VISANOW Voice Newsletter - June 2007

Department of State Advances Majority of Employment Based Visa Categories to Current

The Department of State has announced the new visa numbers for July and, for the first time since September 2005, all employment based numbers are current except the unskilled worker category. Following the already significant move forward in June, many were expecting limited changes for July.

This is great news for those who have been in the green card process for up to six years. It is advisable to prepare to file the Form I-485 (Application to Register Permanent Residence or to Adjust Status) on July 1, 2007, or as soon thereafter as possible as numbers traditionally retrogress towards the end of the year.

It should be noted that these cases cannot be filed until July 1, 2007 and they will not be accepted in advance.

Labor Certification Substitution to be Eliminated in Mid-July

The Effective July 16, 2007, the DOL’s Final Rule on labor certification issues will prohibit the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications. This provision applies to both PERM and pre-PERM labor certifications. These changes will not affect substitutions already approved by the USCIS (approved I-140 cases) or substitution requests in progress (pending I-140 cases) as of the rule's effective date.

A 180-day “validity period” has also been created limiting employers to only 180 calendar days to file an approved permanent labor certification in support of a Form I-140 (Immigrant Petition for Alien Worker) with the USCIS. This rule applies to all permanent labor certifications filed on or after the rule’s effective date of July 16, 2007. All labor certifications that were approved prior to July 16, 2007, will expire on January 12, 2008 (180 calendar days after the effective date of the rule). As a result, employers who have previously approved labor certifications that have not yet been used for I-140 cases should be sure to use these labor certifications by January 12, 2008.

In addition, the new rule also requires employers to pay the costs of preparing, filing, and obtaining labor certification. Beginning July 16, an employer will no longer be allowed to pass the costs incurred for the application process to the alien employee. This includes "payment of the employer's attorneys' fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application."

These significant changes will greatly impact workforce and budgetary planning for employers. Substitutions have often been used successfully in the past to reduce the amount of time needed to provide a Green Card for employees. In addition, the revisions to the payment responsibility will affect the direct costs for hiring companies and their employees. We would advise moving forward with any upcoming substitutions as soon as possible as the July 16th deadline is rapidly approaching.

Premium Processing Service for I-140 Suspended Effective July 2nd

Anticipating a substantial increase in the number of incoming petitions, the USCIS will be temporarily suspending Premium Processing Service for Form I-140 (Immigrant Petition for Alien Worker) effective July 2, 2007. This expected increase is due to the built up demand for preference visa categories which will become current on July 1, 2007. The volume of Form I-140 petitions requesting Premium Processing is expected to exceed the USCIS’ capacity.

The initial suspension will last 30 days ending August 1, 2007. If following this period they determine they will not be able to begin processing these cases within the necessary 15 calendar days for Premium Processing Service, the suspension may be extended.

New USCIS Fees Take Effect July 30, 2007

The USCIS recently announced a final fee structure increase effective July 30, 2007 that will impact a number of common visa applications. Included in the increase are the H-1B, the L1A / L1B, and significant jumps to the Green Card Exceptional Worker and the Green Card Exceptional Worker with Work and Travel. Both the H-4 and the I-485 dependent visas will also be increased. See below for key details or click here for a full listing of the revised fee schedule.

The rule also includes some benefits for families with children and expands the availability of fee waivers and exemptions. Key revisions include a 25 percent reduction to the proposed filing fee for Form I-485 (Adjustment of Status to Permanent Resident) for children 14 years old or younger, translating to a $360 decrease from what was proposed for a family of two adults and two children filing together. The rule will also allow a one-time free extension of approved orphan petitions for prospective adoptive parents, and expands the availability of fee waivers for some adjustment of status cases that arise from asylum or other humanitarian categories, and certain juvenile immigrants. Finally, USCIS will be able to waive the $80 biometric fee, in addition to the application/petition fee, on an individual basis.

The USCIS project these fee increases will lead to a 20% drop in average application processing times by the end of fiscal year 2009 and will ensure sufficient funding for national security, customer service improvements, and new technology and business process platforms.

* I-485 for dependents under 14 years of age are charged slightly lower fees

Immigration Reform Legislation Moves Back to the Senate Floor But Fails Procedural Vote

After recently moving the stalled immigration reform legislation back to the Senate floor for continued debate on a limited number of amendments, the bill once again failed a procedural vote to move to voting for final passage leaving the future of this specific legislation in question. Following a set-back earlier this month when the bill originally failed to garner the necessary procedural votes to move to a final passage vote, the proposal was revived following a visit to Capitol Hill by President Bush and his endorsement of a significant amendment that would lock in additional funds for increased border security.

Early this week, the bill received 64 votes in favor of returning the issue to the Senate for continued debate on two dozen amendments. A bi-partisan amendment included in the debate will specifically address the contested worker verification program. The amendment aims to reduce the burden placed on employers during the verification process including the reduction in requirements to verify that all their workers are legal. The proposal would allow employers to focus on new employees and those targeted for verification by the Department of Homeland Security. It would also remove the requirement for a federally standardized and tamper-proof “REAL ID” to be produced prior to employment allowing workers to continue to use a driver’s license or a basic ID card.

Homeland Security Chief Michael Chertoff came out strongly against the amendment claiming it eliminates the tools necessary for enforcement of reform legislation opening the door for employers to continue hiring undocumented workers. Although labor groups and businesses are unhappy with much of the proposed verification program, it is also a key measure needed to maintain Republican support of the overall immigration reform proposal.

With the growing support of an eventual vote in the Senate on the reform legislation, continued skepticism of Republican support in the House has raised concerns among those in favor of the bill. Democratic leaders in the House have repeatedly said they would not introduce the proposal without a guarantee of at least 70 of the 201 Republican representatives supporting the bill. A recent vote by the House Republican Conference on a statement highlighting the group’s strong disapproval of the bill passed by a measure of 114-23.

USCIS Continues Suspension of Premium Processing for Religious Workers (R-1) Visa Classification

The USCIS has extended the temporary suspension of Premium Processing Service for Aliens in a Religious Occupation for another 6 months with an expiration date of December 18, 2007. Initially suspended on November 28, 2006, this announcement indicates that additional time is needed to access whether it is possible to provide premium processing services for these petitions which are filed on Form I-129 along with the Q-1 and R-1 Classifications Supplement. Due to the complexities of their current adjudication processes, the USCIS cannot reasonably ensure the 15 calendar day processing service for the R-1 petitions at this time.

In August 2005, the USCIS Office of Fraud Detection and National Security found significant issues within the R-1 application process. On April 25, 2007, the USCIS published the proposed rule Special Immigrant and Nonimmigrant Religious Workers which, when finalized, should reduce many of the vulnerabilities previously found with this program. Until this is completed, additional time and review of the petitions are necessary to ensure proper adjudication.