News from the Alliance of Business Immigration Lawyers Vol. 6, No. 1A • January 01, 2010

Headlines:

1. FY 2010 H-1B Cap Reached – December 21, 2009, is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.

2. H-1C Nonimmigrant Nurse Classification Expires – The H-1C nonimmigrant nurse category expired on December 21, 2009.

3. USCIS Changes Address of Filing Location for Naturalization Applications – USCIS announced revised addresses for naturalization applications filed at USCIS Lockbox facilities in Phoenix and Dallas.

4. Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment? – USCIS’s ombudsman asks that those who think their cases may have been denied erroneously to forward the ombudsman a case problem.

5. USCIS Ombudsman Discusses Pending Derivative I-485s Due to File Separation – If a family member’s derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant’s I-485, the ombudsman will review e-mailed documentation.

6. State Dept. Withdraws Proposed Rule on Secondary School Students Under Exchange Visitor Program – The Department withdrew the proposed rule because it was submitted before the OMB completed its review.

7. Labor Dept. Announces Centralization of Prevailing Wage Determinations – The National Prevailing Wage and Helpdesk Center will receive and process prevailing wage determination requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs.

8. State Dept. Proposes Increase in Nonimmigrant Visa Application, BCC Fees – The Department of State published a proposed rule on December 14, 2009, to increase nonimmigrant visa application processing and BCC fees.

9. CNMI Update: Advance Parole, Biometrics/Interviews – Among other things, USCIS reminds noncitizens living in the CNMI to apply for advance parole before traveling abroad if they do not otherwise have U.S. lawful permanent resident status or an appropriate U.S. visa.

10. New Publications and Items of Interest – New Publications and Items of Interest

11. Recent News from ABIL Members – Recent News from ABIL Members

12. Government Agency Links – Government Agency Links

Details:

1. FY 2010 H-1B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) announced on December 22, 2009, that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. December 21, 2009, is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010. Regulations now provide that H-1B petitions received by USCIS on or before December 19 (because of the weekend) have been submitted “under the cap,” but H-1B petitions received by USCIS on or after December 22, 2009, will be rejected.

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. Properly filed cases will be considered received on the date that USCIS physically receives the petition, not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after December 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:

extend the amount of time a current H-1B worker may remain in the U.S.
change the terms of employment for current H-1B workers
allow current H-1B workers to change employers
allow current H-1B workers to work concurrently in a second H-1B position

Now that the FY 2010 cap has been reached, the earliest an employer can file a new H-1B petition will be April 1, 2010, with an employment start date of October 1, 2010.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=153a1638367b5210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

For more details on the H-1B count, see http://www.uscis.gov/h-1b_count. For information on the temporary acceptance of H-1B petitions without Department-certified LCAs, see http://www.uscis.gov/USCIS/Laws/Memoranda/2009/h-ib-petitions-temporary-acceptance.pdf. For a Q&A on the same topic, see http://www.foreignlaborcert.doleta.gov/pdf/FAQ_PERM_Appeals_Filing_Final_12012009.pdf.

Although no new H-1B petitions will be accepted, there are still a number of solutions available to employers and foreign professionals. For example, some foreign students may be able to extend their pre- or post-graduation employment authorization. Citizens of Canada, Mexico, Chile, Singapore and Australia may want to consider free trade visa benefits. Many other nonimmigrant work visa categories exist. Employers and foreign nationals should consult with your ABIL attorney to determine possible eligibility for these benefits.

2. H-1C Nonimmigrant Nurse Classification Expires

The H-1C nonimmigrant nurse category expired on December 21, 2009. The classification authorized the admission of up to 500 nurses annually to work in eligible health care facilities. After the original 1999 statutory authorization of the program expired in 2005, Congress reauthorized it for three years beginning December 20, 2006, in the Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005. The statutory authority for the program has not been extended.

U.S. Citizenship and Immigration Services noted that this expiration does not affect the ability of H-1C nurses currently in status to continue employment during their authorized period of stay, the authority of USCIS to adjudicate a petition properly filed on or before December 21, 2009, or the eligibility of the beneficiary of an approved H-1C petition to be admitted to the U.S. as an H-1C nonimmigrant.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=34291c5944e95210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

3. USCIS Changes Address of Filing Location for Naturalization Applications

U.S. Citizenship and Immigration Services (USCIS) announced on December 17, 2009, revised addresses for applicants filing an Application for Naturalization (Form N-400) at USCIS Lockbox facilities in Phoenix and Dallas. The filing address change took effect immediately.

Applicants who previously filed their applications at the Lewisville Post Office (P.O.) Box will now file their applications at a P.O. Box in Dallas. In addition, USCIS noted a change to the USCIS Phoenix Lockbox address. Starting immediately, applicants filing an N-400 at the USCIS Dallas or Phoenix Lockbox must submit the application and all supporting documents and fees to the new addresses, based on where they live. The new addresses are available at the link below.

The U.S. Postal Service forwarded mail from the Lewisville Post Office to the new post office in Dallas until December 31, 2009. After that date, USCIS noted, the Postal Service will forward the mail through normal channels, “which will likely delay receipt at the Dallas Lockbox facility.”

Applicants filing an N-400 under military provisions (INA Section 328 or 329), should file their application at the Nebraska Service Center, P.O. Box 87426, Lincoln, NE 68501-7426, regardless of where the applicant lives. This includes current military spouses regardless of geographic location or jurisdiction.

Those filing an N-400 at a USCIS Lockbox facility may elect to receive an e-mail and/or text message notification that the application has been accepted. The applicant must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of the application.

The N-400 form instructions have been updated to reflect the new filing locations. The new addresses are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=91cc1c5944e95210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

4. Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment?

The U.S. Citizenship and Immigration Services (USCIS) ombudsman’s office reported that it has received reports of the agency not issuing Notices of Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications.

If a foreign national is (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has an I-485 pending for 180 days or more, the ombudsman notes, he or she is eligible to change to a same or similar position. If the underlying approved I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then USCIS must issue a Notice of Intent to Deny the pending I-485.

However, the ombudsman understands that USCIS may deny the I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances. These include, for example, where the beneficiary is ineligible for the benefits of the I-485 by statute, or the I-140 is withdrawn before the I-485 was pending for 180 days.

USCIS’s ombudsman asks that those who think their cases may have been denied erroneously to forward the ombudsman a case problem using Department of Homeland Security Form 7001 (http://www.dhs.gov/files/programs/editorial_0497.shtm) with the subject line, “AC21 Evidence of Immediate Denial.” The complainant should include a copy of the denial notice, detailed information on the reasons for the immediate denial and, if appropriate, evidence that a Motion to Reopen or Reconsider was submitted. If the ombudsman’s office considers the case to be an erroneous denial, it will forward the case directly to USCIS for further review.

For more information, see http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#2.

5. USCIS Ombudsman Discusses Pending Derivative I-485s Due to File Separation

U.S. Citizenship and Immigration Services (USCIS) sometimes approves a Form I-485 (Application to Register Permanent Residence or Adjust Status) for a principal applicant, but the derivative family members’ (spouse or minor children) I-485 applications remain pending. While in some cases this may be due to missing evidence, security clearance difficulties, or some other legitimate reason, the file may just be separated from the principal’s, the USCIS ombudsman noted recently.

If a family member’s derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant’s I-485, the ombudsman asks that the following be e-mailed to [email protected]:

DHS Form 7001;
A copy of the principal applicant’s I-485 approval notice;
A copy of the I-485 receipt notice for the derivative;
A copy of the approved immigrant visa petition notice (if employment-based); and
Any other evidence that is pertinent to the case.

The subject line of the e-mail should include: “Unapproved Derivative I-485.”

The ombudsman said it will look into such cases “and review how we may be of assistance.”

The notice is available at http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#1.

6. State Dept. Withdraws Proposed Rule on Secondary School Students Under Exchange Visitor Program

On December 23, 2009, the State Department published a proposed rule on secondary school students under the Exchange Visitor Program. The Department revised existing regulations “to provide greater specificity and clarity to sponsors of the Secondary School Student category with respect to the execution of sponsor oversight responsibilities under the exchange visitor program.” The Department subsequently withdrew the rule in its entirety on December 29, 2009, because it was submitted before the Office of Management and Budget completed its review.

The notice is at http://edocket.access.gpo.gov/2009/pdf/E9-30837.pdf.

7. Labor Dept. Announces Centralization of Prevailing Wage Determinations

As of January 1, 2010, the Department of Labor’s Office of Foreign Labor Certification’s National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, DC, began receiving and processing prevailing wage determination requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs. The notice also includes information about processing CNMI prevailing wage determinations. For the time being the NPWHC will only process prevailing wage determination requests received by mail in hard copy. The Department said it is developing an electronic means for the submission of such requests.

The notice is available at http://www.foreignlaborcert.doleta.gov/pdf/E928963_120409.pdf.

8. State Dept. Proposes Increase in Nonimmigrant Visa Application, BCC Fees

The Department of State published a proposed rule on December 14, 2009, to increase nonimmigrant visa application processing and Border Crossing Card (BCC) fees. Under the proposed rule:

Applicants for all visas that are not petition-based, including B-1/B-2 tourist and business visitor visas and student/exchange visitor visas, would pay $140
Applicants for petition-based visas (H, L, O, P, Q, R) would pay $150
Applicants for treaty traders and investors (E) would pay $390
Applicants for K visas would pay $350
Applicants for nonpetition-based machine-readable visas (except E category) and BCC applications, with the exception of certain Mexican citizen minors’ BCCs, would pay $140

The press release is available at http://www.travel.state.gov/news/press/press_4603.html. The proposed rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-29722.pdf.

9. CNMI Update: Advance Parole, Biometrics/Interviews

U.S. Citizenship and Immigration Services (USCIS) reminds noncitizens living in the Commonwealth of the Northern Mariana Islands (CNMI) to apply for advance parole before traveling abroad if they do not otherwise have U.S. lawful permanent resident status or an “appropriate” U.S. visa (not a visa for “B” visitor admission or under the Visa Waiver Program only). Advance parole allows people lawfully living and working in the CNMI to continue to do so when they return from foreign travel. It will also allow processing of a pending application for adjustment of status to that of lawful permanent resident to continue.

USCIS also notes that those living and/or working or studying in the CNMI under CNMI permits should request parole before seeking to travel to Guam and other parts of the U.S. People who entered before November 28, 2009, are present without admission or parole. Although they are entitled to lawfully remain and work in the CNMI to the extent they were authorized to do so under former CNMI law as of November 28, 2009, for up to two years after that date, they will need a grant of parole to continue to live, work, and/or study in the CNMI during this period after travel to another U.S. destination.

USCIS advises applicants for immigration benefits in the CNMI who live in Rota or Tinian that appointments for biometrics and interviews have been combined into one. USCIS did this to minimize the expense people face in traveling to Saipan twice for separate biometrics appointment and interview. If an applicant in Rota or Tinian who is awaiting an interview receives a notice of a biometrics appointment, he or she can ignore that notice and have the fingerprints and photograph taken the day of the interview.

Details on advance parole for CNMI workers are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=44c2f4668d895210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD andhttp://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6a71f4668d895210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A technical correction to the CNMI interim rule (adding the edition date and OMB Control Number for the new Form I–9 CNMI, “CNMI Employment Eligibility Verification”) is available at http://edocket.access.gpo.gov/2009/pdf/E9-30287.pdf.

Information about the issuance of prevailing wage determinations for use in the CNMI is available at http://www.foreignlaborcert.doleta.gov/pdf/E928963_120409.pdf.

For more information about immigration benefits or to check the status of an application, USCIS suggests visiting http://www.uscis.gov/cnmi; calling USCIS Customer Service at 1-800-375-5283; or making an appointment via the Web site to visit the USCIS office at TSL Plaza in Saipan.

10. New Publications and Items of Interest

Global Workforce Impact Survey. Western Union and The Economist have published the “Western Union Global Workforce Impact Survey.” The report notes that nearly one out of six people worldwide has migrated, representing a vast mobile workforce. This includes 740 million who are traveling within their own country, and 200 million who are moving across international borders.1 With more people on the move, the report says, international migration is increasingly recognized as central to economic vitality and global competitiveness. Varying immigration laws among countries often limit a company’s ability to hire the necessary talent, the report notes: “With an eye fixed on the future, businesses increasingly see open immigration policies as enabling them to expand quickly when the economy turns around.” The report calls for policymakers to address these business needs by developing flexible immigration policies that minimize the barriers to mobility and address concerns about the impact of foreign workers on domestic wages, working conditions, and opportunities. The survey of 501 senior executives was designed to provide new insight into business attitudes and practices toward cross-border workforce supplies. More than three out of four (76 percent) respondents believe that foreign workers have a positive impact on the economy. See http://corporate.westernunion.com/global_migration.html.
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11. Recent News from ABIL Members

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) has posted “The New Immigration Reform Bill – And An American Hero” on his blog, available at http://www.immigration.net/Blog/?m=200912. The blog discusses Rep. Luis Gutierrez and his proposed new legislation, “Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009.”

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) recently debated Mark Krikorian, Center for Immigration Studies, on Southern California Public Radio. Mr. Paparelli suggested that the President should use executive authority to grant work permits and thereby take Congress off the hot seat on immigration as it faces midterm elections. Mr. Krikorian said the President had such authority but that he would be impeached if he tried that. Mr. Paparelli does not believe impeachment is likely. To hear the program, go to http://www.scpr.org/programs/patt-morrison/2009/12/29/is-obama-tougher-on-immigration-than-bush/.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) spoke at a recent “off-the-record” roundtable at the Center for American Progress (CAP). CAP’s head of immigration issues, Marshall Fitz, wrote a paper suggesting ways to improve high-skilled immigration that was used as a backgrounder for the roundtable. The paper, “Prosperous Immigrants, Prosperous Americans: How to Welcome the World’s Best Educated, Boost Economic Growth, and Create Jobs,” was released in December 2009 and is available at http://www.americanprogress.org/issues/2009/12/pdf/highskilled_immigrants.pdf.

12. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html