New PERM Technology     

We are excited to have launched a new user friendly version of the Process Electronic Review Management (PERM) application process for our clients. PERM is an automated process for filing applications for foreign workers to work permanently in the US.

The PERM process itself contains multiple steps and requirements of the employer. In an attempt to make the process more clear, we have enhanced the screen page which now better illustrates the four steps contained in the process; first, the prevailing wage, second, the job order, third, recruitment, and finally, filing. Additionally, we have created a timeline for the various stages as well as detailed instructions and tips on this process.

For more information on this process, please contact us at info@visanow.com

 Update Filing Procedures: Phase 2, Bi-Specialization

On July 24th, 2006, the U.S. Citizenship and Immigration Services (USCIS)  implemented additional changes to its filing procedures.  Phase 2 of the Bi-Specialization initiative has revised procedures for filing employment-based applications for lawful permanent resident status. Form I-485 (Application to Adjust Status or Register Permanent Residence) will now be filed with the Nebraska Service Center as long as the I-140 (Immigrant Petition for Alien Worker) has been approved or is pending.  This is also known as a “standalone filing.”    

Bi-Specialization is a USCIS program introduced to centralize filing into two “sister” service centers.  The first phase brought together the Vermont and California Service Centers to process mainly I-129 and I-539 forms. This second phase pairs the Nebraska and Texas Service Centers to handle employment-based adjustment of status cases.  As of July 24th, the amended I-485 forms will now ultimately be filed solely with the Nebraska Service Center.  Any “standalone” I-485 filing entered prior to July 24th to the center where the Form I-140 is pending or approved will be processed at the center where it was submitted. 

Applicants choosing to file Form I-131 (Application for Travel Document) and Form I-765 (Application for Employment Authorization) should send these to the Nebraska Service Center. After filing the I-485, applicants can look at their receipt notice to determine which center processed and send their I-131 or I-765 to the same center. The centers do not distribute the application based on the type of case, but on the amount of applications received in a day. Consequently the center that is on the receipt notice is the center that will adjudicate the case.

The addresses for applications sent to the Lock Box or a local USCIS office have not been changed. This also applies for those applications sent to the Nebraska Service Center based upon the region in which an applicant lives. The USCIS is advising to continue following the instructions on Form I-485.

To find the specific address for a filing, please visit the USCIS website at: http://uscis.gov/graphics/formsfee/forms/index.htm.

Significant Progress for the Priority Dates of Chinese Nationals Continues

The Visa Bulletins for July and August 2006 showed significant progress in most employment-based immigrant numbers categories. The most notable advancement has been in the EB-1 and EB-2 categories for Chinese nationals with the EB-1 category now being current and the EB-2 category leaping ahead by eight months. This means that Chinese nationals with extraordinary ability, such as those in multinational managerial/executive positions, may concurrently file their Form I-140 (Employment-based immigration petition) and Form I-485 (Application for permanent residency). Those whose positions require a Bachelor’s degree and five or more years of experience (or a Master’s degree) will have a significantly reduced waiting time to file the Form I-485.

In both bulletins, the U.S. Department of State warned that some slowdown in the progress of priority dates is to be expected as the annual limits of immigration numbers are reached or become limited during the summer months. The EB-2 category for India is the first to be affected. As of August 1, 2006, the limit for this category will have been reached and numbers are unavailable (indicated by “U” in the chart below). This means progress will likely not be seen in this category again until the next fiscal year begins on October 1, 2006. Other categories likely to be affected are EB-2 and EB-3 from China, EB-1 from India, and EB-3 from Mexico. VISANOW expects to see the same forward movement experienced in recent months begin again in October 2006.

H-1B Advanced Degree Exemption: Cap Quickly Approaching

As we previously reported, the USCIS H-1B cap was met on May 26th of this year. As of that date, employees holding Master’s Degrees from U.S. educational institutions have been the only candidates for whom employers who could still file new H-1B petitions. The H-1B Advanced Degree Exemption is governed by a cap separate from all other initial H-1B filings; however, this cap is quickly approaching.

As of the USCIS’ last update on July 18th, only 4,009 spots remained under the cap. This figure represents a difference between the 21,000 available spots under the cap and the 16,991 H-1B filings the USCIS reported as either approved or pending in their July 18th update. In a recent July 11th report, the American Immigration Lawyers Association reported that of the 15,208 “filled” H-1B slots for Master’s-holding employees, 1,800 were filed between July 7th and July 11th. At this rate, all observers expect the cap to be reached shortly.

If you are planning on filing for an employee under the H-1B Advanced Degree Exemption, we would advise that they do so immediately. As there is no way to predict when the cap will be met, the best course of action is for employers to file as soon as time allows and hope the case is received before the cap is reached. 

New Process for Erroneous Case Closures

The Department of Labor (DOL) has created a new procedure for requests to reopen Labor Certification Applications that were erroneously closed. The employer or their attorneys may now e-mail the DOL Backlog Centers stating why the case was erroneously closed. After submission, the employer or attorney will receive an e-mail confirmation indicating if the case has been re-opened or if additional information is required. All such requests using this system must be submitted within 30 days of July 11, 2006 or the date of the closure letter, whichever is later.

It should be noted that the Department of Labor has stated that all 45-day letters are expected to have been sent and received by July 21, 2006. 45-day letters are sent to employers to check the existence of the company and to also ensure that they want the case to move forward. Employers that have not received 45-day letters for Labor Certification Applications should contact their legal services provider who can contact the Department of Labor on your behalf.
 

Proposed ICE Regulation on No-Match Letters

In June, the Immigration Customs Enforcement (ICE) proposed a regulation detailing an employer’s obligation when receiving a No-Match letter from the Social Security Administration (SSA) or similar notice from the Department of Homeland Security (DHS). DHS claims that 10 percent of the nearly 250 million wage reports received yearly by the SSA result in a failure to match the employee name with the social security number on record. Inconsistencies in I-9s can only be determined by the DHS if your company is selected for an audit.  Although rare, it is also important to be aware of the “safe harbor” procedures that should be followed.


When a worker’s social security number does not match the worker’s name on tax or employment eligibility documents, the SSA issues a No-Match letter asking employers to determine the inconsistency. The employer may also receive written notice from the DHS that the immigration status documentation or employment authorization documentation presented or referenced by the employee in completing the I-9 form was not assigned.

An employer should not release a worker upon receiving a No-Match letter. As stated in the letter, receipt “…does not imply that you or your employee intentionally provided incorrect information about the employee’s name or Social Security Number.” The proposed rule specifies the steps an employer must take to be considered a reasonable response by the DHS. Following these steps will avoid any allegation that the employer has constructive knowledge that an employee lacks work authorization.

If an employer receives a No-Match letter, there are certain “safe harbor” procedures that they must enact within 14 days of receipt.

First, the employer should promptly check their records to determine whether the discrepancy resulted from a typographical or similar clerical error. If there is such an error, the employer should correct their records, inform the relevant agencies, and verify that the name and number, as corrected, match agency records.

If this does not resolve the discrepancy, the employer should ask the employee to confirm that their records are correct. If the records are correct, the employer should direct the employee to pursue the matter personally with the relevant agency, such as the local SSA office.

ICE will consider an employer to have acted promptly if they takes these steps within 14 days of receiving the No-Match letter.

The proposed regulation provides that a discrepancy will be considered resolved only if the employer verifies that the employee’s name matches a number assigned to that name in SSA’s records that is valid for work or is valid for work with DHS authorization. Verification can also be achieved if DHS records indicate that the immigration status document or employment authorization document was assigned to the employee.

If the discrepancy is not resolved within 60 days of receiving the No-Match letter, the employer must complete a new Form I-9. The verification must be completed within 63 days of receipt of the letter (i.e. 3 days beyond the 60 allowed to resolve the discrepancy). Documents containing the SSN or alien number that is the subject of the No-Match letter or a receipt for an application for the replacement of such a document may not be used to establish employment authorization or identity or both. In addition, documents lacking a photograph may not be used to establish identity (or both identity and employment authorization).

If the employer is unable to resolve the discrepancy, they may choose to terminate the worker or run the risk that DHS will find that the employer had constructive knowledge of employing an alien unauthorized to work in the US. If the employer follows these procedures and verifies work authorization, they will not be considered to have constructive knowledge even if the employee is unauthorized.

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.

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Please send comments and questions to info@visanow.com