Employment based permanent residency

by SCwpadmin SCwpadmin 26 Comments

State Department and CIS Engineer Dramatic Reversal on Priority Dates

In the early morning of July 2, the U.S. State Department indicated that it had received sufficient applications to distribute all of the remaining visa numbers for Fiscal Year 2007, and that the July Visa Bulletin would be amended accordingly. USCIS responded by indicating that all adjustment of status applications that will be filed in July pursuant to the Visa Bulletin will be rejected and returned to the applicant. In essence, not a single application for adjustment of status will be accepted in the month of July.

The joint announcements proved to be a crushing blow to permanent resident applicants who hoped to file for adjustment of status in the month of July. Even if the numbers had retrogressed in August, allowing applicants to file for adjustment of status in July would have provided many benefits. Adjustment applicants can obtain employment authorization and advance parole for themselves and their families, and are eligible for adjustment portability.

Our firm has started a letter-writing campaign to inform our elected officials in Washington about our displeasure with these actions. We encourage employers and permanent resident applicants to send emails and letters, or make phone calls, to their elected officials to register their feelings on this subject.

by SCwpadmin SCwpadmin 103 Comments

Business Community Remains Virtually Silent on Comprehensive Immigration Reform

The Senate “compromise”comprehensive immigration reform proposal would radically change employment-based immigration law in the United States. A point system would replace the current approaches to permanent residence, including labor certification, national interest waiver, extraordinary ability applications, etc. In addition, the bill would strip the “dual intent”” provision regarding H-1B visa applications, which would make it much more difficult to obtain H-1B status. Also a new fee of $5,000 will be added to the H-1B application process. Furthermore, the bill does nothing to increase the availability of H-1B visas or eliminate excessive backlogs in employment-based permanent resident processing.
In the face of these changes, the business community has remained relatively silent. Our office encourages our clients, and other members of the business community, to make their voice heard by contacting their elected representatives in Washington and urging them to amend the bill to be more favorable to American employers.
The American Immigration Lawyers Association website (http://www.aila.com)/) provides an easy vehicle for contacting senators and congresspeople. Now is a critical time for employers to act in favor of employment-friendly immigration reform.

by SCwpadmin SCwpadmin 22 Comments

Another District Court Grants I-485 Mandamus Action

More and more District Courts are ruling in favor of plaintiffs who sue to have their long-delayed I-485 application for adjustment of status adjudicated. The U.S. District Court for the Northern District of California granted an adjustment Mandamus action on April 25, 2007. Our office has filed a number of Mandamus actions, and we have achieved some favorable results. Individuals with long-standing adjustment applications should consider the possibility of filing a Mandamus action (which is not appropriate in every case).

by SCwpadmin SCwpadmin 24 Comments

DEPARTMENT OF LABOR PUBLISHES "NO SUBSTITUTION" RULE

After many years, the Department of Labor has finally published its rule regarding the substitution of beneficiaries in the labor certification process. The new rule bans substitutions as of the effective date of the new rule (July 16, 2007). Employers can file substitution requests up to this date.

The new regulation also limits the validity of labor certifications to 180 days; I-140 petitions must be filed within 180 days of the approval of the labor certification. For petitions which were approved before July 16, the 180 days starts to run July 16, 2007.

Finally, the new rule prohibits employees from paying any of the employer’s costs in the labor certification process. Therefore, employees who intend to pay all or part of the employer’s labor certification attorney’s fees should file prior to July 16, 2007. The regulation does not bar employees from paying the fees and/or costs associated with the employee. Our firm will be analyzing whether we can apportion the fees and costs we charge for the labor certification application to distinguish between fees and costs attributable to the employer and those attributable to the employee.

Employers and employees should act quickly if their labor certification application will be impacted by this new regulation.

by SCwpadmin SCwpadmin 27 Comments

STERN & CURRAY MOVES QUICKLY TO RESPOND TO JUNE 1, 2007 ADVANCEMENT OF PRIORITY DATES

Our law firm has moved quickly to respond to the substantial advancement in priority dates effective June 1st. Our firm has scheduled “choice appointments” with individuals whose priority dates will be current as of June 1st in order to ensure that applications for adjustment of status can be filed during the month of June in case there is a retrogression in visa numbers. Current clients of Stern & Curray who will have current priority dates in June, or other individuals who would like our assistance in preparing their applications for adjustment of status, should contact our office if they have not yet scheduled a choice appointment.

by SCwpadmin SCwpadmin 25 Comments

DOL Rule Against Labor Substitution Expected to be Published Soon

The Office of Management and Budget has finished its review of the DOL’s proposal to bar substitution of employees in labor certification applications and to prohibit employees from paying the employer’s attorneys’ fees. The proposed rule also set a time limit for the validity of a labor certification application.

Now that the OMB has concluded its review of this regulation it is expected that it will be published soon. The exact details of the rule have not yet been released.

by SCwpadmin SCwpadmin 77 Comments

USCIS Extends Validity of Medical Exams

Generally speaking, a medical examination submitted in connection with an application for adjustment of status is valid for one year. Due to visa backlogs and expanded processing times, many adjustment of status applications are not adjudicated within one year of filing. In January of 2006, USCIS extended the validity of medical exams until January 1, 2007. Due to the continuing backlog of some adjustment of status cases, USCIS has extended the validity of all filed medical exams until January 1, 2008. In other words, medical exams will remain valid until the adjustment of status application is adjudicated or until January 1, 2008. There is an excellent possibility that this deadline will be extended again the future.

by SCwpadmin SCwpadmin 27 Comments

Board of Immigration Appeals Clarifies Effective Date of Child Status Protection Act

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.

by SCwpadmin SCwpadmin 58 Comments

Rumor Regarding Publication of Labor Certification Substitution Rule

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.

by SCwpadmin SCwpadmin 126 Comments

Procedures Announced to Correct Case Type at Backlog Center

On January 10th the DOL changed their Public Disclosure System for cases pending at the Backlog Elimination Centers to include the Case Type of the pending case (RIR or TR). The DOL has announced a procedure for employers or their authorized representatives to follow if they believe the case type as reflected on the Public Disclosure System (PDS) is incorrect (e.g., if it is listed as TR but they believe it should be RIR, or vice versa). In such an event, e-mail the general information e-mail box at the appropriate Backlog Elimination Center (BEC) (either [email protected] or [email protected]). The subject line of the e-mail must read “Incorrect Case Type – Case # [insert case number].” The body of the e-mail should explain why the employer believes the case type is incorrect. Any supporting documentation may be attached as a pdf. The BECs will review the case and reply as soon as possible based on the volume of requests. Depending on the volume of inquiries received, it may take the DOL a few weeks before the case type is corrected in the Public Disclosure System.

Information provided by AILA (InfoNet Doc. No. 07011965 posted Jan. 19, 2007)

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