DOS Releases Visa Bulletin for the Start of Fiscal Year 2009

The U.S. Department of State (DOS) has issued its Visa Bulletin for October 2008, which is also the first Visa Bulletin for Fiscal Year 2009. Employment-based third (EB-3) preference categories, which had been unavailable since July 2008 for all countries, received an influx of numbers.  The cut-off dates for China and India are in 2001, while Mexico’s EB-3 dates cut off in 2002.  Priority dates of January 1, 2005, and earlier, are current for EB-3 from the Philippines and all other countries.

While the October Visa Bulletin contained good news for EB-3 beneficiaries and Other Workers, for whom the dates jumped back to January 1, 2003, it was more disappointing for employment-based second (EB-2) preference workers from China and India.  In these categories, the priority dates retrogressed from 2006 to April 1, 2004 (for China) and April 1, 2003 (for India). Immigrant visa availability for all other employment-based preference categories remained the same.

The DOS warns in this month’s bulletin that little, if any, forward movement can be expected as the fiscal year continues due to the excess number of Forms I-485, Application to Register Permanent Resident or to Adjust Status, already on file with the U.S. Citizenship and Immigration Services (USCIS) and awaiting visa numbers.  The USCIS accepted more adjustment applications than were needed to meet the FY 2008 quotas, thus resulting in a backlog.  The DOS predicts that the cut-off dates are not likely to advance until the USCIS has determined the extent of its I-485 backlog and how this affects how many more applications it can accept for FY 2009.

The American Immigration Lawyers Association (AILA) recently issued clarifications on several points regarding an employer’s obligation to use the E-Verify program to confirm work authorization before allowing a student granted work authorization under Curricular Practical Training (CPT) to begin work for them. This obligation would only extend to employers who have voluntarily enrolled in the U.S. Department of Homeland Security/Social Security Administration’s E-Verify program. E-Verify is a voluntary program under which participating U.S. employers can use an online program to check the work eligibility of recent hires. The program allows users to compare information from the hire’s I-9 form against existing government databases.

The recently issued clarification addresses two main points. First, employers enrolled in the E-Verify program are obligated to run E-Verify queries for students who wish to work under CPT, which allows select students to seek employment in fields related to the student’s academic curriculum. A student’s Designated School Official (DSO) authorizes CPT by endorsing the student’s Form I-20, as required by law. No U.S. Citizenship and Immigration Services (USCIS) work authorization is required for employment under CPT.

Additionally, the new clarification illustrates that E-Verify does not act to confirm employment eligibility by verifying the student’s Form I-20. Such a query would require E-Verify to access the Student and Exchange Visitor Information System (SEVIS), which is a database that maintains data on schools and programs as well as students and exchange visitors. SEVIS access is not a component of E-Verify’s general functionality. Instead, E-Verify inquiries for CPT students will automatically be forwarded to “secondary verification,” to be completed by processes outside the general automated E-Verify process. The recent clarification confirms that despite this additional step, these queries should be completed within 24 hours for any CPT student present in the SEVIS database.

Employers participating in the E-Verify system should expect to use the system for any prospective CPT student hires.

Obama Answers Questions on Immigration

In June, the editors of The Sanctuary, an online, pro-migrant organization dedicated to human rights and civil rights, sent both presidential candidates a survey on current immigration issues in the U.S. The Obama campaign responded to the survey by the deadline; the McCain campaign did not.

The following is a summary of Senator Obama’s responses to the questionnaire:

When asked about what he considered the most pressing issues for the U.S. immigrant community both at home and abroad, Senator Obama stated that at home, the real challenge comes from “the tension our inability to fix our immigration system has engendered.” In relation to problems abroad, Senator Obama pointed out that “not enough is being done to decrease the pressure to immigrate without authorization to the U.S. in search of work.”

In relation to whether or not he supports Comprehensive Immigration Reform (CIR), Senator Obama stated categorically that he does. Moreover, Obama stated that he will make CIR “a top priority in [his] first year as President.” His efforts in relation to CIR are executed “not because we have to secure our borders and get control of who comes into our country and not just because we have to crack down on employers abusing undocumented immigrants but because we have to finally bring the 12 million undocumented out of the shadows.” Obama states that if we were to deport the 12 million undocumented immigrants, America would turn into “something we’re not; something we don’t want to be.”

If elected, Obama stated he will be entirely committed to passing CIR and to “fixing our immigration system to ensure that both immigration enforcement and immigration services are better executed.” As evidence of Obama’s pro-immigrant stance, he has participated in immigrant marches; attended naturalization workshops; introduced legislation to make the naturalization process more affordable and accessible; and worked with a bipartisan group of senators to support comprehensive reform in the Senate.

Senator Obama also asserted that he will consider multiple proposals for increasing access to the U.S. for the world’s best and brightest workers, including raising the 65,000 cap on the H-1B visa.

The complete questionnaire and Senator Obama’s responses to it may be found via the following link: http://promigrant.org/showDiary.do?diaryId=422.
 

Redesigned Naturalization Test To Be Implemented Soon

In 2000, efforts were in initiated to redesign the language and civics test portions of the U.S. naturalization process, amidst criticism that the current test lacked standardized content, instruments, protocols, and a scoring system. The process to become a naturalized citizen after qualifying includes completing an application, attending an interview and passing a language and civics test.

In the interest of creating a more standardized, fair and meaningful naturalization process the U.S. Citizenship and Immigration Services (USCIS) recently completed a multi-year redesign of the naturalization test. To accomplish these goals, USCIS piloted a new test with an overhauled English reading and writing section, as well as new history and government questions at ten sites across the country during a four-month period. During the pilot process, approximately 150 organizations participated in determining the questions that would make up the new exam.

The USCIS has posted the 100 new questions and answers, the reading and writing vocabulary lists, side-by-side comparisons of the current and new tests, answers to frequently asked questions and other information available online at http://www.uscis.gov/newtest.

The new naturalization test places a greater emphasis on American civics, which includes questions regarding the Constitution, federal law, American democracy, basic U.S. history and the rights and responsibilities of U.S. citizens. The range of acceptable answers to questions will increase so that applicants may learn more about a topic and select from a wider range of responses. The changes made to the naturalization test suggest that the new test’s format, with a broader range of multiple-choice answers, U.S. geography and modern U.S. history questions will be more difficult to pass than the current exam.

The USCIS will begin administering the newly redesigned naturalization test on October 1, 2008. The chart below outlines the timeframes that will be used to determine when the new test will be used versus the current test.
 

*The Form N-400, Application for Naturalization, is considered properly filed with the USCIS on the date it is received by the appropriate USCIS office with the forms completed according to instructions, with required signatures and the correct filing fees.

Update on Pending FBI Name Checks and Projected Naturalization Processing Times

The U.S. Citizenship and Immigration Services (USCIS) announced a significant decline in the number of pending Federal Bureau of Investigation (FBI) name checks for individuals seeking immigration benefits in the U.S., as Congress provided the necessary funding for the USCIS and the FBI to complete a larger percentage of name checks in a timely manner.

Name checks have delayed the adjudication of benefits for many thousands of applicants in the past. The USCIS had identified FBI name check delays as one of the major hurdles to improved customer service in its 2007 and 2008 Annual Reports to Congress.

• There were 269,943 name checks pending on May 6, 2008. There are 95,449 pending as of August 12, 2008.
• There were 185,162 name checks pending for more than six months on May 6, 2008. There are 61,817 pending more than six months as of August 12, 2008.
• The USCIS met its goal to process all name checks pending for more than two years by July 2008.

On August 11, 2008, the USCIS also updated its projected naturalization processing times, announcing that it now anticipates naturalization applications will take an average of 10 to 12 months by the end of September 2008. Previously, they had estimated that processing naturalization applications would take 16 - 18 months before reducing the estimate to 14 - 16 months, then later to 13 -15 months, after average processing times significantly increased after the surge in filings in the summer of 2007. From June 2007 to August 2007, the USCIS had received nearly 3 million naturalization applications, compared to 1.8 million filings during the same period in the previous year.

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. VISANOW, 350 North LaSalle Street, Suite 1400, Chicago, IL 60610 (888) 4-VISANW Please send comments and questions to info@visanow.com