The H-2B skilled and unskilled nonagricultural temporary worker quota for the second half of fiscal year 2006 (April 1 to September 30, 2006), was reached on April 6, 2006. Returning workers are exempt as they do not count towards the Congressionally mandated bi-annual H-2B cap of 33,000. In order to qualify as a returning worker, the worker must have been counted against the H-2B numerical cap between October 1, 2002 and September 30, 2005. USCIS is rejecting petitions for new H-2B workers seeking employment start dates prior to October 1, 2006.
Again, absent new legislation that increases the H-2B quota in the meantime, petitions for “new" workers may now only be filed for employment to begin on or after October 1, 2006.
Regarding FY 2006 first half numbers of 9/6/06, USCIS had approved 8,365 new beneficiaries and 1,138 returning beneficiaries (not counted against the quota) with an additional 6,314 new and returning petitions pending, for a total of 15,817 petitions being granted or pending. The total quota for the first half of the FY 2007, that is October 1, 2006 until April 1, 2007, is 33,000.
We have found in dealing with the H-1B quotas that USCIS’ math is not reliable, so we urge all employers interested in employing H-2B workers to file their petitions as soon as possible, as numbers are going fast.
SEX OFFENDERS BARRED FROM PETITIONING FOR FAMILY MEMBERS
On July 27, a new law went into effect barring persons convicted of any sexual offense against a minor from petitioning for foreign family members. An exemption to the bar is available to the petitioner if the Secretary of DHS determines that the petitioner poses no risk to the person being sponsored.
NEW RESTRICTIONS ON PETITIONING FOR FIANCES
Pursuant to new legislation of January 5th, USCIS has issued a July 21 memorandum explaining new restrictions on US citizens petitioning for foreign fiancés. First, the US citizen petitioner must submit information with his or her fiancé petition regarding any convictions for certain crimes, such as domestic violence, sexual assault, child abuse, and other sexually related and violent crimes. Other crimes such as those involving substance abuse or alcohol, where the petitioner has at least three such offenses, must also be reported. Second if the petitioner has filed two or more fiancé petitions at any time in the past or previously had a fiancé petition approved within the two years prior to filing the current petition, he/she must request a waiver or exception from a general bar on filing a new petition. The memorandum instructs adjudicators to deny a waiver where a pattern of filing multiple petitions for different fiancés exists. A waiver may not be granted if the petitioner has a history of violent offenses, except in extraordinary circumstances. However, a waiver must be granted if the U.S. citizen petitioner was battered or subjected to extreme cruelty and circumstances indicate that the petitioner was not the primary perpetrator of violence in the relationship.
The new law also instructs the Department of Homeland Security to create a database for the purpose of tracking multiple visa petitions filed for fiancés and spouses. This database must be used to notify the beneficiary where there have been multiple fiancé or marriage-based visa petition filings. The legislation also requires the Department of State to disclose information regarding any criminal convictions submitted with the petition to the fiancé beneficiary.
Finally, the legislation requires disclosure of the use of a marriage broker to meet the fiancé or arrange the relationship.
SOCIAL SECURITY ADMINISTRATION LIMITS NUMBER OF REPLACEMENT CARDS
On July 31, the Social Security Administration published a final rule limiting the number of replacement Social Security cards issued to an individual to three per year and ten per an individual’s lifetime. Security reasons were cited as the basis for the rule.
LOCAL USCIS OFFICES WILL NO LONGER ISSUE EMPLOYMENT CARDS
USCIS has now announced that local offices will no longer produce form I-688B, employment authorization card, using local systems. All employment authorization documents (EADs) must now be produced at one of the five service centers. However, USCIS also advises that this change will not prevent persons from obtaining interim work authorization if their EAD has not been adjudicated within 90 days. Such persons should schedule an InfoPass appointment and will receive such a document. Apparently, interim documents will be ordered on an expedited basis from the service centers.
In two cables, the Department of State has addressed important F and M student visa issues. A January 19th cable expressed the Department’s view that if a student remains outside the United States for more than five months his or her F or M visa is automatically cancelled, unless he or she has been maintained in SEVIS pursuant to valid study abroad.
A second cable on February 15th instructed consular posts that Fs and Ms may now apply for visas up to 120 days before the date listed on the I-20. The prior policy was to issue visas no more than 90 days prior to the start date.
WHAT IS “PERMANENT”? EB-1 ADVICE FROM USCIS
On June 6th, USCIS issued a memorandum offering guidance on the issue of what constitutes permanent employment with regard to outstanding professors and researchers. With professors, the memo states, the issue is relatively clear: the statute requires that they either be tenured or tenure track. It is with regard to research positions that things get difficult. Most researchers in academic environments are employed “at will”, that is, the employee is terminable for any reason other than a discriminatory one. Seldom do researchers’ contracts include a “good cause for termination” clause. Some USCIS adjudicators have looked for such a clause in researchers’ contracts in order to find that the position is permanent. The memo instructs that the absence of such a clause in a researcher’s contract should not, alone, result in denial of an outstanding researcher petition. As long as the petitioning employer demonstrates an intent to continue to seek funding for the position and there is a reasonable expectation that funding will continue, such employment can be considered permanent.
The memo also instructs that with regard to professors or tenured or tenure-track research positions, likewise “permanent” does not require that there be a good cause for termination clause in their contracts.
WHERE YA “AT”? THE H-1B CAP EXEMPTION IN HIGHER ED
In a recent memo, USCIS has clarified that persons who are employed “at” institutions of higher education or affiliated entities, nonprofit research organizations and governmental research organizations, may also claim exemption from the H-1B cap, even though they are not employed directly “by” the qualifying entity. In these cases, the work of the H-1B beneficiary must directly forward the central purpose of the qualifying entity. For example, an employee of a private company engaged in hurricane research at the National Oceanic and Atmospheric Administration (NOAA) could qualify for the exemption even though not directly employed by NOAA. Likewise a physician working for a private practice group at a university hospital could also possibly qualify.
“WHEN I’M 64”: CHANGES TO THE AFFIDAVIT OF SUPPORT
USCIS has recently announced many changes to the supporting evidence and requirements for Form I-864 Affidavit of Support. This form is used in family-based and certain employment- based cases, in order to show the alien beneficiary will not become a burden on the US or local governmental units. Generally the petitioner in family-based cases must complete an affidavit of support and demonstrate that he or she can support the alien beneficiary at least 125% of the poverty level (or 100% in the cases of active duty military personnel). The new regulation simplifies and eases the requirements for use of the I-864. For example, petitioners need submit only one tax return to support the affidavit. If that return shows insufficient income, the adjudicator should look to the petitioner’s projected income during the year the affidavit is submitted, using sources such as letters of employment or W-2s, to determine whether the affidavit is sufficient. Second, household members’ income may be used in support of the affidavit even if the household member has not lived in the same household with the principal signer of the affidavit for at least six months.
It should also be noted that federal law requires every person sponsoring an immigrant to report his/her address change to USCIS within 30 days. This is done on Form I-865.
On March 30th, the Department of State also revised its rules regarding affidavits of support, requiring only the most current year’s tax return in support of the affidavit.
DHS INCREASES NUMBER OF CUBAN FAMILY PAROLEES
Under a new policy announced August 11th, USCIS announced that it will increase the proportion of family-based immigrants allowed to emigrate from Cuba under a global umbrella of 20,000. The number of so-called Cuban lottery winners (discretionary parolees) will decrease by 60%, in order to help alleviate the family-based backlog from Cuba.
NICE, NOT NAUGHTY: NEW DOS RULE ON BACKGROUND CHECKS FOR HOST FAMILIES
The Department of State now requires exchange visitor programs sponsoring secondary school students to complete criminal background checks for officers, employees, agents, representatives and volunteers acting on their behalf, as well as all adult members of the host family household, and requires monthly contact with host families and students. Additionally, any allegation of sexual misconduct must be reported to both the Department State and local law enforcement authorities. Secondary school participants are typically 17 – 18 years of age, but some are as young as 15 and often away from home for the first time. The changes adopted are to protect the students and are consistent with requirements that have been adopted nationwide for volunteers and employees of organizations serving youth populations.
DV LOTTERY 2007 WINNERS SELECTED; DV 2008 TO OPEN
The Diversity Visa (DV) Lottery makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States. 82,000 applicants have been notified of selection and may soon apply for one of the 50,000 slots. Obviously there are more winners than there are immigrant visas, so, we urge winners to apply as soon as possible after October 1, 2006 for an immigrant visa or adjustment of status. However winners should be aware that they cannot get a visa or apply for adjustment of status until their rank number, shown on their selection notification, is “current". Some winners with high rank numbers will not get PR at all. More than 5.5 million qualified entries were received and the visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. During the PR process, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years.
It is very important that winners at least receive the advice of an immigration attorney, since very simple mistakes-- such as traveling on a nonimmigrant visa after receiving notice of winning--can destroy the winner's hopes of permanent residence. Moreover, winners must ensure that they receive adjustment of status or enter the U.S. with an immigrant visa no later than September 30, 2007, or the DV selection will be rendered void.
DOS also just announced the opening of DV 2008. Applications will be accepted online at www.dvlottery.state.gov between noon on Wednesday, October 4, 2006 and noon on Sunday, December 3, 2006.
On May 26, 2006 USCIS issued a press release stating that it had received a sufficient number of “regular” H-1B petitions to meet the congressionally mandated cap for fiscal year 2007, October 1, 2006 to September 30, 2007. USCIS subjected H-1B petitions received on May 26, 2006 to a computer-generated random selection process, meaning some of the petitions received on that date were rejected along with any petitions received subsequent to May 26, 2006.
Then, on July 25, 2006 USCIS announced that the 20,000 cap for holders of US advanced degrees for FY 2007 had been reached as well. Petitions received on July 26 were subjected to a similar random selection process with some petitions being rejected along with any petitions received subsequent to July 26.
Unless there is new legislation that increases the H-1B quota in the meantime, petitions may not be filed again until April 1, 2007 for employment to begin on October 1, 2007. We urge employers and qualifying employees to initiate the filing process in late January so that completed petition packets can be sent to USCIS by April 1, 2007.
Of course, USCIS continues to routinely accept and process quota-exempt H-1B petitions, that is, for employment at an institution of higher education or a related or affiliated nonprofit entity; at a nonprofit research organization or a governmental research organization; for certain former J-1 physicians; for employees already counted against the quota during the past six years; and for quota exempt H's seeking concurrent quota-subject employment.
NEW ORLEANS DISTRICT OFFICE UPDATE
USCIS successfully reopened its New Orleans District Office on May 23, 2006, following the forced closure of its former location due to Hurricane Katrina, after nine months in transitional facilities. Their new permanent location is in Metairie, at 2424 Edenborn Ave., Ste. 300 and offers a full range of services. This is a mere 10 minutes from our offices, making it very convenient for our clients and staff. The entire staff of David Ware and Associates attended the opening of the new office, witnessed a naturalization ceremony, and complimented the USCIS on their commitment and dedication over these many months.
Now that they are fully operational they are working through the backlog of cases that were disrupted due to the hurricanes. We are monitoring all such cases and are proactively scheduling appointments to move affected cases forward.
ORLEANS PARISH (NEW ORLEANS) DESIGNATED HPSA
In the aftermath of Hurricanes Katrina and Rita, all of Orleans Parish was designated a Health Professional Shortage Area (HPSA) by the U.S. Department of Health and Human Services. Generally physicians subject to INA 212(e), the two-year home residence requirement, may seek a waiver of that requirement upon agreeing to work for a period of three years in a HPSA.
On May 25th, the U.S. Senate passed comprehensive immigration reform that: (1) provides a path to legal status of undocumented individuals who have lived in the US for at least two years prior to April 5, 2006; (2) increases the family and employment based immigrant visa annual caps; (3)increases the H-1B cap and provide for more exemptions from the cap; (4) establishes a new temporary worker program; (5) reforms the agricultural worker program; (6) provides a path to legal status for undocumented high school students; and (7) preserves immigration benefits and nonimmigrant status for Hurricane Katrina victims. That bill still has to be reconciled with the House of Representatives’ version of immigration reform, a draconian enforcement-only proposal, before any new immigration law can be finally realized. The House legislation consists of enforcement measures only, and House leadership has vowed not to include the Senate legalization and temporary worker programs in the final version.
Currently, several enforcement-only bills are also wending their way through Congress. So, it appears that comprehensive immigration legislation may be doomed, but, as they say, the fat lady has not yet sung and elections are looming. Progress, with the flowers, may only come in the spring. Please get on our email alert list so we can keep you posted on legislative progress.
USCIS EXPANDS PETITIONS ELIGIBLE FOR PREMIUM PROCESSING
USCIS recently published a notice informing the public that it intends to extend premium processing to I-140 EB-1, EB-2, & EB-3 petitions, with the exception of National Interest Waivers. USCIS stated that the EB-3 category will be the first available for premium processing, followed by EB-2s, and eventually EB-1s. USCIS will also extend premium processing to I-539 applications for B-1, J-1 (except J-1 students), J-2, E-1, E-2, H-4, L-2, O-3, P-4, R-2, and TD. Finally, I-765 renewal applications for those persons who have filed an application to adjust status supported by an employment-based immigrant visa petition will be eligible for premium processing. However, premium processing will not begin for these categories until USCIS publishes notices on its website, and no timetable was given for the posting of such notices.
On August 28, EB3 skilled worker and professional petitions became the first petitions subject to premium processing. USCIS is also requiring use of a new Form I-907 with a revision date of August 28, 2006. Unfortunately EB3’s are the least likely to benefit from premium processing, as most of them face a five year wait to immigrate.
TPS EXTENDED FOR SOMALIA, BURUNDI; TERMINATED FOR LIBERIA
Temporary protected status (TPS) for nationals of Somalia was extended to March 17, 2008 for those eligible. The extension is effective September 17, 2006 and remains in effect until March 17, 2008. Those previously granted TPS had to re-register for the 12-month extension during the 60-day re-registration period (July 27, 2006 - September 25, 2006).
TPS was also extended for natives of Burundi, for twelve months until November 2nd, 2007. Re-registrants must apply by November 13th.
TPS for nationals of Liberia is terminated effective October 1, 2007. DHS automatically extended EADs for eligible Liberians until April 1, 2007 to avoid lapses of employability. Effective October 2, 2007 (the day after TPS for Liberians expires) former TPS beneficiaries return to the same immigration status they maintained before registering for TPS (unless that status has since expired or been terminated), or to any other status they may have acquired while registered for TPS. Individuals who will not have a lawful status effective October 2, 2007 are expected to depart the U.S. by October 1, 2007 or be subject to removal. Such persons should consult an experienced immigration attorney in anticipation of losing TPS.
COMING OF AGE: ELECTRONIC I-9s
DHS recently announced an interim rule, effective 6/15/06, allowing the electronic completion and storage of Forms I-9 (Employment Eligibility Verification). The previous rule permitted only electronic retention, while this change permits employers to complete, sign, and store I-9’s electronically and to electronically scan and store existing I-9’s provided that certain standards are met. DHS also upgraded the downloadable PDF version of Form I-9.
MOVING TOWARDS NEW PASSPORT REQUIREMENTS
DHS recently published a proposed rule requiring United States citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering the United States at air ports-of-entry and most sea ports-of-entry, with certain limited exceptions, as of January 8, 2007, to present a valid passport. This proposal does not change the requirements for United States citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering the United States at land border ports of-entry and certain types of arrivals by sea (ferries and pleasure vessels) which will be addressed in a separate, future rulemaking. We caution against taking this proposal as gospel: the passport deadline has been postponed several times before.
PORTS FOR NSEERS REGISTRATION AND DEPARTURE CHANGE
The list of Ports of Entry for nonimmigrants who are subject to special registration (NSEERS) for final registration and departure has changed. Effective August 18, 2006 the Bell Street Pier 66 (Seattle) Cruise Ship Terminal, Washington was removed from the list. However, 17 new ports were added: Cincinnati/Northern Kentucky International Airport, Ohio; Cyril E. King Airport, United States Virgin Islands; Dunseith POE, North Dakota; Frontier POE, Washington; Jacksonville Seaport, Florida; Lukeville, Arizona; Mayaguez Seaport, Puerto Rico; Melbourne International Airport, Florida; Memphis International Airport; New Orleans International Airport and Seaport; Ponce Seaport, Puerto Rico; Rochester International Airport, Minnesota; Rochester-Ferry Terminal, New York; Savannah International Airport, Georgia; Southwest Florida International Airport, Florida; St. Petersburg/Clearwater International Airport, Florida; and Sumas POE, Washington.
AFGHAN AND IRAQI TRANSLATORS ELIGIBLE TO IMMIGRATE
Special immigrant status is now available to Afghan and Iraqi nationals who have worked directly for the United States military as translators. To be eligible for special immigrant status, a translator must be a national of Iraq or Afghanistan, have worked directly with the U.S. Armed Forces as a translator for a period of at least 12 months, have obtained a favorable written recommendation from a General or Flag Officer in the chain of command of the unit supported by the translator, have cleared a background check and screening as determined by a General or Flag Officer in the chain of command of the unit supported by the translator, and be otherwise eligible to receive an immigrant visa and otherwise admissible to the U.S. for permanent residence.
The total number of principal aliens who may receive special immigrant translator status during any fiscal year cannot exceed 50. Only the principal aliens, not dependants, count toward the numerical limit.
USCIS CENTRALIZES EMPLOYMENT-BASED I-485 FILING
U.S. Citizenship and Immigration Services (USCIS) announced changes to the filing procedure for employment-based applications for lawful permanent resident status (Form I-485). Starting on July 24, all applicants filing an Application to Adjust Status or Register Permanent Residence (Form I-485) based on a pending or an approved Immigrant Petition for Alien Worker (Form I-140), (also referred to as a “stand alone filing”), should mail that form directly to the Nebraska Service Center. Applicants should file accompanying forms (e.g., Form I-131 Application for Travel Document, and/or Form I-765, Application for Employment Authorization) at this same centralized location. This change marks the second phase of bi-specialization. Starting on July 24, the Nebraska Service Center/Texas Service Center pairing began processing all employment-based adjustment of status applications (and related applications). Although the Nebraska Service Center will serve as the centralized filing location, some petitioners/applicants will receive a filing receipt from the Texas Service Center, if the case is worked by that center. The center that generates the Form I-485 receipt notice will be the center that actually adjudicates the case, and the Center to which all subsequent filing (I-765, I-131) must be sent.
CUBAN PHYSICIANS ELIGIBLE FOR HUMANITARIAN PAROLE AND PERMANENT RESIDENCE
The Department of Homeland Security announced recently that physicians who are natives or citizens of Cuba and presently working in a country other than the U.S. or Cuba, and their immediate families, are now eligible for humanitarian parole, that is, permission to enter the U.S. One year after admission, they then become eligible for lawful permanent residence under the Cuban Adjustment Act of 1966. Many hundreds of Cuban doctors serve the poor throughout the third world; the largest number currently being in Venezuela. DHS claims that this policy change is an effort to assist the medically underserved in the U.S.
This rationale, however, is undercut by the fact that such doctors would have to undergo lengthy training programs upon arrival in order to achieve licensure and practice their profession. Moreover, many probably do not speak English.
CHECK ON YOUR LABOR CERTIFICATION!
Finally, the Department of Labor has established a website where you can check on the progress of labor certifications at the Backlog Elimination Centers, that is, those cases filed prior to March 28, 2005. The link is http://www.pbls.doleta.gov/pbls_pds.cfm. DOL has pledged to finalize all cases at the BEC’s by the end of August 2007.
OCTOBER VISA BULLETIN SHOWS PROGRESS
For those of you who feared that India EB-2 visa numbers would never be available again, not so: for October, EB-2 stands at June 15th, 2002. Also the “other worker” category, for workers whose labor certification requires less than two years training, experience and/or education, now stands at January 1, 2001.
AAO FINDS SOME PUBLIC SCHOOLS H-1B CAP EXEMPT
The Administrative Appeals Office of USCIS has recently found that some K-12 school employees can be H-1B cap exempt if the school has the requisite relationship with an institution of higher education or affiliated entity. This includes various types of cooperative agreements for internships, student teaching and so on. Many school systems around the country have been claiming cap exemption pursuant to such agreements and this decision brings a measure of certainty to the H-1B process.
PREVAILING WAGE DETERMINATIONS
The local DOL office has increased the validity period of PWDs to 1 year. PWDs utilizing data from the Bureau of Labor Statistics will be valid for 1 year from the date of determination, for all requests received on or after 9/25/06.
Mr. Ware’s recent and future speaking dates include: July 8th, Association of Pakistani Physicians of North America, Chicago, IL; July 24th, Mississippi State University, Mississippi State, MS; September 8th, Jackson State University, Jackson, MS; October 4th, Garvin School of International Management, Thunderbird, Glendale, AZ; October 5th, Louisiana Personnel Council, Baton Rouge, LA; October 7th, Florida State University, Tallahassee, FL; October 13th, McNeese State University, Lake Charles, LA; October 19th, NAFSA Region I, Boise, Idaho; October 20th, Embry Riddle Aeronautical University, Daytona Beach, FL; October 22nd, Northeast Florida TESOL Fall Mini Conference, St. Augustine, FL; October 23rd, Florida International University, Miami, FL; October 24th, University of Florida, Gainesville, FL; October 26th, Barry University, Miami Shores, FL; November 6-9, NAFSA Region III, Little Rock, AR; November 7-10, NAFSA Region II, Kansas City, KS; November 12-14th, NAFSA Region VII, Charlotte, NC; November 16th, Yale University, New Haven, CT; November 17th, Valencia Community College, Orlando, FL.
For information about any of these engagements, please contact Yolanda Mata at 1-800-537-0179 (or locally at 504-830-5900).
Also, see our Events Calendar for an up-to-date listing of upcoming engagements.