructions at http://www.uscis.gov/portal/site/uscis for details.
SECRETARY CHERTOFF ANNOUNCES TWO IMPROVEMENTS IN USCIS PROCESSING
Secretary of Homeland Security Chertoff has announced two improvements to U. S. Citizenship and Immigration Services (USCIS) processing. He said that “beginning later this month, we'll start issuing” employment authorization documents (“work cards”) “with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year, . . . eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year." This benefit would apparently be available to those who have filed an I-485 application to adjust status but who are in categories and from countries facing long backlogs in immigrant visa availability (on the visa bulletin).
He also announced that USCIS will resume premium processing of I-140 immigrant petitions on a very limited basis. It will be available to H-1Bs and their dependants whose H status will expire within 60 days, but who would become eligible for an extension of their H status beyond six years with an approved I-140. Remember, there are two ways to qualify for an extension of H status beyond six years. Persons who are beneficiaries of a labor certification or an I-140 immigrant petitions become eligible 365 days after the labor certification application has been filed with U. S. Department of Labor or 365 days after an immigrant petition has been filed with USCIS. Also, persons who are beneficiaries of an approved I-140 but who—because of immigrant visa backlogs cannot adjust status, are eligible for extensions of H status beyond six years. Premium processing of the I-140 can help someone quickly become eligible for the latter kind of extension. On June 11, 2008 USCIS issued a formal announcement indicating that this limited premium processing would begin June 16, 2008, and it issued a “fact sheet” as well.
See the announcement and “fact sheet” at http://www.uscis.gov/portal/site/uscis under “Press Room. See the press release concerning Chertoff’s announcement at: http://www.dhs.gov/xnews/releases/pr_1213101513448.shtm
DHS WILL REQUIRE PRE-SCREENING OF VISA WAIVER PROGRAM TRAVELERS
The Visa Waiver Program (VWP) waives the requirement of a valid nonimmigrant visa for visitors for business (B-1) or pleasure (B-2) who are seeking to enter the U.S. from certain countries for not more than 90 days. On Monday, the U. S. Department of Homeland Security (DHS) published in the Federal Register an interim final rule that would create the Electronic System for Travel Authorization (ESTA), a new online system in which VWP participants would enter biographical information and information about their travel and be “pre-approved” to travel to the U.S. In the supplementary information to the rule DHS explains “currently aliens from VWP countries provide certain biographical information to U.S. Customs and Border Patrol (CBP) Officers at air and sea ports of entry on a paper form ‘Nonimmigrant Alien Arrival Departure’ (Form I-94W). Under this interim final rule, VWP travelers will provide the same information to CBP electronically before departing for the United States.” The purpose of the screening is “to determine whether the alien is eligible to travel to the United States and whether there exists any law enforcement or security risk in permitting such a traveler under VWP,” but whether or not the traveler is legally admissible to the U.S. will not be determined until he or she arrives at the port of entry. Applicants denied “pre-authorization” could apply for a visitor visa at the U.S. embassy or consulate. The travel authorization would be valid for up to two years and would take the form of an electronic record accessible by CBP at the port of entry rather than a paper document carried by the traveler. DHS estimates that the application will only take 15 minutes to complete, but there is no estimate concerning processing time. The data used for screening and its sources, of course, are not explained, and there is no mention of processes for distinguishing persons with similar names. The rule indicates that DHS may later charge a fee to VWP applicants for use of ESTA. Comments are due to DHS by August 8, 2008. See the rule at 73 Fed. Reg. 32440 (June 9, 2008).
U. S. Department of Labor recently issued a proposed rule that would revise the labor certification process for H-2 B workers at 73 Fed. Reg. 29941-29975 (May 22, 2008). The new H2B streamlined labor certification process would resemble the current labor condition application (LCA), utilized in the H1B and other contexts. That is, the new temporary labor certification for H2B’s would be an electronically filed attestation, affirming under oath that the employer had complied with required pre filing recruitment, and had been unable to find sufficient US workers.
The proposed rule also includes a provision that would drastically revise the process for obtaining prevailing wage determinations for not only H-2B’s, but also for H-1B, H-1B1, and E-3 labor condition applications, as well as for permanent labor certification. Currently State Workforce Agencies issue prevailing wage determinations. The proposed rule would shift the responsibility to DOL’s National Processing Centers in Chicago and Atlanta, and employers would file the request for a prevailing wage determination directly with an NPC. In the supplementary information to the rule, DOL indicates that this process will eventually be “performed electronically between the NPC and the employer” but “initially [will] be a manual paper process.” Apparently employers would still be able to utilize other wage information, such as the OES and ACWIA databases, for LCA’s. Comments on the proposed rule are due by July 7, 2008.
H-1B CAP REJECTION LETTERS ARE IN THE MAIL
USCIS Service Center Operations has told AILA that, except for approximately 500 petitions being reviewed as possible duplicate filings, receipt notices have been issued for all petitions selected in the random lottery. California Service Center and Vermont Service Center completed data entry for all selected petitions on May 23, 2008, and all receipts were mailed by May 24, 2008. USCIS has apparently determined that the number of petitions selected during the lottery will be sufficient to meet the quota, so it will not be necessary to use of the reserve petitions that were being held. USCIS has begun to return those rejected reserve petitions this week.
EB-3 IMMIGRANT VISAS BECOME “UNAVAILABLE” IN JULY
The July 2008 Visa Bulletin has bee issued by U. S. Department of State, and the bulletin indicates that EB-3 will become “unavailable” in July. USCIS has told AILA that it will continue to accept and receipt adjustment of status applications through the end of June. Persons who are “current” this month and eligible to adjust status in the EB-3 preference this month should consider filing their adjustment of status applications before the end of the month when, at least temporarily, it will become impossible to file an adjustment application in the EB-3 preference. See the Visa Bulletin at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
THE FIRM SPEAKS, IS HONORED, AND GROWS!
Mr. Ware was recently chosen as one of 50 Leaders in Law by City Business Magazine, New Orleans, LA for the second time, and the only immigration attorney so honored. Mr. Ware spoke at the Alabama Association of International Educators, 3/28/08; LA NAFSA State Meeting, 4/11/08; Michigan State University, Lansing, MI, 8/14/08; Management of Municipalities, Leadership and E-Government Program, 4/17/08. Mr. Ware’s scheduled speaking engagements include: FBA Immigration Law CLE, Memphis, TN, 5/15/08; National Association of Colleges and Employers (NACE), New Orleans, LA, 5/28/08; ILW PERM Workshop, Vancouver, Canada, 6/24/08; AILA Annual Conference, Vancouver, Canada, 6/25-28/08; American Immigration Lawyers’ Assn. Conference. Chicago, Il, 8/25/08. Florida International University, 9/18/08; Miami Dade College, Miami, FL, 9/19/08; SSATB Annual Meeting, New Orleans, LA, 9/27/08.
Mr. Springer spoke at the University of Alabama at Birmingham, 2/15/08; the Georgia International Educators Association, 2/21/08; the University of Idaho, 3/7/08; Rice University, 2/5/08; the National Association of College and University Attorneys, Seattle, 3/6/08; the Alabama International Educators Association, 3/28/08; the Mississippi Institutions of Higher Education, 4/4/08; the Alabama Staffing Association, 4/11/08; the Arkansas Association of International Educators, 4/18/08; and the University of West Georgia, 5/1/08.
Ms. Gasparian co-chaired “Immigration Law 2008: Coming to America”, sponsored by the LA Bar Association this spring. Recently, she spoke at the Florida Association of International Educators’ state conference. Her scheduled engagements include presentations in Alabama, 5/20/08; and Mississippi, 5/21/08, entitled “Avoiding Immigration Regulations’ Fines and Sanctions”.
Ms. Kimbrell presented at the National Association of Colleges and Employers (NACE), New Orleans, 5/28/08.
Welcome, Carol! On June 16, the firm welcomed its newest associate attorney, Carol Pelton. Prior to joining David Ware & Associates, Ms. Pelton worked as a staff attorney at The Catholic Legal Immigration Network, Inc. (CLINIC) in Washington, D.C. At CLINIC, She coordinated the Board of Immigration Appeals (BIA) Pro Bono Project, a project that matches indigent immigrants with volunteer lawyers who represent them before the BIA. Previously, Ms. Pelton was a Staff Attorney at Lutheran Immigration and Refugee Service in Baltimore, providing legal support to the agency’s network of affiliated immigration service providers. As a practicing attorney and Director of Immigration Programs at the Chicago Legal Clinic, Inc., She represented clients before DHS and EOIR in family-based, asylum, VAWA, and other humanitarian-based matters. She also taught English as a Second Language in Seoul, S. Korea. Ms. Pelton received her JD from Chicago-Kent, IIT and her BA in Spanish Literature from the University of Iowa.
She is a member of the Illinois State Bar and the American Immigration Lawyer’s Association (AILA).
For information about any of our scheduled speaking engagements, or if you are interested in having one of our attorneys speak to your group
or event, please contact Yolanda Mata at 1-800-537-0179
(or locally at 504-830-5900).
(2) allows students who are engaged in Optional Practical Training (OPT) and who are beneficiaries of properly filed (“selected”) H-1B petitions with October 1 start dates to remain in the U.S. and continue working during the “cap gap”(the period between the end of OPT and the beginning of the fiscal year) if they face one; and
(3) allows students who earn degrees in certain Science, Technology, Engineering, and Math (STEM) fields to apply for an additional 17 months of Optional Practical Training, giving them a total of 29 months. A student who has 29 months of OPT would probably have two chances at the annual H-1B quota.
Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov
Premium Processing cases: CSC.ppcapgap@dhs.gov
Non-Premium cases: CSC.nonppcapgap@dhs.gov
http://www.governorbarbour.com/news/2008/mar/SB2988.htm