H-1B Cap Filings – How To Determine If Your Case Has Been Accepted
The United States Citizenship and Immigration Services (USCIS) recently
released additional information on their progress logging H-1B cap filings received
on April 2 and 3 of this year. The memorandum indicates that they expected to have
data entry for all H-1B cap filings made on those dates completed by May 11, 2007.
Such data entry should now be completed and this information can be used to determine,
in certain circumstances, whether individual cases have been accepted for processing.
Accepted cases should have seen receipt notices issued by that date. If a receipt
notice has been issued for your case, it can be assumed that this is a reliable
indicator that your case has been accepted.
However, due to the unprecedented volume of H-1B case filings, the process of issuing
H-1B receipt notices is still ongoing. In an effort to provide a more accurate time
frame for receipting, the USCIS has provided the following response estimates. Please
note that these dates do not apply to I-129 H-1B Premium Processing Cases:
• California Service Center: Expects to complete receipt processing by June
15, 2007.
• Vermont Service Center: Expects to complete receipt processing by June 2,
2007.
In addition, long mailing times for these receipt notices means they may have not
yet arrived for accepted cases. In some circumstances, a determination as to whether
a case has been accepted can be ascertained through the deposit of the filing checks
that accompanied your H-1B petition. As we believe the USCIS had completed data
entry on the cases by May 11, 2007, cases for which checks have been cashed on or
after May 12, 2007 would likely have been accepted for processing.
Although some applications were not initially selected in the April 12 lottery,
there is a chance that they may be randomly chosen from a select few held for possible
(not guaranteed) adjudication.
Final Rules Published on Labor Certification
Cases
The Department of Labor (DOL) has published its Final Rule on labor certification
issues. This Final Rule, effective July 16, 2007, prohibits the substitution of
alien beneficiaries on permanent labor certification applications and resulting
certifications. This provision applies to both PERM and pre-PERM labor certifications.
This change will not affect substitutions already approved by the USCIS (approved
I-140 cases) or substitution requests in progress (pending I-140 cases) as of the
rule's effective date. Thus, employers who are interested in substituting employees
into approved labor certifications should act quickly and file the I-140 substitution
cases before July 16.
Additionally, the DOL rule creates a 180-day “validity period” for permanent labor
certifications. Employers now have 180 calendar days within which to file an approved
permanent labor certification in support of a Form I-140 (Immigrant Petition for
Alien Worker) with the USCIS. This rule applies to all permanent labor certifications
filed on or after the rule’s effective date of July 16, 2007. All labor certifications
that were approved prior to July 16, 2007, will expire on January 12, 2008 (180
calendar days after the effective date of the rule). As a result, employers who
have previously approved labor certifications that have not yet been used for I-140
cases should be sure to use these labor certifications by January 12, 2008.
The DOL rule also now requires employers to pay the costs of preparing, filing,
and obtaining labor certification. Starting July 16, an employer will no longer
be allowed to pass the costs incurred for the application process to the alien employee.
This includes "payment of the employer's attorneys' fees, whether as an incentive
or inducement to filing, or as a reimbursement for costs incurred in preparing or
filing a permanent labor certification application." The DOL notes that work
performed by the alien employee related to the offered job, based on the employment
relationship, is acceptable under the rule, and does not qualify as "reimbursement
in costs" for the labor certification process.
The rule additionally states that "an alien may pay his or her own costs in
connection with a labor certification, including attorneys' fees for representation
of the alien, except that where the same attorney represents both the alien and
the employer, such costs shall be borne by the employer." Thus, employers should
be aware that even if the alien originally retained the attorney, it is highly probable
that the attorney could eventually represent the interests of both the alien and
the attorney, particularly because the employment-based immigration process often
requires the employer to make representations to the government with guidance from
an attorney.
USCIS Terminates Premium Processing Service
for Form I-140 Petitions Requesting Labor Certification Substitution
Effective May 18, 2007, The United States Citizenship and Immigration Services
(USCIS) will no longer allow Premium Processing Service for Form I-140 petitions
that are filed based on substituted labor certifications. Premium Processing Service
guarantees the processing of a case within 15 days of its receipt with an issuance
of either an approval notice, a notice of intent to deny or a request for evidence.
The elimination of Premium Processing for these types of cases was prompted by the
DOL’s announcement that they will prohibit labor certification substitutions as
of July 16, 2007. The USCIS expects a considerable increase in the number of Form
I-140 petitions filed before this cut off date and the Premium Processing Service
anticipates it will not be able to handle such a high volume of petitions.
Bi-Partisan Comprehensive Immigration Reform
Legislation Introduced
On May 17, 2007, a bi-partisan group of U.S. Senators announced proposed legislation
regarding comprehensive immigration reform. The Secure Borders, Economic Opportunity,
and Immigration Reform Act of 2007, sponsored chiefly by Senator Edward Kennedy
(D. MA.) and John Kyl (R. AZ.), would radically alter federal immigration law.
The legislation would create a new temporary Y visa worker program for workers coming
to the U.S. to perform temporary jobs that U.S. employers cannot fill. Y visa holders
would be admitted for a two-year period and then be required to return to their
home country for one year. A Y visa holder would have a maximum of three two-year
periods of admission. An employer must petition for a Y visa for an individual by
filing a labor certification application with the Department of Labor. The number
of Y visas available was initially set at 400,000 annually, but there has been a
great deal of controversy with regard to this program and an amendment cutting the
number of visas to 200,000 has already passed.
The legislation would also create a new four-year, renewable Z nonimmigrant visa
to address the undocumented population currently within the U.S. In order to be
eligible for this visa, one must have been illegally present within the U.S. before
January 1, 2007. To apply, an individual must be currently employed and pay fees
and penalties under a merit-based system. Once an applicant submits a completed
application, fingerprints, and is cleared by a one-day background check, he/she
will receive probationary benefits, including temporary work authorization, travel
authorization, protection from deportation, and suspension of classification as
an unauthorized alien. The Z visa will be valid for four years and also allows spouses
and children work authorization. The visa can also be transferred to other employers.
A Z visa holder may also file to adjust to permanent resident status, but must do
so at a U.S. consulate in his or her country of origin. Z visa holders will not
be issued green cards until all of the family and employment-based immigrant visa
backlogs are eliminated.
The draft legislation was revised on May 18, 2007, to include other provisions regarding
employment-based immigration.
If passed, the Act would raise the Fiscal Year 2008 H-1B cap to 115,000. The Act
would also eliminate the employment preference categories (EB-1, EB-2, EB-3, etc.)
and replace them with a merit-based system that allocates certain points to individuals
for their personal qualifications. Individuals who are employed in specialty occupations,
such as the engineering field, and who have advanced degrees, would earn a significant
number of points in this system, making immigrant visas more easily available to
them.
Possible Changes to the Employment Verification
Process
With the recent introduction of Comprehensive Immigration Reform Bills
by both the House and the Senate, employers should begin reviewing their internal
hiring and screening processes especially in regards to their employment verification
process. Title III of the Strive Act previously introduced by the House directly
addresses the introduction of a mandatory electronic employment verification system
along with increased penalties for non-compliance. Click
here to review the proposal.
We would advise employers to monitor the unfolding events closely. If passed, the
new legislation will result in an urgent need on the part of employers to review
their HR processes to ensure compliance on a number of fronts. In addition, the
increased burden of navigating a new set of regulations and managing the enhanced
verification system will create a number of initial challenges for employers.
Significant Movement Forward in June 2007
Visa Bulletin for All Employment-Based Preference Immigration Categories
The June 2007 Visa Bulletin published by the U.S. Department of State (DOS) shows
significant progress in the priority dates for all retrogressed employment-based
preference immigration categories. The greatest benefit goes to those in the third
preference (EB-3) category, where, after months of little to no movement, priority
dates leapt from 2001 or 2002 to 2003 or 2005.
As we had reported in the last issue of the Voice, the DOS had stated in the May
2007 bulletin that the U.S. Department of Labor has been clearing its backlog of
labor certification applications at a much slower pace than expected, so the massive
demand forecasted in late 2006 has not yet materialized. The DOS has been testing
the level of response by advancing priority dates, and it foresees that “[a]t this
time it appears likely that there will be additional advances during the coming
months.”
This is obviously great news for those who have been in the green card process for
up to six years. VISANOW has already seen a tremendous response to the new bulletin,
even within hours of its publication. Although though the prospect of completing
the green card process is exciting, it should be noted that the new priority dates
do not come into effect until June 1, 2007.
It should also be kept in mind that while forward movement is expected to continue
in the summer months of 2007, it is assumed that retrogression (the backward movement
of dates) will be required by the fall or winter of 2007. As a result, we would
advise that one take advantage of the momentum and be prepared to file the Form
I-485 (Application to Register Permanent Residence or to Adjust Status) on June
1, 2007, or as soon thereafter as possible.
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Employment-
Based
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All Chargeability
Areas Except Those Listed
|
China
|
India
|
Mexico
|
Philippines
|
|
1st
|
C
|
C
|
C
|
C
|
C
|
|
2nd
|
C
|
01JAN06
|
01APR04
|
C
|
C
|
|
3rd
|
01JUN05
|
01JUN03
|
01JUN03
|
01JUN03
|
01JUN05
|
US-VISIT Biometric Exit Program Implemented
The The U.S. Department of Homeland Security (DHS) has made the U.S. departure
process more convenient for international visitors by integrating biometric exit
procedures. As of May 6th, 2007, international travelers no longer have to go through
United States Visitors and Immigration Status Indication Technology (US-VISIT) exit
kiosks when departing the country. However, those who receive a U.S. Customs and
Border Protection I-94 (Arrival-Departure Record card) at arrival will still have
to return the form to an airline or ship representative when departing the United
States.
Designed as a set of security measures that begins overseas and continues through
a visitor’s arrival in and departure from the U.S., the US-VISIT program has been
in effect since early 2004. After running a test program, the DHS determined the
biometric technology worked, however they were experiencing low traveler compliance.
As a result, they have incorporated these procedures into the existing international
visitor departure process to reduce the effect on visitors and to ensure biometric
data collection regardless of the visitor’s departure point.
The U.S. Customs and Border Protection Officers will now use an inkless digital
fingerscanner and take a digital photograph of visitors to ensure the data collected
by the State Department at the time a visa was issued and the identity of the visitor
are the same.