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EB3 Category Unavailable For All
Countries
The Department of State (DOS) Visa Bulletin for July 2008
indicates that employment-based third preference (EB-3) will
be unavailable from July through the remainder of Fiscal
Year 2008, October 2008. All other EB categories are
unchanged from the June Visa Bulletin.
In essence, the unavailable designation means that no EB-3
adjustment of status applications will be accepted by U.S.
Citizenship and Immigration and Immigration Services (USCIS)
after June 30, 2008, regardless of priority date. Persons
who presently have an EB-3 adjustment of status application
(Form I-485) pending at USCIS will see these applications
held until their priority dates again become current and
available.
In discussing the July Visa Bulletin, DOS advises that
making EB-3 unavailable was necessary due to high demand for
numbers in this category, principally by USCIS for
adjudication of I-485 applications. DOS states that the
annual numerical limit for EB-3 will be exhausted by the end
of June. However, EB-3 will return to the cut-off dates
established for June in October, the first month of the new
fiscal year. Accordingly, any person who was current under
EB-3 in June should be current again in October.
Although there were no changes in any other employment-based
category in the July Visa Bulletin, the DOS has advised that
EB-2 for India and China (priority date listed as April 1,
2004) may require adjustment if it appears that EB-2
applicants from “all other countries” would utilize all
available EB-2 numbers for the fiscal year.
USCIS Now Issuing
Two-Year EADs
The U.S. Citizenship and Immigration Services (USCIS) has
announced that, starting on June 30, 2008, they will be
issuing employment authorization documents (EAD) for a
validity period of two years. Applicants who are eligible
for a two-year EAD are those who have filed Form I-485
(Application to Register Permanent Residence or to Adjust
Status) and who have not yet been issued an immigrant visa
number due to priority date retrogression. Applicants
possessing an available immigrant number will still be given
an EAD valid for one year.
Furthermore, any applicant who needs a replacement of their
EAD which has not expired will be issued an EAD with the
same expiration date as previously issued. In a situation
where the EAD has expired, the USCIS will handle the request
as a renewal of the EAD and then determine the validity
period by the applicant’s priority date as well as the U.S.
Department of State Visa Bulletin.
The USCIS believes that implementing this change will help
alleviate employment issues for applicants who have not yet
been issued immigration visa numbers and are waiting to
become lawful citizens.
Premium Processing Service Offered For Certain I-140
Petitions
The U.S. Citizenship and Immigration Services (USCIS)
recently announced that Premium Processing Service will once
again be offered for certain Form I-140 employment-based
immigrant petitions. The service is being offered to those
foreign nationals who are reaching the end of their sixth
year of H-1B status and who otherwise would not be eligible
for an H-1B extension. In other words, Premium Processing
Service will be made available only to those H-1B workers
whose non-immigrant status will expire within sixty days of
the request, and who will require an approved I-140 in order
to qualify for their H-1B extension beyond the six-year
limit.
In order to prove to the USCIS that a filing meets the above
conditions, petitioners must submit the following evidence:
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A copy of the employee beneficiary’s Form I-94,
Arrival/Departure Record, reflecting their current H-1B
non-immigrant status
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Copies of all Forms I-94, Arrival/Departure Records, and
Forms I-797, Notices of Action, that have been issued
approving H-1B or L-1 non-immigrant status
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A copy of the Receipt Notice for the underlying Form I-140
petition, if the Form I-140 was previously filed
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A copy of the labor certification approval letter issued by
the U.S. Department of Labor (DOL), if filing under the EB-2
or EB-3 classification
At this time, the USCIS does not have the ability to provide
Premium Processing Service to any other I-140
classifications. However, the agency plans to continue
assessing this capability, and will provide updates on the
possible expansion of Premium Processing Service for
additional classifications.
DOL Proposes Changes to H-2B Program
The U.S. Department of
Labor (DOL) has proposed a new rule that would
change the H-2B temporary labor certification
program. The H-2B nonimmigrant visa allows employers
to hire foreign nationals to work temporarily in the
U.S. for a one-time, seasonal, peakload or
intermittent purpose. H-2B regulations currently
require that the employer obtain an approved labor
certification prior to adjudication of the H-2B
petition by the U.S. Citizenship and Immigration
Services (USCIS).
The DOL’s proposed rule would alter the current
labor certification process and make it similar to
the changed permanent labor certification (PERM)
process of 2005. Currently, H-2B labor certification
requires employers to file an application with the
state workforce agency (SWA) with jurisdiction over
the work location. The new rule would require labor
certification applications to be filed directly with
the DOL’s Employment and Training Administration.
The DOL, rather than the SWA, would also issue the
prevailing wage determination for the job
opportunity.
Additionally, the new rule would prohibit foreign
workers from paying for any costs associated with
the H-2B program; the employer would be required to
pay for all the costs without reimbursement from the
foreign employee. The DOL also plans to institute
heavier fines, proposing debarment for up to three
years of employers, attorneys and agents who fail to
cooperate in DOL audits and investigations or are
found to have committed fraud or willful
misrepresentation in the H-2B process. Under the
proposed application process, employers will be
required to attest under threat of penalty that they
have complied with the stated H-2B requirements.
These civil money penalties could amount up to
$10,000 per violation of H-2B conditions.
Finally, the DOL proposed a new enforcement program
that would be in effect if the Department of
Homeland Security (DHS) delegates its H-2B
enforcement authority to the DOL. The two
departments have been discussing whether the DHS
should delegate to the DOL its authority to
investigate employers’ compliance with H-2B
requirements. This measure would cover only the H-2B
program; congressional action would be needed to
give the DOL permission to conduct similar
investigations within the H-1B program.
The period for public comment on this rule closes
July 7. The proposed rule can be viewed online at
the Federal Register website:
http://edocket.access.gpo.gov/2008/pdf/E8-11214.pdf.
Comments may be submitted via the Federal Rulemaking
Portal at
www.regulations.gov (reference RIN 1205-AB54) or
via mail to Thomas Dowd, Administrator, Office of
Policy Development and Resarch, U.S. Department of
Labor, 200 Constitution Avenue, NW, Room N-5641,
Washington, D.C. 20210.
DOL Works to Correct "Clear Errors"
The U.S. Department of Labor (DOL) has
conducted a review of denied PERM cases in its
appeals/motions to reopen queue for “clear error,” and 350
of the approximately 900 cases reviewed thus far have been
re-opened and returned to the PERM queue for further
processing. Examples of “clear errors” include: incorrect
findings that a case required a statement that the employer
would accept an applicant with any suitable combination of
education, training, or experience (also known as “Kellogg”
or “magic language”); obvious communication problems, such
as when an Audit Response letter is not received by an
employer or representative; failures to match a timely
submitted Audit Response with the correct case; and data
entry errors on mail-in cases.
Pre-screening ensures that cases denied due to clear
government error are returned to normal processing as soon
as possible, rather than undergoing the usual months-long
appeals process. Also, because a significant portion of the
appeals queue has already been eliminated, the processing
times for appeals due to causes other than clear government
error should be shortened significantly.
Congressional Update Presents Little Forward
Movement in Reform Debate
Although immigration reform discussions
have continued throughout Congress in the first half
of 2008, no forward movement has been visible.
Following a Senate vote in late October 2007 in
which it received only 52 of the necessary 60 votes
to move the act to consideration, the DREAM ACT
remains on the sidelines in Congress. It has been
stated by Democratic leadership that the act, which
aimed to provide children of illegal immigrants an
opportunity for U.S. citizenship by attending
college or entering the military, is unlikely to
receive further consideration until 2009. Some in
the party, however, have tied this issue to H-1B
visa reform discussions stating that they would be
unwilling to consider any changes to the H-1B
program until the DREAM Act is passed. By linking to
the highly publicized H-1B issue, the possibility
does exist that consideration will resume prior to
the 2009 time frame previously cited.
In the aftermath of last year’s failed Comprehensive
Immigration Reform bill, proponents of increased
enforcement have introduced two acts, the Secure
America through Verification and Enforcement Act,
HR4088 (SAVE) and the New Employee Verification Act,
HR 5515 (NEVA). Unfortunately, both of these
proposals lack solutions for a guest worker program
or path to legalization for current undocumented
immigrants.
The SAVE Act outlines an enforcement agenda much
like the immigration bill of 2007; however, many
feel that these measures will have little impact on
the number of undocumented workers employed in the
U.S. The legislation includes mounting the
Department of Homeland Security’s (DHS) E-Verify
program into a mandatory program for all U.S.
employers. In partnership with E-Verify, the Social
Security Administration’s (SSA) “No-Match” program
would also be implemented although the SSA has
experienced numerous challenges with their database.
The Act includes increased sanctions for employers
and undocumented immigrants along with a greater
role of law enforcement in immigration matters.
The controversy over the SAVE Act resulted in a
discharge petition filed in March. The petition
needs 218 signatures backing it to be acted on;
supporters have secured 181 signatures so far. If
the total number of signatures is reached the bill
will immediately be pushed to the floor, forcing the
issue into the spotlight.
The NEVA Act has been dubbed as an alternative to
the SAVE Act, with a similar focus on enforcement
but not a direct link to E-Verify. However, NEVA
will depend on the same SSA database, meaning it
will wrestle with the same flaws impacting the SAVE
Act. In fact, the Act requires the SSA to administer
the verification of new hires stretching their
already thin resources even further. The NEVA act
also does not fully protect individuals’ private
information, major privacy and accuracy concerns
have risen from the new electronic employment
verification system (EEVS) the Act proposes. The
NEVA Act was introduced on February 28. Though it
has recently been the focus of discussions at
hearings, there is no vote scheduled.
Neither of these two alternatives presents a
pro-immigration solution and many leaders seem to be
holding off on any significant discussions until the
Presidential election has been completed hopefully
creating a bi-partisan environment conducive to
reform.
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