Click Here for a PDF of the Immigration Insights - June Issue
USCIS Brings Back Premium Processing of I-140s for Certain Petitions
Starting June 16, 2008, U.S. Citizenship and Immigration Services (USCIS) began to accept for premium processing certain I-140 Immigrant Petitions for foreign workers. Employers may file for premium processing of I-140s if all four of the following conditions are met:
- The foreign national is currently in H-1B status;
- The foreign national's sixth year of H-1B status will end within 60 days;
- The foreign national is only eligible for a further extension of H-1B status only under Section 104(c) of the American Competitiveness in the Twenty-First Century Act (AC21) – which provides for a three-year extension of H-1B status if the I-140 petition is approved but the foreign national lacked a current priority date to file an I-485 Application for an Adjustment of Status; and
- The foreign national is ineligible for a further extension of H-1B status under Section 106(a) of AC21 – which provides for one-year extensions of H-1B status if an I-140 petition or the underlying labor certification application has been pending for at least one year.
In an accompanying Fact Sheet, USCIS noted that along with the I-140 petition and the I-907 Request for Premium Processing Service the petitioner should submit evidence to demonstrate that the foreign national meets the above criteria. Such evidence would include the following:
- A copy of the foreign national's current I-94 card reflecting H-1B status;
- Copies of all previous I-94 cards issued to the foreign national and all I-797 approval notices issued on the foreign national's behalf;
- A copy of the relating I-140 petition receipt notice if the I-140 has been filed previously; and
- A copy of the underlying labor certification approval letter if filing the I-140 petition for classification under the EB-2 or EB-3 preference
__________________________________________________________________________________________
Two-Year Employment Authorization Documents for Certain Adjustment Applicants
Beginning June 30, 2008, USCIS will issue Employment Authorization Documents (EADs) valid for two years if the applicant has a pending application for an adjustment of status (Form I-485) but lacks a currently available immigrant visa number. These two-year EADs will benefit those adjustment applicants who filed for adjustment of status during a period when their priority date was current, but who no longer have available an immigrant visa slot due to retrogression in the cut-off date as depicted in the Visa Bulletin. This new policy does not impact the need to file for Advance Parole annually, if desired. Only EADs for selected adjustment of status applicants may be granted for two years; advance parole authorizations will still be valid for a maximum of only one year at a time.
__________________________________________________________________________________________
Update on E-Verify for Federal Contractors: Proposed Regulation PublishedEarlier this month, President Bush issued an amendment to Executive Order 12989. By this action, all Executive agencies and departments entering into contracts must verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.
The Department of Homeland Security (DHS) then issued a press release offering some additional information.
- First, DHS designated the E-Verify program as the system that all federal contractors must use under amended Executive Order 12989.
- Second, DHS clarified that, under the Executive Order, the obligation on federal contractors to use E-Verify is a condition on each future federal contract.
- Third, the agencies and departments responsible for federal acquisition regulations will send a Notice of Proposed Rulemaking to the Federal Register, soliciting public comment for a 60 day period on proposed changes to the federal contractor/procurement regulations.
A Proposed Rule (a proposed federal regulation) was published in the Federal Register on June 12, 2008. As proposed, the government will impose the E-Verify requirement for all contracts over $3,000, regardless of the size of employer, and the E-Verify requirement will apply to contractors and subcontractors. Also, contractors and subcontractors will be required to confirm the employment eligibility of (i) all new hires and (ii) all existing employees directly engaged in the performance of work under the covered contract. This is a significant change from existing E-Verify guidelines. The government has never required an employer to verify the employment authorization of a
current employee. In fact, the current Memorandum of Understanding that employers and DHS sign as part of an employer's participation in E-Verify specifically forbids the verification of current employees.
There is a 60 day comment period for this proposed rule, after which the government will review those comments and publish a final rule (in other words, a binding regulation). Therefore, it will likely be several months (or possibly longer) before the obligations announced under the Executive Order will become effective.
__________________________________________________________________________________________
PERM Labor Certification Appeals Queue Update
In April 2008, the U.S. Department of Labor (DOL) informed the American Immigration Lawyers Association (AILA) that it had initiated a "sub-queue" for PERM labor certification application appeals for claims of DOL error, including communication problems with DOL and failure to receive DOL-issued Audit Notifications. In late May, DOL reported that the newly-created PERM appeals "sub-queue" had produced favorable results. Of the 900 cases reviewed in the sub-queue, 350 cases were returned to the regular PERM queue for processing, thus side-stepping what otherwise would have been a long period of inactivity on cases that deserved to be returned to the DOL’s active review queue.
__________________________________________________________________________________________
EB-3 Category Unavailable - July Visa Bulletin
The entire Employment-Based Third Preference immigrant visa category (EB-3) will become unavailable in July and will remain unavailable for the remainder of Fiscal Year 2008 (through September 30, 2008). By the beginning of the fourth quarter of FY2008, the U.S. Department of State will have reached the numerical limit of immigrant visas allocated to this visa category. While it can be frustrating that the category is unavailable, it is important to note that the category is being fully utilized, which has not always been the case in previous years due to governmental processing delays that caused immigrant visas not to be used within the relevant fiscal year.
The Department of State has indicated that this unavailability is temporary and that the category likely will return to the cut-off dates established for the June Visa Bulletin when the State Department releases its October 2008 Visa Bulletin – the first bulletin of the 2009 fiscal year.
__________________________________________________________________________________________
H-1B Cap Update - All Receipt Notices Issued
USCIS has announced that it mailed the last of
all receipt notices for the Fiscal Year 2009 H-1B cap categories on May 24, 2008. USCIS has begun returning cases that were not selected in the H-1B random selection “lottery.” If H-1B petitioners/employers have not received a receipt notice by this time, they can assume the cases they filed were not selected and should expect to receive a rejection notice in the near future.
If a rejection is received for an H-1B petition filed on behalf of an F-1 student covered by the automatic "cap gap" extension, the automatic extension of an F-1 student's duration of status and any optional practical training employment authorization immediately terminates. However, the F-1 student will still be afforded the standard 60-day grace period before he or she is required to depart the United States. The grace period will begin on the date of the USCIS notification of the rejection.
__________________________________________________________________________________________
Efforts to Improve the Entry Process for International Travelers
Anyone who has experienced long delays or skeptical U.S. Customs and Border Protection (CBP) officers upon entry to the United States will be glad to hear that the U.S. Department of Homeland Security (DHS) is attempting to ease the frustration experienced by many who enter the United States. DHS Secretary Michael Chertoff has acknowledged that the "the single criticism that we hear most from international travelers is frustration with the entry process." In an effort to relieve this frustration and strengthen customer service, DHS has launched three initiatives:
- the Global Entry pilot program,
- the Passenger Service Program, and
- an expanded Model Ports Initiative.
The Global Entry Pilot program is designed to expedite the screening and processing of low-risk, frequent international travelers entering the United States. Global Entry travelers will provide their biographic and biometric information, undergo a background check and complete an interview with U.S. Customs and Border Protection (CBP). Once accepted into the program, travelers can use a kiosk at any of the three pilot airports (J.F.K. International Airport (New York), George Bush Intercontinental Airport (Houston), and Washington’s Dulles Airport) to verify their identity and make customs declarations.
The Passenger Service Program will provide dedicated points of contact for identifying and resolving passenger issues in order to promote customer service techniques in officer interactions and to reduce wait times through the use of improved signage and technology.
Finally, Model Ports has been extended to 18 additional airports. Model Ports was implemented to enhance border security though the use of technology and streamlined processes.
__________________________________________________________________________________________
Pre-Travel Authorization for VWP Travelers
The Visa Waiver Program (VWP) allows citizens of designated countries to apply for admission to the United States as visitors without first obtaining nonimmigrant visas from U.S. consulates and embassies abroad. Use of the VWP is limited to nationals or citizens of VWP countries who plan to travel to the United States for temporary business or pleasure. Currently, citizens of VWP countries complete a written I-94W form providing basic biographical, travel, and eligibility information while they are en-route to the United States.
With the implementation of an Electronic System for Travel Authorization (ESTA), the U.S. Department of Homeland Security (DHS) will be able to determine, in advance of departure, whether a traveler is eligible to travel to the United States under the VWP and whether such travel poses a law enforcement or security risk. While ESTA is not currently mandatory, DHS is anticipated to publish a notice in the Federal Register by mid-November 2008, announcing implementation of mandatory ESTA requirements to be effective in January 2009.
Under ESTA, VWP travelers will provide biographical, travel, and eligibility information online prior to departure for the United States and will receive an electronic travel authorization prior to boarding a U.S.-bound airplane or cruise ship. The authorization, if issued, will be valid for up to two years or until the applicant’s passport expires, whichever comes first, and will be valid for multiple entries into the United States. To facilitate the authorization process, DHS recommends that ESTA applications be submitted as soon as an applicant begins planning U.S.-bound travel, and not less than 72 hours prior to departure for the United States.