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).

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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

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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.

About 50,000 green cards are given away each year in the Diversity Visa Lottery. Online entry for the next lottery (”DV-2009″) begins at Noon EDT on October 3, 2007, and ends at Noon EST on December 2, 2007. Last year, more than 6.4 million entries were received. There is no fee for submitting an electronic lottery entry.

Go to Diversity Visa Electronic Entry Form for DV-2009.
Read Diversity Visa Lottery Instructions for DV-2009 (.pdf).

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 provides for a class of immigrants known as “diversity immigrants”. Section 203(c) of the INA provides a maximum of up to 55,000 Diversity Visas (DV) each fiscal year to be made available to persons from countries with low rates of immigration to the United States.

The annual DV program makes permanent residence visas available to persons meeting the simple, but strict, eligibility requirements. A computer-generated random lottery drawing chooses selectees for diversity visas. The visas, however, are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the U.S. over the period of the past five years. Within each region, no one country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2008, natives of the following countries were not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. over the period of the previous five years:

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, EL SALVADOR, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, PERU, POLAND, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

Are there any fees for the Diversity Visa Program?
There is no fee for submitting an electronic lottery entry. DV applicants must pay all required visa fees at the time of visa application directly to the consular cashier at the embassy or consulate. Details of required diversity visa and immigration visa application fees will be included with the instructions sent by the Kentucky Consular Center to applicants who are selected.

Do I qualify for the Diversity Visa Program?
You must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

What Occupations qualify for the Diversity Visa Program?
The Department of Labor (DOL) O*Net Online Database groups job experience into five “job zones.” While many occupations are listed on the DOL Website, only certain specified occupations qualify for the Diversity Visa Program. To qualify for a Diversity Visa on the basis of your work experience, applicants must, within the past five years, have two years of experience in an occupation that is designated as Job Zone 4 or 5, classified in a Specific Vocational Preparation (SVP) range of 7.0 or higher.

Follow these steps to find out if your occupation qualifies: Select “Find Occupations” and then select a specific “Job Family”. For example, select Architecture and Engineering and click “GO”. Then click on the link for the specific Occupation. After selecting a specific Occupation link, select the tab “Job Zone” to find out the designated Job Zone number and Specific Vocational Preparation (SVP) rating range.

2008 Diversity Visa Lottery Registrations

Over 6.4 million entries for the 2008 Diversity Visa Lottery were received during the two-month electronic registration period, from October 4, 2006, through December 3, 2006. This is an increase from the more than 5.5 million applications received in the 2007 Diversity Visa Lottery. Taking into account dependents, there are more than 10 million participants in the 2008 Diversity Visa Lottery.

Most of the applications were from Africa and Asia with 41 percent of the total from Africa, 38 percent from Asia, 19 percent coming from Europe, and 2 percent coming from South America, Central America, and the Caribbean. The largest number of applicants came from Bangladesh (more than 1.7 million applicants) followed by Nigeria (684,735) and Ukraine (619,584). The number of winning entries by country will be available after the random lottery process is conducted next year.

The electronic registration process makes it easier for applicants to apply and continues to increase the Department’s ability to screen against duplicate and other fraudulent entries. Anti-fraud technology using facial recognition and data mining will be used to eliminate duplicate cases.

Winners will be notified with a letter mailed from the Kentucky Consular Center confirming the name, date of birth, and country of chargeability for the registrant, as well as a time/date stamp when entries were registered. Notification will be sent to the winning entrants by mail only between April and July 2007 and will provide further instructions, including information on fees connected with immigration to the United States.

There have been several attempts to defraud Diversity Visa Lottery entrants. Lottery entrants selected as winners in the Diversity Visa random drawing are notified only by the Department of State’s Kentucky Consular Center. No other organization or company is authorized by the Department of State to contact winning entrants.

BIA Decision - August 15, 2007
The Board of Immigration Appeals (BIA) dismissed an appeal, filed by Connecticut immigration lawyer Joe Tapper, challenging an earlier finding by an Immigration Judge that an initial visa petition was not “approvable when filed” and therefore did not meet the grandfathering requirements under 8 C.F.R. § 1245.10. In order for a visa petition to be “approvable when filed,” the visa petition must have been (1) properly filed, (2) meritorious in fact, and (3) not frivolous.

Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous (“frivolous” being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary’s grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act. 8 C.F.R. § 1245.10(a)(3) (emphasis added).

This appeal addressed the second prong - whether the inital visa petition was “meritorious in fact” - and illustrates that determinations will be made based on the circumstances that existed at the time the qualifying petitions or applications were filed. This standard applies to both marriage-based and employment-based adjustment of status applications filed under section 245(i) of the Immigration and Nationality Act.

For additional information on section 245(i) and the definition of “approvable when filed”, see

Yates Memo :: March 9, 2005 :: Approvable When Filed.

USCIS FAQ #3.

Employment-Based Adjustment Applications Filed by Aliens Whose Priority Dates are Current under Department of State July Visa Bulletin No. 107.

Adjustment applications and ancillary benefits – The new application fee for an I-485 is a package fee that includes associated EAD and advance parole applications.Thus, if you file an I-485 with the fee listed above, while you will still need to submit applications for an EAD and advance parole, you will not need to pay a separate fee so long as your adjustment application is pending. However, if you filed your I-485 before this fee change, to apply for or renew your EAD or advance parole, you must file a new application with the new fee for those applications.

Full list of USCIS filing fees.

USCIS FAQ #2.
Employment-Based Adjustment Applications Filed by Aliens Whose Priority Dates are Current under Department of State July Visa Bulletin No. 107.

USCIS FAQ #1.
Employment-Based Adjustment Applications Filed by Aliens Whose Priority Dates are Current under Department of State July Visa Bulletin No. 107.

USCIS Update :: Revised Processing Procedures for I-485 Applications.
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced that, beginning immediately, it will accept employment-based applications to adjust status (Form I-485) filed by aliens whose priority dates are current under the July Visa Bulletin, No. 107. USCIS will accept applications filed not later than August 17, 2007. [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)

Advanced (Boolean) Search Examples

Orlandi Landscaping Group, 2007-PER-00016.

We affirm the CO’s denial of certification on the basis that the Employer failed to properly recruit for a professional occupation, as required under 20 C.F.R. § 656.17(e)(1). [Read more →]

New Biometrics Process for Conditional Permanent Residents
Under the old process, following the approval of Form I-751, an approval notice was issued instructing the applicant to appear at a USCIS District Office for processing of his or her Form I-551, Permanent Resident Card (“Green Card”). The approved applicant would manually submit passport-style photographs, index fingerprints, and a signature on Form I-89, I-551 or I-586 Card Data Collection Form, for creation of his or her permanent resident card. The new process, as authorized in 71 Federal Register 15469 (March 28, 2006), requires all conditional permanent residents to appear at a USCIS Application Support Center (ASC) after filing Form I-751 in order to have their biometrics electronically captured.

Outback Steakhouse, 2005-INA-00096.

Although the Employer’s efforts were not vigorous, they were reasonable and constitute good faith efforts under the Act. [Read more →]

Sec. 106. Special Provisions in Cases of Lengthy Adjudications.

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“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.”

Compaq Decision.

“We find that a CO may decline to grant an RIR when an employer which has laid off numerous U.S. workers, limits its consideration of qualified workers to those in a localized facility, and does not address the potential availability of workers from other locations. Moreover, we find that a CO may decline to grant an RIR where an employer does not adequately explain why the laid off U.S. workers could not perform the main job duties.”