Federal Court Suspends “No Match” Regulations

In August 2007, the Department of Homeland Security (DHS) enacted “No Match” regulations, imposing requirements on employers who receive a letter from the Social Security Administration (SSA) stating that an employee’s social security number cannot be found in the SSA system. In previous years, these “No Match” letters provided information regarding the SSN mismatch but did not carry any consequences for employers. Under the recent regulations, the employer would be required to resolve the discrepancy within 93 days. If the employer did not resolve the discrepancy (by terminating the employee’s employment), the DHS could determine that the employer violated the law and apply severe penalties.

In response to these regulations, the National Immigration Law Center, American Civil Liberties Union, and the AFL-CIO and other labor groups filed a lawsuit against the DHS in federal court. Their lawsuit is based on the claim that, due to potential data entry errors in the SSA system, these regulations would likely cause the wrongful termination of employment of many U.S. citizens and other workers who actually have valid U.S. employment authorization. After reviewing the lawsuit, the U.S. District Court for the Northern District of California granted a preliminary injunction, suspending the DHS from implementing the regulations until further notice. The court has also prevented the SSA from sending the 140,000 “no match” letters that were scheduled for delivery. This injunction is not the final ruling in the lawsuit, and the DHS will likely challenge this ruling, but it does at least temporarily suspend implementation of the “No Match” regulations.

H-2B Cap Reached for First Half of Fiscal Year 2008

On October 1, 2007, the U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap. The cap was set at 33,000 for the first half of Fiscal Year 2008 (FY2008). The USCIS stated that September 27, 2007 was the “final receipt date” for new H-2B petitions requesting an employment start date before April 1, 2008. All petitions requesting start dates prior to March 31, 2008 that were received after September 27, 2007 will be rejected. Those petitions that were received on the “final receipt date” will be randomly selected in a lottery to meet the H-2B cap for the first half of the fiscal year. All cases not accepted in the lottery will be rejected and returned along with the filing fees.

The H-2B cap was met so quickly due to the expiration of the cap exemption for H-2B “returning workers.” Previously, H-2B workers who had been included in the cap in any one of the three previous years before the start date were exempt from the cap. For FY2008, Congress has not reauthorized or extended the “returning worker” provisions that allowed these workers to be exempt from the cap.

The USCIS is accepting petitions for workers currently in H-2B status who do not count towards the congressionally mandated bi-annual H-2B cap. The following petitions will continue to be processed by the USCIS:

If you are planning on filing an H-2B, we would advise you do so as soon as possible. The earliest start date for those available during the second half of FY 2008 is April 1, 2008.

Delay in Receipt Notices

USCIS has, once again, reiterated that they remain behind schedule due to the tremendous increase in the number of applications filed during the summer. As a result, applicants are experiencing delays receiving receipt notices.

USCIS stated that they will honor the actual date that an application was received in their mailroom and said date will be indicated on the receipt notice. It is important to stress the fact that arrival of receipt notices may take up to twelve (12) weeks for adjustment of status applications and up to fifteen (15) weeks for naturalization and other applications.

As of October 19, 2007, USCIS has completed initial data entry and issued receipt notices for applications and petitions received on or before the dates indicated:

California Service Center*
Form Number	Date Received
I-130	8/30/2007
N-400	8/2/2007
All Other Forms	9/29/2007

Nebraska Service Center
Form Number	Date Received
I-131	8/16/2007
I-140	8/16/2007
I-485 Employment Based	8/16/2007
I-765	8/16/2007
N-400	7/29/2007
All Other Forms	8/7/2007

Texas Service Center
Form Number	Date Received
I-131	8/16/2007
I-140 concurrently filed with I-485	8/16/2007
I-485 Employment Based *	8/16/2007
I-765	8/16/2007
N-400	7/19/2007
All Other Forms	9/29/2007

Vermont Service Center*
Form Number	Date Received
I-130	7/29/2007
N-400	7/25/2007
All Other Forms	8/1/2007

USCIS Lockbox
Form Number	Date Received
TPS	9/20/2007

^*California Service Center and Vermont Service Center are currently assisting in data entry and receipting of employment-based I-485 and related forms (I-140, I-765, and I-131) received at Texas Service Center between the dates of July 28, 2007, and August 8, 2007. As a result, some applicants may receive receipt notices from a service center different than the one they originally applied to.

Please note, the above-mentioned dates are approximate and are subject to change at any time.

The DREAM Act failed in the Senate on October 24, 2007. The bill aimed to give children of illegal immigrants an opportunity to become U.S. citizens if they attended college or entered the military. The bill would have granted conditional legal status to illegal immigrants younger than 30 who completed two years of higher education or served in the military. To be considered for legal status, they would have needed to have lived in the U.S. for five years and have entered before age 16. After completing the educational or military requirement, they could have applied for citizenship. The legislation was estimated to affect more than 1 million young people.

Given that Congress failed to pass comprehensive immigration legislation earlier this year and many states have stiffened requirements for driver’s licenses, the failure of the DREAM Act is especially disheartening to young immigrants who had high hopes for the DREAM Act as an opportunity to obtain legal residence in the U.S.

The U.S. Department of Labor (DOL) has claimed that the Permanent Foreign Labor Certification Program’s backlog has been eliminated. However, many cases continue to be pending, and the DOL is actively working on completing those cases. Many attorneys are actively working with the DOL to complete processing of the outstanding cases.

Due to legislative changes, in 1997 and 2000, there was a backlog of about 363,000 pending Labor Applications. For the last three years, the DOL has been working with two service centers to eliminate this “waiting” and “wondering” feeling that has been caused for thousands of people. From the start, the DOL stated it would eliminate its backlog by September 20, 2007. The Department nearly reached its goal. They have started the transition and shutdown phase that will continue through December, as they work on completing these cases.

The Permanent Labor Certification program processes employer requests for foreign workers when U.S. workers are not available, willing and able to fill job openings.

A number of unforeseen issues have resulted from the massive number of Forms I-485, (Applications to Register Permanent Residence or to Adjust Status) received by the USCIS in July and August in response to the July 2007 Visa Bulletin. The “frontlog backlog” caused by having to process the Receipt Notices and the filing fee payments for each case (please see the previous article regarding the receipting progress) was of course, foreseeable, but there are other processing issues that have appeared since then. VISANOW has seen many frequently asked questions about these issues which are listed below:

Q: If I received my Receipt Notice later than somebody else, does that mean they will get their green card before me?

A: No, not necessarily. A common misconception is that the USCIS will be processing all of the cases it received in the order of date of receipt. This is not correct. As the Visa Bulletins published in recent months show, retrogression has returned to the employment-based immigration process. If your priority date is no longer current, your case will be held in abeyance until your priority date becomes current again. As before, this could be several months or several years, depending on your country of birth and the preference classification of the position that was certified for you (e.g., EB-2, EB-3, etc.).

Q: Why haven’t I received my Receipt Notice yet? People whose cases were filed long after mine have already gotten their Receipt Notices.

A: There are many reasons why you may not have received your Receipt Notice yet. The most common reason we have seen is that the Nebraska and Texas Service Centers, which have primary jurisdiction over Form I-485 permanent residency applications (and any concurrently filed applications for ancillary benefits, i.e., Forms I-131 and/or I-765), have been transferring cases to the Vermont and California Service Centers in order to distribute the “frontlog backlog” that is being experienced.

Your case may have spent time in a processing queue at Nebraska or Texas, then additional time in transit to Vermont or California, then even more time after having been placed in another processing queue. This could explain why you have not received your Receipt Notice yet.

As a result, it has been VISANOW’s experience that the receipting processing timelines published by the USCIS do not appear to be accurate. It is not possible to know if a case is indeed being transferred or where it is being transferred to.

Q: I received a Transfer Notice telling me that my case was transferred to the Texas/Nebraska Service Center. Was my case filed with the wrong service center? Has my case been delayed?

A: No. The Transfer Notice is confirmation that your case was probably part of the process described above (i.e., transferred to another service center for receipting, but then transferred back to Texas/Nebraska, the service center with proper jurisdiction over your case) This should only have delayed the receipting process, but not the overall adjudication process. The “Received By” date on your I-485 Receipt Notice should reflect the date your case was received by the service center where your case was filed.

Q: My name (or other information) appears incorrectly on the Receipt Notice, and I’m certain it was given correctly in my application. What should I do?

A: Data is manually entered into the USCIS system, so errors can occur, and have been appearing more frequently lately given the pace at which Receipt Notices are being processed. If you find an error, you may call the USCIS’s National Customer Service Center at (888) 375-5283 to request a correction. Please note that it could take 45 to 60 days for the CIS to respond to the request and finally update their system.

Q: The “Received By” date on my Form I-485 Receipt Notice doesn’t reflect the actual date it was received by the USCIS. Aren’t they supposed to honor this date as the date of filing?

A: Yes, that is correct. You should first verify, however, that your case was actually physically received by the USCIS on the date you believe should be the “Received By” date. If you used a delivery service that has tracking confirmation, you should refer to this for verification.

If the “Received By” date is indeed a mistake, you may call the USCIS’s National Customer Service Center at (888) 375-5283 to request a correction. Please note that it could take 45 to 60 days for the CIS to respond to the request and finally update their system. You may not necessarily receive an “amended” Receipt Notice showing the corrected date.

It should be kept in mind that all Form I-485 applications will be processed in order of priority date, as discussed above. A case with a “Received By” date of August 2, 2007, could potentially be processed before a case with a “Received By” date of July 2, 2007, if the August 2 applicant has an earlier priority date or is in a more advanced employment-based preference category. Ultimately, one’s priority date will have more effect on the overall processing time of the Form I-485 than the “Received By” date.

Q: I have my Receipt Notice, but when I go to the USCIS’s website to check the status of the case (https://egov.uscis.gov/cris/caseStatusSearchDisplay.do), it says that the Receipt Number is invalid. Is there a problem with my case?

A: No. The USCIS has recently acknowledged that they are about three to four weeks behind in updating the case system information in their online case status system. Please wait 30 days before checking your Receipt Notice numbers.

Q: When can I expect my Form I-765 application for an employment authorization card (EAD card) to be approved?

A: The USCIS is striving to meet the statutory 90-day deadline for Form I-765 applications. However, this may not be possible for all cases. Please also note that the issuance of a Request for Further Evidence (RFE) tolls the 90-day period of time, and that it is entirely possible that the CIS could delay the processing of your application by issuing an RFE.

It should be noted that the USCIS has announced it will honor the date the application was received (the “Received By” date on the Receipt Notice) as the first date of processing, rather than the date that the Receipt Notice was issued (the “Notice Date”).

If 90 days have passed since your case was received by the USCIS, and your case status does not indicate that an RFE has been issued, we recommend that you make an appointment through the InfoPass system (http://infopass.uscis.gov) to begin the process of applying for an interim work authorization card.

Q: When can I expect my Form I-131 application for an advance parole document to be approved?

A: The CIS has recently announced that it plans to complete just the receipting of I-131 applications by the end of October 2007. They have further requested that inquiries on these applications not be placed until the end of October. Since the Form I-131 application is not subject to a 90-day deadline by law like the Form I-765 application, it is unclear at this point what the processing times for these applications will be. It is expected that the processing times may lengthen due to the number of applications received.

If a travel document is needed for emergency purposes, we recommend that you make an appointment through the InfoPass system (http://infopass.uscis.gov) to see if an emergency advance parole travel document can be issued. You must provide proof of the emergency need (e.g., a family or medical emergency, business travel that could not be foreseen). Please be warned that some local offices no longer issue such documents.