USCIS Update on Two-Year EAD Processing

The U.S. Citizenship and Immigration Services (USCIS) announced their plan to begin issuing two-year EAD cards for certain adjustment of status applicants as of June 30, 2008. USCIS had stated that their decision to issue a one- or two-year EAD would depend on the most recent U.S. Department of State Visa Bulletin. If an immigrant visa number was unavailable for the applicant as of the most recent bulletin, then the USCIS has the discretion to issue an EAD valid for two years.

USCIS recently clarified that they will review the issue of immigrant visa availability at the time Form I-765 (Application for Employment Authorization) is filed. However, if the priority date is current as of the date of filing but later retrogresses while Form I-765 is pending, USCIS has the discretion to re-review the case and issue a two-year EAD due to the immigrant visa unavailability. The reverse also holds true; if an immigrant visa is unavailable as of the I-765 filing, but the priority date becomes current later during the processing time USCIS may issue a one-year EAD.

Additionally, USCIS clarified that the applicant’s Form I-140 (Immigrant Petition for Alien Worker) must be approved for qualification for a two-year EAD. If the I-140 petition is still pending, USCIS will only issue a one-year EAD card.

The August 2008 Visa Bulletin published by the U.S. Department of State (DOS) shows a significant leap forward in the priority dates for nationals of China and India in the second employment-based preference immigration category (EB-2), from April 1, 2004, to June 1, 2006. This is perhaps the most significant gain for this category since the July 2007 Visa Bulletin and is likely the result of the DOS trying to ensure that all immigrant visa numbers are maximized this fiscal year.

This update will be of great benefit to those who filed Form I-485 (Application to Register Permanent Residence or to Adjust Status) with the U.S. Citizenship and Immigration Services (USCIS) in July or August 2007, which have not been actively processed due to retrogression (the backward movement of priority dates). This could also benefit those who were unable to file their Forms I-485 under the July 2007 Visa Bulletin. However, it is almost inevitable that retrogression could be required again within the next few months. Thus, we would advise that one be prepared to file Form I-485 (Application to Register Permanent Residence or to Adjust Status) on August 1, 2008, or as soon thereafter as possible.

The third employment-based preference category for skilled and professional workers (EB-3) continues to remain unavailable, and the third-preference category for “other workers” (EB-3 Other Worker) will become unavailable as of August 1, 2008. The DOS predicts that the EB-3 Other Worker category will return to the priority date of January 1, 2003, when the next fiscal year begins on October 1, 2008. In other words, the category is expected to return to the same position as in the July 2008 Visa Bulletin as soon as numbers become available again.

Suspension of Premium Processing R-1 Visa Classification Continues

The U.S. Citizenship and Immigration Services (USCIS) has announced they will be extending the six-month suspension on Premium Processing Service for religious worker (R-1) non-immigrant visa petitions until at least January 7, 2009. The USCIS stated that it could not ensure a 15-calendar day processing time for R-1 cases due to the complexity of adjudicating such cases.

These complexities are due to changes the USCIS made in April 2007 to regulations for processing special immigrant and non-immigrant religious worker visas. The new steps were designed to eliminate fraud in the religious worker program and addressed potential vulnerabilities.

The USCIS will continue to process R-1 applications with an established procedure designed to ensure the legitimacy of the petitioner. The procedure may include inspections, evaluations, verifications, and compliance reviews for religious organizations. These will take longer than 15 calendar days.

The USCIS also stated that they hoped in the near future to have a system for properly adjudicating the R-1 case within the Premium Processing timeframe, with the possibility of a few additional conditions.

Cap Count Update for H-2B Workers for Fiscal Year 2009

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves. USCIS regulations allow for filings 6 months in advance. However, H-2B petitioners first must obtain a temporary labor certification from the Department of Labor (DOL). DOL regulations stipulate that the application for temporary labor certification may not be filed more than 120 days in advance of the need for the employee to ensure the accuracy of the labor market test. Thus, USCIS normally begins receiving H-2B petitions with October employment start dates in June or July.

On July 27, 2008, the USCIS updated the count of H-2B petitions received and counted towards the cap for the first half of Fiscal Year 2009. As of that date, 34,677 petitions have been counted towards the target of 40,000 (which exceeds the actual quota of 33,000 since it includes an allowance for withdrawals, denials, and revocations). 21,909 petitions have been approved, with 12,768 currently pending.

USCIS Launches Online Service to Check Status of FOIA Requests

The Freedom of Information Act (FOIA) generally provides that any person has the right to request access to federal agency records or information.  All agencies of the U.S. government are required to disclose records upon receiving a written request. On June 30, U.S. Citizenship and Immigration Services (USCIS) launched the online FOIA Request Status Check service.  This will provide customers with a rapid and safe way to check the status of their requests.  

Customers will now be assigned a control (tracking) number for their request. By entering these control numbers, they will be able to receive an immediate response on the status of their FOIA request. The customer will then receive either a "pending" or "processed" response.

According to the USCIS, “A pending response indicates to the customer the position of their request relative to all other requests in the same processing track. A ‘processed’ request indicates that the request was processed and the customer will be provided that processing date. USCIS will make daily updates to the status information.” To check your status, please access the following page: http://www.uscis.gov/portal/site/uscis/menuitem

Effective December 2008, agencies will be required to assign control (tracking) numbers to FOIA requests that could take longer than 10 days. An additional 10 days will be added for those requests that need clarification.

Customers without Internet access can still obtain instant information on their FOIA requests by calling the USCIS FOIA Requester Service Center at (816) 350-5785. For more information on USCIS’ FOIA program, visit www.uscis.gov or contact the National Customer Service Center at (800) 375-5283 (TTY 800-767-1833).

The VISANOW Voice is published monthly by VISANOW. VISANOW streamlines the immigration process for corporations and their foreign employees. Our superior client support and innovative technology have changed the way immigration legal services are delivered with a process that consistently delivers faster responses, provides greater access to information and increases efficiency. Any legal analysis or comments contained herein have been provided by American Services Network, P.C. and do not constitute the provisions of legal services and, therefore, should not be relied upon as legal advice. If you believe that any of the information contained in this newsletter relates to your immigration status or to your company's immigration issues, you should consult your immigration legal services provider. © 2008 VISANOW.com, Inc. VISANOW, 350 North LaSalle Street, Suite 1400, Chicago, IL 60610 (888) 4-VISANW Please send comments and questions to info@visanow.com