Immigration News

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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.

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FY2009 Cap-Subject H-1B Update

AILA InfoNet Doc. No. 08061261 (posted Jun. 12, 2008)

USCIS Service Center Operations has provided the following information regarding processing cases under the FY2009 H-1B cap:

1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The CSC and VSC completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on May 24, 2008.

2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as “protective filings” due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.

3. USCIS has determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. USCIS has begun to mail out rejections this week.

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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.

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Deportation of Vietnamese Nationals

On January 22, 2008 the United States and Vietnam entered into a repatriation treaty. Prior to this agreement, Vietnamese nationals with final orders of deportation could not be removed to Vietnam. Now, however, the US may effectuate orders of deportation to Vietnam provided that the alien (1) arrived in the U.S. on or after July 12, 1995, (2) is subject to a final order of removal, (3) is not a citizen of the U.S. or any other country aside from Vietnam, and (4) does not have residence in another country. This agreement is valid for 5 years and will be automatically renewed every three years thereafter unless the U.S. or Vietnam objects to such extension. It is estimated that this agreement will trigger the deportation of 1,500 Vietnamese currently living in the U.S.

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Advisory on Processing Times

USCIS has received a significant increase in the number of applications filed. In July and August, nearly 2.5 million applications and petitions of all types were received. This compares to 1.2 million applications and petitions received in the same time period last year. This fiscal year, we received 1.4 million applications for naturalization; nearly double the volume we received the year before. The agency is working to improve processes and focus increased resources, including hiring approximately 1,500 new employees, to address this workload.

As a result, average processing times for certain application types may grow longer. In particular, naturalization applications filed after June 1, 2007 may take approximately 16-18 months to process.

USCIS has several informational services to keep you apprised of the agency’s progress. We encourage you to take advantage of information posted on our website and to create and monitor your profile in our Case Status Online system to properly track your case. You will find a link to Case Status Online in the Related Links section of this page.

We will continue to provide additional information on application processing times as it becomes available.

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CBP URGES EARLY I-94 APPLICATIONS FOR BORDER CROSSING CARDHOLDERS

Border crossing cardholders (BCC) may remain in the U.S. for up to six months and travel more than 25 miles from the border when they are issued I-94 cards. During the holiday season, the busy ports of entry at San Ysidoro, Otay Mesa and Calexico process approximately 3,000 I-94 applications a day. Unfortunately, this high volume leads to processing times in excess of three hours. To avoid inconveniences and unnecessary delays, CBP has stressed that BCC travelers wishing to use I-94 cards for holiday vacations should apply early for their I-94 cards at the San Ysidoro, Otay Mesa and Calexico ports of entry. The Calexico West facility, located in downtown Calexico, will be open 24 hours a day and the Calexico East facility will be open from 6:00 a.m. to 10:00 p.m. The ports at San Ysidoro and Otay Mesa will begin 24-hour operation December 14, 2007. These extended hours will last until January 6, 2008. All ports allow for applications up to 30 days in advance of the travel. It is important that all members of the family wishing to travel on BCCs and I-94s present themselves at these ports of entry when applying for the I-94 cards in advance of travel.

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Victory for Employers as Government Effectively Withdraws No-Match Rule

Employers scored a major victory last week, as the government effectively withdrew the regulation that would use Social Security Administration records for immigration enforcement. Late Friday, attorneys for the government filed a motion to stay the decision on the merits of the proposed no-match rule. The motion states that the Department of Homeland Security plans to publish new rules sometime in December that it claims will address the concerns outlined by Federal Court Judge Charles Breyer in his ruling granting the injunction against enforcement of the new rule.

This is widely viewed as a victory for employers. While not conceding any deficiencies with the rule, the government has apparently recognized that the potential for harm to lawful workers and employers due to inaccuracies in the Social Security database.

This motion gives employers a chance to put their houses in order before a new rule is published. The motion is certainly not an indication that the Department of Homeland Security will cease or suspend enforcement efforts, and the new rule is expected to keep employers in a very tenuous position in staffing their businesses. Employers should utilize this brief reprieve to assess their immigration, hiring, and retention policies in light of the trend of increased worksite enforcement, so that they are as prepared as possible for the new rules in place. Our firm is actively involved in assisting employers in the area of employee verification. Employers should contact us if they are interested in improving their verification procedures, and/or conducting an audit to determine if there is any current liability.

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U.S. Ratifies the Hague Convention on Intercountry Adoption

On November 16th, President Bush signed Congress’ ratification of the Hague Convention on International Adoption. This Convention was negotiated in 2000, and aims to prevent improper adoptions and promote the integrity of international adoptions. The U.S. will officially become a member of the Hague Convention on April 1st, 2008. As of that date, the Department of State and the Department of Homeland Security will become much more involved in intercountry adoptions. The Department of State will be designated as the central authority for intercountry adoptions in the United States and will be responsible for making sure that the Convention is implemented as required. In order to implement the Convention, the Department of State will need to accredit U.S. adoption service providers, maintain a registry of adoption cases and implement a system of receiving complaints and comments about accredited adoption service providers.

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TANF AND I-601 WAIVER

On October 31, 2007, the AAO (Administrative Appeals Office)decided an I-601 case originating from Ciudad Juarez, Mexico. The AAO considered various pieces of information in deciding whether the applicant’s qualifying relatives demonstrated sufficient hardship to waive the applicant’s ten year re-entry bar. While the waiver application contained hardship information based on the qualifying relative’s medical conditions, the AAO relied heavily on the qualifying relative’s inability to support herself financially. The AAO was particularly concerned about the qualifying relative’s reliance on TANF (Temporary Assistance for Needy Families). While it is unclear whether the AAO will rely as heavily on the acceptance of TANF in other I-601 adjudications, this case may represent a new pattern for I-601 determinations.

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