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NEWS
Final Rules
Published on Labor Certification Cases
The Department of Labor (DOL) has published its
Final Rule on labor certification issues. This Final Rule, effective July 16,
2007, prohibits the substitution of alien beneficiaries on permanent labor
certification applications and resulting certifications. This provision applies
to both PERM and pre-PERM labor certifications. This change will not affect
substitutions already approved by the USCIS (approved I-140 cases) or
substitution requests in progress (pending I-140 cases) as of the rule's
effective date. Thus, employers who are interested in substituting employees
into approved labor certifications should act quickly and file the I-140
substitution cases before July 16.
Additionally, the DOL rule creates a 180-day
“validity period” for permanent labor certifications. Employers now have 180
calendar days within which to file an approved permanent labor certification in
support of a Form I-140 (Immigrant Petition for Alien Worker) with the USCIS.
This rule applies to all permanent labor certifications filed on or after the
rule’s effective date of July 16, 2007. All labor certifications that were
approved prior to July 16, 2007, will expire on January 12, 2008 (180 calendar
days after the effective date of the rule). As a result, employers who have
previously approved labor certifications that have not yet been used for I-140
cases should be sure to use these labor certifications by January 12, 2008
The DOL rule also now requires employers to pay
the costs of preparing, filing, and obtaining labor certification. Starting July
16, an employer will no longer be allowed to pass the costs incurred for the
application process to the alien employee. This includes "payment of the
employer's attorneys' fees, whether as an incentive or inducement to filing, or
as a reimbursement for costs incurred in preparing or filing a permanent labor
certification application." The DOL notes that work performed by the alien
employee related to the offered job, based on the employment relationship, is
acceptable under the rule, and does not qualify as "reimbursement in costs" for
the labor certification process.
The rule additionally states that "an alien may
pay his or her own costs in connection with a labor certification, including
attorneys' fees for representation of the alien, except that where the same
attorney represents both the alien and the employer, such costs shall be borne
by the employer." Thus, employers should be aware that even if the alien
originally retained the attorney, it is highly probable that the attorney could
eventually represent the interests of both the alien and the attorney,
particularly because the employment-based immigration process often requires the
employer to make representations to the government with guidance from an
attorney.
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Backlog ends in permanent
labor certification program (10/04/07)
WASHINGTON
— The U.S. Department of Labor today announced that the permanent foreign labor
certification program's backlog has been eliminated, with nearly 99 percent of
cases completed and the remainder awaiting responses from employers. For almost
three years, more than 300 workers in two processing centers reviewed
approximately 363,000 pending labor applications, a backlog created as a result
of legislative changes in 1997 and 2000.
From the outset,
the department pledged that the backlog would be eliminated by September 30,
2007. Both of the Backlog Elimination Centers have started a transition and
shutdown phase that will continue through December.
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USCIS Terminates Premium Processing Service for Form I-140 Petitions
Anticipating a substantial increase in the number of incoming petitions, the
USCIS will be temporarily suspending Premium Processing Service for Form I-140
(Immigrant Petition for Alien Worker) effective July 2, 2007. This expected
increase is due to the built up demand for preference visa categories which will
become current on July 1, 2007. The volume of Form I-140 petitions requesting
Premium Processing is expected to exceed the USCIS’ capacity.
The
initial suspension will last 30 days ending August 1, 2007. If following this
period they determine they will not be able to begin processing these cases
within the necessary 15 calendar days for Premium Processing Service, the
suspension may be extended.
Suspension of
Premium Processing for Form I-140 Extended
The USCIS has extended the
temporary suspension of Premium Processing Service for Form I-140 (Immigrant
Alien Worker Petitions) which was previously announced on June 27, 2007 and
became effective on July 2, 2007.
Anticipating that the volume of Form I-140 petitions filed that request Premium
Process Service will continue to exceed their capacity, the suspension will
continue until further notice. Premium Processing Service guarantees that within
15 calendar days of receipt of a petition, USCIS will issue an approval or
denial notice, a notice of intent to deny, a request for evidence or open an
investigation for fraud or misrepresentation.
The USCIS will continue to evaluate their capacity and will reinstate the
service once they feel they can process these cases within 15 calendar days of
receipt.
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WASHINGTON ─ U.S. Citizenship
and Immigration Services (USCIS) transmitted an interim final rule to the
Federal Register today that prohibits employers from filing multiple
H-1B petitions for the same employee. These changes will ensure that
companies filing H-1B petitions subject to congressionally mandated
numerical limits have an equal chance to employ an H-1B worker. To ensure a
fair and orderly distribution of available H-1B visas, USCIS will deny or
revoke multiple petitions filed by an employer for the same H-1B worker and
will not refund the filing fees submitted with multiple or duplicative
petitions.
This rule does not preclude
related employers (such as a parent company and its subsidiary) from filing
petitions on behalf of the same alien for different positions, based on a
legitimate business need. The interim final rule becomes effective upon
publication in the Federal Register.
Last August, President Bush
announced that the Administration would be undertaking a series of
immigration and border security reforms. The changes to the H-1B filing
process under this rule are an important part of that initiative.
On April 1, 2008, employers may file petitions requesting H-1B
workers for fiscal year 2009 employment starting on October 1, 2008. For
fiscal year 2009, Congress has set a limit of 65,000 for most H-1B workers.
Additionally, the first 20,000 H-1B workers who have a U.S.
master’s degree or higher are exempt from the cap. Under current
procedures, which are not changed by this rule, once USCIS receives 20,000
petitions for aliens with a U.S. master’s degree or higher, all other cases
requesting the educational exemption are counted toward the 65,000 cap.
Once the 65,000 cap is reached for a fiscal year, USCIS will announce that
the cap has been filled and reject further petitions subject to the cap.
This rule also stipulates that
if USCIS determines the number of H-1B petitions received meets the cap
within the first five business days of accepting applications for the coming
fiscal year, USCIS will apply a random selection process among all H-1B
petitions received during this time period. If the 20,000 advanced degree
limit is reached during the first five business days, USCIS will randomly
select from those petitions ahead of conducting the random selection for the
65,000 limit. Petitions subject to the 20,000 limit that are not
selected in that random selection will be considered with the other H-1B
petitions in the random selection for the 65,000 limit.
The rule further clarifies that
USCIS will deny petitions that incorrectly claim an exemption from any H-1B
numerical limits. Those filing fees will not be returned
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USCIS Runs
Random Selection Process For H-1B Petitions
WASHINGTON
– (4/14/08) U.S. Citizenship and Immigration Services (USCIS) today conducted the
computer-generated random selection processes on H-1B petitions, to select which
H-1B petitions for fiscal year 2009 (FY 2009) would continue to full
adjudication. If approved these H-1B petitions will be eligible to receive an
H-1B visa number.
USCIS
conducted two random selections, first on petitions qualifying for the 20,000
“master’s or higher degree” (advanced degree) exemption, and second on the
remaining advance degree petitions together with the general H-1B pool of
petitions, for the 65,000 cap.
The
approximately 163,000 petitions received on the first five days of the eligible
filing period for FY 2009 (April 1 through April 7, 2008)
were labeled with unique numerical identifiers. USCIS has notified the
appropriate service centers which numerical identifiers have been randomly
selected, so each center may continue with final processing of the petitions
associated with those numerical identifiers.
Petitioners
whose properly filed petitions have been selected for full adjudication should
receive a receipt notice dated no later than
June 2, 2008. USCIS will return unselected petitions with the fee(s)
to petitioners or their authorized representatives. As previously announced,
duplicate filings will be returned without the fee. The total adjudication
process is expected to take approximately eight to ten weeks.
For cases
selected through the random selection process and initially filed for premium
processing, the 15-day premium processing period begins today (April 14), the
day of the random selection process.
USCIS has
“wait-listed” some H-1B petitions, meaning they may possibly replace petitions
chosen to receive an FY-2009 cap number, but that subsequently are denied,
withdrawn, or otherwise found ineligible. USCIS will retain these petitions
until a decision is made whether they will replace a previously selected
petition. USCIS will send a letter to the wait list petitioners to inform them
of their status
USCIS expects
that for each of these wait-listed petitions, it will either issue a receipt
notice or return the petition with fees within six to eight weeks.
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USCIS Reaches FY 2009 H-1B Cap
WASHINGTON – U.S. Citizenship and Immigration
Services (USCIS) announced today that it has received enough H-1B petitions to
meet the congressionally mandated cap for fiscal year 2009. USCIS has also
received more than 20,000 H-1B petitions filed on behalf of persons exempt from
the cap under the “advanced degree” exemption. Before running the random
selection process, USCIS will complete initial data entry for all filings
received during the filing period ending on April 7, 2008. Due to the high
number of petitions, USCIS is not yet able to announce the precise day on which
it will conduct the random selection process.
USCIS will carry out the computer-generated random
selection process for all cap-subject petitions received. USCIS will select the
number of petitions needed to meet the caps of 65,000 for the general category
and 20,000 under the “advanced degree” exemption limit. USCIS will reject, and
return filing fees for all cap-subject petitions not randomly selected, unless
found to be a duplicate. USCIS will handle duplicate filings in accordance
with the interim final rule published on March 24, 2008 in the Federal
Register.
The agency will conduct the selection process for
“advanced degree” exemption petitions first. All “advanced degree” petitions
not selected will be part of the random selection process for the 65,000
limit.
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USCIS
Processing Times
Vermont
Service Center Processing Times
|
Type
of Case |
Processing Timeframe/
Currently Processing Cases received on |
|
I-129 (H-1B). Visa to be issued abroad |
1/31/08 |
|
I-129 (H-1B). Change of Status in the US |
1/31/08 |
|
I-129 (H-1B). Extension of stay in the US
|
11/26/07 |
|
I-140 (Immigrant) Schedule A Nurses. |
4/01/06 |
|
I-140 (Immigrant) Skilled worker. |
4/01/06 |
|
I-485 (Adjustment of Status) Employment Based. |
7/24/06 |
|
I-765 (Employment Authorization) Based on a pending I-485. |
1/29/08 |
Texas Service Center
Processing Times
|
Type
of Case |
Processing Timeframe/
Currently Processing Cases received on |
|
I-129 (H-1B). Visa to be issued abroad |
2/15/08 |
|
I-129 (H-1B). Change of Status in the US |
2/15/08 |
|
I-129 (H-1B). Extension of stay in the US
|
2/15/08 |
|
I-140 (Immigrant). Schedule A Nurses.
|
7/19/07 |
|
I-140 (Immigrant). Skilled worker. |
7/19/07 |
|
I-485 (Adjustment of Status) Employment Based. |
6/29/07 |
|
I-765 (Employment Authorization) Based on a pending I-485. |
1/29/08 |
Nebraska Service
Center Processing
Times
|
Type of Case |
Processing Timeframe/
Currently Processing Cases received on |
|
I-129 (H-1B) Visa to be issued abroad
|
2/15/08 |
|
I-129 (H-1B). Change of Status in the US |
2/15/08 |
|
I-129 (H-1B). Extension of stay in the US
|
2/15/08 |
|
I-140 (Immigrant). Scheduled A Nurse |
2/15/07 |
|
I-140 (Immigrant). Skilled worker |
3/10/07 |
|
I-485 (Adjustment of Status) Employment Based. |
7/11/07 |
|
I-765 (Employment Authorization) Based on a pending I-485. |
1/29/08 |
California Service
Center Processing Times
|
Type of Case |
Processing
Timeframe |
|
I-129 (H-1B). Visa to be issued abroad
|
2/15/08 |
|
I-129 (H-1B). Change of Status in the US |
2/15/08 |
|
I-129 (H-1B). Extension of stay in the US
|
2/15/08 |
|
I-485 (Adjustment of Status) Employment Based. |
10/18/07 |
|
I-765 (Employment Authorization) Based on a pending I-485. |
1/28/08 |
Posted on April 15, 2008.
Source:
USCIS.
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Visa Bulletin
Visa Bulletin for MAY 2008
|
|
All
Chargeability
Areas Except
Those Listed |
CHINA-
mainland born |
INDIA |
MEXICO |
PHILIP-PINES |
|
Employment
-Based
|
|
|
|
|
|
|
1st |
C |
C |
C |
C |
C |
|
2nd |
C |
Jan. 1, 2004 |
Jan. 1, 2004 |
C |
C |
|
3rd
|
Mar. 1, 2006 |
Mar. 22, 2003 |
Nov. 1, 2001 |
Jul. 1, 2002 |
Mar. 1, 2006 |
|
Other Workers |
Jan. 1, 2003 |
Jan. 1, 2003 |
Jan. 1, 2003 |
Jan. 1, 2003 |
Jan. 1, 2003 |
To view the entire Visa
Bulletin, please go to
THIS
LINK.
EMPLOYMENT VISA AVAILABILITY IN THE COMING MONTHS
Many of the Employment cut-off dates
have continued to advance more rapidly
than might ordinarily be expected. This
is a result of consultations with U.S.
Citizenship and Immigration Services (USCIS)
regarding their pending demand, which is
currently using approximately 90% of all
Employment numbers. USCIS has indicated
that they would prefer to review a
substantial number of cases at this time
to ensure that number use in the various
categories can be maximized. Should
USCIS projections of the resulting
number use prove to be incorrect it may
be necessary to adjust the cut-off dates
during the final quarter of FY-2008
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