USCIS has recently indicated that it will no longer routinely expedite an FBI name check in response to a petition filed in federal court. In the past, USCIS would routinely expedite an FBI name check in response to a federal law suit. It is too early to tell what impact this new rule will have on the handling of federal law suits in the District of Colorado.
On April 1, 2007, USCIS will start accepting H-1B visa applications for fiscal year 2008. By regulation, USCIS can start accepting H-1B applications against the 2008 H-1B cap six months in advance which translates to Monday, April 2, 2007. People have been speculating as to when the cap will be exhausted. Estimates range from April 16 to the end of May.
H-1B applications approved under the 2008 cap will become effective on the first day of the next fiscal year which is October 1, 2007. Any company interested in pursuing a new H-1B visa on behalf of a current or potential employee should act immediately.
In addition, USCIS has indicated that it intends to increase the filing fee for H-1B visas to $320. This does not include the fraud fee or training fee.
Finally, H-1B transfers and H-1B applications filed by exempt employers are not subject to the H-1B cap.
On January 31, 2007, USCIS released a press release, two fact sheets, and a proposed fee schedule to dramatically increase the filing fees it charges for a wide variety of applications. USCIS has stated in a press release that the new fees will allow the agency to cut down the average application processing time by 20% by the end of fiscal year 2009. Under the plan, the fee for an H-1B visa will rise from $190 to $320. The fee for an I-140 will rise from $195 to $475, and the I-485 fee will rise from $325 to $905. The fee to apply for citizenship will rise to $595.
The American Immigration Lawyers Association and other groups are protesting these fee hikes as being excessive. The rule has not yet been finalized.
In the case of Avila-Perez, the BIA has held that an individual who filed a visa petition which was approved before the August 6, 2002 effective date of CSPA can still be eligible for CSPA protection if the I-485 application for adjustment of status was filed after this date. This opens the protection of CSPA to a larger group of applicants which is a very positive development.
A rumor has been traveling around immigration circles that the Department of Labor will soon publish its final rule on substituting beneficiaries in labor certification applications. The proposed rule was promulgated on February 13, 2006 and, apparently, on January 26, 2007, DOL submitted the final version of the rule to the Office of Management and Budget. It is anticipated that it will take at least 90 days for OMB to take action on this rule, and it could require further steps before the rule is approved. No one is certain about the contents of the rule but it is widely believed that the rule will eliminate labor certification substitutions. Therefore, any company considering such a substitution should do so in the near future.
On a related note, the Department of Labor has proposed, for the first time, charging a fee for filing a labor certification application.