The Republican party was more likely to discuss the issue of immigration, especially in light of some of its members’ proposals to strengthen the border enforcement, go after employers who harbor illegal immigrants and generally opposed to a path to citizenship to illegal immigrants or what they call “amnesty”.   It seems that Senator McCain, who along with Sen. Kennedy (D-MA) authored a bipartisan immigration bill and which bill died in the Senate last year, has become more conversative on this issue and does not, at least in recent public appearances, seem to support the kind of ideas he supported a year or two ago.

In addition to the issue of illegal immigration, there are numerous other immigration-related issues, some of which are supported by  one or the other parties, but again, there does not seem to be much discussion.  There have been a number of groups dedicated to defending the interests of legal foreign workers who follow the legal path to permanent residency but who have been stuck in the system for years without ability to visit their families abroad or to advance their careers.  While some may seem such immigrants as potentially causing some Americans to lose their jobs, studies have shown that many of these highly-qualified foreign employees actually help the economy grow by bringing excellent education and training to the U.S.  Microsoft’s Bill Gates has testified and lobbied Congress on numerous occasions on the need of increasing the work visa quotas and streamlining the processing backlogs which plague the immigration system.

We will continue to follow the discussion of immigration during this political campaign, but given the economy and the Iraq war, we are not optimistic that immigration will take center stage during this political season.  We hope that immigration, even though not politically active topic now, woud be part of the agenda of the next president in January of 2009.

The revised instructions direct the form to be filed either to the California or to the Vermont Service Centers, depending on the state of residency.

California Service Center.

Petitioners whol live in Alaska, American Samoa, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming should file at the California Service Center.

Vermont Service Center.

Petitioners who live in  Alabama, Arkansas, Connecticut, Delaware, Washington, D.C., Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, and West Virginia should file at the Vermont Service Center.

The revised form must be used for all filings after September 24, 2008, can be located here.

In addition, voting unlawfully is a ground for inadmissibility pursuant to Section 212(a)(10)(D) of the Immigration and Nationality Act.

False claim of U.S. citizenship or unlawful voting  are very serious offenses and may subject a foreign national to severe consequences.  Despite the importance and, sometimes, the urge to get involved politically, we urge our readers who are not U.S. citizens or permanent resident aleins to carefully consider their involvement in the political proces.

The Immigration and Customs Enforcement (ICE) has decided to scrap the program after netting a total of eight (8) illegal immigrants.  The cost of the program (mainly advertising) is said to have been around $41,000.

There is a disposition in this case favorable to the F-1 and OPT holders who may benefit from the 17-month extension. In an opinion dated August 5, 2008, the US District Court for the District of New Jersey denied the request for preliminary injunction to stop the OPT 17-month program.

The answer, according to the AAO decision is that the petitioner must be physically located in the U.S. at the time the I-131 re-entry permit application is filed. While it is true that the AAO decision is based on the old rules which did not require biometrics to be taken for each re-entry permit application, it is important to understand that all re-entry permits should be filed when the petitioner is in the U.S. and that the petitioner must attend the biometric appointment or risk a denial of the application.

Here are his comments:

Public policy can hasten this process by not prematurely propping up housing starts and by expanding the underlying demand for homes generally. The most effective initiative, though politically difficult, would be a major expansion in quotas for skilled immigrants. Skilled immigrants tend to form new households, by far the most important source of new home demand. The number of new households in the U.S. is increasing at a rate of about 800,000 a year, of which about a third are immigrants. Perhaps 150,000 of those are loosely classified as skilled. A double or tripling of this number would markedly accelerate the absorption of unsold housing inventory for sale — and hence help stabilize prices.

Politics aside, it makes sense, as we notice first hand from our clients - many qualified and well-paid foreign workers are willing and able to buy properties and settle down, but they are deterred either by tougher lending standards for non-permanent residents or they are unwilling to invest a substantial amount of money not knowing whether USCIS would successfully, if at all, adjudicate their immigrant application which, in many cases, has been pending for five, six, or even more years.

The good news for EB-2 applicants from India and China continues this month as well - the dates for EB-2 India and EB-2 China moved by two months, from June 1, 2006, to August 1, 2006.  There are no other changes to the employment-based dates.

However, there were some bad news for employment-based applicants in the EB-3 category.  Earlier in July, when the EB-3 category became “Unavailable” the comment was that it is expected that in October, upon the beginning of the new fiscal year, the EB-3 dates would return to their June 2008 values.  However, the State Department has revised this expectation and has indicated “the that continued heavy demand in those categories may require the establishment of cut-off dates which are earlier than those which had applied in June. ” Although this backward movement is not certain yet, a formal decision is expected in September.

The increase in processing time was mainly due to the 1.4 million naturalization applications received in 2007, an amount which is double the normal annual volume.

The USCIS projections for processing time by office are listed below:

Agana, Guam…………………………….5.0
Albany, N.Y……………………………..5.6
Albuquerque, N.M……………………..8.4
Anchorage, Alaska…………………….5.0
Atlanta, Ga………………………………..6.7
Baltimore, Md…………………………..7.0
Boise, Idaho…………………………….10.5
Boston, Mass…………………………….8.8
Buffalo, N.Y……………………………..7.0
Charleston, S.C………………………..14.1
Charlotte Amalie, Virgin Islands….7.2
Charlotte, N.C………………………….14.9
Chicago, Ill……………………………….5.1
Cincinnati, Ohio………………………..7.0
Cleveland, Ohio…………………………6.8
Columbus, Ohio…………………………5.7
Dallas, Texas…………………………..11.0
Denver, Colo…………………………….5.2
Des Moines, Iowa………………………5.7
Detroit, Mich…………………………….5.0
El Paso, Texas…………………………..7.9
Fort Smith, Ark………………………….7.6
Fresno, Calif……………………………..6.7
Harlingen, Texas……………………….5.0
Hartford, Conn…………………………14.3
Helena, Mont…………………………….5.0
Honolulu, Hawaii………………………5.0
Houston, Texas………………………….5.1
Indianapolis, Ind………………………..5.0
Jacksonville, Fla………………………..7.4
Kansas City, Mo………………………..7.0
Las Vegas, Nev………………………….9.0
Los Angeles, Calif……………………12.5
Louisville, Ky……………………………7.1
Manchester, N.H………………………..5.3
Memphis, Tenn…………………………8.4
Miami, Fla………………………………12.0
Milwaukee, Wis………………………..6.6
Mount Laurel, N.J……………………..5.0
New Orleans, La……………………..14.5
New York, N.Y……………………….10.0
Newark, N.J………………………………7.4
Norfolk, Va………………………………7.2
Oklahoma City, Okla…………………8.6
Omaha, Neb……………………………..5.0
Orlando, Fla……………………………..9.5
Philadelphia, Pa……………………….10.0
Phoenix, Ariz……………………………8.6
Pittsburgh, Pa……………………………6.0
Portland, Maine…………………………5.5
Portland, Ore…………………………….5.4
Providence, R.I………………………….6.7
Reno, Nev…………………………………5.0
Sacramento, Calif………………………5.0
Salt Lake City, Utah…………………..5.0
San Antonio, Texas……………………5.0
San Diego, Calif………………………..5.0
San Francisco, Calif…………………..5.5
San Jose, Calif…………………………..5.0
San Juan, Puerto Rico………………10.4
Seattle, Wash…………………………….9.0
Spokane, Wash………………………….5.0
St Albans, Vt…………………………….9.5
St Louis, Mo……………………………10.3
St Paul, Minn…………………………….5.5
Tampa, Fla……………………………….8.6
Tucson, Ariz……………………………12.0
Washington, D.C……………………..12.7
West Palm Beach, Fla………………..5.0
Yakima, Wash…………………………..5.0

Of course, these times are projections and although we hope that USCIS would be able to meet these timelines, we encourage applicants to allow additional time.

Persons in F, J, H and O status can travel to Canada or Mexico and return to the U.S. without a valid visa stamp.  Persons in F and J status can, in addition to Mexico and Canada, visit the “adjacent islands” (Caribbean islands except Cuba) and return to the U.S. without a valid visa stamp in their passport.

The automatic revalidation is a slight misnomer because it does not revalidate the visa in the passport in all circumstances.  If the visa stamp in the passport matches the current status in the U.S., then the stamp is considered to be automatically revalidated as of the date of the person’s trip back to the U.S.  If, on the other hand, the person has changed status in the U.S. so that the visa stamp does not match the current status, the visa stamp is considered to be changed to the visa type corresponding to the current status.

There are certain requirements, specified in the Department of State regulations.

• Citizens of countries which are considered sponsors of terrorism are ineligible.
• The time outside the U.S. must not exceed 30 days and must be spent solely in a contiguous territory - Canada, Mexico and, for F/J holders, the Caribbean islands, except Cuba.
• Upon return, the person must present valid and current supporting visa document such as I-20, DS-2019, I-797, etc.
• The passport must be valid and unexpired at the time of the return into the U.S
• The person must not have applied for a U.S. visa while in the contiguous country or adjacent island, as applicable.

The Automatic Visa Revalidation program is a very useful, yet somewhat undiscovered, tool for travel to/from Canada, Mexico and certain Caribbean islands.  Please contact us if you would like to obtain more information about this program.

The new system opened on August 1 and will be voluntary in nature until January 12, 2009, when it becomes mandatory for all individuals traveling under the visa waiver program (VWP).  We have not yet received a meaningful amount of feedback to judge the system’s usability, operation, and its actual effect on clearing U.S. border control, but we expect to do so over the next few days as ESTA-registered travelers make their entry into the U.S.

If you are a VWP traveler who used ESTA to pre-register your trip to the U.S. and would like to share your opinion of the ESTA system and your entry into the U.S. please let us know.

Update: we have heard that the ESTA system does not permit passports with expiration of more than 10 years to use the system.  We believe this is an oversight by the ESTA developers and will be corrected soon as there are legitimate reasons to have passports with expiration date of more than 10 years in the future.

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.

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.

• 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.

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.

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

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.

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.

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.

Another important update related to the visa bulletin is the unavailability of visas in the “Other Workers” category - they are now unavailable (from April 2003 previously).  The visa bulletin explains that such unavailability is due to the numbers for the “Other Workers” category reaching their annual numerical limit.  It is expected that once the FY 2009 begins in October, the dates should return to April 2003.

This is excellent news for applicants in the EB-2 India category.  Stay tuned as we wil update this post with more information as the official State Department Visa Bulletin is distributed.

WSJ: Immigration - Obama v. McCain

As the chart suggests, both candidates are not very far apart on immigration.  Both support some part to legalization of illegal alient, both are for tougher penalties for hiring illegals, and both support increase in the number of visas, especially to reunite families.  Thus, we are hopful that the new administration will provide some long-expected relief for immigrants waiting in a processing backlog or waiting to be reunited with their families.

While the information provided by the system is not very detailed, it nonetheless is bound to eliminate a large number of status check calls to USCIS’s FOIA request service center. There are 110,000 annual FOIA requests and the amount of status request calls they generate creates a heavy burden on USCIS.

Customers can use the online service anytime by entering their assigned control number to receive an immediate response on the status of their FOIA request. The customer will then receive either a ‘pending’ or ‘processed’ response. A pending response indicates to the customer the position of their request relative to all other requests in the same processing track. A ‘processed’ request indicates that the request was processed and the customer will be provided that processing date. USCIS will make daily updates to the status information.

Because employers are required to complete a Form I-9 for each new hire, the change in the form should be noted.  The substantive changes in the form are minor.

The following documents are no longer acceptable evidence both as identity and as employment eligibility:

• The Certificate of United States Citizenship (Form N-560 or N-561);
• The Certificate of Naturalization (Form N-550 or N-570);
• The Form I-151, a long out-of-date version of the Alien Registration Receipt Card (”green card’”);
• The Unexpired Reentry Permit (Form I-327); and
• The Unexpired Refugee Travel Document (Form 1-571)

The revised List A of the List of Acceptable Documents now includes the most recent version of Form I-766, Employment Authorization Document.

Finally, the instructions regarding Section 1 of Form I-9 now indicate that the new hire is not required to provide a social security number unless the employer participates in the E-Verify program.

Before we go into the technicalities - there is one major rule which warrants repeating - be frank and honest with the immigration or border officers.  These are highly qualified professionals who are trained to detect evasive, misleading, or false answers and if caught in a material misstatement, the consequences may be very significant.

Now, the American Competitiveness in the Twenty-first Century Act (AC21) was intended to address exactly the kind of situation to which the two-part question above applies.  After completing an AC21 switch of employers, the employee can freely continue his or her green card application and avail him- or herself of all of the benefits of pending green card adjustment of status application - including advance parole and EAD.  Thus, employees who have properly pending adjustment of status and unexpired advance parole document from a former employer can travel abroad and re-enter with such advance parole document with no issues.

Many clients are nervous to answer the question whether they are still employed by the sponsoring employer when, in fact, they are not.  However, the AC21 process is intended to address this kind of situation and we urge foreign nationals, who are asked this question upon their return to the country, to answer truthfully and explain to the border agent that they have done an AC21 transfer.

Some immigration attorneys advise against filing anything in connection with an AC21 job transfer.  However, we do advise our clients who switch jobs under AC21 to file a letter with USCIS.  The added benefit of this is that the employee has a letter documenting the AC21 transfer and which letter briefly explains the law and the circumstances of the AC21 transfer.  Having such letter and presenting it to the border agent unon re-entry is a nice way to deflect a skeptical border agent of the propriety of the AC21 job transfer.

Among the other statistics are breakdown by state of intended employment (California is,  not surprisingly, the largest); aliens’ countries of nationality (India is top); and top job titles (Computer Software Engineers are top).

Read the full report here.

The new form can be obtained from USCIS’ website.

For applicants for adjustment of status who are in the process of preparing their medical forms should ensure that their civil surgeon has the most recent version of the form, or if the form is already completed, it should be filed before July 14, 2008.

Under the new program, which is optional until January, when it becomes mandatory for all of VWP travelers from 27 countries, all travelers to the U.S. must pre-register before traveling to the U.S. through an online system by entering personal information such as passport number, intended dates of travel, etc.  If the system rejects the pre-registration, the traveler must apply for a visa at the U.S. consulate.

The GAO estimates that between 1% and 5% of the travelers could be rejected by the online pre-registration system. This amounts to an estimated 500,000 additional visa applications.  Given the relatively short timeline between announcement (early June 2008), the optional launch date (August 2008)  and the mandatory cut-off date (January 2009), there will  be many travelers who either 1) do not know about the pre-registration until shortly before their travel or 2) do not apply for pre-registration until a point when a rejection from the pre-registration system would make it impracticable to schedule a visa appointment and apply for a U.S. visa.

Homeland Security and the State Department indicate that they are aware of the potential of increased demand in visas early next year, but they say they are prepared to handle it.

We are advising our VWP clients  to apply as early as possible for their pre-screening clearance and be flexible in case they need to schedule a visa appointment and interview.  We also urge our clients to check the Consulate Wait Times website for some idea on how long it takes to schedule and attend a visa interview.

The “A Number” stands for Alien Registration Number.  It is a number that starts with an “A” followed by eight-digits.  Not all foreign nationals have an A Number.  Most people get A Number when they apply for adjustment of status, seek employment authorization document (EAD), apply for a V visa or are subject to deportation proceedings.

There are four separate kinds of A Numbers:

• Eight-digit A Numbers are manually assigned at local offices. If you have one of these numbers, simply treated it as if it was “0″ plus the number;
• Nine-digit A Numbers that start with the digit 1 are used for employment authorization cards, usually related to students;
• Nine-digit A Numbers that start with the digit 3 are used for fingerprint tracking of V visa applicants;
• All other nine-digit A Numbers  are permanent A Numbers and remain permanently with you for life.

Many USCIS forms ask for the A Number and we have advised our clients to enter “NONE” if they have not been issued one  yet.  However, if you have an A Number, it is important to enter it on any USCIS forms.

• Severe financial loss to company or individual
• Extreme emergent situation
• Humanitarian situation
• Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense of National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
• USCIS error
• Compelling interest of USCIS

This list is helpful as it provides some insight at the type of situations where USCIS would grant an expedited processing request. We have used many of these criteria, as applicable, but we wanted to share them for our clients’ and our readers’ benefit.

The rule becomes effective on June 30, 2008 and after this date, USCIS will issue 2-year EADs only to individuals who have filed petitions to become a lawful permanent resident (LPR) using Form I-485 and have requested an EAD but are unable to become LPR because a visa number is not currently available.  Upon renewal of EAD, USCIS will look at the visa bulletin and issue a 2-year replacement EAD only if a visa number is not currently available for the petitioner.

On the other hand, applicants who have filed I-485 and EAD applications and for whom there is a visa number immediately available would get only 1-year EAD document.  Applicants whose visa numbers have retrogressed since their I-485 was filed would get 2-year EADs.

The premium processing procedure will guarantee 15 calendar-day response by USCIS for a non-refundable fee of $1,000.  To take advantage of the I-140 premium processing, the I-140 petition must be filed on behalf of aliens:

• who are currently in H-1B nonimmigrant visa status;
• whose sixth year will end within 60 days;
• who are only eligible for for a further extension of H-1B nonimmigrant status under section 104(c) of AC21 (permitting 3-year H-1B extensions upon approved I-140); and
• who are ineligible to extend their H-1B status under section 106(a) of AC21 (permitting 1-year H-1B extensions if I-140 or the underlying labor certification is pending for at least 365 days).

Even though the premium procedure is limited in certain cases, it brings welcome relief to a number of H-1B holders who are nearing the limit on their H-1B status.  Please contact us for more information on how you can take advantage of this new rule.

The USCIS has confirmed that on July June 16, 2008, it will resume premium processing for I-140s in certain limited circumstances. It is expected that these limited circumstances will cover cases where beneficiaries whose H status will expire within 60 days of filing the request and who need I-140 approval to become eligible for the additional H time. This chan