The U.S. Department of State visa bulletin for August shows that the visa backlog is moving forward. The employment based second preference (EB-2) for China has moved forward four months, while for India it has moved forward five months. The current EB-2 priority date for August for both countries is March 1, 2006. There was similar movement in the EB-3 category as well, with the largest jump being in the “all other countries” which moved forward almost a year to June 1, 2004. Priority dates in many of the family preferences also moved forward by a few months. For the full visa bulletin please visit: http://travel.state.gov/visa/bulletin/bulletin_1360.html
USCIS Announces Resumption of Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker
USCIS announced that effective June 29, 2009, it will resume Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker, in accordance with 8 CFR 103.2(f)(2). USCIS will accept Premium Processing requests for Form I-140 Immigrant Petition for Alien Worker, involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals. Premium Processing Service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.
Under the Premium Processing Service, USCIS guarantees petitioners that, for a $1,000 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the $1,000 fee and continue to process the request as part of the Premium Processing Service. If you have any questions about the Premium Processing Program, please contact your attorney.
Limited availability of visa numbers for immigrants born in India or China
On Wednesday, June 10, the Department of State announced the visa predictions for the movement of priority dates in certain categories. Some of the major highlights are in the EB2 category. The wait time for the EB2 India category has been extended due to the large number of applications waiting to be approved for green cards and the low number of visas available. It is likely this category will not be available in August or September and applicants will wait additional years to be approved. Likewise, the EB2 China category is backed up and applicants will wait longer than expected to receive approval for green cards. In the EB3 Worldwide category, there will be no more visas available for the rest of the fiscal year. The Department of State estimates the cut-off date as of October 1, 2009 will be March 1, 2003. Therefore, lengthy delays are also expected in this category.
New developments in the PERM process
In recent pronouncements, the Department of Labor seems to be adopting the “testing the job market” approach to labor certification application. This approach has been advanced by immigration attorneys for many years.
There has been a great deal of publicity surrounding the issue of a law firm’s involvement in recruitment. The largest immigration firm in the country has been notified that all of its cases will be audited based upon an allegation that the law firm was involved in the recruitment process. This confirms our office’s practice of providing advice and checklists with respect to the recruitment process in general, but not being involved in the review of resumes and the determination of whether applicants are, or are not, qualified.
The Department of Labor will go live with a new version of the PERM application (9089) on January 1, 2009. This form has some positive elements to it. For example, the form can handle multiple work sites and eliminates the distinction between experience in the job offered and related experience. The form makes it clear that training and internships can be counted as experience, which is a good development. The form also creates a check off as to whether the employer will consider any reasonable combination of experience, education and training in determining if the applicants qualify for the position.
Our firm has always included this language in the labor certification form. Failure to include it can lead to a denial. The creation of a check off for this language will avoid these denials.
There has been an ongoing debate as to what constitutes “normal” in regards to the PERM question which asks if the minimum requirements set forth in the labor certification application are normal for the position. Many attorneys have taken the position that “normal” should be interpreted in a common sense fashion to represent normal practices on the part of the employer or in the industry. Other attorneys, including our firm, have interpreted the term “normal” to mean consistent with O-NET standards. The new form makes it clear that the latter perspective is consistent with the Department of Labor’s interpretation. Since this has been our firm’s practice since the creation of the PERM process, it will not require any change in how we handle labor certification applications.
Finally, the new 9089 form allows for substitute signatures, which will eliminate difficulties if the individual who authorized the application on the part of the employer is no longer affiliated with that company.
USCIS to Issue Two-Year Employment Authorization Documents
USCIS to Issue Two-Year Employment Authorization Documents
New EADs Limited to Certain Individuals Who Have Applied for LPR Status
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that beginning on June 30, 2008 it will issue Employment Authorization Documents (EAD) valid for two years. The new two-year EAD is only available to individuals who have filed to become a lawful permanent resident (LPR) using a Form I-485, Application to Register Permanent Residence or Adjust Status, and filed for employment authorization under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) but are unable to become an LPR because an immigrant visa number is not currently available.
USCIS will decide whether to renew an EAD for either a one or two year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
For applicants who have an available immigrant visa number and who are filing for employment authorization under 8 C.F.R. Section 274.a.12(c)(9), USCIS will continue to grant EADs that are valid for one-year. USCIS may issue a two-year renewal EAD if the applicant’s immigrant visa availability date retrogresses (when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed.
If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the applicant’s priority date and the Department of State Visa Bulletin.
For more information on Employment Authorization Documents, please contact the USCIS National Customer Service Center at (800) 375-5283 or review the USCIS Employment Authorization Documents web page at: http://www.uscis.gov/.
USCIS to Offer Premium Processing For Certain Form I-140 Petitions
Office of Communications USCIS Update June 11, 2008
USCIS to Offer Premium Processing For Certain Form I-140 Petitions
Service Begins June 16, 2008
WASHINGTON- U.S. Citizenship and Immigration Services (USCIS) announced today that on June 16, 2008, it will begin accepting Premium Processing Service requests for Forms I-140 (Immigrant Petition for Alien Worker) filed on behalf of certain alien workers who are nearing the end of their sixth year in H-1B nonimmigrant status.
Premium Processing Service offers 15 calendar-day processing for designated employment-based petitions and applications upon request. There is a nonrefundable fee of $1000 for this service. During the 15-day period, USCIS will issue either an approval or denial notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation. USCIS previously designated certain classifications under Form I-140 for Premium Processing Service in the May 23, 2006 issue of the Federal Register. See 71 FR 29662.
USCIS is limiting Premium Processing Service for Form I-140 petitions that are filed on behalf of aliens:
– Who are currently in an H-1B nonimmigrant status;
– Whose sixth year will end within 60 days;
– Who are only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
– Who are ineligible to extend their H-1B status under section 106(a) of AC21.
Section 104(c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.
For more details on Premium Processing Service for the Form I-140 petitions described in this announcement, visit the USCIS web site at http://www.uscis.gov/files/article/premiumproc_factsheet_i140_061108.pdf.
More information on Premium Processing Service in general can be found on the USCIS web site at www.uscis.gov, or by calling the USCIS National Customer Service Center at (800) 375-5283.
Breaking News for Pending I-485 Cases Awaiting Security Clearance
In a memo by Associate Director, Domestic Operations, Michael Aytes, dated Feb. 4, 2008 USCIS outlined revised FBI name check procedures for adjustment of status cases. The memo states, in part, “where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698 and proceed with card issuance.” This means that most long-standing I-485 applications for permanent residency should see significant progress up to and including final adjudication in the coming months. However, the memo adds, “[i]f derogatory or adverse information is received from the FBI after the application is approved, USCIS will determine if rescission or removal proceedings are appropriate and warranted.” Please note the policy change does not apply to delayed security checks in N-400 Application for Naturalization cases. Please contact an attorney at Stern & Curray LLC if you have questions regarding this new development.
YOUR IMMIGRATION POLICY IS A COMPETITIVE ASSET
To many foreign professionals, a company’s policy about assisting employees in the green card process is a more important consideration than compensation, benefits or even the specific work assignment. Accordingly, a company-specific immigration policy should be given the same attention and importance as any other employee benefit.
A superstar software engineer from India is in an interview with a potential employer. The interview is proceeding famously when the applicant asks the recruiter to explain the company’s immigration policy. The recruiter starts stammering and explaining that the company has a number of foreign professionals on staff and the recruiter is sure they are treated very well but cannot explain the company’s rules for green card sponsorship. All of the positive momentum created up to that point comes to a grinding halt and the applicant starts looking at his watch and thinking about his next interview.
To many foreign professionals, a company’s policy about assisting employees in the green card process is a more important consideration than compensation, benefits, or even the specific work assignment. Accordingly, a company-specific immigration policy should be given the same attention and importance as any other employee benefit. Companies who have not considered, and articulated a company-specific immigration policy are at a great disadvantage in recruiting highly talented non-American citizen professionals.
The first issue a company must address is whether it wants to hire foreign professionals in the first place. Having a non-citizen professional is more cumbersome than hiring a U.S. worker since it involves obtaining a proper visa that authorizes the individual to be employed in the United States. Sponsoring an individual for a green card adds additional expense, time, and effort to the employment relationship. At the same time, sponsoring an employee for a green card creates an extremely high level of loyalty and it is a rare occurrence for a foreign professional to leave the sponsoring employer during the green card process which can take anywhere from two to five years.
When I speak to employer groups, I ask people in the audience to write down a number that would reflect the amount of money the company would pay to virtually guarantee that a high-performing IT professional would remain with the company for three to five years. The average amount indicated by the participants generally exceeds the cost involved in sponsoring an employee for permanent resident status. Furthermore, the expenses involved in the process can be shared with the employee and an agreement can be legally entered into whereby the employee agrees to reimburse part of the employer’s expenses should the employee leave prematurely. Sponsoring a high-performing employee for permanent resident status is truly a win-win situation.
In addition to attracting high-performing professionals, having a well articulated company-specific immigration policy will also avoid resentment and confusion that can be caused by the inconsistent treatment of foreign professional employees. The policy will also make it clear that the sponsored individual remains an employee-at-will and the fact that the company has sponsored the individual does not create a contract for employment.
The company-specific immigration policy should address such issues as how soon the company will initiate the green card process after the commencement of employment, how the fees and costs will be allocated between the employer and the employee, and a reimbursement schedule if the employee prematurely terminates employment. A “typical” policy would involve waiting six months before starting the green card process. The employer would pay 50 percent to 100 percent of the cost and expenses involved in the process. The employee would sign an “Employee at Will” statement which would also include a graduated repayment schedule that would decrease over time. In other words, if the employee voluntarily terminated employment within the first six months the employee would reimburse the company for 100 percent of the expenses incurred, up to that point in time, on the green card process. If the employee left after one year, the employee would reimburse the company for 50 percent of its expenses, etc. Our office has a number of templates which reflect different philosophies on all of these issues.
Creating a comprehensive company-specific immigration policy avoids confusion, builds morale, creates long-term employer-employee relationships, and helps the company attract and retain highly-qualified non-citizen professional employees.
H AND L ADJUSTMENT APPLICANTS NO LONGER NEED I-485 RECEIPT NOTICES TO TRAVEL
In a new rule effective November 1, 2007, USCIS has removed the requirement that H and L adjustment applicants must travel with their receipt notice.
An adjustment applicant needs certain documentation in order to travel once the I-485 application has been filed. Advance Parole is the most common travel document used by adjustment applicants. Adjustment applicants who are on H or L status, however, can travel without adjustment of status under certain conditions. Before the new rule, H and L adjustment applicants needed to have their I-485 receipt notice at the time they re-entered the United States. This proved to be challenging in that it has been taking USCIS a number of weeks, if not months, to issue receipt notices thereby limiting travel during this period of time. Under the new rule, if a person is maintaining H or L status he or she can travel without first obtaining the I-485 receipt notice.
The new rule will help thousands of H and L adjustment applicants who seek to travel after they have filed for adjustment of status but before they receive the receipt notice.
DOL Creates Email Account to Catch Violators
The Department of Labor has announced that they are creating an email address for people to report violators of the provisions of the recently-published “no substitution” rule. Employers need to be aware of the fact that starting July 17th employees may not pay any part of the fees, costs and expenses incurred in connection with preparing and filing a labor certification application. An employee can pay the fees and costs for filing the I-140 and adjustment of status. Violation of this rule can have serious repercussions.