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December 2007 Visa Bulletin:
Implications of Progressing Employment-Based Preference
Priority Dates
The
December 2007 Visa Bulletin released by the U.S. Department
of State (DOS) revealed some progress in the
employment-based third preference category (EB-3)
accompanied by severe retrogression in the employment-based
second preference category (EB-2) for nationals of mainland
China and India. These remain the only nationals for whom
the EB-2 category is retrogressed. For nationals of China,
the priority date was moved back three years, from January
1, 2006 to January 1, 2003. For Indian nationals, the date
was moved more than two years back, from April 1, 2004, to
January 1, 2002. The employment-based
cut-off dates are as follows:
|
Categories |
Worldwide |
China (PRC) |
India |
Mexico |
Philippines |
|
1st |
Current |
Current |
Current |
Current |
Current |
|
2nd |
Current |
01-01-03 |
01-01-02 |
Current |
Current |
|
3rd |
09-01-02 |
10-15-01 |
05-01-01 |
04-22-01 |
09-01-02 |
|
Unskilled |
10-01-01 |
10-01-01 |
10-01-01 |
10-01-01 |
10-01-01 |
|
4th |
Current |
Current |
Current |
Current |
Current |
|
Religious |
Current |
Current |
Current |
Current |
Current |
|
5th |
Current |
Current |
Current |
Current |
Current |
The DOS explains that the extreme
backward movement is due to “extraordinarily heavy demand”
for numbers in these categories, saying that the demand
during October and the first week of November alone had
already used up 38 percent of the annual limit. The majority
of the numbers requested during this five-week period were
from Form I-485 (Applications to Register Permanent
Residence or to Adjust Status) processed by the U.S.
Citizenship and Immigration Services (USCIS).
For similar reasons, the first employment-based preference
category (EB-1) for Chinese and Indian nationals is also
expected to retrogress due to “continued heavy demand.”
These announcements are not surprising given the increased
demand for higher preference categories in recent years due
to severe retrogression in the EB-3 categories. The rapid
usage of these numbers in October and November could be due
to a combination of the following factors:
-
The elimination of the pre-PERM
labor certification backlog.
-
Large numbers of applicants who
recaptured early priority dates from applications
filed in the EB-3 category after achieving the EB-2
category through a PERM application.
-
The rapid advancement of
priority dates seen during the summer months of
2007.
It is suspected that of hundreds of
thousands of applicants of the lower EB-3 category will
request advancement to the EB-2 category. This reaction will
likely result in the priority dates for both categories
becoming virtually even. Currently, only seven months
separate the EB-3 category for Indian nationals from those
in EB-2, who were almost three years apart in the November
Visa Bulletin. About a year and a half now separates EB-2
and EB-3 workers from China versus the almost four and a
half year difference in the November Visa Bulletin.
The DOS offers little hope for a return to the dates of the
November Visa Bulletin, saying that if the retrogressed
priority dates do not slow visa number usage to the “target
range” then even further retrogressions may be expected
sometime from January to March 2008.
It should be noted that the DOS’s projections are made upon
current trends in visa number demand, so their bulletin
announcements can only provide a guideline of what may
occur. However, nationals of India and China should be aware
that the December visa bulletin may spell even longer wait
times for permanent residency than previously expected.
Labor
Certifications Approved Prior to July 16, 2007, Will
Expire on Jan. 12, 2008
On July 16, 2007,
new Department of Labor (DOL) regulations took
effect regarding the expiration date of approved
labor certifications. Prior to the enacting of these
regulations, labor certifications, including both
Form ETA-9089 (PERM) and Form ETA-750 (pre-PERM),
did not have an expiration date. With the July
announcement, the DOL instituted 180-day validity
periods for all labor certifications.
Under these regulations, any labor certifications
approved prior to July 16, 2007, were given an
expiration date of Jan. 12, 2008. The labor
certifications do not expire if they are used in
support of Form I-140 (Immigrant Petition for Alien
Worker) filed with the USCIS. Thus, any approved
labor certifications approved prior to July 16,
2007, must be used for I-140 filings no later than
Jan. 12, 2008.
USCIS Releases New
I-9: Compliance Expected Immediately
The USCIS recently released a new and revised
version of its Form I-9 (Employment Eligibility
Verification). U.S. employers are required by law to
maintain valid I-9 forms for all employees.
The only substantive change to the new form involves the
list of acceptable documentary evidence of identity and
employment eligibility. That list now has five FEWER
acceptable forms than in the previous I-9. The following
items have been removed:
• Form N-560/N-570: Certificate of US
Citizenship
• Form N-550 or N-570: Certificate of Naturalization
• Form I-151: Alien Registration Receipt Card
• Form I-327: Unexpired Reentry Permit
• Form I-571: Unexpired Refugee Travel Document
Additionally, one new form of evidence
has been added to the list of acceptable forms of evidence
of identity and employment eligibility:
• Form I-765: Employment
Authorization Document
Employers should be using the new version
of the form as of Nov.7, 2007, for any employees hired on or
after that date. New I-9 forms do NOT need to be completed
for existing employees (i.e. Anyone hired prior to Nov. 7,
2007).
The USCIS acknowledged the transition time required for
employers and will be publishing notice in the Federal
Register stating when penalties can be sought for
failure to use the new version of the form. The USCIS
further stated that penalties will NOT be sought for failure
to use the new form until at least 30 days after that
publication. To date, this notice has NOT been published. In
sum, Nov. 7, 2007 is the cut-off date and ALL employers
should switch over to the new form as soon as possible.
The instructions for the new I-9 form reaffirm that all U.S.
employees are not necessarily required to list Social
Security Numbers (SSNs). There are instances in which U.S.
employees will not yet have been issued an SSN by the Social
Security Administration. For such employees, it is
acceptable to maintain I-9 records that do not list a SSN.
Employers should update existing records for these employees
as soon as these numbers are obtained.
Revision to “No
Match” Letter Program Expected
Following the suspension of the initial
"No Match" regulations in October, the Department of Homeland Security
(DHS) now plans to revise the “No Match” program
rather than continue the legal process against the current
injunction. The regulations announced in August set clear
guidelines and penalties for employers that received “No
Match” letters from the Social Security Administration (SSA)
when the name and social security number provided for a new
employee failed to match agency records.
In response to this program, the National Immigration
Law Center, American Civil Liberties Union, the AFL-CIO and
a number of labor groups filed a lawsuit against the DHS in
federal court. Their lawsuit was 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 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.
In a recent letter to federal court, the Bush administration
has said it would drop its legal defense of the rule and
revise it instead. The DHS now has until March 24th to
survey employers to gain further insight of the impact of
these regulations on employers. Government officials have
stated they are not abandoning the program, but they are
planning to address the concerns before proceeding.
Concurrent H-1B
Employment
The California Service Center (CSC)
has informed the American Immigration Lawyers
Association (AILA) Liaison that, pending clarification
from the Headquarters of the USCIS, it will return to
its prior policy with respect to certain forms of
concurrent H-1B employment.
This prior policy refers to the fact that the CSC would
approve an H-1 petition for concurrent cap-subject
employment where the alien is the Beneficiary of an
approved H-1B petition submitted by cap-exempt employer.
Cap-exempt employment refers to:
-
Institutions of higher education as
defined in the Higher Education Act of 1965, section 101
(a), 20 U.S.C. section 1001(a).
-
Non-profit organizations or entities
related to or affiliated with an institution of higher
education as defined in the aforecited Act.
-
Non-profit research organizations or
governmental research organizations, as defined in 8 CFR
214.2(h)(19)(iii)(C).
As recently as Nov. 14, 2007, the CSC
informed the AILA Liaison of its intent to deny such
concurrent employment. Thus, the issue has not yet been
entirely resolved. Accordingly, the CSC’s stance on
concurrent H-1B employment is subject to change based on the
opinion of the USCIS Headquarters.
Readmission for H
and L Nonimmigrant with Pending I-485
The U.S. Citizenship and Immigration
Services (USCIS) published a final rule to streamline
the readmission of certain “H” and “L” non-immigrants
who have applied for adjustment of status to become
permanent residents. The rule removes the requirement
that such persons present a receipt notice (Form I-797,
Notice of Action) for their adjustment applications when
returning to the United States from travel abroad.
This change means that foreign nationals with pending
adjustment applications will not risk abandoning their
adjustment petitions by traveling without, or before
receiving, their I-797 receipts.
The USCIS recognized that it is not always able to
ensure immediate issuance and mailing of Form I–797
receipt notices upon receipt of an adjustment of status
application. This situation places H–1B/H–4 or L–1/L–2
nonimmigrants who are awaiting a Form I–797 receipt
notice, but wish to travel outside the United States
while their adjustment of status application is pending,
in the difficult position of uncertainty and possible
hardship to the foreign national and his or her family
(dependents). A foreign national whose adjustment of
status application is deemed abandoned for failing to
present a Form I–797 receipt notice upon readmission to
the United States resulting in a denial of the
application would be forced to incur the time and
expense involved in filing a new adjustment application.
The Department of Homeland Security (DHS) has
determined, since information provided by presentation
of the receipt (evidence of filing of an adjustment
application) is already available to them, that the
removal of the Form I–797 receipt requirement will not
have any adverse impact on its responsibilities to
ensure control over foreign national seeking admission
to the United States. Such foreign nationals must
establish eligibility for admission, in any case, before
DHS permits them to reenter the United States.
Upon reentry, H and L visa holders must demonstrate that
they remain eligible for their current visa status and
are in possession of a valid visa. They also must
demonstrate that they will resume employment with the
same employer for which they had been authorized to work
in their current visa status. This change applies to
accompanying family members in H-4 or L-2 status, as
well as to H- or L- principal applicants. In addition,
DHS creates a record of its inspection of the alien,
including the alien’s application for admission.
Please note, however, that this regulatory change does
not affect those I-485 adjustment of status applicants
who are not eligible to return to the U.S. in H- or L-
visa status. Under the existing regulations, such other
I-485 applicants would abandon their applications for
adjustment of status if they departed the U.S. without
previously having been issued Advance Parole travel
authorization.
Automatic Visa
Revalidation for Holiday Traveling
Foreign nationals traveling over the
holidays may be interested in the option of automatic
visa revalidation if traveling through North America.
Under the rule of automatic visa revalidation, a person
with a visa stamp already in his or her passport, even
if the visa stamp has expired, may enter another
contiguous country in North America, Canada or Mexico,
for 30 days or less without having to apply for a new
visa stamp. The following conditions must be met in
order for this process to work smoothly:
-
The foreign national has a visa stamp
in his or her passport from a prior visit to a U.S.
consulate abroad. It does not have to be for the same
status as the current nonimmigrant status.
-
The I-94 is still current once the
individual returns to the U.S.
-
The foreign national intends to
resume the nonimmigrant status.
-
The individual did not travel to a
third country. Individuals traveling on cruises to
non-adjacent islands would not qualify for automatic
visa revalidation.
-
The foreign national is not
inadmissible on other grounds such as criminal
convictions, communicable diseases, or prior unlawful
presence in the U.S.
-
The individual is not a
citizen/national of a country that sponsors terrorism
defined by the U.S. Department of State to include Cuba,
Iran, North Korea, Sudan, and Syria.
The safest avenue of travel for most
foreign nationals is still to have a valid nonimmigrant visa
stamp in the passport. However, for individuals who do not
intend to travel outside of Canada and Mexico during the
holidays, automatic visa revalidation may be an option. As
always, it is strongly advised that foreign nationals
consult their immigration attorney prior to any travel
outside the United States.
Record Number of
Visas to Students
At the end of the International
Education Week, held November 12-16, the Department of
State (DOS) issued a record number of visas to students
planning to study in the United States. The level of
student visa issuance exceeded pre-9/11 levels. During
the 2007, the DOS issued more than 651,000 student and
exchange visas in total. This was 10 percent more than
last year and 90,000 more than 2001.
The number of foreign students attending American
institutions of higher learning continues to grow. The
DOS in partnership with the Institute of International
Education, academic institutions and American colleges
and universities continues to spread the word to
international students that the U.S. welcomes foreign
students.
The process starts at the Embassy where consular
officials meet with prospective foreign students to
explain the student visa application requirements.
Embassy and consular officials also participate in
overseas college fairs providing information about
education opportunities available in the United States.
All consulates then offer special appointments to ensure
that foreign students do not miss class time in the U.S.
while waiting for a visa interview.
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