Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for April, 2009

Sen. Specter and Immigration Policy

The nation (and particularly here in Washington, DC) is still abuzz with Senator Arlen Specter’s switch from Republican to Democrat (CNN news article).   The political implications are important – the U.S. Senate’s balance of power will be 59 in favor of the Democrats.

Filibuster Proof Majority?

With the very likely possibility that when Al Franken becomes Minnesota’s junior senator, the Democrats will have 60 Senate seats, which will give them a very strong filibuster-proof majority.

With Sen. Specter’s party switch, one of the immediate questions is how would that impact the possibility and the nature of a comprehensive immigration reform.  With 60 Senate seats in Democrat hands, passing a comprehensive immigration reform may be so much easier now because the Republicans would not be able to oppose and filibuster a proposal with which they do not agree.

Sen. Specter’s Immigration Record

Senator Specter’s record suggests that he would support many of the immigration proposals already circulating in Washington.  Sen. Specter supports “pathway to citizenship” and a “guest worker program” which some opponents call “amnesty.”  He introduced the Comprehensive Immigration Reform Act of 2006, which was passed by the Senate on 25 May 2006 before reaching a stalemate in the House.

Additionally, Sen. Specter has supported a Guest Worker program (in 2006), has supported allowing illegal aliens to participate in Social Security (2006), and supported visas for skilled workers (1998).  He is considered to hold an open-border stance.


While it is very early to talk about immigration reform, Sen. Specter’s switch to the Democrat party makes it more likely that a comprehensive immigration reform will happen and that it would contain some favorable provisions to aliens already in the country and for skilled workers applying for immigration benefits.   We will continue to be part of Washington’s immigration reform dialogue and provide updates and analysis on the issue over the next months.   If you have not already done so, you can subscribe to our Newsletter to receive weekly updates on this and other related topics.

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Automatic Vise Revalidation Fact Sheet

We have written about the Automatic Visa Revalidation (AVR) program in the past.  The Customs and Border Protection (CBP) has released a fact sheet which seeks to clarify some of the AVR provisions.  We reprint it here in its entirety:

Automatic Visa Revalidation Fact Sheet

March 9, 2009

Pursuant to 22 CFR 4 1.1 12 and 8 CFR 214.1 automatic revalidation applies to expired nonimmigrant visas of aliens who have been out of the U.S. for thirty days or less in contiguous territory (Canada and Mexico).
In the case of F-1 and J-1 students, automatic revalidation applies to contiguous territory and adjacent islands other than Cuba. An M-1 student can only apply for automatic revalidation readmission after an absence of less than 30 days solely from contiguous territory. Nonimmigrants who are eligible to re-enter the U.S. pursuant to the authority of automatic revalidation are not able to benefit from the automatic revalidation process if the nonimmigrant’s passport reflects evidence that while in contiguous territory or on an adjacent island the nonimmigrant applied for a new visa and is pending a decision or has been denied
a new visa application.

Nationals of Iraq, Iran, Syria, Libya, Sudan, North Korea, and Cuba are not eligible for automatic revalidation of an expired visa. Thus, for example, if a citizen of Iran travels to contiguous territory for a day and has an expired visa, but a valid extension approval notice of status; he will need to obtain a visa to return to the U.S.

Automatic revalidation does not apply to the Visa Waiver Program. Readmission to the U.S. after departure to contiguous territory or adjacent islands for Visa Waiver Program applicants is covered under 8 CFR 217. 3(b).

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Report on State Laws Related to Immigration for First Quarter 2009

The National Conference of State Legislatures has released its 2009 Immigration-Related Bills and Resolutions in the States, dated as of April 22, 2009, and covering the first quarter of 2009.

The report is interesting in that is compares the states’ immigration-related activity over the past few years and helps us draw some conclusions on where the states are going with respect to immigration.  Overall, the report concludes that the amount of immigration-related proposals in first quarter of 2009 is consistent with the record number of bills and resolutions introduced during the first quarter of 2008.

The report provides a breakdown of the proposed bills and resolutions by category (education, employment, drivers licenses, law enforcement, etc.).  The report also goes on to list the name and a short description of immigration-related bills in a particular state.

Although immigration law is federal in nature, there are many immigration provisions that are left to the states (education, drivers licenses, etc.) and which directly affect the lives of immigrants in the U.S. and this report provides an useful tool to monitor recent developments and trends.

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USCIS Acknowledges Problems with Case Numbers and Online Status

We have experienced difficulty in obtaining case status information from the USCIS Online Status system – the difficulties are sometimes related to new cases not being timely reflected into the system or slow updates of case status on pending cases.   We have also heard a number of complaints from clients and readers that they have experienced similar delays.

The National Benefits Center (NBC) Liaison Committee has confirmed that a problem with the interface tool for the “Case Status Online” has caused delays in the entry of new receipt numbers into the system and in the updating of status information for filings already in the system. The problem, which is not limited to NBC filings, has been recurring and, unfortunately, USCIS has not provided a time estimate as to when the interface tool will be fixed.

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FY2010 H-1B Numbers Update (April 27, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Monday, April 27, USCIS has received approximately 45,000 H-1B petitions counting toward the 65,000 cap.   USCIS will continue to accept petitions subject to the general cap.   Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, it will continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable.

The numbers, as of April 27th, indicate that there were only 1,000 H-1B regular cap applications filed for the period between April 20th and April 27th.   The pace of the additional filings suggests that the remaining ~20,000 H-1B visas will remain available for some time (approximately 20 weeks if the current rate of 1,000 H-1B applications per week remains stable).

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FY2010 H-1B Numbers Update (April 20, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Tuesday, April 20, USCIS has received approximately 44,000 H-1B petitions counting toward the 65,000 cap.   USCIS will continue to accept petitions subject to the general cap.   Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, it will continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable.

The numbers, as of April 20th, indicate that there were only 2,000 H-1B regular cap applications filed for the period between April 9th and April 20th.   The pace of the additional filings suggests that the remaining ~20,000 H-1B visas will remain available for some time.

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USCIS Update on Processing Time Goals

The USCIS has provided an updated chart of its processing time goals and the current progress towards meeting these goals.  The report also provides a very useful update on the current average processing times for certain petitions and the number of petitions in backlog status.

The goals are intended to be met  by the end of Fiscal Year 2009 (FY2009) which ends on September 30, 2009.  There are many goals which are met (indicated in blue on the chart) but there are many goals, in some very popular categories which (in our opinion, which is based on demand and on our experience) may not be met by September 30th.

Below we provide a brief analysis and comments on some of the more popular petition types.

  • I-130 family-based immigrant petitions currently take an average of 6.2 months (goal is 5 months) with a backlog of ~60,000 cases;
  • I-129 fiancee petitions currently take an average of 6.1 months (goal is 5 months) with a backlog of ~5,000 cases;
  • I-131 reentry permit applications currently take an average of 3 months (goal is 3 months) and no backlog;
  • N-400 naturalization petitions currently take an average of 8.4 months (goal is 5 months) with a backlog of ~75,000 petitions;
  • I-129 temporary worker petitions currently take an average of 2 months (goal is 2 months) and no backlog;
  • I-140 employment-based immigrant petitions currently take an average 9 months (goal is 4 months) with a backlog of ~31,000 cases;
  • I-539 applications to change status currently take an average of 2.6 months (goal is 2.5) months with a backlog of ~1,000 cases;
  • I-485 employment-based adjustment of status applications processing times are not provided (goal is 4 months) but the backlog is a significant ~221,000 cases;
  • I-485 family-based adjustment of status applications take an average of 7.3 months (goal is 4 months) with a backlog of ~80,000 cases;
  • I-131 advance parole and I-765 EAD applications take an average of 3 months (goal is 3 months); and
  • FOIA requests take an average of 20 business days (goal is 20 business days) with a backlog of ~56,000 cases.

We will continue monitoring USCIS’s processing time goals and provide updates on trends.   While we remain skeptical that USCIS will be able to meet these goals by the end of FY2009 on September 30th, we see encouraging signs of improvement in many case categories.

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Many Cap-subject H-1Bs To Receive RFE

Due to the passage of Employ American Workers Act (EAWA), as part of the Stimulus Bill, USCIS is required to collect TARP (and Section 13 funding) information on each H-1B petitioner.  However, by the time the new form became available, many practitioners had already completed their packages for the H-1B cap filing period for April 1, 2009.  Therefore, USCIS confirmed that the new I-129 form was not mandatory and that only the one page (of the I-129 Data collection sheet requesting the TARP information) was urged to be included.

USCIS has recently confirmed that if the TARP information was not included in the original cap-subject filing, the petitions would not be rejected.  However, USCIS would need to send a Request For Evidence (RFE) for the TARP information (page 13 of the I-129 Form).  Since USCIS is required under the EAWA statute to obtain this information and the easiest way for USCIS to comply is to send an RFE.

As a result, all H-1B applications which were filed after April 1, 2009, will be reviewed to make sure that Page 13 of Form I-129 inludes a response to the TARP question.   Applications which were prepared before the new I-129 Form came out (and as a result do not have the TARP question on page 13 of Form I-129) are expected to be issued an RFE requesting an updated Page 13 to be submitted.

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Tips on Filing I-539 Applications

The Vermont Service Center has issued some guidance on properly completing Form I-539, Application to Extend/Change Nonimmigrant Status.  The guidance is based on experience with improperly completed and filed Forms I-539.

  • Ensure that the applicant and beneficiary names as entered in the form I-539 match the names as written in the passport;
  • Provide a copy of biographical page of the applicant’s passport and visa stamp (if applicable) as well as a copy of their I-94 arrival/departure record;
  • On B-1/B-2 extension applications, the reason/explanation for the request should come from the applicant rather than the attorney;
  • Submit documentary evidence that the applicant has the financial means to support themselves during his/her requested stay, as well as enough funds to return to the home country if a copy of the return ticket is not provided
  • On applications requesting a change of status to F-2 or M-1 or requesting a reinstatement to F-1 or M-1, the I-20 must be signed by the DSO and the Student. Additionally, the original must be provided to the service.

Many of our readers (and some of our clients) decide and file Form I-539 on their own.   While many cases are very straightforward, we urge self-filers to exercise extra caution in following directions when preparing and filing Form I-539, especially when the filing is made shortly before or after an event which has affected the applicant’s legal status in the U.S.  If you need professional help in preparing and filing Form I-539, please contact us.

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Talk of Immigration Reform in Washington

We have been hearing an increased amount of chatter about comprehensive immigration reform in Washington.  Today the Wall Street Journal published an article saying that Rahm Emanuel, President Obama’s Chief of Staff, is increasing talk about comprehensive immigration reform and is pushing it to the agenda from possibly the second Obama term to some time in 2010.

According to the article,

While Mr. Emanuel once predicted that comprehensive immigration reform wouldn’t be considered until the second term of a Democratic president, he now says conversations on the issue will begin this year to lay the groundwork for possible action in 2010. The issue is also likely to arise next week when President Barack Obama travels to Mexico to meet with President Felipe Calderón.

It is very early to know any of the outlines of a proposed comprehensive immigration plan and it is important to realize that Mr. Emanuel’s indications do not necessarily reflect President Obama’s full and undivided attention to immigration reform.  Amid economic crisis and two wars, the Obama administration is very busy and may not find time to devote to immigration reform for some months,  but the chatter of immigration reform may be a suggestion of things to come within a year or two.

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