NSC Clarifies Policy on Multiple I-140 Filings
In recent years, USCIS policy on a U.S. petitioner-employer’s
ability to file multiple I-140 petitions on behalf of a foreign national has been
an area of some uncertainty. In recent years, the USCIS’ policy has been a
liberal one; the National Service Center (NSC) had confirmed that a petitioner is
free to make multiple I-140 filings on behalf of a foreign national based upon a
single approved labor certification.
However, over the last two years, the NSC began demanding additional
evidence in certain scenarios. Specifically, in instances where the initial
I-140 was both denied and the subject of subsequent appeal, the NSC had actually
been denying subsequent I-140 filings. Upon review, the center indicated its
willingness to instead process such a subsequent I-140 filing, if the petitioner
could present evidence that the appeal on the initial I-140 denial had been withdrawn.
While this shed light on the issues surrounding the adjudication
of a second I-140 filing, the USCIS in October of 2008 indicated that whenever an
appeal was pending on an initial I-140 filing, the latter I-140 filing would be
held in abeyance while the appeal was being processed by the Administrative Appeals
Office (AAO). In practice, this policy would indicate that failure to withdraw
the appeal on the first I-140 should not trigger an automatic denial; the AAO appeal
would simply need to run its course.
The NSC has recently confirmed that this is indeed their practice.
In such a scenario, a second I-140 will not be processed by the NSC until the original
labor certification that is the subject of both I-140 cases is returned by the AAO.
The effect of this policy is clear: companies and individuals who have filed a second
I-140 on a single labor certification, where the initial I-140 was the subject of
appeal, will not be processed until the AAO has issued its decision. Processing
of the second I-140 is held to the AAO’s timeline in issuing a decision upon the
appeal.
January 2009 Visa Bulletin Shows Limited Movement
The January 2009 Visa Bulletin released by the Department of State
(DOS) shows limited movement with most cut-off dates for the employment-based immigrant
visa categories progressing very little, if at all.
The lack of movement in the Visa Bulletin is largely due to the high demand for
the limited supply of annual immigrant visas, as mandated by U.S. immigration law.
The January Visa Bulletin does not provide any insight into the backlog nor does
it offer any predictions for future bulletins. Unfortunately, we can expect movement
to continue to be slow in the coming months given the prior statement by the DOS
regarding the large number of pending applications for permanent residency with
priority dates earlier than the posted Visa Bulletin dates.
Employment-Based Visa Bulletin for January 2009
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|
Other
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China
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India
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Mexico
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Philippines
|
|
1st
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C
|
C
|
C
|
C
|
C
|
|
2nd
|
C
|
8-Jul-04
|
1-Jul-03
|
C
|
C
|
|
3rd
|
1-May-05
|
1-Jun-02
|
15-Oct-01
|
15-Nov-02
|
1-May-05
|
|
Other Workers
|
15-Mar-03
|
15-Mar-03
|
15-Mar-03
|
15-Mar-03
|
15-Mar-03
|
Momeni v. Chertoff: Visa Waiver Overstay and Adjustment of Status
Earlier this year, the 9th Circuit Court of Appeals published its
decision in Momeni v. Chertoff (No. 07-55018), a problematic case involving a Visa
Waiver Program (VWP) entrant that overstayed his authorized period of stay, later
married a U.S. citizen and then filed an I-130 Immigrant Petition and I-485 Adjustment
of Status Application. This case will undoubtedly create major obstacles to others
who overstay their 90-day VWP period and then file to adjust their status to permanent
residency, particularly in the 9th Circuit which covers the following states: Alaska,
Arizona, California, Hawaii, Idaho, Nevada, Montana, Oregon, and Washington.
Under the VWP, citizens of certain countries can enter the U.S. for 90 days without
a visa with the condition that the visitor waive their right to contest removal
(other than on the basis of asylum). In Momeni, a citizen of Germany entered the
U.S. on VWP and applied to adjust his status after he married U.S. citizen wife
after his 90-day visa expired.
The Court, in a blow to the rights of adjustment applicants, held that “there are
legal means by which aliens may marry United States citizens, obtain visas, and
obtain adjustment of status, but overstaying the 90 days for tourists in the Visa
Waiver Program is not among them.” Accordingly, VWP entrants in the 9th Circuit
cannot overstay their authorized 90-day period and later file to adjust status based
on a marriage to a U.S. citizen.
While this practice routinely occurred in USCIS offices nationwide, the Momeni decision
creates a clear complication for similar applicants in the 9th Circuit and may signal
a shift in the way the USCIS reviews I-485 applications filed by VWP entrants.
Task Force on New Americans Reports on Immigrant Assimilation
As the U.S. continues to diversify, it is crucial that greater efforts are made
to fully integrate immigrants into American society according to a report released
by The Task Force on New Americans.
"Building an Americanization Movement for the 21st Century" was released
earlier this month by the federal task force and focuses on the increased need for
assimilation efforts due to the major immigration increase of the past 40 years.
Although the task force does feel the immigrants are generally "Americanized"
after entering the country, the report states that rapid growth in immigrant population,
including an increase in illegal immigration have somewhat hindered current assimilation
efforts. Trends present in the report illustrate there are areas the government
can improve to aide immigrants in tasks like learning English, American history
and promoting integration in society.
Recommendations in the report include more electronic and distance learning opportunities
as part of an overall enhanced education plan. Another step outlined in the report
calls for the federal government to work more closely with private-sector and community-based
organizations to promote language and civics programs.
The report shows settlement patterns in U.S. regions have not traditionally been
immigrant destination, the task force recommends the areas receive extra attention
to ensure successful integration of the new populations.
The organization, created by President Bush in 2006, focuses on creating services
that help immigrants learn English, embrace the common core of American civic culture
and fully become an American. In the two years since its conception the Task
Force has developed interagency programs to help immigrants settle into their new
country and maximize the use of federal resources in encouraging integration.
The Task Force offers technical resources to communities and organizations, encourages
volunteerism, develops effective training methods, conducts targeted research efforts,
and provides recommendations to the President.
For more information about the Task Force, visit
http://www.dhs.gov/ximgtn/committees/details.shtm.
Revision to the Employment Verification Document List
On December 17, 2008, the U.S. Citizenship and Immigration
Services (USCIS) announced that a revision will be made to the Employment Verification
Document List in order to complete the I-9 form.
The revision to the document list includes many modifications to the documents in
the List A category. These documents verify the employee’s employment authorization
as well as their identity. Employers may now accept these new additions to the List
A category documents: U.S passport cards, passports that contain machine readable
visas, and passport and documentation from citizens of the Federated States of Micronesia
and the Republic of the Marshall Islands.
Furthermore, expired documentation such as Forms I-688, I-688A and I-688B, will
no longer be accepted under the List A category. The USCIS believes that these changes
will improve employers identifying valid documentation.