From USCIS.gov.

USCIS To Allow F-1 Students Opportunity To Request Change of Status

Short-term, Immediate Measure for Beneficiaries of Selected H-1B Petitions

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it would allow F-1 students who are the beneficiaries of selected H-1B petitions for fiscal year (FY) 2009 to request a change of status in lieu of consular notification.

This short-term measure follows an April 8, 2008 interim final rule that, among other actions, automatically extends the F-1 status of qualifying students who are the beneficiaries of approved H-1B petitions to cover the gap between the expiration of a student’s F-1 status and the H-1B employment start date of October 1. To obtain the automatic extension, a student must be the beneficiary of an H-1B petition filed for the next fiscal year (with an October 1 employment start date) and have requested a change of status. For F-1 student beneficiaries of petitions that USCIS subsequently rejects, denies, or revokes, or for those who violate their status, the automatic extension terminates at that time.

Since the rule was published after the filing period had closed for new FY 2009 H-1B petitions, many petitioners of F-1 students did not include a request for a change of status with the H-1B petition. Instead, petitioners requested consular notification based on the assumption that these students would have been required to leave the United States to obtain an H-1B visa at a consular office abroad.

USCIS has determined that it will allow petitioners of F-1 students whose H-1B petitions were randomly selected to receive an H-1B visa number for FY2009 following the closure of the filing period, to now request a change of status on behalf of qualified beneficiaries, if such requests are received within 30 days of the issuance of the receipt notice.

To request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice. Special email addresses for each service center have been established specifically for this purpose. These addresses are listed below and are posted on USCIS’ website. Petitioners should e-mail their requests for change of status in lieu of consular notification upon receipt of the notice so the agency has the request before completing H-1B petition adjudication. The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number. Please do not contact the service center about requesting a change of status until after receiving the receipt notice.

E-mail addresses for requesting change of status are:

• Vermont Service Center
  • Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
  • Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov
• California Service Center
  • Premium Processing cases: CSC.ppcapgap@dhs.gov
  • Non-Premium cases: CSC.nonppcapgap@dhs.gov

NOTE: If an F-1 student, who is the beneficiary of a selected 2009 H-1B petition, has a pending request to change to a status other than H-1B but now wants to file under the process outlined above, he or she should withdraw the previously filed change in accordance with established regulations.

– USCIS –

From the US Department of Labor.

OFLC announced that effective June 1, 2008 it will centralize the filings of it applications. 73 FR 11954 (March 5, 2008). As of that date, permanent labor certification applications (PERM) will be handled by the Atlanta National Processing Center (NPC), and temporary applications (H-2A, H-2B, etc.) by the Chicago NPC. The following “Specialization FAQs” deal with issues arising as a result of this transition.

PERM Notices of Filing

Q: Part of the PERM process requires a Notice of Filing be placed, containing information enabling persons wishing to provide evidence bearing on the application to the Department. Given the transition of cases from the Chicago NPC to Atlanta NPC, what should employers list for the address of the Department on the Notice?

A: Pursuant to 20 CFR 656.10(d), an employer seeking to file an Application for Permanent Labor Certification must provide notice of the filing, either to the bargaining representative or, if there is no such bargaining representative, by posted notice to the employer’ employees at the location of the employment. The notice must contain certain information, including the address of the “appropriate Certifying Officer.” 20 CFR 656.10(d)(3)(iii). Because cases filed after June 1, 2008 will be filed with the Atlanta NPC, but may have been prepared under the jurisdiction of the Chicago NPC, notices prepared in connection with an application may list an NPC that does not actually receive the case. However, as long as an address for the Certifying Officer in either the Chicago or Atlanta NPC is identified on the Notice, this will be sufficient to ensure notice of the filing has been provided and an appropriate office can receive information. OFLC recommends that any application in which a “transfer” of jurisdiction is expected to take place (ie, the case might be filed before or after June 1) should list both the Chicago and Atlanta addresses.

Applications in which the posting of the Notice of Filing commences after June 1, 2008 must list the Atlanta address. Listing the Chicago NPC in addition to the Atlanta NPC, however, will not result in a denial.

Q. How does USDOL plan to transition PERM cases pending at the Chicago NPC to the Atlanta NPC?

A: As outlined in the Federal Register Notice (Vol. 73, No. 44) of March 5, 2008, effective June 1, 2008, employers who do not wish to file online at http://www.plc.doleta.gov must mail their PERM applications directly to the Atlanta NPC. All employers who file their PERM applications online on or after June 1, 2008, will receive case numbers with the prefix “A” and be automatically routed to the Atlanta NPC for processing. Except as outlined below, all PERM applications pending with the Chicago NPC on May 31st will be transferred to the Atlanta NPC on June 1st.

Requests for Reconsideration/Appeals

Beginning April 15th, all denial determination letters generated by the Chicago NPC will contain instructions requiring the employer to submit a request for reconsideration directly to the Atlanta NPC. In other words, denial letters generated on or after April 15th will no longer direct employers to submit requests for reconsideration to the Chicago NPC, but rather to the Atlanta NPC. The employer or the employer’s authorized representative must adhere to the instructions contained in the denial letter.

The Chicago NPC will continue to receive and process all requests for reconsideration where the denial determination letter instructs the employer to submit such a request directly to the Chicago NPC. However, requests for reconsideration incorrectly submitted by the employer or the employer’s authorized representative to the Chicago NPC, where the letter specified the response be submitted to the Atlanta NPC, will be date stamped as received and then forwarded by the Chicago NPC to the Atlanta NPC for processing.

The Chicago NPC will continue to process all BALCA cases through May 31st. On June 1st, the responsibility for processing all BALCA cases will be transferred to the Atlanta NPC.

Responses to Audit Letters

Beginning April 15th, all audit examination letters generated by the Chicago NPC will contain instructions requiring the employer to submit all required documentation directly to the Atlanta NPC. In other words, audit letters generated on or after April 15th will no longer direct employers to submit required documentation to the Chicago NPC, but rather to the Atlanta NPC. The employer or the employer’s authorized representative must adhere to the instructions contained in the audit letter.

The Chicago NPC will continue to receive and process all audit review cases where the audit examination letter instructs the employer to submit required documentation directly to the Chicago NPC. However, requests for reconsideration incorrectly submitted by the employer or the employer’s authorized representative to the Chicago NPC, where the letter specified the response be submitted to the Atlanta NPC, will be date stamped as received and then forwarded by the Chicago NPC to the Atlanta NPC for processing.

Q. How does USDOL plan to transition H-2B cases pending at the State Workforce Agency (SWA) to the Chicago NPC?

A: As outlined in the Federal Register Notice (Vol. 73, No. 44) of March 5, 2008, and except for emergency boilermakers, entertainers, and professional athletes, employers must continue to file applications for H–2B temporary labor certification with the SWA serving the area of intended employment. For all applications filed with the SWA on or after June 1, 2008, the SWA must send completed applications to the Chicago NPC.

For H-2B applications currently under review by the SWA, the Department will implement the following transition policies:

1. If the H-2B application was filed with a SWA under the jurisdiction of the Atlanta NPC prior to June 1, 2008, and the completed application is ready for submission to the NPC prior to June 1, 2008, the SWA shall continue to send the completed application to the Atlanta NPC.

2. If the H-2B application was filed with a SWA under the jurisdiction of the Atlanta NPC prior to June 1, 2008, and the completed application is ready for submission to the NPC on or after June 1, 2008, the SWA shall continue to send the completed application to the Chicago NPC.

The Atlanta NPC will review and process all completed H-2B applications it receives from the SWA based on the transition policies outlined above.

With less than two weeks until the H-1B Cap opens, USCIS announced some important rule changes. Click on a link below to jump to the relevant document.

• USCIS Announces Interim Rule on H-1B Visas Rule
• Fact Sheet: Changes to the FY2009 H-1B Program
• Interim Final Rule on Duplicate H-1B Petitions
  1. A. Final Receipt Date When Cap Numbers Are Used Up Quickly.
  2. B. Elimination of Multiple Filings.
  3. C. Denial of Petitions After Cap Numbers Are Used.

USCIS Announces Interim Rule on H-1B Visas Rule Modifies Selection Process and Prohibits Multiple Filings

WASHINGTON ─ U.S. Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal Register today that prohibits employers from filing multiple H-1B petitions for the same employee. These changes will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker. To ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need. The interim final rule becomes effective upon publication in the Federal Register.

Last August, President Bush announced that the Administration would be undertaking a series of immigration and border security reforms. The changes to the H-1B filing process under this rule are an important part of that initiative.

On April 1, 2008, employers may file petitions requesting H-1B workers for fiscal year 2009 employment starting on October 1, 2008. For fiscal year 2009, Congress has set a limit of 65,000 for most H-1B workers. Additionally, the first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap.

This rule also stipulates that if USCIS determines the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during this time period. If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit.

The rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits. Those filing fees will not be returned.
Return to Top ↑.

Fact Sheet: Changes to the FY2009 H-1B Program

WASHINGTON ─ U.S. Citizenship and Immigration Services (USCIS) issued an interim final rule today that prohibits employers from filing more than one petition for an H-1B visa for a single employee in a fiscal year. The change is intended to promote a fair and systematic process for H-1B petitioners. This rule ensures that companies filing H-1B petitions that are subject to numerical limits will have an equal chance to receive consideration for an H-1B worker.

The interim final rule will become effective upon publication in the Federal Register and may be accessed via the related links section of this page.

Background

U.S. businesses utilize the H-1B program to employ foreign workers in fields that require theoretical and practical expertise in specialized occupations requiring a bachelor’s degree or higher (or its equivalent), such as scientists, engineers, or computer programmers. By law, USCIS cannot grant more than 65,000 new H-1B visas per fiscal year, subject to certain limited exceptions. The first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees are exempt from the H-1B numerical limitation of 65,000. USCIS administers a separate “20,000 cap” for such exempt petitions.

USCIS will use a random selection process for all the master’s degree or higher cap-exempt cases received on the first five business days available for filing H-1B petitions for a given fiscal year, if necessary. In the event that the U.S. master’s exemption limit is reached on the first five business days, USCIS will first conduct the random selection process for such petitions before it begins random selection for petitions to be counted toward the 65,000 cap. Petitions eligible for the U.S. master’s degree or higher exemption that are not selected to receive an H-1B visa number from the 20,000 cap will be considered with the other H-1B petitions in the random selection for the 65,000 cap filed on the first five business days.

Cap-Exempt Petition

USCIS also notes that petitions for new H-1B employment are exempt from the cap if the aliens will work at the defined institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H-1B categories regardless of H-1B visa number availability.
Cap Procedures

USCIS will use the following process for handling H-1B petitions subject to the FY 2009 cap:

• April 1, 2008 is the first day petitions may be received for an October 1, 2008 start date. When it is determined that the numerical limitations have been reached, USCIS employs a random selection process to choose among the petitions received on the “final receipt date.” If the “final receipt date” falls within any one of the first five business days, the random selection will be run using all the cap-subject petitions received on those five days.
• USCIS will reject and return the filing fee(s) for all cap-subject H-1B petitions that are not selected in the process described above. The new rule clarifies that this provision only applies to petitions that indicate they are cap-subject. If a petitioner claims to be exempt from the cap and is later found to be subject to the cap, USCIS will not refund or return fees and that petition will be denied if no cap numbers are available.
• Petitions for the FY 2009 cap received before April 1, 2008 will be rejected. A petition is considered received when USCIS takes possession of and stamps the petition as received, not by the date the petition is postmarked.

In order to fully utilize its data entry and initial processing capacity, USCIS may choose to distribute filings received at one service center to other service centers for data entry. In the event that USCIS exercises this option, petitioners may receive receipt notices or other correspondence from a service center other than the one to which their H-1B petition was mailed.

Premium Processing

Cap-subject petitions requesting premium processing that are received on the “final receipt date,” or during the initial five business day period mentioned above, cannot be processed until after the random selection has been completed. The premium processing 15-day adjudication period (processing deadline) will not begin until such time as USCIS has completed the random selection process.

The number of master’s exemption cases received cannot be determined until all the petitions have been sorted and counted. The same holds true for the master’s exemption premium processing cases. In accordance with established guidelines, USCIS will refund premium processing fees for any filings for which it cannot meet processing deadlines. Even if USCIS issues a refund of the premium processing fee, it will continue to provide premium processing for these filings until completion.
Current H-1B Workers

Petitions filed on behalf of current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, this rule does not affect USCIS processing of petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change from one cap-subject position to a different cap-subject position with a different employer; or
• Allow current H-1B workers to work concurrently in a second H-1B position.

Return to Top ↑.

Interim Final Rule on Duplicate H-1B Petitions

Full Rule in PDF Format (Summary Below)

A. Final Receipt Date When Cap Numbers Are Used Up Quickly.

This rule provides that USCIS will include petitions filed on all of those first five business days in the random selection process if USCIS receives a sufficient number of petitions to reach the applicable numerical limit (including limits on exemptions) on any one of the five business days on which USCIS may accept petitions. This will eliminate filing problems resulting from a rush of filings made on the first day on which employers may file petitions for the upcoming fiscal year. See revised 8 CFR 214.2(h)(8)(ii)(B). USCIS has determined that a filing period of five business days is sufficient to account for a wider range of mail delivery times offered by the various mail delivery providers available to the public.

This rule also provides that, if both the 65,000 and 20,000 caps are reached within the first five business days available for filing H-1B petitions for a given fiscal year, USCIS must first conduct the random selection process for petitions subject to the 20,000 cap on master’s degree exemptions before it may begin the random selection process of petitions to be counted towards the 65,000 cap. See revised 8 CFR 214.2(h)(8)(ii)(B). After conducting the random selection for petitions subject to the 20,000 cap, USCIS then must add any non-selected petitions to the pool of petitions subject to the 65,000 cap and conduct the random selection process for this combined group of petitions. Therefore, those petitions that otherwise would be eligible for the master’s degree exemption that are not selected in the first random selection will have another opportunity to be selected for an H-1B number in the second random selection process. This rule also clarifies that those petitions not selected in either random selection will be rejected. See id.

B. Elimination of Multiple Filings.

To ensure the fair and equitable distribution of cap numbers, this rule precludes a petitioner (or its authorized representative) from filing, during the course of any fiscal year, more than one H-1B petition on behalf of the same alien beneficiary if such alien is subject to the 65,000 cap or qualifies for the master’s degree exemption. See new 8 CFR 214.2(h)(2)(i)(G). This preclusion applies even if the petitions are not duplicative.

USCIS recognizes that, by statute, multiple filings of H-1B petitions are contemplated. See INA sec. 214(g)(7), 8 U.S.C. 1184(g)(7). Nevertheless, USCIS finds that this rule’s preclusion of duplicative H-1B filings is consistent with the statute. Section 214(g)(7) of the INA, 8 U.S.C. 1184(g)(7), states that “[w]here multiple petitions are approved for 1 alien, that alien shall be counted only once.” USCIS interprets this statutory language as applying to an alien who has multiple petitions filed on his or her behalf by more than one employer. Therefore, an alien who will be performing H-1B duties on behalf of two separate petitioners will be counted only once against the cap. USCIS does not believe that the statutory language at section 214(g)(7) of the INA, 8 U.S.C. 1184(g)(7), was intended to allow a single employer to file multiple H-1B petitions on behalf of the same alien. Such a broad interpretation would undermine the purpose of the H-1B numerical cap since multiple filings can result in the misallocation of the total available cap numbers.

USCIS recognizes that, on occasion, an employer may extend the same alien two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H-1B petitions on behalf of the same alien. This rule precludes this practice if the alien beneficiary is subject to the numerical limitations or qualifies for the master’s degree exemption. First, allowing multiple filings by one employer on behalf of the same alien could create a loophole for employers that seek to exploit the random selection process to the competitive disadvantage of other petitioners. Such employers could file multiple petitions on behalf of the same alien under the guise that the petitions are based on different job offers, when the employment positions are in fact the same or only very slightly different.

Second, requiring USCIS adjudicators to distinguish between multiple petitions filed by one employer for one alien based on different job offers and duplicative petitions for one alien for the same, single position would require a significant expenditure of limited USCIS adjudicative resources. USCIS could not make such determinations on the face of the petition, but would need to substantively examine and compare the merits of the petition and any other petition filed by the same employer on behalf of the alien. This would defeat the purpose of the random selection process, which is not intended to be a decision on the merits, but instead, an expeditious way for USCIS to determine which petitions are eligible for consideration on the merits.

Finally, prohibiting employers from filing multiple petitions on behalf of the same alien should have no impact on the unusual situation where an employer may have the same alien in mind for materially distinct employment positions. Once an alien is allocated an H-1B number based on one petition, the employer is able to file an amended petition or a petition for concurrent employment to reflect the different nature of the duties that are associated with the beneficiary’s second employment position. Since the alien would have already been counted against the cap, such amended or additional petition would not be affected by the prohibition on multiple petition filings. See INA sec. 214(g)(7), 8 U.S.C. 1184(g)(7).

For these reasons, USCIS believes that it must curtail both duplicative and multiple petition filings by the same employer in order to prevent future fairness problems similar to those USCIS experienced with its administration of the FY 2008 random selection process for the 65,000 cap. Accordingly, this rule provides that USCIS will deny all the petitions filed by an employer (or authorized representative) for the same fiscal year with respect to the same alien subject to the 65,000 or 20,000 caps. See new 8 CFR 214.2(h)(2)(i)(G). In cases where USCIS does not discover that duplicative or multiple petitions were filed until after approving them, this rule also provides that USCIS may revoke all such petitions if they were approved after this rule becomes effective. Id.

This rule does not, however, preclude related employers from filing petitions on behalf of the same alien. USCIS recognizes that an employer and one or more related entities (such as a parent, subsidiary or affiliate) may extend the same alien two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H-1B petitions on behalf of the same alien.

For example, a Fortune 500 company may be the parent company of numerous U.S.-based subsidiaries whose business is to engage in either the food, beverage or snack industries. Each line of business may, in turn, be divided into several business units and operate distinct companies (restaurant, bottled beverage plant, cereal manufacturer, etc) with different EIN numbers, addresses, etc. Although all the subsidiaries are ultimately related to the parent company through corporate ownership, this rule does not prohibit different subsidiaries from filing one H-1B petition each on behalf of the same alien so long as each employer/subsidiary has a legitimate business need to hire such alien for a position within that subsidiaries’ corporate structure. Thus, in this example, if the bottled beverage plant owned by the Fortune 500 company and the cereal manufacturing company owned by the same Fortune 500 company are each in need of the services of a Chief Financial Officer, both may file one petition each on behalf of the same alien. A subsidiary should not file an H-1B petition for an alien just to increase the alien’s chances of being selected for an H-1B number where that subsidiary has no legitimate need to employ the alien and is, instead, only filing a petition to facilitate the alien’s hiring by a different, although related, subsidiary.

USCIS may issue a request for additional evidence or notice of intent to deny, or notice of intent to revoke for any or each petition if it determines that the employer and related entity(ies) filed a duplicate petition as defined in this regulation. See 8 CFR parts 103 and 214.2(h)(11). The burden rests with the employer to establish that it has alegitimate business need to file more than one H-1B petition on behalf of the same alien. If the employer does not meet its burden, USCIS may deny or revoke each petition, as appropriate. Without such authority, a loophole would exist for related employers to file multiple petitions on behalf of the same alien under the guise that the petitions are based on different job offers, when the true purpose of filing the petitions is to secure employment for the alien with a single employer seeking his or her services. As an example, one target of this provision is the unscrupulous employer that establishes or uses shell subsidiaries or affiliates to file additional petitions on behalf of the same alien in order to increase the alien’s chances of being allotted an H-1B number. USCIS believes that these consequences are warranted in order to deter unfair filing practices and further ensure the integrity of the H-1B cap counting process.

To date, USCIS has identified the problems resulting from multiple filings only in the context of H-1B petitions. For this reason, this rule limits the bar on multiple petition filings to H-1B petitions.

C. Denial of Petitions After Cap Numbers Are Used.

Over the past few years, USCIS has received a significant number of petitions that claim to be exempt from the 65,000 cap, but are determined after the final receipt date or after all cap numbers have been used to be subject to the cap. The current regulations do not specifically address treatment of such petitions. This rule amends the regulations to clarify that such petitions will be denied rather than rejected. See revised 8 CFR 214.2(h)(8)(ii)(B) and (D). USCIS has determined that denial of these petitions is appropriate because USCIS must adjudicate them in order to make a determination on whether the alien beneficiary is subject to the numerical cap. USCIS only rejects filings before an adjudication takes place. See 8 CFR 103.2(a)(7). Because USCIS must adjudicate these petitions, it will not return the petition and refund the filing fee.
Return to Top ↑.

USCIS recently issued a memorandum revising its requirement that an FBI background check be complete before approving some applications, including I-485 applications.

From the memorandum:

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.

Full memorandum: Revised National Security Adjudication and Reporting Requirements (pdf), February 4, 2008.

USCIS has now issued a revised “Questions & Answers” on the background check policy update. Those questions and answers are pastd below.

BACKGROUND CHECK POLICY UPDATE

Q1. What applications are affected by this policy change?
A1. Applications included in this policy are:
• I-485, Application to Register Permanent Residence or Adjust Status;
• I-601, Application for Waiver of Ground of Inadmissibility;
• I-687, Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act; and
• I-698, Application to Adjust from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603).

Q2. How has USCIS changed its national security requirements?
A2. USCIS has not changed its background check policies for naturalization applications. Recently, the agency did modify its existing guidance for certain applications (see above) where the immigration laws allow for the detention and removal of individuals if actionable information from a FBI name check response is received after approval.

No application for lawful permanent residence will be approved until a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) check are completed and resolved favorably. (Please refer to the USCIS Immigration Security Checks fact sheet on the USCIS website for more information.)

Q3. How has USCIS changed its adjudications requirements?
A3. For these forms, including applications for lawful permanent residence, USCIS will adjudicate the application based on all required evidence outlined in applicable law and regulation if the application is otherwise approvable, outside of normal processing times, and the FBI name check request has been pending for more than 180 days.

Q4. What happens if USCIS later receives adverse information from an FBI name check?
A4. In the unlikely event that Department of Homeland Security, (DHS) receives actionable adverse information from the FBI name check after the application is adjudicated, DHS may detain the applicant and initiate removal proceedings.

Q5. Why is this policy being implemented?
A5. This policy change responds to a 2005 DHS Inspector General recommendation that USCIS better align its background check screening policies with those of U.S. Immigration and Customs Enforcement.

Q6. Is this policy consistent with the national security priorities of USCIS and the Department of Homeland Security?
A6. Yes. Applications for lawful permanent residence will not be approved until a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) check are completed and resolved favorably. In addition, in the unlikely event that DHS receives actionable adverse information after the application is approved, removal proceedings may be initiated.

Q7. How many applications for lawful permanent residence are immediately affected by this policy change?
A7. USCIS is aware of approximately 47,000 applications for permanent residence (I-485) cases that are otherwise approvable but have an FBI name check pending. A portion of these cases are both outside normal processing times and have an FBI name check that has been pending for more than 180 days. These cases will be subject to processing under the new policy. USCIS anticipates the majority of the cases that can now be adjudicated will be processed by mid-March 2008.

Q8. Does this policy change affect naturalization applications?
A8. No. There is no change in the requirement that FBI name check, FBI fingerprint and Interagency Border Inspection Services (IBIS) check results be obtained and resolved prior to the adjudication of an Application for Naturalization (N-400).

Q9. How long will it take for USCIS to work through the cases affected by the policy change?
A9. USCIS has begun identifying cases affected by this policy modification in each field office and service center. Each office will evaluate the pending cases and will adjust their workload accordingly. USCIS anticipates the majority of the cases subject to this policy modification will be processed by mid- March 2008. We recommend customers wait until March 10 before inquiring about their cases. This will allow each office sufficient time to identify and adjudicate pending cases.

Q10. The memorandum identifies I-485, I-601, I-687 and I-698 forms. Is there a plan to include other forms, specifically nonimmigrant and naturalization, in this policy?
A10. No.

Q11. Should customers contact USCIS through the 1-800 customer service number or make an INFOPASS appointment to visit their local office if their case is outside of normal processing times and they believe their application meets the criteria of this new policy?
A11. For pending applications outside of normal processing times, we recommend that customers wait until March 10, 2008, before inquiring about cases affected by this policy modification. This will allow each office sufficient time to identify and adjudicate the relevant pending cases. If no action is taken by mid-March, we recommend inquiring with the USCIS customer service line at 1-800-375-5283. This procedure is for customers who have been previously informed that their case is pending due to the FBI name check. (Cases that are still pending within the processing times will be completed when the related adjudication actions are completed.)

Q12. Will USCIS automatically notify an applicant to appear at an Application Support Center, (ASC) if his or her fingerprints have expired?
A12. Applicants will be notified through an appointment notice if new or updated fingerprint checks are needed.

Source: USCIS.gov

The Department of Justice announced higher fines for employers who violate immigration laws. There is nothing extraordinary about the fine increase - fines were increased to keep pace with inflation. [Read more →]

All stand-alone I-130 petitions should now be filed with the Chicago Lockbox according to United States Citizenship and Immigration Services (USCIS). The Chicago Lockbox is two post office boxes in Chicago (listed below). Because some couriers will not ship to a post office box, the American Immigration Lawyers Association (AILA) also obtained the Chicago Lockbox street address from USCIS (also listed below). [Read more →]

U.S. Citizenship and Immigration Services (USCIS) announced that effective today it will begin consolidating biometrics collection when employment-based adjustment of status applications and employment authorization requests are filed at the same time at one of the Service Centers.

Applicants who concurrently file Form I-485 (Application to Register Permanent Status or Adjust Status) based upon the approval of an employment based petition and Form I-765 (Application for Employment Authorization) will receive one biometrics appointment letter to appear at a designated Application Support Center (ASC). [Read more →]

From USCIS.gov.

U.S. Citizenship and Immigration Services (USCIS), anticipating that April 1, 2008 will see a repeat of the mass filings from last year, wishes to offer this list of measures the petitioner can take to ensure that their petition is correctly filed. [Read more →]

U.S. Citizenship and Immigration Services (USCIS) announced today a new customer service initiative to streamline the adjudication of H-1B petitions. Effective immediately, USCIS will employ a special unit dedicated to processing these types of H-1B cap exempt petitions at the USCIS California Service Center (CSC). Aliens employed by certain types of educational, nonprofit or governmental organizations, as defined below (normally referred to as “cap exempt,” aliens employed by such entities are not subject to the H-1B numerical limitations). See section 214(g)(5)(a) and (b) of the Immigration and Nationality Act (INA); and 8 CFR 214.2 (h)(8)(A). [Read more →]

The February 2008 Visa Bulletin was just released and the annual limit for the India EB-2 preference category has become “unavailable”. From the notes of the bulletin,

Despite two retrogressions of the India Employment Second preference cut-off date, demand for numbers by CIS Offices for adjustment of status cases has remained extremely high in recent months. As a result the annual limit for the India Employment Second preference category has been reached, and the category has become “unavailable” effective immediately.

The cut-off date in EB-2 category for nationals of India had previously moved from “April 1, 2004″ in the November Bulletin to “January 1, 2002″ in the December Bulletin to “January 1, 2000″ in the January Bulletin. The retrogression continued in the February Bulletin and the category has become “unavailable”altogether.

[Update January 9th, 2008 ] The February 2008 Visa Bulletin was just released and retrogression continued in the EB-2 category for nationals of India. Read about the retrogression, by following this link.

We recently posted the January 2008 Visa Bulletin from the State Department. An important development was the continued retrogression of the cut-off date for Indian nationals in the Second Preference for employment visas. The cut-off date in this category has moved from “April 1, 2004″ in the November Bulletin to “January 1, 2002″ in the December Bulletin to “January 1, 2000″ in the January Bulletin.

The State Department commented in the notes of the most recent bulletin:

It has been necessary to once again retrogress the India Employment Second preference cut-off date. This is a direct result of continued heavy applicant demand for numbers by CIS for adjustment of status cases despite the retrogression which occurred for December. It is likely that the annual limit for this category will be reached within the next few months, at which time the category would become “unavailable” for the remainder of fiscal year 2008.

The latest round of FAQs on Backlog Elimination from the Department of Labor (DOL) has been reproduced below. The original pdf version is available here (.pdf).

See http://www.foreignlaborcert.doleta.gov/ for prior DOL Backlog Elimination FAQs.

Backlog Elimination
Frequently Asked Questions Round 8
December 2007

1. Question: When is the official date that the Dallas and Philadelphia BECs will close?
Answer: Both BECs will close on 12/21/07.

[Read more →]

On August 15, 2007, U.S. Immigration and Customs Enforcement issued a final rule describing the legal obligations of an employer, under current immigration law, when the employer receives a No-Match letter from the Social Security Administration. [Read more →]

From http://www.foreignlaborcert.doleta.gov/.

Backlog Elimination
Frequently Asked Questions
October, 2007

(1) Are the Backlog Elimination Centers (BECs) still open, or did they close?
As of September 30, 2007, the Backlog in the Permanent Labor Certification program has been eliminated, with nearly 99% of cases completed and the remainder awaiting responses from employers. Both of the BECs have started a transition and shutdown phase that will continue into December.

The BECs will continue to use the general information email boxes as the communication source for a limited period. These addresses are: info@dal.dflc.us (Dallas BEC) or info@phi.dflc.us (Philadelphia BEC).

[Read more →]

USCIS Reminder to Apply for Travel Documents

“USCIS urges applicants needing a travel document (Reentry Permit, Refugee Travel Document or Advance Parole) to file Form I -131, Application for Travel Document (available online at www. uscis.gov ), before the end of October 2007.”

From USCIS.gov.

U.S. Citizenship and Immigration Services (USCIS) advises customers that, due to a tremendous increase in the number of applications filed, processing of fee payments and entry of cases into our tracking system is behind schedule. As a result, applicants can expect notices of receipt to be delayed. USCIS is working hard to deal with the increased volume and has published the following frequently asked questions in order to provide additional information to applicants.
[Read more →]

From USCIS.gov.
U.S. Citizenship and Immigration Services (USCIS) today announced the 100 questions and answers that comprise the civics component of the new naturalization test. USCIS will administer this new test to citizenship applicants beginning in October 2008.

FAQ for New Naturalization Test
Civics Questions for the Redesigned Test

[Read more →]

BALCA :: Matter of Demos Consulting Group, 2007-PER-00020 (5/16/07)

“Since the Alien only qualified for the position under the alternative experience requirement, under section 656.17(h)(4)(ii), the Employer’s application was required to state that any suitable combination of education, training, or experience was acceptable. It did not, and we therefore find that the CO properly denied certification.”

See Kellogg Language.

From http://www.ssa.gov/employer/ICEinsert.pdf

Dear Employer:

The purpose of this letter is to provide you with additional guidance on how to respond of the enclosed letter from the Social Security Administration (SSA) in a manner that is consistent with your obligations under United States immigration laws. You are now aware that the Social Security numbers you have provided on W-2 Forms for certain employees do not match SSA’s records. Many employers that receive this information are concerned about how to respond appropriately, and whether the receipt of such information implicates an employer’s obligations under the Immigration and Nationality Act. This letter will answer the common questions arising from this situation.
[Read more →]

Immigration to the United States, 1789-1930, is a web-based collection of selected historical materials from Harvard’s libraries, archives, and museums that documents voluntary immigration to the US from the signing of the Constitution to the onset of the Great Depression.

http://ocp.hul.harvard.edu/immigration/

“The visa squeeze leaves companies scrambling for ways to retain valuable job candidates, including using other types of visas and temporary overseas assignments. Google Inc., which filed more than 300 H-1B applications this year, says it will send 70 new hires who didn’t get visas to overseas offices until it can try again next year. Many of the Intel Corp. job candidates who failed to get H-1Bs will stay in school and try for the visa next year while Intel holds open the jobs…”

Wall Street Journal, Firms Get Creative To Work Around Visa Bottlenecks (08/27/2007)

…part 274a of chapter I of title 8 of the Code of Federal Regulations is amended.

Section 274a.1(l) is revised to read as follows:

[Read more →]

“…even the most seasoned citizens-in-waiting were stunned by the nasty bait-and-switch the federal bureaucracy pulled on them this month. After encouraging thousands of highly skilled workers to apply for green cards, the government snatched the opportunity away.”

New York Times Editorial, Immigration Malpractice (07/07/2007)

9 FAM 42.53 N3.6 Subsequent Petition in Employment-based Classifications

Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresentation, a priority date accorded by approval of an employment-based first, second or third preference petition is retained by the beneficiary for any other first, second or third preference petition approved subsequently for the same beneficiary. In all cases, the beneficiary of multiple petitions is entitled to the earliest of the filing dates of the various petitions.

A petition shall be considered properly filed when the completed, signed petition, including all initial evidence and the correct fee is filed with Department of Homeland Security (DHS).

Advanced (Boolean) Search Examples

“At least 11 of the 113 international students in the Class of 2006 were affected by the H-1B shortage, according to an e-mail survey conducted by OISS Assistant Director Monica Weeks. But that figure is probably an underestimate, as some affected graduates may not have received the e-mail or chosen to respond, she said. Weeks said one Yale alumnus estimated that at least 20 graduates had visa problems this year.

For the most part, companies were willing to work with students to find solutions to fill the 16 months between graduation and Oct. 1, 2007, when the next round of H-1B visas will take affect. Some graduates will remain in the United States temporarily by using “optional practical training” — up to 12 months of employment authorization provided by the international student visa. They may take time off before starting work or transfer abroad between the end of their OPT and next October.”

Foreign alums cope with visa troubles :: Yale Daily News

Francis Kellogg, 1994-INA-465 and 544, 1995-INA 68 (Feb. 2, 1998) (en banc),

“where the alien does not meet the primary job requirements, but only potentially qualifies for the job because the employer has chosen to list alternative job requirements, the employer’s alternative requirements are unlawfully tailored to the alien’s qualifications, in violation of [the pre-PERM regulation at § 656.21(b)(5)], unless the employer has indicated that applicants with any suitable combination of education, training or experience are acceptable.”