Labor Immigration Law

In addition to the numerous inquiries on filing a new I-140 when a previous I-140 is pending on appeal, our office handles a number of such new I-140 filings.   Pursuant to USCIS guidance, a previously approved labor certification which was timely used to file an I-140 can, in many circumstances, be subsequently used to file a new I-140 if the initial I-140 was denied.   Many initial I-140 denials are appealed with the Administrative Appeals Office (AAO); in such cases, the issue becomes whether the petitioner can file a new I-140 while the initial I-140 is pending on appeal.

Background

USCIS current policy is that when a denied I-140 is appealed and is sent by a service center to the AAO for adjudication (which can take up to two years months), the service center will hold in abeyance a newly refiled I-140 the same Beneficiary in the same EB classification.  The question becomes whether a new I-140 for the same beneficiary but for a different classification would be also held in abeyance?

Recent Texas Service Center Guidance

A recent guidance from the Texas Service Center (TSC) has indicated that whether or not an I-140 filed for a Beneficiary in a different classification will be held in abeyance while an appeal is pending is determined on a case-by-case basis and depends on the reason for the initial denial.   As an example, if an I-140 is denied for lack of ability to pay, and the ability to pay issue is appealed, a subsequent identical I-140 filing, even in a different classification, would typically be held in abeyance pending the outcome of the appeal.

Considering the long AAO processing times (20-24 months for I-140 appeals), before an I-140 appeal is filed, it is important to evaluate the alternatives and the options of filing a new I-140 without appealing the previously-denied I-140.  Many beneficiaries need to file an appeal in order to be able to obtain H-1B extension benefits; however, if this is not a factor, appealing I-140 may not provide much of a strategic benefit, in fact, it may only delay the I-140 process.

How We Can Help

Our office handles a number of I-290B I-140 AAO appeals and we would be happy to review your case and advise you on the best options.  Please do not hesitate to contact us for a free initial consultation.  Also, please feel free to subscribe to our weekly newsletter to receive free immigration law updates.

In a shift in  policy, the CDC has announced that effective Decemeber 14, 2009, the HPV vaccine will no longer be required for immigrants applying for immigrant visa or adjusting their status from within the U.S.

Background About the Required Vaccinations

Under Section 212(a)(1)(A)(ii) of the Immigration and Nationality Act (INA), any alien who seeks admission into the United States as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, is inadmissible into the United States if the alien is unable to present documentation of having received vaccination against “vaccine-preventable diseases, which shall include at least the following diseases: Mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenzae type B, and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee on Immunization Practices.”  Current guidance by the Center of Disease Control (“CDC”) includes the HPV vaccin to the list of vaccine-preventable diseases and is therefore required by girls and women between the ages of 11 and 26 who are seeking to become legal permanent US residents.  Those within this age range were required to get at least the first dose of the HPV vaccine, which protects against some strains of the virus blamed for cervical cancer. Additionally, the Gardasil shot was added to the vaccine list for immigrants in July 2008 by the CDC.

HPV Vaccine Requirement Controversy 

While HPV remains the single most widespread sexually transmitted disease in the country, only a small percentage of those infected with the virus will go on to develop life-threatening diseases like cervical cancer. The cost-effectiveness of the Gardasil vaccine (the HPV vaccine) remains largely in debate especially when young girls coming from a variety of foreign nationalities and cultures have to be subjected to medical exam and vaccination.  Additionally, the price of the vaccine, which is administered in three separate shots, can cost anywhere from $400 to $1000  (and the cost is often not reimbursable by insurance companies).

New CDC Guidance

Accordingly, CDC has announced a revised rule which becomes effective December 14, 2009, and under which the HPV vaccine will not be required for aliens seeking admission as an immigrant or seeking adjustment of status to that of an alien lawfully admitted for permanent residence.

In providing explanation to this change in policy, CDC recognized that genital infection with HPV is an extremely common infection due to its efficient transmission via sexual intercourse. There are approximately 6 million incident infections occurring annually in the United States. Over half of sexually active men and women will develop HPV infection at some point in their lives and 15% of all Americans have current infection with HPV.

Although there are millions of HPV infections annually, it is very difficult to distinguish those cases which resolve from those (about 10,000 per year) cases which result in cervical cancer.  Therefore, while HPV may be an age-appropriate vaccine for an immigrant applicant, HPV neither causes outbreaks nor is it associated with outbreaks (per explanation in the background section).  Further, HPV has not been eliminated, nor is in the process of elimination, in the United States. Therefore, because HPV does not meet the adopted criteria, it will not be a required vaccine for immigrant and adjustment of status to permanent residence applicants.

In a memorandum dated August 6, 2009, Donald Neufeld, the Acting Associate Director for USCIS Domestic Operations Unit provides new guidance and amends USCIS policy with respect to review of Form I-140 successor-in-interest (“SI”) amendments.  The goal of the new guidance is to update (the dated) USCIS policy in light of changing business realities with respect to corporate mergers and acquisitions.

Prior I-140 SI Standard

The prior standard by which I-140 SI filings were reviewed was that the I-140’s validity will be reaffirmed only if the successor company had assumed all of the rights, duties, obligations and assets of the original employer and continue to operate the same type of business as the original employer.  Additionally, the new employer had to establish its ability to pay the profferred wage specified on the labor certification.

The old standard, initially set forth in a 1993 Paleo memorandum, is quite old and does not reflect the realities of the corporate M&A and business practices where it is now rare that a successor company would assume all of the predecessor company’s rights and obligations.

New Standard for I-140 SI Review

According to the Neufeld Memo, for all SI I-140 petitions filed after August 6, 2009, the adjudication officers should focus  on the following factors:

1.  The Job Opportunity Offered By The Successor Must Be The Same As The Job Opportunity In The Original Labor Certification.

The job offered by the successor must remain unchanged with respect to rate-of-pay (upward adjustments due to passage of time are acceptable), job description and job requirements specified on the labor certification.   There cannot be any changes to the job which would affect the labor market test conducted initially by the predecessor company.  The job opportunity must continue to exist at all time and there must not be a substantial lapse of operations with respect to the successor company after the business transfer.

2. The Successor Company Bears Burden To Establish Continuing Eligibility In All Respects, Including Ability-to-Pay.

The successor company must demonstrate that all of the criteria for the visa classification initially proposed have been met.  This includes, but is not limited to, the predecessor’s ability to pay the profferred wage from the date of the filing of the labor certification (the “priority date”) until the date of the business transfer. Similarly, the successor must demonstrate that it is a valid “employer” under the USCIS regulations and that it has ability to pay the profferred wage.   The I-140 SI petition must also include evidence to establish that the sponsored employee possesses the minimum education/experience specified on the labor certification.

3. The Successor Must Fully Document The Transfer And Assumption Of Ownership.

The Neufeld Memo specifically addresses that the transfer of ownership must occur after the approval of the underlying labor certification.  Additionally, the successor must present evidence to document the business transaction such as:

• contract of sale or similar document of the acquisition;
• mortgage closing statements;
• SEC Form 10-K;
• audited financial statements;
• documentation of the transfer of real property and business licenses;
• copies of financial instruments used to executed the transfer; and
• media or other reports of the business transfer.

When a specific unit of the predecessor unit is being transferred, the transferred unit must be clearly defined unit within the predecessor organization and that unit must be transferred in its entirety to the successor except certain unrelated liabilities.  As discussed above, the job offered to the alien beneficiary must continue to be in the transferred unit.

AC21 and Successor-in Interest

The Neufeld Memo specifically addresses the situations in which the alien beneficiary is entitled to port his or her process to a new employer under Section 106(c) of AC21.  In such cases, a SI entity need not file a new petition on alien’s behalf assuming AC21 conditions have been met (such as “same or similar job”).

SI Amendments Not Needed For Self-Sponsored I-140 Petitions

I-140 petitions filed in connection with visa categories which do not require labor certifications (EB-1 EA, EB-2 NIW) remain valid even if a business transfer has occurred.  There is no need of I-140 SI amendments in such cases.

New Labor Certification May Be Required In Certain Cases

If the successor entity cannot support the requirements outlined above a new labor certification setting forth the changed job conditions must be filed.   Specifically, USCIS required a new labor certification be filed when (1) the successor entity has not met the three factors outlined in the Neufeld Memo, (2) the labor certification is not valid for the new geographic area of the alien beneficiary’s proposed employment, or (3) there has been another material change in the job opportunity offered.

The Nebraska and Texas Service Centers (NSC and TSC, respectively) have informed that they will start issuing denials on pending I-485 upon denial of the underlying I-140 petition.

Until now, USCIS has a policy from a Memorandum of Feb. 28, 2003 from William R. Yates, “Procedures for Concurrently Filed Family-Based or Employment-Based Form I-485 when the Underlying Visa Petition is Denied” pursuant to which policy TSC has been using its discretion to wait 30 days before denying the I-485 applications, in case an I-290B was filed on the I-140 denial and TSC might be able to act on that at the Service Center level.

Under the new policy, both TSC and NSC will deny I-485 applications when they deny the underlying I-140 petition.   As a result, a motion to reopen/reconsider or appeal on Form I-290B will have to be filed not only on the I-140 denial but also for all of the I-485 denials (more than one of the direct beneficiary has dependents). This not only creates additional work for preparing and filing more I-290B forms, but also requires additional payments of the I-290B filing fee (which is $585.00 as of the time of this writing).

USCIS has announced that, in conjunction with FBI, it has met its goal of eliminating the FBI National Name Check Program backlog.

The goal was to achieve a performance (which can actually be sustained going forward) of completing 98 percent of name checks requests submitted by USCIS within 30 days and the remaining 2 percent within 90 days.   USCIS has announced that this performance level will become the standard.

USCIS has noted, however, that any information provided by the FBI through these checks may require further evaluation and may need additional interaction with agencies outside USCIS to obtain updated or additional information. This could result in additional delays in processing and is not governed by the processing goals contained in the joint business plan.  There is no estimate on the percentage of such cases in which additional checks (and the corresponding delays) may be expected.

Donald Neufeld, in a Memorandum dated June 17, 2009 provides some guidance on the equivalency of foreign medical degrees for the purpose of qualifying for the EB-2 category.

A U.S. medical degree is obtained after completing a bachelor’s degree and as a result, a U.S. medical doctor degree is considered to be an advanced degree. In many other countries a person may be admitted to medical school directly out of high school. In these instances the program of study for the foreign medical degree is longer in length (generally 5-7 years in duration) than is required for a less specialized foreign bachelor’s degree (generally 3-4 years in duration.) In some countries the name of the degree is “Bachelor of Medicine, Bachelor of Surgery”, and the program of study may involve ONLY medicine, to include some limited basic sciences. A foreign medical degree may qualify as the equivalent of a U.S. MD degree and thus an advanced degree for EB2 purposes if, at the time of the filing of the labor certification application, the following two conditions are met:

1.  The alien beneficiary:

A. Has been awarded a foreign medical degree from a medical school that requires applicants to obtain a bachelor’s degree equivalent to a U.S. bachelor’s degree as a requirement for admission, or;

B. Has been awarded a foreign medical degree and a foreign education credential evaluation is provided that credibly describes how the foreign medical degree is equivalent to a medical degree obtained from an accredited medical school in the United States, or;

C. Has been awarded a foreign medical degree and has passed the National Board of Medical Examiners Examination (NBMEE) examination or an equivalent examination, such as the U.S. Medical Licensing Examination (USMLE), Steps 1, 2 & 3,

2.  The alien beneficiary was fully eligible for the position described on the labor certification application, on the date that it was filed, by establishing that:

A. He or she had a full and unrestricted license to practice medicine in the state of intended employment and continues to hold such an unrestricted license, or;

B. His or her foreign medical degree is shown to meet the medical degree requirements to be eligible for full and unrestricted licensure specified by the medical board governing the place of intended employment.

The Neufeld memorandum further describes requirements for filing a petition for a foreign national holding a medical doctor degree.

After USCIS suspended temporarily the I-140 premium processing service on July 2, 2007, we have been constantly fielding questions on when the temporary suspension would end.  Over the past few weeks there was increased speculation that premium processing for Form I-140 would resume.   Earlier this week, USCIS confirmed that in fact premium processing for I-140 resumes effective June 29, 2009.

The main reason for the temporary suspension of the I-140 premium processing was the increased volume of I-140 applications in the summer of 2007.  USCIS has now determined that due to its backlog  reduction efforts, it can continue processing I-140s on expedited basis.

Not All I-140s Would Qualify – EB-1(c)  and EB-2 NIW Are Excluded

USCIS  has indicated that not all Form I-140 filings would qualify for premium processing.   The government will accept premium processing requests for Form I-140s involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

Premium processing service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Conclusion

With the reinstatement of premium processing for most I-140s, USCIS provides an important strategic tool for many employment-based green card applicants.  While premium processing for I-140 was available for holders of H-1B status who were in danger of “H-ing out”, the expanded scope of premium processing now allows many petitioners (and their respective beneficiaries) to speed up the I-140 process in order to gain advantage of H-1B 3-year renewal provisions or to generally speed up the processing of one’s green card application.

While upgrading a pending I-140 case to premium processing makes sense in some cases, it is not cost-justified in all cases.  We are happy to consult and help in evaluating the best course of action.

The U.S. Citizenship and Immigration Service (“USCIS”) has provided some updates and insight into their operations and future plans during the annual AILA conference:

• Premium Processing for I-140.  Some I-140s which were previously eligible for premium processing may be made again eligible.  Expected this summer.

• H-1B Application Process to be Redesigned.  USCIS is working on reengineering the H-1B application process to go into effect for the FY2011 H-1B filings.  Under the planned H-1B application process, employers will file a petition online with limited information and if the limited-information petition is selected, then the remaining forms and full documentation will be requried to be submitted.

• Case Resolution Problems.  USCIS has changed the case problem resolution process.  Under the new system, customers are required to call the National Customer Service Center (“NCSC”, at 1-800-375-5283) and make an inquiry.  If the inquiry is not resolved within 30 days, customers may contact the applicable service center by email and provide the date the initial inquiry was made, the referral NCSC number and the ID of the customer service rep.  Email inquiries should be directed as follows:  CSC – csc-ncsc-followup@dhs.gov;  NSC – ils.nebraska@dhs.gov; TSC – tsc.ncscfollowup@dhs.gov; and VSC – vsc.ncscfollowup@dhs.gov.

• As we reported previously, the Nebraska and Texas Service Centers are pre-adjudicating I-485 adjustment cases.  USCIS reports that as of May 30, 2009, they have pre-adjudicated 110,000 EB adjustment cases and such cases are now awaiting a visa number to be approved.

• USCIS is in the process of introducing a new I-551 card (the green card) and they are updating equipment for the enhanced features.  As a result, there is a delay in issuing I-551 cards. Field offices are being authorized to issue temporary I-551 stamps in family cases at the conclusion of interviews when the case is approved.   Employment-based I-551s are being issued first as these individuals are not generally interviewed. Employment-based immigrants may obtain a temporary stamp by making an InfoPass appointment.

Last week we provide a number of updates from the Nebraska Service Center.  This week we provided some updates from the Texas Service Center (“TSC”).  The TSC updates come from the senior management and are as of May 19, 2009.

Processing Numbers.   TSC has shown improvement in the processing numbers.  Previously, TSC was processing between 3,000-4,000 I-140s and concurrent I-140/I-485sper month.  Recently, TSC has improved to 3,500-4,500 such cases per month.  TSC’s goal is to improve the processing of I-140s down to 4 months by June 2009 (this month!).

Pre-processing.  Similarly to the Nebraska Service Center, TSC is pre-processing (or “pre-adjudicating”) I-485s.  TSC reported that they have pre-processed 85,000 I-485s which are in queue for processing and are waiting for a visa number to be available.

July 2007 “tsunami”.  TSC reported that they have “almost completed”  adjudication of I-140s filed during the “visa tsunami” of July and August 2007.

We have received some general updates from the Nebraska Service Center (NSC) and we would like to share them with you as they provide some useful insight into NSC’s operations:

Backlog.  The net overall backlog at the end of first quarter of FY2009 was 250,000 cases; reduced to 87,500 cases by the end of the 2nd quarter of FY2009.  NSC expects that by June 2009 there would be no case backlog.  Additionally, the I-140 backlog was 40,000 in October 2008, as of May 2009 it is down to 10,000.

Receipts.  There has been a notable decrease in receipts in new cases.  There were 80,000 issued in October 2008 while there were less than 40,000 receipts issued in January 2009.  There has been a slight increase since January to about 50,000 receipts per month.  Since receipts have decreased, the adjudicators have been able to catch up and even review cases from other centers.  NSC has been reviewing I-130 from the California Service Center and some standalone I-140s from the Texas Service Center to help reduce the national backlog.

Preadjudicating I-485s.  The EB-485 at NSC has been “pre-adjudicating” cases to try and have them done but-for the priority date being current.  This means that it is possible to obtain RFEs or NOIDs on cases which do not have current priority dates.