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H-1B Cap Filings – How To Determine If Your Case Has
Been Accepted
The United States Citizenship and
Immigration Services (USCIS) recently released
additional information on their progress logging
H-1B cap filings received on April 2 and 3 of this
year. The memorandum indicates that they expected to
have data entry for all H-1B cap filings made on
those dates completed by May 11, 2007. Such data
entry should now be completed and this information
can be used to determine, in certain circumstances,
whether individual cases have been accepted for
processing. Accepted cases should have seen receipt
notices issued by that date. If a receipt notice has
been issued for your case, it can be assumed that
this is a reliable indicator that your case has been
accepted.
However, due to the unprecedented volume of H-1B
case filings, the process of issuing H-1B receipt
notices is still ongoing. In an effort to provide a
more accurate time frame for receipting, the USCIS
has provided the following response estimates.
Please note that these dates do not apply to I-129
H-1B Premium Processing Cases:
• California Service Center: Expects to complete receipt processing by June 15, 2007.
• Vermont Service Center: Expects to complete receipt processing by June 2, 2007.
In addition, long mailing times for these receipt
notices means they may have not yet arrived for
accepted cases. In some circumstances, a
determination as to whether a case has been accepted
can be ascertained through the deposit of the filing
checks that accompanied your H-1B petition. As we
believe the USCIS had completed data entry on the
cases by May 11, 2007, cases for which checks have
been cashed on or after May 12, 2007 would likely
have been accepted for processing.
Although some applications were not initially
selected in the April 12 lottery, there is a chance
that they may be randomly chosen from a select few
held for possible (not guaranteed) adjudication.
Final Rules
Published on Labor Certification Cases
The Department of Labor (DOL) has published its
Final Rule on labor certification issues. This Final Rule,
effective July 16, 2007, prohibits the substitution of alien
beneficiaries on permanent labor certification applications
and resulting certifications. This provision applies to both
PERM and pre-PERM labor certifications. This change 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. Thus,
employers who are interested in substituting employees into
approved labor certifications should act quickly and file
the I-140 substitution cases before July 16.
Additionally, the DOL rule creates a 180-day “validity
period” for permanent labor certifications. Employers now
have 180 calendar days within which 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.
The DOL rule also now requires employers to pay the costs of
preparing, filing, and obtaining labor certification.
Starting 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." The DOL notes that work performed by the alien
employee related to the offered job, based on the employment
relationship, is acceptable under the rule, and does not
qualify as "reimbursement in costs" for the labor
certification process.
The rule additionally states that "an alien may pay his or
her own costs in connection with a labor certification,
including attorneys' fees for representation of the alien,
except that where the same attorney represents both the
alien and the employer, such costs shall be borne by the
employer." Thus, employers should be aware that even if the
alien originally retained the attorney, it is highly
probable that the attorney could eventually represent the
interests of both the alien and the attorney, particularly
because the employment-based immigration process often
requires the employer to make representations to the
government with guidance from an attorney.
USCIS Terminates
Premium Processing Service for Form I-140 Petitions
Requesting Labor Certification Substitution
Effective May 18, 2007, The United States
Citizenship and Immigration Services (USCIS) will no
longer allow Premium Processing Service for Form
I-140 petitions that are filed based on substituted
labor certifications. Premium Processing Service
guarantees the processing of a case within 15 days
of its receipt with an issuance of either an
approval notice, a notice of intent to deny or a
request for evidence.
The elimination of Premium Processing for these
types of cases was prompted by the DOL’s
announcement that they will prohibit labor
certification substitutions as of July 16, 2007. The
USCIS expects a considerable increase in the number
of Form I-140 petitions filed before this cut off
date and the Premium Processing Service anticipates
it will not be able to handle such a high volume of
petitions.
Bi-Partisan
Comprehensive Immigration Reform Legislation Introduced
On May 17, 2007, a bi-partisan group of
U.S. Senators announced proposed legislation regarding
comprehensive immigration reform. The Secure Borders,
Economic Opportunity, and Immigration Reform Act of 2007,
sponsored chiefly by Senator Edward Kennedy (D. MA.) and
John Kyl (R. AZ.), would radically alter federal immigration
law.
The legislation would create a new
temporary Y visa worker program for workers coming to the
U.S. to perform temporary jobs that U.S. employers cannot
fill. Y visa holders would be admitted for a two-year period
and then be required to return to their home country for one
year. A Y visa holder would have a maximum of three two-year
periods of admission. An employer must petition for a Y visa
for an individual by filing a labor certification
application with the Department of Labor. The number of Y
visas available was initially set at 400,000 annually, but
there has been a great deal of controversy with regard to
this program and an amendment cutting the number of visas to
200,000 has already passed. The
legislation would also create a new four-year, renewable Z
nonimmigrant visa to address the undocumented population
currently within the U.S. In order to be eligible for this
visa, one must have been illegally present within the U.S.
before January 1, 2007. To apply, an individual must be
currently employed and pay fees and penalties under a
merit-based system. Once an applicant submits a completed
application, fingerprints, and is cleared by a one-day
background check, he/she will receive probationary benefits,
including temporary work authorization, travel
authorization, protection from deportation, and suspension
of classification as an unauthorized alien. The Z visa will
be valid for four years and also allows spouses and children
work authorization. The visa can also be transferred to
other employers.
A Z visa holder may also file to adjust
to permanent resident status, but must do so at a U.S.
consulate in his or her country of origin. Z visa holders
will not be issued green cards until all of the family and
employment-based immigrant visa backlogs are eliminated.
The draft legislation was revised on May 18, 2007, to
include other provisions regarding employment-based
immigration. If passed, the Act would
raise the Fiscal Year 2008 H-1B cap to 115,000. The Act
would also eliminate the employment preference categories
(EB-1, EB-2, EB-3, etc.) and replace them with a merit-based
system that allocates certain points to individuals for
their personal qualifications. Individuals who are employed
in specialty occupations, such as the engineering field, and
who have advanced degrees, would earn a significant number
of points in this system, making immigrant visas more easily
available to them.
Possible Changes
to the Employment Verification Process
With the recent introduction of Comprehensive
Immigration Reform Bills by both the House and the Senate,
employers should begin reviewing their internal hiring and
screening processes especially in regards to their
employment verification process. Title III of the Strive Act
previously introduced by the House directly addresses the
introduction of a mandatory electronic employment
verification system along with increased penalties for
non-compliance. Click
here to review the proposal.
We would advise employers to monitor the unfolding events
closely. If passed, the new legislation will result in an
urgent need on the part of employers to review their HR
processes to ensure compliance on a number of fronts. In
addition, the increased burden of navigating a new set of
regulations and managing the enhanced verification system
will create a number of initial challenges for employers.
Significant
Movement Forward in June 2007 Visa Bulletin for All
Employment-Based Preference Immigration Categories
The June 2007 Visa Bulletin published by
the U.S. Department of State (DOS) shows significant
progress in the priority dates for all retrogressed
employment-based preference immigration categories. The
greatest benefit goes to those in the third preference
(EB-3) category, where, after months of little to no
movement, priority dates leapt from 2001 or 2002 to 2003 or
2005.
As we had reported in the last issue of the Voice, the DOS
had stated in the May 2007 bulletin that the U.S. Department
of Labor has been clearing its backlog of labor
certification applications at a much slower pace than
expected, so the massive demand forecasted in late 2006 has
not yet materialized. The DOS has been testing the level of
response by advancing priority dates, and it foresees that
“[a]t this time it appears likely that there will be
additional advances during the coming months.”
This is obviously great news for those who have been in the
green card process for up to six years. VISANOW has already
seen a tremendous response to the new bulletin, even within
hours of its publication. Although though the prospect of
completing the green card process is exciting, it should be
noted that the new priority dates do not come into effect
until June 1, 2007.
It should also be kept in mind that while forward movement
is expected to continue in the summer months of 2007, it is
assumed that retrogression (the backward movement of dates)
will be required by the fall or winter of 2007. As a result,
we would advise that one take advantage of the momentum and
be prepared to file the Form I-485 (Application to Register
Permanent Residence or to Adjust Status) on June 1, 2007, or
as soon thereafter as possible.
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Employment-
Based |
All Chargeability Areas Except
Those Listed |
China |
India |
Mexico |
Philippines |
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2nd |
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01JAN06 |
01APR04 |
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3rd |
01JUN05 |
01JUN03 |
01JUN03 |
01JUN03 |
01JUN05 |
US-VISIT Biometric
Exit Program Implemented
The The U.S. Department of Homeland
Security (DHS) has made the U.S. departure process more
convenient for international visitors by integrating
biometric exit procedures. As of May 6th, 2007,
international travelers no longer have to go through United
States Visitors and Immigration Status Indication Technology
(US-VISIT) exit kiosks when departing the country. However,
those who receive a U.S. Customs and Border Protection I-94
(Arrival-Departure Record card) at arrival will still have
to return the form to an airline or ship representative when
departing the United States.
Designed as a set of security measures that begins overseas
and continues through a visitor’s arrival in and departure
from the U.S., the US-VISIT program has been in effect since
early 2004. After running a test program, the DHS determined
the biometric technology worked, however they were
experiencing low traveler compliance. As a result, they have
incorporated these procedures into the existing
international visitor departure process to reduce the effect
on visitors and to ensure biometric data collection
regardless of the visitor’s departure point.
The U.S. Customs and Border Protection Officers will now use
an inkless digital fingerscanner and take a digital
photograph of visitors to ensure the data collected by the
State Department at the time a visa was issued and the
identity of the visitor are the same.
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