Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for July, 2008

E-Verify – The Clock to Renew Is Ticking

The E-Verify program, as we know it and have used to love it or hate it now, is set to expire on November 1st.  E-Verify and its requirements to verify the employment eligibility for all new hires is the cornerstone of many states’ immigration enforcement laws.  For example, South Carolina and Arizona require all or a large portion of the companies who employ workers to use E-Verify.

With the Senate in recess from August 1 until September 7, and target adjournment date of September 26, there are not many days left for Congress to consider the many issues that surround E-Verify.  Many senators wish to condition or structure E-Verify’s reauthorization with some other immigration measures.  Some of the proposed bills are likely to spur a fair amount of opposition and their passage, as proposed, is not guaranteed.

Until then, E-Verify is still operational, but the limited calendar and the desire of the U.S. congressmen to push alternative immigration measures alongside E-Verify may mean that its renewal will be down to the wire.

We at the Capitol Immigration Law Group will continue monitoring the situation on behalf of our clients and report as we get updates.  To receive timely updates please visit this site regularly, subscribe to its RSS feed, or subscribe to our email newsletter.

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Neufield Memo on 180-day Adjustment of Status Bar Exemption

Section 245(a) of the Immigration and Nationality Act (INA) allows for the adjustment of status (I-485) which so many of our clients and readers are well familiar.  Section 245(c) of the INA establishes eight (8) bars to adjustment of status.  However, adjustment of status based on employment-based immigrant visa are exempt from three of these bars, pursuant to Section 245(k).

In a July 14, 2008, Memorandum, Donald Neufeld seeks to explain the applicability of these exemptions and provide details and clarifications on the applicability of the exemptions and the adjudication procedures.

What is the Exemption.   The bars to admission which are inapplicable are as follows: for a period of 180 days since the petitioner’s last lawful admission in the U.S. your status, (1) failed to maintain your status, (2) engaged in unauthorized employment, and (3) otherwise violated the terms of his/her status or admission.

Who is Exempt.  The exemptions are applicable to employment-based adjustment of status applications in EB-1, EB-2, EB-3, or EB-4 categories.  The alien must be present in the U.S. pursuant to a lawful admission.  The exemptions are available to derivative petitioners as well.

Analysis.  Although this is not a new rule, the July 14, 2008, Neufield Memo seeks to provide clear guidance and explanation on the applicability of the 180-day exemptions.  It is important to understand that the three exemptions are only for employment-based adjustment of status petitions, and not for family-based.  Also, it is important to understand that the 180-day period is cumulative and includes all days, weekend and holidays.  Finally, the 180-day period counts the dates since the last lawful admission – leaving the U.S. and entering legally “clears” the count.

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H2-B Cap Reached

On July 30, the USCIS announced that it has reached the H-2B cap for the first half of the fiscal year 2009.  According to this announcement, July 29, 2008 is the “final receipt date” for H-2B petitions.  All petitions received after July 29, 2008 for H-2B with starting date of April 1, 2009 will be rejected.

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Adjustment of Status (I-485) Vaccination Requirements Changed

The USCIS has released a revised list of vaccines required for applicants seeking to adjust status to become permanent legal residents.  The updated list, required for all medical exams conducted on or after August 1, 2008, are as follows:

  • Rotavirus;
  • Hepatitis A;
  • Meningococcal;
  • Human papillomavirus; and
  • Zoster.

Although the requirements for these vaccines went into effect on July 1, 2008, the Centers for Disease Control and Prevention (CDC) approved a 30-day grace period for all exams conducted prior to August 1.  In connection with the revised list of vaccinations, the revised Form I-693, Report of Medical Examination and Vaccination Record, dated as of June 5, 2008, or later must be used.

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Electronic System for Travel Authorization Screenshots

We have written about the upcoming new system for pre-registration of travelers of visa waiver countries coming to the U.S.  Under the new system, all travelers will be required to complete a pre-registration via an online system before departing for the U.S. There will be a period of several months in which the system will be functional, yet completion of the information will be optional.  It is expected that beginning January 2009 such pre-registration will be mandatory for all visa waiver country travelers.

USCIS has released screenshots of the new system to allow the affected parties to become familiar with the system before it launches.  We are republishing these screenshots for the benefit of our clients.

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H-2B Numbers Update – Cap Limit is Near

USCIS updated the H-2B cap numbers as of July 21st.  As of that date, there have been 29,234 petitions counted towards the 33,000 cap for the first half of the fiscal year.  With the current rate, the H-2B cap is expected to be reached within a week or so.

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Updated List of SEVP Schools

The first step which must be taken by an F-1 student who wishes to apply for OPT renewal pursuant to the 17-month extension rule is to ensure that his or her school is on the list of SEVP schools which are authorized to issue 17-month OPT extensions.

The Immigration and Customs Enforcement (ICE) has released an updated list of SEVP schools.

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Receipt Numbers Explained (LIN, SRC, EAC, WAC)

The receipt number is one of the most commonly used numbers, by immigrants and lawyers alike, to track the progress or identify a particular immigration case or filing.

These receipt numbers start with three letters and follow by a series of numbers, for example EAC-06-123-45678.  Here is how to understand what the numbers mean.

The first three letters indicate the USCIS service center which is processing the petition, as follows:
– EAC – Vermont Service Center;
– WAC – California Service Center;
– LIN – Nebraska Service Center; and
– SRC – Texas Service Center.

The next two digits represent the fiscal year in which USCIS received the petition.  In the example above, “06” means that the petition was received by USCIS during Fiscal Year 2006.  The next three digits represent the computer workday on which the receipt was processed and the fee was taken.  Finally, the last five digits are used to identify uniquely the petition filed.

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Update on Limited I-140 Premium Processing

We wrote earlier about the availability of limited I-140 premium processing filings.  It is only available to certain H-1B holders who “H-out” of their status and for whom the only way to remain on H-1B status would be a I-140 premium processing filing.  Please read our earlier article for details on this.

The USCIS has released some clarifications on the I-140 premium processing procedure.

First, not all cases of I-140s are eligible for premium processing.  Prior to the suspension of premium processing for I-140’s last Fall, only certain I-140 case types were eligible. For example, National Interest Waivers and Multinational Managers were not eligible for premium processing. Those case types are still not eligible for premium processing, even in an “H-out” situation.

Second, the I-140 premium processing is available if the beneficiary is in H-1B status in the U.S.

Finally, the current program is only available if the beneficiary is within 60 days of the end of the 6th year of H-1B time. The purpose of this premium processing option was to benefit those individuals who could not qualify for a one-year extension and who needed an approved I-140 to remain in the US.  It was originally assumed that the term “6th year” could be read to mean “last year” in H-1B time. However, USCIS has said that they will be taking the term “6th year” literally. Therefore, if the beneficiary is in the 7th or 8th year of H-1B time, your premium processing request may not be accepted.

The USCIS has received comments on these three clarifications and is working to consider, and possibly, adjust the scope of the I-140 program.  However, until USCIS releases modifications of the program, the I-140 premium processing program remains somewhat limited in scope and applicability.

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Update on H-2B Visa Count

USCIS has provided two recent updates on the numbers on the H-2B visa count.  The two recent updates are useful because it allows us to sample the rate at which H-2B visa numbers are being used.

The July 1 announcement stated that the H-2B count, as of July 1, stands at 17,305 for the first half of FY 2009.  The July 7 announcement stated that the H-2B count, as of July 7, stands at 20,390, an increase of nearly 3,000 over a period of less than a week. It should be noted that the period included the July 4th holiday, so it is safe to assume that the actual filing rate is somewhat higher.

The cap for the first half of FY 2009 is set at 33,000, so based on current demand at a rate of 3,000 visa petitions in 6 days, we anticipate that the remaining numbers will be exhausted some time in August.  This expectation assumes that the rate of 3,000 visa petitions per 6 days will not change.

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