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Archive for February, 2008

New FBI Name Check Policy for I-485 Applicants

February 29th, 2008 9 comments

On February 4th, USCIS issued a memo outlining a new policy for FBI name checks on I-485 applicants.

The memo in a nutshell,

Where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698 and proceed with card issuance. [full pdf]

This is good news. But we need some questions and answer to fill in the gaps.

USCIS finally (re)issued its revised Questions and Answers today. They are pasted below.

Short on time? Skip to questions 7 ↓ and 9 ↓.

BACKGROUND CHECK POLICY UPDATE

Q1. What applications are affected by this policy change?
A1. Applications included in this policy are:
• I-485, Application to Register Permanent Residence or Adjust Status;
• I-601, Application for Waiver of Ground of Inadmissibility;
• I-687, Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act; and
• I-698, Application to Adjust from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603).

Q2. How has USCIS changed its national security requirements?

A2. USCIS has not changed its background check policies for naturalization applications. Recently, the agency did modify its existing guidance for certain applications (see above) where the immigration laws allow for the detention and removal of individuals if actionable information from a FBI name check response is received after approval.

No application for lawful permanent residence will be approved until a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) check are completed and resolved favorably. (Please refer to the USCIS Immigration Security Checks fact sheet on the USCIS website for more information.)

Q3. How has USCIS changed its adjudications requirements?

A3. For these forms, including applications for lawful permanent residence, USCIS will adjudicate the application based on all required evidence outlined in applicable law and regulation if the application is otherwise approvable, outside of normal processing times, and the FBI name check request has been pending for more than 180 days.

Q4. What happens if USCIS later receives adverse information from an FBI name check?
A4. In the unlikely event that Department of Homeland Security, (DHS) receives actionable adverse information from the FBI name check after the application is adjudicated, DHS may detain the applicant and initiate removal proceedings.

Q5. Why is this policy being implemented?

A5. This policy change responds to a 2005 DHS Inspector General recommendation that USCIS better align its background check screening policies with those of U.S. Immigration and Customs Enforcement.

Q6. Is this policy consistent with the national security priorities of USCIS and the Department of Homeland Security?

A6. Yes. Applications for lawful permanent residence will not be approved until a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) check are completed and resolved favorably. In addition, in the unlikely event that DHS receives actionable adverse information after the application is approved, removal proceedings may be initiated.

Q7. How many applications for lawful permanent residence are immediately affected by this policy change?
A7. USCIS is aware of approximately 47,000 applications for permanent residence (I-485) cases that are otherwise approvable but have an FBI name check pending. A portion of these cases are both outside normal processing times and have an FBI name check that has been pending for more than 180 days. These cases will be subject to processing under the new policy. USCIS anticipates the majority of the cases that can now be adjudicated will be processed by mid-March 2008.

Q8. Does this policy change affect naturalization applications?
A8. No. There is no change in the requirement that FBI name check, FBI fingerprint and Interagency Border Inspection Services (IBIS) check results be obtained and resolved prior to the adjudication of an Application for Naturalization (N-400).

Q9. How long will it take for USCIS to work through the cases affected by the policy change?
A9. USCIS has begun identifying cases affected by this policy modification in each field office and service center. Each office will evaluate the pending cases and will adjust their workload accordingly. USCIS anticipates the majority of the cases subject to this policy modification will be processed by mid- March 2008. We recommend customers wait until March 10 before inquiring about their cases. This will allow each office sufficient time to identify and adjudicate pending cases.

Q10. The memorandum identifies I-485, I-601, I-687 and I-698 forms. Is there a plan to include other forms, specifically nonimmigrant and naturalization, in this policy?
A10. No.

Q11. Should customers contact USCIS through the 1-800 customer service number or make an INFOPASS appointment to visit their local office if their case is outside of normal processing times and they believe their application meets the criteria of this new policy?
A11. For pending applications outside of normal processing times, we recommend that customers wait until March 10, 2008, before inquiring about cases affected by this policy modification. This will allow each office sufficient time to identify and adjudicate the relevant pending cases. If no action is taken by mid-March, we recommend inquiring with the USCIS customer service line at 1-800-375-5283. This procedure is for customers who have been previously informed that their case is pending due to the FBI name check. (Cases that are still pending within the processing times will be completed when the related adjudication actions are completed.)

Q12. Will USCIS automatically notify an applicant to appear at an Application Support Center, (ASC) if his or her fingerprints have expired?
A12. Applicants will be notified through an appointment notice if new or updated fingerprint checks are needed.

Source: USCIS.gov

Categories: Memos Tags:

April 2008 Visa Bulletin // With Comments and Discussion

February 27th, 2008 166 comments

Update Friday, March 14th, 2008: The April visa bulletin has officially been posted.

April 2008 // Employment-Based Visa Bulletin:

april-visa-bulletin-employment-based1.gif

April 2008 // Family-Based Visa Bulletin:

april-visa-bulletin-family-based.gif

Source: travel.state.gov

Also, the notes of the April visa bulletin discussed the availability of visas for EB2 nationals of India,

D. INDIA EMPLOYMENT SECOND PREFERENCE VISA AVAILABILITY

Section 202(a)(5) of the Immigration and Nationality Act provides that if total demand will be insufficient to use all available numbers in a particular Employment preference category in a calendar quarter, then the unused numbers may be made available without regard to the annual “per-country” limit. It has been determined that based on the current level of demand being received, primarily by Citizenship and Immigration Services Offices, there would be otherwise unused numbers in the Employment Second preference category. As a result, numbers have once again become available to the India Employment Second preference category. The rate of number use in the Employment Second preference category will continue to be monitored, and it may be necessary to make adjustments should the level of demand increase substantially.

Feel free to drop your comments or questions below.

[Note. The first 75 comments below were written before the April visa bulletin was published on Friday, March 14th.]

BALCA Finds Applicants Wrongly Rejected

February 27th, 2008 No comments

Matter of Houston Music Institute, 2007-INA-00271 (1/16/08) (pdf decision)

The Employer’s later statements about its reasons for rejecting the applicants are ambiguous, and even contradictory. … it is clear that the applicants were rejected for lacking qualifications not listed in the ETA Form 750A. The Employer’s list of its required teaching methods and standards bear a remarkable consistency with the Alien’s qualifications.

BALCA Finds Self-Employment

February 26th, 2008 No comments

BALCA has published a number of decisions on labor certification applications over the past few weeks. I’m going to post many of those decisions in a new section called “Balca Decisions“. Most of the people who visit the Visa Bulletin already have certified labor certification applications, but some of you do not and these decisions might be useful.

Read more…

Form I-130s Filed With the Chicago Lockbox

February 22nd, 2008 No comments

USCIS issued an update about I-130 filing instructions on February 19th. The text is below in blockquotes, but basically all stand-alone I-130 petitions should now be filed with the Chicago Lockbox. The Chicago Lockbox is two post office boxes in Chicago (both addresses are listed below). Of course, some couriers will not ship to a post office box and, of course, USCIS did not list a street address on their update. But don’t worry because AILA came through and provided the street address (located at the end of this post).

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) has revised the filing instructions for the Petition for Alien Relative (Form I-130). Effective immediately, all petitioners filing stand-alone Form I-130s must file their petitions with the Chicago Lockbox instead of a USCIS Service Center. A USCIS Update was issued on December 3, 2007, encouraging petitioners to file with the Chicago Lockbox while the form was being revised. Now that the revision is complete, filing with the Chicago Lockbox is required.

Petitions filed with the Chicago Lockbox will be routed to, and adjudicated at, the appropriate USCIS Service Center. This routing will be based on the petitioner’s place of residence in the United States.

Two separate post office box addresses (see below) have been established that correspond to the appropriate USCIS Service Center (either Vermont or California) that will process and adjudicate the petition. Although Form I-130 must be filed with the Chicago Lockbox, petitioners will receive receipt notices from either the Vermont or California Service Center.
Petitioners who reside in Alaska, 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 or Wyoming must file their stand-alone Form I-130s with the Lockbox using the following address:

USCIS
P.O. Box 804625
Chicago, IL 60680-1029

Petitioners who reside in Alabama, Arkansas, Connecticut, Delaware, 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, West Virginia or District of Columbia must file their stand-alone Form I-130 with the Lockbox using the following address:

USCIS
P.O. Box 804616
Chicago, IL 60680-1029

The revised form and filing instructions are available through the USCIS’ Web site at www.uscis.gov.

And thanks to the American Immigration Lawyers Association (AILA), the street address for direct I-130 filings is the following:

U.S. Citizenship and Immigration Services
Attn: FBASI
427 S. LaSalle – 3rd Floor
Chicago, IL 60605-1098

Source: USCIS I-130 Update // Chicago Lockbox (pdf)

March 2008 Visa Bulletin // With Comments and Discussion

February 12th, 2008 149 comments

Hot off the press – March Visa Bulletin. I will post some commentary later today or tonight. Feel free to drop your comment below.

The most obvious development was the progress in the employment-based third preference (EB3). The cutoff date jumped ahead for “EB3 Philippines” and “EB3 All Chargeability Areas” (everywhere but China, India or Mexico).

What did the notes of the March visa bulletin say about this movement? Read more…

H-1B Visa // Frequently Asked Questions

February 9th, 2008 6 comments

Just over a year and a half ago I helped put together an H-1B question and answer list. I’m going to be posting more information over the next few weeks about the H-1B visa process because of the upcoming application date. If you have other questions, drop them in the comments after this list.

What is an H-1B?
A: The H-1B is a nonimmigrant visa classification used by an individual who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.

What is a specialty occupation?
A: A specialty occupation requires theoretical and practical application of a body of specialized knowledge, along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, computer science, information technology, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and the arts are specialty occupations.

How do you apply for an H-1B visa?
A: H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (“LCA”) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file an I-129 petition with the United States Citizenship and Immigration Services (previously INS).

What is the Wage Requirement?
A. The US
employer must show that the wage offered to the beneficiary is equal to 100% of the prevailing wage as established by the Department of Labor, or the actual wage paid by the employer to similar employees– whichever is higher. The prevailing wage is usually determined through the State Workforce Agency (SWA).

How much are the filing fees?

A. There are three sets of required fees. First, the standard petition fees for the I-129 petition (currently $320) and if the prospective employee is abroad the additional fees at the consulate. Second, a fee of $1,500. But if the employer does not have more than 25 full-time employees, then only $750. Third, a $500 fraud prevention and detection fee.

Also, H-1B employers and applicants also have the option to pay an extra $1,000 for premium processing. And if there are any dependents seeking H-4 status, there is an extra $300 filing fee.

In general, the employee can pay the filing fees, assuming payment will not bring the employee’s wages below the required wage. But the $1500/$750 fee payable under section 213(c)(9) of the Immigration and Nationality Act must be paid by the employer.

Schools and nonprofits are generally exempt from the $1500/$750 fee, as are H-1B employees applying for their second extension and all subsequent extensions. The fraud fee must be paid by all employers, including schools and nonprofits, but must only be paid on initial applications or when switching employers.

NOTE: Determining the proper filing fees, especially for extensions and transfers, can be quite complicated. Please consult an immigration lawyer when making this determination for specific cases.

What is the H-1B Cap?
A. The H-1B visas per year are capped at 65,000 per fiscal year less the used Free Trade visas for Chile and Singapore resulting in around 58,200 H-1B visas. The Cap does not include an additional 20,000 visas per year for persons who have earned a master’s or higher degree from a United States institution of higher education. Also, some professors and/or researchers at institutions of higher learning and nonprofit institutions are exempt from the Cap.

Only “new employment” is covered under the Cap. USCIS can no longer count against the Cap any person who has already been counted within the last six years unless the H-1B applicant would be eligible for a new full six years of authorized H-1B admission at the time the new petition is filed. An H-1B could be eligible for a full 6 years if s/he was out of the country for a year or if the works/he was
performing in the U.S. was seasonal, intermittent or less than 6 months per year. See more on the Cap from USCIS.gov.

How long can an individual be in H-1B status?
A: An individual can be in H-1B status for a maximum period of six years at a time. After that time they must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years.

But there are exceptions to the 6-year limit. An H-1B holder may extend his or her status beyond the 6-year limitation if a labor certification, I-140 petition or employment-based adjustment of status application has been filed where 365 days or more have elapsed, since the filing of the labor certification (if one was required) or the filing of the I-140 petition. In this case, H-1B status can be extended in 1-year increments.

And under AC21 104(c), if the H-1B holder is the beneficiary of a 1st, 2nd, or 3rd preference employment-based petition but is unable to get his or her visa due to per country limitations, they can extend H-1B status up to 3 years at a time, but they must have an approved I-140.

Who can an H-1B employee work for?
A: An H-1B employee may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (such as Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have an I-129 petition filed by each employer.

What if the H-1B employee’s circumstances change?
A: As long as the employee continues to provide H-1B services for a U.S. employer, most changes will not mean that an individual is out of status. S/he may change employers without affecting status, but the new employer must file a new I-129 petition for the individual before s/he begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the employee’s status in many instances. However, if the change means that the employee is working in a capacity other than the specialty occupation for which they petitioned, a new petition must be filed.

Must an H-1B employee be working at all times?
A: As long as the employer/employee relationship exists, an H-1B employee is still in status. An H-1B employee may work in full or part-time employment and remain in status. An H-1B employee may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

Can an H-1B employee travel outside the U.S.?
A: Yes, an H-1B visa allows an individual holding that status to reenter the U.S. during the validity period of the visa and approved petition.

Can an H-1B employee intend to immigrate permanently to the U.S.?
A: An H-1B employee can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as “dual intent” and has been recognized in immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an employee may travel on his or her H-1B visa rather than obtaining advance parole or request other advance permission from USCIS to return to the U.S.

Who is eligible to use the H-1B “portability” provisions?
A: The portability provisions allow a nonimmigrant previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the individual. Previously, individuals in this situation had to await approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed “before, on, or after” the date of enactment (October 18, 2000), so all individuals who meet this definition can begin using the portability provisions.

If my company is acquired by another company, do I have to file for an amended H-1B?
A: No. An amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.

Can the H-1B employee work at different sites?
A. Yes, but a separate Labor Condition Application must be filed for each site at which the employee will be working.

What are the advantages to applying for an H-1B visa?
A. Unlike many other nonimmigrant visa categories, it is a “dual intent” visa. It can not be denied simply because an individual intends become a permanent resident of the United States. Also, the employer does not need to demonstrate a shortage of qualified US workers and the labor certification process can be avoided.


Can a foreign national apply for multiple H-1Bs?

A. Yes, a person can apply for multiple H-1B’s and work for more than one U.S. employer, but he/she must have an I-129 (petition for non-immigrant worker) filed by each employer. As long as the employee has been counted against the H-1B quota in the past six years, the petition to work for another employer concurrently is not subject to the cap.

Can the H-1B worker’s spouse/children work or study in the US?
A. Dependents of an H-1B worker are granted H-4 status. They cannot work unless they can obtain a work visa in their own right. Time spent in H-4 status does not count against the six-year maximum period of admission applicable to H-1B workers. Thus an individual who was previously an H-4 dependent may subsequently become an H-1B principal and will be entitled to the maximum period of stay (6 years).

H-4 dependents may undertake study in the US.

What is Labor Attestation?
A. The filing and approval of a Labor Condition Application (LCA) is a requirement that must be met before filing the H-1B petition. Through the LCA, sponsoring employers agree to several undertakings, enforceable by civil and criminal penalties. Specifically, the employer agrees:
· To pay the H1B worker at least the higher of the wage paid to similar workers in the same company or the “prevailing wage” for the occupation in the area the worker will be employed;
· That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer’s US-resident employees in similar jobs;
· That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H-1B workers to be employed at the site of any subsequent strike or lockout;
· That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H-1B beneficiary will be working;
· To maintain records of the LCA and the H1B worker’s employment for inspection by the US Department of Labor.

Can you talk more about H-1B visa eligibility?
A. Before filing an H-1B visa, two questions must be answered affirmatively.
1. Is the US employer recruiting the beneficiary to fill a “specialty occupation”?
2. Does the beneficiary meet the requirements for the occupation?

First, the US employer must be seeking to fill a temporary position in a “specialty occupation.” The definition of a “specialty occupation” is “an occupation that requires (1) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation.” “Specialty Occupations” include accountants, computer analysts, programmers, database administrators, web designers, engineers, financial analysts, doctors, nurses, scientists, architects, lawyers, and more. It is important to note that the required degree must be reasonably related to the position. General degree requirements will often be challenged. The employer must be ready to demonstrate that a specific degree or narrow degree field is a legitimate prerequisite to doing the job.

Second, the foreign national must possess the required bachelor’s degree or requisite experience to qualify for the job. The beneficiary’s degree must be related to the occupation. The degree requirement calls for a degree “customarily awarded from an accredited US college or university,” but the requirement may also be satisfied by a foreign degree that is determined to be equivalent to a US bachelor’s degree. Foreign degrees must be evaluated by a US-based credentials evaluation service to determine whether they are equivalent to a US bachelor’s degree or higher. Another method of satisfying the degree requirement is by using experience. USCIS allows the use of 3 years of “specifically more responsible work experience in the field” to equate to 1 year of missing academic studies. Thus, if the foreign national has no degree, he will need 12 years of progressive experience in his field to qualify for an H1-B visa in his field. Alternatively, if the foreign national has completed 2 years towards his bachelor’s degree, he may qualify for an H1-B specialty occupation by documenting an additional 6 years of progressive work in his field.

Finally, if an occupation requires licensure or professional credentials (e.g., doctor, dentist, attorney, CPA), the individual must already hold such qualification before the H1B visa petition can be filed. It is not sufficient to show that a license has been applied for, or is expected to arrive. The individual must have a full and unrestricted ability to engage in the profession before approval will be granted.

Categories: H-1B FY2008 Tags: