Business Immigration Monthly Update - July 2009

Date: 7/1/2009
 Business Immigration Monthly for the Month of July 2009

ICE Commences Nationwide I-9 Audit

Immigration and Customs Enforcement (ICE) recently announced a "bold new initiative" to audit Forms I-9 Employment Eligibility Verification forms completed by businesses nationwide. ICE recently began issuing Notices of Inspection (NOI) to 652 businesses nationwide alerting the businesses that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. During the last entire fiscal year, ICE issued 503 such notices. ICE stated that the new initiative illustrates ICE's increased enforcement on holding employers accountable for their hiring practices and efforts to ensure a legal workforce. ICE stated that the 652 businesses that are being audited have been selected for inspection as a result of leads and information obtained through investigative means. ICE stated that these audits are part of a nationwide initiative being launched to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce. Many believe that this is part of the Obama administration's efforts to build its credibility on immigration enforcement in order to boost the chances of passing an immigration reform bill in Congress this year.

Additional information about the increased ICE audits will be contained in our firm's future Immigration Updates when it becomes available.

DOL Releases a Quarterly Performance Report for the Third Quarter of Fiscal Year 2009

The U.S. Department of Labor (DOL) recently released its performance report for the third quarter of fiscal year 2009 (January 1, 2009 through September 30, 2009). The report indicated that the percentage of PERM applications being adjudicated within six months of filing has significantly decreased from the same quarter in fiscal year 2008. In the third quarter of fiscal year 2008, the DOL was processing 94% of the PERM applications within six months of filing. During the third quarter of fiscal year 2009, the DOL only processed 11% of the PERM applications within six month of filing. The DOL noted that the significant change is due to "increased integrity activities to protect U.S. workers and satisfy statutory reliabilities." The DOL stated it is currently developing new baseline targets for enhanced PERM performance measures and a new PERM integrity measure which will be implemented during the first quarter of fiscal year 2010 beginning on October 1, 2009.

The DOL also indicated that the percentage of H-2B temporary labor certification applications processed within 60 days of receipt has also significantly decreased during the last fiscal year. During the third quarter of fiscal year 2008, the DOL processed approximately 77% of the H-2B applications within 60 days. During the third quarter of fiscal year 2009, the DOL processed approximately 31% of the H-2B applications within 60 days of receipt. The DOL stated that the decrease was partially due to the revised H-2B regulations which became effective in January 2009. It indicated that current performance targets may be reassessed in the future based upon the new regulations.

USCIS Confirms Continuing Validity of the Form I-9

The U.S. Citizenship and Immigration Services (USCIS) recently confirmed the continuing validity of the Form I-9 Employment Eligibility Verification form even though the current form has an expiration date of June 30, 2009. The USCIS stated that it has requested that the Office of Management and Budget (OMB) approve the continued use of the current Form I-9 with a revision date of February 2, 2010. The USCIS stated that while this request is pending, the current Form I-9 will not expire. The USCIS stated that it will update the Form I-9 when the extension is approved by OMB.

USCIS Continues to Aggressively Review Change of Status Applications to F-1 Classification

The USCIS continues to aggressively review Form I-539 Application to Change Nonimmigrant Status filed to change nonimmigrant status to F-1 classification. In particular, the USCIS California Service Center (CSC) is routinely denying Forms I-539 applications for change of status from B-2 classification to F-1 classification, especially for English as a Second Language (ESL) programs. In their denials, the CSC is indicating that these applications are delaying the departure of the foreign national from the United States. Some denials are indicating that the foreign national does not have a bona fide intent to depart the United States upon completion of his or her studies. Other denials are indicating that the foreign national is already proficient in English based upon how the Form I-539 was completed and the information provided in support of the application.

Additional information about USCIS processing trends will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Revises Biometrics Rescheduling Procedures for Reentry Permit Applications

On June 17, 2009, the USCIS announced new procedures for rescheduling biometrics appointments in connection with the Form I-131, Application for Travel Document (reentry permit application). The USCIS has begun to deny reentry permit applications where the biometrics have not been completed within 120 days of filing. The USCIS now requires that the applicant must appear for the biometrics appointment by the scheduled date or make a request to reschedule prior to appointment date. If an applicant is unable to attend his scheduled appointment, the USCIS now requires a reasonable excuse explaining why the appointment was missed. The Application Support Center (ASC) will be rescheduling appointments within 30 days from the date of the reschedule request. The ASC will not honor requests for rescheduling outside the 30 day timeframe. The USCIS cautioned that applicants who travel overseas without completing the biometrics appointment, and who do not timely file a request for their appoint rescheduling, will likely face a denial.

In addition, applicants will now have to be more vigilant in monitoring their appointment notices as those who do not make an active effort to follow up with the ASC regarding a reschedule request will face denial, regardless of any evidence of a timely attempt to reschedule. The USCIS also warned that applicants who repeatedly ask to reschedule their biometrics appointment and do not complete the biometrics within 120 days of the initial filing date, will face a denial. The USCIS reviews all applications initially, upon data entry, for the applicant's departure date and makes every attempt to schedule the applicant prior to his departure. The USCIS encourages submitting pre-paid express mailing labels to facilitate the return of the appointment notice if the time frame between filing and departure is short. The USCIS has reported that it devotes significant resources to this process, to give every applicant the chance to appear for biometrics before his departure date.

Recent Update from the CBP

The U.S. Customs and Border Protection (CBP) recently announced at the annual American Immigration Lawyers Association's (AILA) National Conference in Las Vegas, Nevada that there is a significant problem with identity theft and the use of green cards by imposters. Consequently, lawful permanent residents who have filed a Form I-90, Application to Replace Permanent Resident Card, or received a replacement card may be referred for secondary inspection for additional questioning. This is to ensure that they are in fact the holder of the card. The USCBP has warned that if a card is reported lost or stolen multiple times, there may be a fraud issue and it is likely the individual will be questioned.

USCIS Restores Premium Processing Service for Certain Form I-140 Petitions

The USCIS announced that effective June 29, 2009, it has resumed Premium Processing Service (PPS) for Form I-140, Immigrant Petition for Alien Worker (I-140), in accordance with the regulations. Due to the reduction in I-140 backlogs and increased processing efficiency, the USCIS is able to resume PPS for select I-140s. USCIS will accept PPS for I-140s involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals. PPS continues to be unavailable for I-140s filed on behalf of EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Under PPS, the USCIS guarantees that payment of a $1,000 processing fee will result in either an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, the USCIS will refund the $1,000 fee and continue to process the request as part of PPS. Petitioners who participate in the program may use a dedicated phone number and e-mail address to check on the status of their petition or ask any other questions they may have concerning their petition.

CBP Reminds Visa Waiver Travelers of New Passport Requirements Effective July 1st

The CBP recently reminded Visa Waiver travelers that effective July 1, 2009, all Visa Waiver Program emergency or temporary passports must be electronic passports to be eligible to travel to the United States under the Visa Waiver Program. e-Passport contains an integrated chip that stores biographic data, a digitized photograph and other information about the true bearer as indicated by a symbol on the passport cover. In lieu of a e-Passport, foreign nationals may apply for visitor visas from the DOS instead of traveling through the Visa Waiver Program. CBP did state that it may exercise discretion for admission of foreign nationals who doe not have e-Passports for if they are traveling for medical or other emergency reasons. However, CBP warned that Visa Waiver Program applicants arriving in the United States with a non-compliant passport for other than emergency travel reasons may be detained for further processing and/or denied admission. Please note that this new requirement is currently limited to emergency or temporary passports.

DOS Provides Predictions About Future Movement in Employment-Based "Green Card" Categories

The U.S. Department of State (DOS) recently provided predictions about the future availability of employment-based "Green Cards." The following are some of the DOS' predictions about future availability:

1. The EB-1 category for Indian and Chinese nationals may retrogress in August or September 2009 due to heavy demand.

2. The EB-2 category for Indian and Chinese nationals may be become Unavailable in August or September 2009 through the end of the government's fiscal year on September 30, 2009. The DOS indicated that there are a significant number of cases pending in these categories and each country has a limit of 2,800 available "green cards" in the EB-2 category each year plus any unused numbers from other categories. The DOS indicated that the waiting time for Indian and Chinese nationals in the EB-2 category may be measured in years (or even decades) due to current demand.

3. The EB-3 World category will remain Unavailable for the remainder of this fiscal year through September 30, 2009. The DOS estimated that when the government's next fiscal year begins on October 1, 2009, the cut-off date for the EB-3 World category will be March 1, 2003.

4. The DOS indicated that the EB-3 categories for Indian, Chinese and Mexican nationals will also remain Unavailable for the remainder of this fiscal year. The DOS estimated that the beginning in the next fiscal year, the priority date from the EB-3 Chinese and Mexican national categories will be March 1, 2003 and the priority date for the Indian national EB-3 category will be November 1, 2001.

5. The DOS stated that there are approximately 25,000 EB-2 cases and 25,000 EB-3 cases awaiting "green card" numbers at the DOS.

Additional information about future priority date movement will be contained in our firm's future Immigration Updates when it becomes available.

DOS Releases Its July 2009 Visa Bulletin – No Advancement in Any of the Employment-Based "Green Card" Categories

The DOS recently released its July 2009 Visa Bulletin. As indicated in the last two Visa Bulletins, the EB-3 category remains Unavailable through the beginning of the government's next fiscal year on October 1, 2009. The DOS also severely retrogressed the EB-2 Chinese national category to January 1, 2000 which is the same date as the EB-2 Indian national category. It is assumed that both the EB-2 Indian and Chinese national categories may become Unavailable in either August or September through the end of the government's fiscal year on September 30, 2009.

The following is an overview of how the various employment-based preference categories have either progressed or retrogressed since the beginning of the current retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

May 2009

June 2009

July 2009

EB-3 World

03/01/01

09/01/02

03/01/06

U

U

U

EB-2 China

05/01/00

01/01/03

04/01/04

2/15/05

2/15/05

01/01/00

EB-3 China

05/01/00

10/15/01

03/22/03

U

U

U

EB-2 India

11/01/99

01/01/02

04/01/04

2/15/04

01/01/00

01/01/00

EB-3 India

01/01/98

05/01/01

11/01/01

U

U

U

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

03/01/01

U

U

Additional information about the employment-based immigrant visa priority dates will be contained in our firm's future Immigration Updates when they become available.

USCIS Issues Guidance For H-1B Health Care Professional Occupations

On May 20, 2009, the USCIS issued a memorandum clarifying the standards for adjudicating H-1B petitions filed on behalf of H-1B professionals seeking employment in health care occupations. The USCIS instructed adjudicators to consult the Occupational Outlook Handbook (OOH) to determine whether a position qualifies as a specialty occupation, but cautioned that alternative authoritative sources also exist which indicate whether a foreign national is qualified to be employed in the occupation. The USCIS stated that where more than one authoritative source exists, an adjudicator should consider all of the evidence presented to determine whether the beneficiary qualifies to perform work in a specialty occupation. The USCIS provided specific guidance on health care occupation standards.

Licensed Professionals

The USCIS states that if the petitioner has presented evidence that the beneficiary has a valid license to practice health care in the state in which he will be employed, the adjudicator should not look beyond the state license to determine the beneficiary's qualifications. The possession of the license will be sufficient evidence of the beneficiary's ability to practice health care in a specialty occupation. Whether the beneficiary possesses a Bachelor, Master or PhD degree is irrelevant to this determination.

The beneficiary still needs to present a certificate (a/k/a Visa Screen) from a recognized credentialing organization such as the Commission on Graduates of Foreign Nursing Schools (CGFNS) or the Foreign Credentialing Commission on Physical Therapy (FCCPT), that the alien's education, training, license, and experience meet all applicable statutory and regulatory requirements.

A Beneficiary who possesses an unrestricted license should be given an H-1B approval for a full three-year period of validity (if requested) regardless of the expiration date on the license. A Beneficiary who possesses a restricted license, should only be given a validity period of one year or until the validity of the restricted license, whichever is longer.

Unlicensed Professionals

Some states will not permit health care workers to practice in a specialty occupation unless they present evidence of employment authorization and/or a Social Security card. In these types of cases, the adjudicator is responsible for reviewing the requirements for licensure to determine if the beneficiary is qualified. If the adjudicator is unable to determine if the beneficiary is qualified, the USCIS instructs adjudicators to send a Request for Evidence. The petitioner will also need to evidence that the beneficiary has filed an application for a license with the appropriate authorities; and cannot obtain a full unrestricted license in the state in which he or she will practice due to the requirement for possession of a Social Security card, valid immigration document, and/or physical presence in the U.S. If the petition is approvable, adjudicators have been instructed that the validity period of the petition should be one year. If the petitioner later requests an extension of stay on behalf of the beneficiary, the petitioner must, at that time, provide evidence of the beneficiary's valid unrestricted license to practice in a health care occupation.

H-1B Quota for Fiscal Year 2010 Not Met During Initial Filing Period (UPDATED June 26, 2009)

The USCIS announced on April 8, 2009 that the H-1B quota for fiscal year 2010 (October 1, 2009 through September 30, 2010) WAS NOT met during the initial filing period. (April 1, 2009 through April 7, 2009). Therefore, the USCIS continues to accept H-1B petition filings under both the regular H-1B quota and the U.S. Master's or higher Degree exemption quota. The regular H-1B quota is limited to 65,000 and the U.S. Master's or higher Degree exemption is limited to an additional 20,000. The USCIS stated that it will continue to monitor filings and notify the public when either of the two quotas has been met. When either of the quotas has been met, a random selection process will be conducted only on the petitions received on the date which the quota is actually met. The petitions received before this date will be accepted and adjudicated by the USCIS.

As of June 26, 2009, approximately 44, 800 H-1B cap subject petitions had been received by USCIS and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.

For the past few years, the H-1B quota has been met during the initial filing period and the USCIS has had to conduct random selection processes of the petitions received. However, it appears that due to the current economic conditions, employers have not filed as many petitions as they have in the past. Therefore, unlike in previous years, the quota for fiscal year 2010 has not been met during the initial filing period and all H-1B petitions filed during the initial filing period will be accepted by the USCIS for processing.

Additional information about the H-1B quota for fiscal year 2010 will be contained in our firm's future Immigration Updates when it becomes available.

For more information about this or any other immigration law topic, please contact Bob White, at 847.734.8811 or via email at rwhite@masudafunai.com.

Weekly Immigration Updates are provided in the Immigration Group Section of our firm's website at www.masudafunai.com.