USCIS Update on Two-Year EAD
Processing
The U.S. Citizenship and Immigration Services (USCIS)
announced their plan to begin issuing two-year EAD cards for
certain adjustment of status applicants as of June 30, 2008.
USCIS had stated that their decision to issue a one- or
two-year EAD would depend on the most recent U.S. Department
of State Visa Bulletin. If an immigrant visa number was
unavailable for the applicant as of the most recent bulletin, then the USCIS
has the discretion to issue an EAD valid for two years.
USCIS recently clarified that they will review the issue of
immigrant visa availability at the time Form I-765
(Application for Employment Authorization) is filed.
However, if the priority date is current as of the date of
filing but later retrogresses while Form I-765 is pending,
USCIS has the discretion to re-review the case and issue a
two-year EAD due to the immigrant visa unavailability. The
reverse also holds true; if an immigrant visa is unavailable
as of the I-765 filing, but the priority date becomes
current later during the processing time USCIS may issue a
one-year EAD.
Additionally, USCIS clarified that the applicant’s Form
I-140 (Immigrant Petition for Alien Worker) must be approved
for qualification for a two-year EAD. If the I-140 petition
is still pending, USCIS will only issue a one-year EAD card.
August Visa Bulletin
Shows Gains for
EB-2 Classification
The August 2008 Visa Bulletin
published by the U.S. Department of State (DOS) shows a
significant leap forward in the priority dates for nationals
of China and India in the second employment-based preference
immigration category (EB-2), from April 1, 2004, to June 1,
2006. This is perhaps the most significant gain for this
category since the July 2007 Visa Bulletin and is likely the
result of the DOS trying to ensure that all immigrant visa
numbers are maximized this fiscal year.
This update will be of great benefit to those who filed Form
I-485 (Application to Register Permanent Residence or to
Adjust Status) with the U.S. Citizenship and Immigration
Services (USCIS) in July or August 2007, which have not been
actively processed due to retrogression (the backward
movement of priority dates). This could also benefit those
who were unable to file their Forms I-485 under the July
2007 Visa Bulletin. However, it is almost inevitable that
retrogression could be required again within the next few
months. Thus, we would advise that one be prepared to file
Form I-485 (Application to Register Permanent Residence or
to Adjust Status) on August 1, 2008, or as soon thereafter
as possible.
The third employment-based preference category for skilled
and professional workers (EB-3) continues to remain
unavailable, and the third-preference category for “other
workers” (EB-3 Other Worker) will become unavailable as of
August 1, 2008. The DOS predicts that the EB-3 Other Worker
category
will return to the priority date of January 1, 2003, when
the next fiscal year begins on October 1, 2008. In other
words, the category is expected to return to the same
position as in the July 2008 Visa Bulletin as soon as
numbers become available again.
Suspension of Premium Processing R-1 Visa
Classification Continues
The U.S.
Citizenship and Immigration Services (USCIS) has announced
they will be extending the six-month suspension on Premium
Processing Service for religious worker (R-1) non-immigrant
visa petitions until at least January 7, 2009. The USCIS
stated that it could not ensure a 15-calendar day processing
time for R-1 cases due to the complexity of adjudicating
such cases.
These complexities are due to changes the USCIS made in
April 2007 to regulations for processing special immigrant
and non-immigrant religious worker visas. The new steps were
designed to eliminate fraud in the religious worker program
and addressed potential vulnerabilities.
The USCIS will continue to process R-1 applications with an
established procedure designed to ensure the legitimacy of
the petitioner. The procedure may include inspections,
evaluations, verifications, and compliance reviews for
religious organizations. These will take longer than 15
calendar days.
The USCIS also stated that they hoped in the near future to
have a system for properly adjudicating the R-1 case within
the Premium Processing timeframe, with the possibility of a
few additional conditions.
Cap Count Update for H-2B Workers for Fiscal Year
2009
The H-2B visa category allows U.S.
employers in industries with peak load, seasonal or
intermittent needs to augment their existing labor
force with temporary workers. The H-2B visa category
also allows U.S. employers to augment their existing
labor force when necessary due to a one-time
occurrence which necessitates a temporary increase
in workers. Typically, H-2B workers fill labor needs
in occupational areas such as construction, health
care, landscaping, lumber, manufacturing, food
service/processing, and resort/hospitality services.
The Save Our Small and Seasonal Businesses Act of 2005
(SOS Act) divided the annual numerical limitations of 66,000
into two halves. USCIS regulations allow for filings 6
months in advance. However, H-2B petitioners first must
obtain a temporary labor certification from the Department
of Labor (DOL). DOL regulations stipulate that the
application for temporary labor certification may not be
filed more than 120 days in advance of the need for the
employee to ensure the accuracy of the labor market test.
Thus, USCIS normally begins receiving H-2B petitions with
October employment start dates in June or July.
On July 27, 2008, the USCIS updated the
count of H-2B petitions received and counted towards the cap
for the first half of Fiscal Year 2009. As of that date,
34,677 petitions have been counted towards the target of
40,000 (which exceeds the actual quota of 33,000 since it
includes an allowance for withdrawals, denials, and
revocations). 21,909 petitions have been approved, with
12,768 currently pending.
USCIS Launches Online Service to Check Status of FOIA
Requests
The Freedom of Information Act (FOIA)
generally provides that any person has the right to request
access to federal agency records or information. All
agencies of the U.S. government are required to disclose
records upon receiving a written request. On June 30, U.S.
Citizenship and Immigration Services (USCIS) launched the
online FOIA Request Status Check service. This will provide
customers with a rapid and safe way to check the status of
their requests.
Customers will now be assigned a
control (tracking) number for their request. By entering
these control numbers, they will be able to receive an
immediate response on the status of their FOIA request. The
customer will then receive either a "pending" or "processed"
response.
According to the USCIS, “A pending
response indicates to the customer the position of their
request relative to all other requests in the same
processing track. A ‘processed’ request indicates that the
request was processed and the customer will be provided that
processing date. USCIS will make daily updates to the status
information.” To check your status, please access the
following page:
http://www.uscis.gov/portal/site/uscis/menuitem
Effective December
2008, agencies will be required to assign control (tracking)
numbers to FOIA requests that could take longer than 10
days. An additional 10 days will be added for those requests
that need clarification.
Customers without Internet access can
still obtain instant information on their FOIA requests by
calling the USCIS FOIA Requester Service Center at (816)
350-5785. For more information on USCIS’ FOIA program, visit
www.uscis.gov or contact the National Customer Service
Center at (800) 375-5283 (TTY 800-767-1833).