Posted On: April 28, 2008

The Cost of Enforcement Only Immigration Reform - A New Study by the U.S. Chamber of Commerce

According to a study published in Business Week’s on-line April 25, 2008 edition, the Administration’s effort to get tough on immigration enforcement (perhaps in an effort to get everyone back to the table to agree on comprehensive immigration reform) (see my posting of April 22, 2008 here) will cost U.S. employers more than $1 billion a year and U.S. workers $billions in lost wages. These numbers are not from some left-wing think tank—they are from the U.S. Chamber of Commerce.

According to the study, the Administration’s proposed "no match" rule (which will effectively require employers to fire workers when a social security number mis-match cannot be resolved in time) will impose a heavy cost on employers.

By the Department of Homeland Security’s own admission, two percent of legal workers a year will lose their jobs because they can't resolve the mismatch. Translated, that means between 37,000 to 137,000 legal workers will be unable to get work and lost wages will be from $8 billion to $37 billion.

Hopefully studies like this in combination with the constant news of ICE workplace raids will get all sides to agree that somehow, either before or soon after the presidential election, work on comprehensive immigration reform has to be a priority.

Posted On: April 27, 2008

H-1B Petitions for Which a State License is Required for Employment - - the USCIS Provides Guidance in Catch-22 Situations

I recently obtained H-1B approval (not a FY 2009 cap case) for a therapist who required licensing in the State of New Jersey but who could not obtain that licensing until after the H-1B petition was approved.

Matters like this can present a classic Catch-22 situation: on the one hand, the H-1B Beneficiary cannot obtain the required license that is necessary to practice his or her profession from a State but they can’t get that license without first obtaining H-1B approval; on the other hand, the USCIS may not approve the H-1B petition without proof that the Beneficiary has obtained the required license.

A recent Memorandum by the USCIS provides common sense guidance to adjudicators in deciding such cases. The Adjudicators Field Manual (Chapter 31) has now been updated to allow for a temporary, one-year USCIS approval of the H-1B petition (assuming all other requirements have been met) that then allows the State (or other licensing authority) to issue the license.

In order for the USCIS to approve the H-1B petition for this one year period, the Beneficiary must prove that he or she has filed an application for the required license and that they are fully qualified to receive the license (that is, that the H-1B beneficiary has met all the educational, training, experience and any other requirements required for the license).

It is incumbent upon the employer and Beneficiary to file a timely request to extend the H-1B status during this one year time period with proof that the Beneficiary has, by then, obtained the license.

The USCIS makes it very clear in the Memorandum that this one year approval does NOT imply that it is authorizing the Beneficiary to actually work at the job that requires the license—the State must issue the license first.

Here is a copy of the USCIS Memorandum.

Posted On: April 25, 2008

New I-765 Work Authorization Application – Deadline for Using Old Edition is Announced

On April 24, 2008, the USCIS announced that it is modifying Form I-765, Application for Employment Authorization, to include additional eligibility codes so that the application is consistent with the DHS new rule for extending OPT status for certain qualified F-1 students. A deadline for using the old edition has been announced. Here is the announcement.

For all I-765 applicants, the USCIS will accept the July 30, 2007 edition of the form only through July 8, 2008.

Starting July 9, 2008, however, the USCIS will only accept the new, revised Form I-765 which has an edition date of April 8, 2008.

Here is my prior entry providing the detail on the new eligibility codes.

Posted On: April 23, 2008

N-400 Processing Times by Local Offices are Projected by the USCIS – A Philadelphia Example

On April 22, 2008, the USCIS released its latest projected processing times for N-400 naturalization applications at local offices filed during the summer of 2007 when 460,00- N-400s were filed--three times the prior monthly record.

Here is the USCIS memo with all the processing times listed by city. The processing times are projections by the end of September, 2008. The projection for the Philadelphia office is 11.8 months.

Anecdotally, here is the time frame for the most recent naturalization interview notice I just received for a client of mine in Philadelphia. We filed the N-400 with the Vermont Service Center on October 26, 2007, biometrics were taken on February 7, 2008 and the naturalization interview is now scheduled for June 10, 2008. So, at least in one case, where there are no complicating factors, the process is taking somewhat less than the projected time.

Posted On: April 22, 2008

N-400 Naturalization Interviews and Requesting a Mental Impairment/Disability Exception via Form N-648 – But What did the Immigrant Visa Panel Physician Report and What Did You Report to the Physician?

Every applicant for naturalization as a U.S. citizen must, among other requirements, demonstrate 1) an understanding of the English language, including an ability to read, write, and speak words in ordinary usage in the English language and 2) a knowledge and understanding of the fundamentals of the history and government of the United States.

There is an exception to the English language requirement for anyone who, on the date they file, is over 50 years old and who has been living in the United States for at least 20 years after becoming a permanent residence (or if one is over 55 years old if they have been living in the United States for at least 15 years after becoming a permanent resident).

But there is another important exception to both the language requirement and the civics requirement for those who are unable satisfy these requirements because of “a medically determinable physical or mental impairment or combination of impairments which has lasted or is expected to last at least 12 months”

Medically determinable means that the impairment has to result from “anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical or laboratory diagnostic techniques”. If you need to apply for such an exception, you do so by submitting Form N-648, Medical Certification for Disability Exceptions, which has to be completed by a U.S. licensed medical or osteopathic doctor. You then submit the completed N-648 with your N-400 Application for Naturalization.

It’s essential, of course, to be completely honest in consulting with the doctor who is preparing the N-648 and, if the applicant entered the U.S. on an immigrant visa from overseas, it would have been equally important to be honest with panel doctor who conducts the medical exam prior to the applicant’s immigrant visa interview.

If there is a mental health issue at the time of the applicant’s immigrant visa application, the applicant should not pretend that there’s not in the hope that the doctor will write up a fully favorable report. If that happens, and then years later when an applicant files for citizenship and needs a medical certification for disability exception, that panel doctor’s report may be completely inconsistent with the N-648—so much so that it could raise issues of fraud.

Reference to a chronic, lifetime mental impairment on an N-648 when compared to a panel doctor report that makes no reference to any history of a mental impairment is going to be very problematic at the time of a naturalization interview.

At the time of a panel doctor’s exam, an applicant must bring all medical records of vaccinations, prior illnesses, and treatments and has to be prepared to discuss their medical history and current medical conditions, treatments, and medications with the panel physician, including mental health issues. Be honest with the doctor. If there is a problem, it is entirely possible that there is a waiver that is available to allow the immigrant visa to be approved despite the mental health issue.

Posted On: April 22, 2008

ICE Workplace Raids Continue; Will Comprehensive Immigration Reform be Put Back on the Table

In its April 21, 2008 edition, the Houston Chronicle reports on what many businesses are already learning the hard way – that ICE workplace enforcement of immigrant law is way up and still increasing. ICE raided the Shipley Do-Nuts warehouse complex in Houston last week as a part of a very concerted effort at what is calls “interior enforcement” of the law.

The raid followed another high profile ICE raid of a chain of Mexican restaurants in New York, Pennsylvania, West Virginia and Ohio in which the owner of the restaurant chain and nine of his managers were arrested on criminal charges.

The raids appear to be part of an effort by the Administration to get comprehensive immigration reform back on Congress’ agenda. The Administration’s thinking may be that if the raids make life so untenable for everyone - - the undocumented workers, the business community, local politicians who feel enforcement has been hoisted on them - - then maybe everyone will come back to the table and talk about real and comprehensive reform. Company owners, managers (including middle managers) and supervisors, human resources managers, union business agents are all being targeted; they are hardly immune from prosecution. Worksite criminal arrests by ICE increased to 863 in 2007 from 176 in fiscal year 2005 which is an increase of 490 percent.

We’ll see. But in the meantime, employers and undocumented employees have to understand that the USCIS is serious about enforcing immigration laws related to hiring undocumented workers and the penalties are harsh.

Posted On: April 22, 2008

H-1B Receipt Notices So Far

I was pleased today that I received the last of the receipt notices for all of the premium processed H-1B applications that I filed on April 1.

The last receipt notice was emailed to me today by the Vermont Service Center followed later tonight by an emailed approval notice on the same matter.

I have not received receipt notices on non-premiumed processed H-1Bs yet.

Posted On: April 19, 2008

F-1 Students Will be Allowed to Request Change of Status with Certain H-1B Petitions

On April 18, 2008, the USCIS announced that it would allow F-1 students who are the beneficiaries of selected H-1B petitions for fiscal year 2009 to request a change of status in lieu of consular processing.

This rule change will greatly benefit students who otherwise would have a gap between the end of their F-1 student status and the start date for their H-1B status. The April 18th announcement is a follow-up to an interim final rule that was announced by the USCIS on April 8th that automatically extended the F-1 status of students who are the beneficiaries of approved H-1B petitions so that this gap can be covered.

F-1 Students will get the automatic extension if they are the beneficiary of an H-1B petition filed for the 2009 fiscal year and if they already requested a change of status as part of their H-1B application.

Students should be aware however that if the USCIS ultimately rejects or denies the H-1B petition, the automatic extension will also terminate at the same time.

If you, understandably, thought that you did not qualify for an extension when your H-1B petition was filed and thought that you needed to depart the U.S. and consular process for your H-1B visa, you can now request a change of status. Your request has to be received within 30 days of the issuance of the receipt notice.

To request a change of status in lieu of consular notification, you (or your lawyer) need to send an e-mail with the change of status request to the USCIS Service Center where your petition is pending. You have to do this within 30 days after you get the H-1B receipt notice. There are specific USCIS email addresses for each service center for just this purpose.

Your request has to include the I-129 Petition receipt number, the petitioner’s and beneficiary’s name, the beneficiary’s date of birth, the I-94 number, and the SEVIS number. Here are the email addresses:

For the Vermont Service Center:

For Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
For Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov

For the California Service Center

For Premium Processing cases: CSC.ppcapgap@dhs.gov
For Non-Premium cases: CSC.nonppcapgap@dhs.gov

Please contact me if you have any questions or if you need any assistance in requesting the change of status.

Posted On: April 14, 2008

H-1B Lottery is Held – 4/14/08

Today, April 14, 2008, the USCIS conducted its computer-generated random selection processes on H-1B petitions for fiscal year 2009. Those selected will now be adjudicated and if approved, will be eligible to receive an H-1B visa number. First, a random selection was done for the 20,000 “master’s or higher degree” exemption and then a second random selection was done on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

If your petition was selected for full adjudication, you should receive a receipt notice dated no later than June 2, 2008. If your petition was not selected, the USCIS will return your petition packet and the fee.

Some H-1B petitions have been “wait-listed” and potentially could replace petitions chosen to receive an FY-2009 cap number, but for whatever reason are denied or withdrawn. If your petition has been wait-listed, you’ll get a letter from the USCIS informing you of that status.

Posted On: April 12, 2008

Visa Bulletin for May 2008 Released by Department of State

The May 2008 Visa Bulletin is out. The only real progress to report since the April 2008 Visa Bulletin is in the EB-3 Worldwide and Philippines Priority Dates which jumped over one year from July 1, 2005 to March 1, 2006.

Posted On: April 10, 2008

U Visa Update Announced by USCIS – No Deadline Will be Imposed; Interim Relief Will not be Terminated

On April 10, 2008, the USCIS announced that, at least for now, it will not be terminating interim relief for aliens and that it will continue to accept petitions for U nonimmigrant status at any time.

Back in September, 2007, the USCIS had announced its final rule regarding the U visa (which grants immigrant benefits to certain victims of crimes who assist government officials in investigating or prosecuting the criminal activity). As part of that September announcement, the USCIS was “encouraging” aliens who had been granted interim relief to file for U nonimmigrant status (Form I-918) prior to Apr. 13, 2008. It had intended to terminate interim relief for aliens who failed to petition for the “U” classification before that date.

With its April 10 announcement, the USCIS backtracked and said there is no such deadline and it will not be evaluating previously granted interim relief such as grants of deferred action, parole, and stays of removal—at least until further notice.

Those who obtain U nonimmigrant status can stay in the United States for up to four years, and may be accompanied by their spouse, children, unmarried siblings under 18, and parents. A total of 10,000 U-visas are available each fiscal year (although the cap does not apply to eligible family members).

Here is the September 5, 2007 USCIS Fact Sheet on the U Visa.

Posted On: April 10, 2008

H-1B Application Cap is Reached USCIS Announces

The USCIS announced on April 10th that the preliminary count for H-1B applications is 163,000 of which 31,200 were for the advanced degree category.

The USCIS will likely conduct the computer generated selection process next week and it will begin by selectiing 20,000 petitions filed under the advanced degree exemption.

If an advanced degree petition is not selected in this initial lottery, it will then be included in the later lottery for the cap-subject 65,000 limit H-1B petitions.

I'll keep you updated.

Posted On: April 9, 2008

International Registered Traveler ("IRT") Program Announced by CBP - Expediting Clearance for Selected Air Travelers

On April 7, 2008, the Bureau of Customs and Border Protection announced the details of the new international registered traveler program which is called the “International Registered Traveler” (IRT). The idea is to create a way to expedited clearance of certain pre-approved, low-risk, “trusted” air travelers into the United States. The pilot program will be started at JFK International Airport in New York; George Bush Intercontinental Airport in Houston and Washington Dulles International.

Applications for the program should be submitted on May 12, 2008 and the pilot will actually begin on June 10, 2008. The pilot is expected to last at least six months, depending on how it’s evaluated in practice.

Applications must be submitted electronically and the application itself is available through the Global On-Line Enrollment System (GOES) at www.cbp.gov. Applications must be completed and submitted electronically.

The procedures described by CBP involve an IRT participant as being able to go directly to the airport’s Federal Inspection Services (FIS) area where he or she will then proceed directly to the IRT kiosk. The IRT participant will not have to wait in the regular passport control primary inspection lines. The person will activate the system by inserting either a machine-readable passport or a machine-readable U.S. permanent resident card into the document reader (the program will be open to both U.S. citizens and permanent residents). The screen will then guide the participant through an electronic fingerprinting process to confirm that they are in fact an IRT participant, a digital photo will be taken and then several customs declaration questions will be asked by use of a touch-screen. A receipt will then be issued which the IRT particiapnt will then give to a CBP Officer at the exit control.

The CBP will reserve the right to subject any IRT participant to any further inspection as necessary.

Here is the detailed CBP announcement that provides details about eligibility requirements, the selection process )(which will include an interview), the fee for applying ($100.00), and the complaint process if you apply but are then rejected.

Posted On: April 9, 2008

I-765 Work Authorization and New OPT Categories – You Must Use the New Form (Revision Date April 8, 2008) after March 30, 2008

Just a reminder that the USCIS has revised the I-765 Work Authorization form (the revision date is April 8, 2008) and the new form, which is filed by foreign nationals to obtain an EAD (Employment Authorization Document) must be used as of March 31, 2008. The new, revised I-765 include a change that is relevant to F-1 students seeking OPT-based employment authorization and the change is a result of the recently announced Rule that provides for a 17 month extension for certain OPT students.

Here are the new USCIS instructions for the revised I-765.

The prior eligibility code (c)(3)(i) will no longer be used on the I-765. It has been replaced with the following three codes: (c)(3)(A) for pre-completion OPT; (c)(3)(B) for post-completion OPT; and (c)(3)(C) for a 17-month extension for an F-1 student who has received a degree in Science, Technology, Engineering, or Mathematics (STEM), that appears on the STEM designated Degree Program List published on the SEVP website.

If you are filing as a STEM student requesting the 17-month extension of your currently authorized optional practical training under (c)(3)(C), you must state on the new I-765 your degree, you must now include the employers name and E-Verify id number and you must submit a copy of your degree that must indicate your major field of study.

The new Form I-765 also eliminates the option of filing due to replacement of an EAD that was never received, and for re-issuance of an EAD that was issued with incorrect information due to a USCIS error. If you require a new EADs for either of these two specific reasons, you must contact the specific office that processed the initial EAD or call the National Customer Service Center at 1-800-375-5283.


Posted On: April 8, 2008

H-1B Cap is Reached - Including Advanced Degree Cap

On April 8, 2008 and to no one’s surprise, the USCIS announced that it has received enough H-1B petitions to meet the cap for fiscal year 2009.

USCIS also received more than 20,000 H-1B petitions filed on behalf of beneficiaries under the “advanced degree” exemption. Before it runs the random selection process, the USCIS will first complete initial data entry for all the filings it received but it has not announced the date on which it will conduct that random selection process.

It will conduct the selection process for “advanced degree” exemption petitions first and any “advanced degree” petition that is not selected will get another shot at approval by then being included in the random selection process for the 65,000 limit.

Posted On: April 5, 2008

OPT and F Student Status - DHS Announces New Rule Extending OPT to 29 months for Some F Students

On April 4, 2008, DHS announced that it will extending the period of Optional Practical Training (OPT) from 12 to 29 months for certain qualified F-1 non-immigrant students. The extension will be available to F-1 students with a degree in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program.

This rule change will benefit both students and U.S. businesses who will now be able to employ such students in OPT status for much longer than the current 12 month period.

But the real practical benefit of the rule change is for students who previously would have needed to somehow bridge the gap between the end of their F student and OPT work authorization status and the beginning of their H1-B status. This gap has posed many problems for students who needed to find some way to bridge the gap between the two statuses or who simply had to leave the U.S. at the end of their F status in order to avoid a period of unauthorized stay.

Now, under the new rule, the student’s period of stay and work authorization for such F-1 students with pending H-1B petitions.

The rule also implements certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation.

However, in order to benefit from the new rule, the F-1 student must:

• Currently be participating in a 12-month period of approved post-completion OPT;

• Have successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program;

• Be working for a U.S. employer in a job directly related to the student’s major area of study;

• Be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program. E-Verify is a free, internet-based system operated in partnership with the Social Security Administration that helps employers to determine the employment eligibility of newly-hired employees; and

• Properly maintain F-1 status.

Here is the DHS announcement.


Posted On: April 3, 2008

Name Check Delays - Good News for N-400 Applicants and others as USCIS and FBI Announces Plan to Reduce the Backlog

On April 2, 2008, the USCIS and the FBI jointly announced a plan to eliminate the backlog of name checks pending with the FBI. Here is the breakdown of the plan:

By May, 2008 the FBI will process all name checks that have been pending more than three years. (It has already eliminated the backlog on name checks pending more than four years).

By November, 2008, the FBI will process all name checks that have been pending more than one year.

By February, 2009, the FBI will process all name checks that have been pending more than 180 days.

Finally, by June, 2009, the FBI plans on processing 98% of all name checks within 30 days and the remaining 2% in 90 days.

This really would be great progress if it can be achieved and sustained.

Please remember, as I noted in my posting of February 9, 2008, that the recently announced USCIS guidance on name check delays for other applications such as the I-485 (by which an application that is otherwise approvable will be approved if the FBI name check is still pending for more than 180 days) does not apply to N-400 applications.

N-400 name check applications must be completed before the N-400 can be approved. Therefore, any viable plan to reduce the current name check times is welcome news.


Posted On: April 3, 2008

N-400 Naturalization Applications – USCIS Announces Progress on the Backlog and on Processing Times

On April 2, 2008, the USCIS announced an update to its N-400 Application for Naturalization processing times and it’s reporting progress on the backlog and a projection that processing times will be shorter than previously announced. It’s basing the numbers on the work it has already done during the first six months of this fiscal year on N-400s.

By the end of this fiscal year (September 1, 2008), the USCIS expects to complete 36 % more naturalization applications that it did last year and the expected time it will take to complete a naturalization case, will averaging 13-15 months rather than the 16-18 month projection that USCIS made only six months ago.

The USCIS credits the fact that it has added nearly 3,000 new employees, detailing employees to work in the most heavily affected offices, quadrupling the funding for overtime and using Asylum Office facilities and staff to conduct naturalization interviews.

So good news for a change on processing times.

Posted On: April 2, 2008

OPT - Will it be Extended Out an Additional 17 Months?

According to the American Immigration Lawyers Association, on March 31, 2008, Immigration and Customs Enforcement (ICE) submitted to the Office of Management and Budget an interim final rule titled "Extending Period for Optional Practical Training for 17 Months for Qualified F-1 Students” for OMB’s review.

No details yet and I did not see anything on either ICE’s website or OMB’s about any such rule but I will post news about it as soon as we know more.

Posted On: April 2, 2008

Visa Waiver Overstay and Adjustment of Status – Momeni v. Chertoff is a Problematic Case out of California

On March 31, 2008, the 9th Circuit Court of Appeals issued a problematic case in a Visa Waiver overstay case that may now present difficulties for others who overstay their 90 day period of authorized stay and then want to adjust their status. The case is Momeni v. Chertoff (No. 07-55018).

Under the Visa Waiver Program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waive his or her right to contest removal (other than on the basis of asylum). The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the U.S., spend their tourist dollars, and then leave without all the red-tape involved in visa issuance. . . . .

Continue reading " Visa Waiver Overstay and Adjustment of Status – Momeni v. Chertoff is a Problematic Case out of California " »

Posted On: April 1, 2008

U.S. Citizens on Foreign Soil – What Protections by U.S. Courts?


With the H1-b filing season behind us, it will be nice to be able to spend some time on some other interesting areas of immigration law—there’s no shortage.

Last week, there was an interesting case heard by the Supreme Court (Munaf v. Geren Secretary of the Army and Omar v. Geren, Secretary of the Army) involving two U.S. citizens who are currently being held by Coalition forces in Iraq who the U.S. wants to hand over to the Iraqi government for trial and, depending on the trial’s outcome, punishment. The two men, both Sunni Muslims, voluntarily went to Iraq for employment and they are accused of having committed crimes there – kidnapping for one and assisting Iraqi insurgents in a kidnapping for the other. Both men have filed a habeas corpus petition asking that the U.S. courts order that they not be transferred to Iraqi officials.

Certainly, as a general proposition, once these two U.S. citizens stepped foot on Iraqi soil, they made themselves subject to Iraqi law. Whenever any American travels overseas, that person is subject to that country’s laws just as a visitor to the U.S. is subject to our laws. This is basic international law.

Of course, there are exceptions. Diplomats travel under an immunity from local jurisdiction and military personnel are generally immune from another country’s laws assuming that there is a status-of-forces agreement that controls how host countries can apply their laws to U.S. citizens. Under Iraqi law, there are even greater immunities: for non-Iraqi military personnel and certain civilian security professionals.

The problem for these two U.S. citizens is that none of these immunities apply. They are both private U.S. citizens who voluntarily traveled to Iraq and who, allegedly, committed crimes. The Supreme Court has already said, in Wilson v. Girard (1957), that Americans who travel overseas can be transferred to local authorities for criminal trial. That case involved an American soldier who sued to avoid being transferred to Japanese officials to face criminal charges.

The Bush Administration is arguing that U.S. courts do not have jurisdiction to entertain the men’s respective habeas corpus petitions because, it claims, the two citizens are not under U.S. control—they are under the Coalition's authority, an international authority. If they were under U.S. control, habeas corpus rights would clearly apply.

But this argument ignores reality . . . . .

Continue reading " U.S. Citizens on Foreign Soil – What Protections by U.S. Courts? " »