Immigration News
Jewell Stewart Pratt Beckerson & Carr PC
News Release from Jewell & Associates, PC – March 23, 2012 UPDATE: The Department of State has informed AILA that when the May Visa Bulletin is published, the China and India EB-2 cut-off dates will retrogress to August 15, 2007 and remain there for the remainder of fiscal year 2012. It was “too early” to predict movement for the remainder of the calendar year.
From AILA InfoNet Doc. No. 12032365 (posted Mar. 23, 2012).
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News Release from Jewell & Associates, PC – March 19, 2012 The recent rapid progress of the cut-off dates for Indian and Chinese nationals in the EB-2 preference category will end soon, according to the Department of State’s Chief of Visa Control and Reporting, Charlie Oppenheim:
On March 16, 2012, at the AILA Midwest Regional Conference in Chicago, Charlie Oppenheim… informed participants that he will likely retrogress India and China-mainland born Employment-Based Second Preference priority dates to around August 2007, effective with either the May or June 2012 Visa Bulletin. He also advised that he projects that all EB-1 visas available in FY2012 will be used this year, resulting in no “spilldown” to EB-2.
From AILA InfoNet Doc. No. 12031639 (posted Mar. 16, 2012) (emphasis added).
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Employers wishing to file labor certifications on behalf of their employees must follow strict recruiting guidelines set by the Department of Labor (DOL). One of the required recruitment steps is posting an online job order with the appropriate State Workforce Agency (SWA) for a period of 30 days. The regulation regarding how to record posting of the job order says “[t]he start and end dates of the job order entered on [Form ETA-9089] serve as documentation of this step.” See 20 C.F.R. § 656.17(e)(2)(i).
Employers placing advertisements for their labor certification applications must draft them carefully to ensure they comply with the PERM regulations. 20 CFR 656.17(f)(7) states that ads may not contain terms and conditions of employment that are “less favorable than those offered to the alien.” However, the Department of Labor has also said that employers have the option of placing “broadly written advertisements with few details regarding job duties and requirements” (PERM FAQs, March 3, 2005). Between these statements is a puzzle for employers: Which terms and conditions may be omitted if the ads are to remain compliant?
News Release from Jewell & Associates, PC – September 21, 2011 In an unannounced but apparently official change in policy, U.S. Citizenship & Immigration Services (USCIS) is no longer sending the “original” version of important official documents to immigration lawyers representing petitioning companies and employees. Instead, USCIS is mailing “original” approval notices (Forms I-797) directly to the petitioner or applicant, and sending only a “courtesy copy,” lacking critical data, to the lawyer. Aside from the related logistical inconvenience, the original versions of approval notices are often the only evidence that an employee has of his or her legal status, and can be very difficult to replace. Moreover, notices from USCIS may be time sensitive for a variety of reasons. Therefore, large and small companies alike should coordinate with their mailroom to make sure that any mailings from the Department of Homeland Security (DHS) or the U.S. Citizenship & Immigration Services (USCIS) are routed immediately to the appropriate personnel, who can then alert immigration counsel and send the original or copies if needed.
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News Release from Jewell & Associates, PC – September 20, 2011 In a recent post we discussed the BALCA decision In the Matter of The University of Texas at Brownsville, 2010-PER-00887. The Board held that the Certifying Officer was wrong to deny the employer’s labor certification application on the basis that the national professional journal in which its advertisement was placed was only available electronically. The Certifying Officer, in support of his argument, had referred to an answer to an FAQ by the Office of Foreign Labor Certification (OFLC), which stated that “an electronic national professional journal does not satisfy the optional special recruitment provisions’ advertising requirement. The employer must use a print publication.” The Board disagreed and reaffirmed its position that agencies may not impose substantive rules that have the force of law through answers to “frequently asked questions.”
We thought it sensible that employers and practitioners treat Brownsville with caution until the Department of Labor, through the OFLC, revealed its intent towards the offending FAQ answer. The FAQ and answer have now been revised and can be found at the FAQ web page (and AILA InfoNet, doc. 11090164). The answer is now “yes”: “an employer may use an electronic or web-based national professional journal to satisfy the provision found at 20 CFR 656.18(b)(3), which requires use of a national professional journal for advertisements for college or university teachers.” It then lists three conditions:
By Christopher Beckerson. © Jewell & Associates, PC 2011
News Release from Jewell & Associates, PC – September 16, 2011 The U.S. Department of State’s instructions for the 2013 Diversity Immigrant Visa Program (DV-2013) are now available. Entries for the DV-2013 program must be submitted electronically between October 4, 2011 and November 5, 2011. Changes in eligibility this year: For DV-2013, natives of South Sudan and Poland are now eligible for selection, while Bangladesh natives are now ineligible. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site, http://tinyurl.com/3wa75.
The congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2013, 50,000 diversity visas will be available.
© Jewell & Associates, PC 2011
In General Electric Company (GE Energy) 2010-PER-763 the employer’s Application for Permanent Labor Certification was accepted for filing by the Department of Labor on October 26, 2009. The employer had posted the job order on April 27—182 days before the filing date—and removed it on May 27. The Certifying Officer (CO) denied the application because the job order was placed more than 180 days before the application was filed, and the job order “must be conducted at least 30 days, but no more than 180 days, before the filing of the application” (20 CFR § 656.17(e)(1)(i)).
In the Matter of The University of Texas at Brownsville (2010-PER-00887), BALCA held that the Certifying Officer (“the CO”) abused his discretion when he denied the employer’s labor certification application on the basis that the national professional journal in which its advertisement was placed was only available electronically. While this may appear to end the Department of Labor’s requirement that such advertisements be in print, there are reasons to be cautious.
News Release from Jewell & Associates, PC – August 2, 2011
Breaking news: The Wall Street Journal reports today that Washington will provide immigration benefits to foreign entrepreneurs in its quest to increase job growth in the United States. The WSJ article can be viewed at: http://tiny.cc/ibvud.html.
Jewell & Associates, PC will provide further coverage of the details, as they become available, in future posts.
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News Release from Jewell & Associates, PC – July 21, 2011 Now through June, 30, 2012, entrants in the DV-2012 Diversity Visa Lottery may check the status of their entries through the Department State’s Entry Status Check on the State Department’s Electronic Diversity Visa website. To find out if his/her entry was selected (i.e., if he/she “won” the green card lottery), an entrant must use the information on his/her DV-2012 confirmation page. Entry Status Check is the only means by which the Department of State will notify DV-2012 entrants of their selection. Entry Status Check will give DV-2012 lottery winners instructions on how to proceed with their application for U.S. permanent residence, and will provide them with the date, time, and location of their immigrant visa interview.
For general information about the annual Diversity Visa Lottery, please visit the Department of State’s website.
© Jewell & Associates, PC 2011
As of April 28, 2011, all countries that were designated as part of the National Security Entry-Exit Registration System (NSEERS) have been relieved of compliance and removed from the NSEERS list. Accordingly, nationals and citizens of Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen are no longer subject to the NSEERS registration requirements.
Under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), a foreign national who has an approved I-140 petition and whose Adjustment of Status application has been filed and has remained unadjudicated for 180 days or more may accept a job with a new employer, or accept a different job with the same employer, as long as the new job is in the same or a similar occupational classification as the job for which the I-140 petition was originally filed. This ability to move between the same or similar positions is referred to “portability.”
When adjudicating employment-based immigration petitions, the USCIS is required to verify certain basic information about the petitioner, to make sure that the company or organization is a bona fide U.S. employer. For these verifications, the USCIS relies on paper documentation submitted with the petitions, and issues Requests for Evidence (RFEs) to employers when the documentation initially submitted doesn’t fully provide the necessary information.
It is a good idea for employers to revisit and remind themselves of some basic requirements for employee work authorization and employer responsibilities about once a year, to make sure that one is up to date on any new rules and fully remembering old ones. All individuals working in the United States must have legal authorization to do so and earned wages must be reported to the Internal Revenue Service for tax purposes and the Social Security Administration for potential benefit accrual.
News Release from Jewell & Associates, PC – December 27, 2010 On Dec. 22, 2010, USCIS announced that Petitioners will not be required to complete the attestation regarding export controls on the new version of the Form I-129 until Feb. 20, 2011. Please see our previous posting regarding the new Form I-129 here: /blog/?p=294. The USCIS Alert is located here: http://tinyurl.com/2dchnxk.
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News Release from Jewell & Associates, PC – December 7, 2010 J&A Lawyer Claire Hulse was recently named Barrister of the Year for 2010 by the Bar Association of San Francisco, for her significant contributions to BASF and its new attorney division, the Barristers Club. Claire Co-Chairs the Barristers Immigration Section, which she and her Co-Chair, Jacqueline Brown Scott, revamped this year by hosting monthly events on various topics covering all aspects of immigration, including business- and deportation/removal-related topics. They started the year with a viewing of Papers the Movie, a documentary about the DREAM Act, held a panel to discuss Arizona’s controversial immigration law, SB1070, hosted MCLEs regarding visas for entrepreneurs, startups, artists and entertainers, and ended the year with a well attended presentation by two Immigration Judges from the San Francisco Immigration Court, where Claire clerked following law school. Claire also served on the Nominating Committee, choosing new members of the 2011 Barristers Board. She will receive her award at the Bar Association of San Francisco’s Annual Membership Luncheon and Installation of Officers on December 14.
The related BASF press release can be viewed here:
http://www.sfbar.org/newsroom/20101201.aspx.
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News Release from Jewell & Associates, PC – December 3, 2010 On November 23, 2010, the USCIS activated a new fee schedule and also released a revised I-129 form.
Updated Fee Schedule
According to the USCIS, the new fee schedule raises filing fees approximately 10% on average. Very notable for employment-based Petitioners and Applicants is the change to the premium processing filing fee which increased from $1000 to $1225. Under premium processing a case must be adjudicated or additional evidence requested within 15 days of filing. Premium processing went into effect in 2001 and the filing fee remained static at $1000 for the 9 years since then until this change.
The new fee schedule can be found in a Public Release by the USCIS.
Revised I-129 Form
The newly revised I-129 form was released by the USCIS on November 23, 2010, but the prior edition will still be accepted until December 22, 2010. The I-129 form is used for filing a petition with the USCIS for E, H, L, O, P, Q, R, and TN statuses. There is a basic I-129 form that is used for all applicable petitions as well as one or more supplements to attach to the I-129, depending on the requested classification.
One timely addition to the forms are checkbox attestations on the L and H Data Collection Supplements that allow a Petitioner to indicate directly on the form whether or not it is subject to the additional filing fees imposed under Public Law 111-230.
Another timely addition is that the revised basic I-129 form and the I-129 H-1B Data Collection Supplement each include questions about whether the beneficiary will be working off-site. Pursuant to direction from a January 2010 memo, the USCIS has issued numerous Requests for Evidence (RFEs) regarding the issues of management control of the Beneficiary and possible off-site placement in the H-1B context. These new forms may help answer these questions up-front and reduce potential RFEs.
The revised I-129 form also requires a new Petitioner attestation regarding controlled technology or technical data that must be made for H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitions. The export from the U.S. of certain forms of technology and data is regulated by the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). The definition of “export” includes access of the technology or data by a foreign national, whether or not he is actively removing the property abroad. A Petitioner must certify via checkbox on the revised I-129 form that either 1) a license is not required to release the technology or data to the foreign national or 2) that a license is required but that the Petitioner will prevent access of the controlled technology or data by the beneficiary until such a license or other authorization is obtained. It is important to note that the attestation on the revised I-129 form does not change any prior export control laws but merely requires a Petitioner to actively attest that it is compliant with the regulations.
The revised I-129 form and instructions may be found at: http://www.uscis.gov/i-129
© Jewell & Associates, PC 2010
News Release from Jewell & Associates, PC – October 4, 2010 Charles Oppenheim, chief of the Visa Control and Reporting Division of the Department of State, provided an overview of the likely progress of family and employment-based visa classifications at a recent meeting with AILA’s Washington, D.C. chapter.
Family-Based Classifications: Visas Currently Underutilized
Mr. Oppenheim expects priority dates in the family-based categories to continue advancing quickly. He attributed underutilization in these categories to the present economic climate, which may be discouraging foreign nationals from relocating to the United States and rendering petitioners unable to pay fees or comply with income requirements. Further, unlawfully present beneficiaries may be unwilling to travel abroad for consular processing due to bars on re-entry.
Employment-Based Classifications: Visas in EB-2 and EB-3 Oversubscribed
Mr. Oppenheim suggested that oversubscription in the EB-2 and EB-3 categories might be due to beneficiaries starting families between their petitions being filed and their priority date becoming current. Further, demand for the China and India EB-2 categories has increased as EB-3 beneficiaries have “ported” their priority dates over. This has not relieved pressure on the EB-3 category for these nationals, who can expect their priority dates to advance at the same pace in 2011 as they did in 2010. Mr. Oppenheim made the following predictions for priority date movement over the next few monthly Visa Bulletins:
Employment-Based Classifications: EB-1
Mr. Oppenheim finished on a positive note for China and India: under AC-21, unused EB-1 numbers from other countries have crossed over to their EB-1 categories, allowing 5,000-6000 visa numbers to be allocated rather than the normal limit of around 2,800. He also pointed out that remaining unused EB-1 numbers “fall down” into the EB-2 categories, which has added approximately 20,000 EB-2 numbers for India and nearly 6,500 for China.
© Jewell & Associates, PC 2010
News Release from Jewell & Associates, PC – September 23, 2010
The U.S. Department of State has just announced the next annual lottery for U.S. green cards. The registration period for the upcoming lottery, called the 2012 Diversity Visa (DV) lottery, will open on October 5, 2010. Entries for the lottery must be submitted electronically between noon on October 5, 2010 and noon on November 3, 2010, Eastern Time. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site, http://travel.state.gov/visa/immigrants/types/types_1322.html.
The congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State and makes up to 55,000 Diversity Visas (DV) available each fiscal year to persons from countries with low rates of immigration to the United States.
© Jewell & Associates, PC 2010
