INFINITI LAW

The USCIS just announced that I140 premium processing will be available beginning June 16, 2008 for beneficiaries meeting the following criteria:

• Beneficiary must currently be in H1b nonimmigrant status;
• Beneficiary must reach the end of his/her 6th year in H1b status in 60 days;
• Beneficiary must only be eligible for a further H1b extension under AC21 Section 104(c) upon approval of his/her I140 petition [AC21 Section 104(c) permits up to a 3 year extension of H1b status based on an approved I140 when I485 filing is not possible due to quota backlogs]; AND
• Beneficiary must be ineligible to extend his/her H1b status under AC21 Section 106(a) [AC21 Section 106(a) grants 1 year H1b extensions when a Labor Certification or I140 are currently pending and have been pending for at least 365 days]

Documentation verifying that the above requirements are met must be submitted with the premium processing request---otherwise the premium processing request will be rejected and returned with the filing fee.

USCIS has published a final rule removing the requirement that certain H & L nonimmigrants returning from travel abroad present an I-485 receipt notice at the port of entry to avoid having the adjustment of status application deemed abandoned.

The USCIS has issued an advisory stating that it received such a large number of applications in July & August that it has affected their overall processing times.  In July & August they received 2.5 million applications (compared to 1.2 million applications filed during that period during 2006).  They state that they are working to improve their processes and are increasing their resources---including hiring 1,500 new employees---to address the increased workload.

The State Department has released the January 2008 visa bulletin showing the priority dates effective for January 2008:

--EB1 filings are current for all countries

--EB2 filings are current for all countries except China & India (Priority date for India is 01/01/2000 & Priority date for China is 1/1/03)

--EB3 priority dates are as follows:

India:  05/01/01
China: 11/01/01
Mexico:  04/22/01
Philippines:  10/15/2002
All other countries:  10/15/02

The July bulletin came out in mid-June making visa dates 'current' in all employment-based categories for all countries for the month of July. By regulation, this bulletin governs availability for the full month (i.e. so the dates are valid until the end of July). On the morning of July 2nd, however, the Department of State suddenly announced that it was reversing its decision from all of the categories being available to all of the categories being unavailable until October. In response, the CIS issued a press release saying they will reject all employment-based I-485 filings as of 7/2/07.

Today, the Department of State added a notation in their August 2007 Visa Bulletin that: "After consulting with Citizenship and Immigration Services, the Visa Office advises readers that Visa Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for purposes of determining Employment visa number availability, and that Visa Bulletin #108 (dated July 2) is hereby withdrawn." The result is that I-485 applications can again be filed in July!!! Please note, the August bulletin makes all Employment-based categories unavailable---so applications need to be received by the CIS before the end of July!!

The July bulletin came out in mid-June making visa dates ‘current’ in all employment-based categories for all countries for the month of July.  By regulation, this bulletin governs availability for the full month (i.e. so the dates are valid until the end of July).  This morning, however, the Dept of State suddenly announced that it was reversing its decision from all of the categories being available to all of the categories being unavailable until October (and we don’t know what the dates will be in October yet).  In response, the CIS just issued a press release saying they will reject all employment-based I-485 filings as of today.  This action is not only historically unprecedented, but it is not authorized under the regulations & both the Dept of State & the CIS are acting in violation of the laws as written.   The American Immigration Law Foundation is planning a lawsuit in response.

6/13/07:  The State Department just released the Visa Bulletin for July 2007 and all of the priority dates for the EB filing categories (with the exception of the ‘other worker’ category) are current.  So beneficiaries who are currently in the United States from all countries with EB1, EB2, & EB3 filings can proceed with preparation of the adjustment of status filings for filing in July.  Anyone outside the US who is proceeding under consular processing to obtain their immigrant visa can do so as well.

The US Department of Labor published a final rule on 5/17/07 which makes significant changes to the current labor certification system.  The rule takes effect on 7/16/07.  The highlights of the rule are as follows:

--Labor Certification substitutions are no longer permitted;

--An approved labor certification granted on or after July 16, 2007 expires if not filed in support of a I-140 with the CIS within 180 calendar days of the date the Dept of Labor granted the certification;

--An approved labor certification granted before July 16, 2007 expires if not filed in support of a I-140 with the CIS within 180 days of July 16, 2007;

--Employer must bear all costs in connection with the labor certification filing, including attorneys fees.

United States Citizenship and Immigration Services (USCIS) announced today that beginning on Friday, May 18, 2007, it will terminate Premium Processing Service for Form I-140 petitions that request labor certification substitution in accordance with 8 CFR 103.2(f)(2). USCIS anticipates a substantial increase in the number of petitioning employers that will file Form I-140 petitions requesting Premium Processing Service and seeking labor certification substitution prior to July 16, 2007. The volume of such petitions filed requesting Premium Process Service is expected to exceed USCIS' capacity to provide the Premium Process Service according to the program guidelines.

The June 2007 Visa Bulletin was released on 5/14/07 & shows a significant advancement in priority dates. 

EB1 is 'current' for all countries. 

EB2 is 'current' for all countries except China & India---EB2 'current' priority date for India is 04/01/04 & EB2 'current' priority date for China is 01/01/06. 

EB3 has a backlog but the dates have improved.  For all countries except China, India, & Mexico, the 'current' priority date is 06/01/05.  For China, India, & Mexico, the 'current' priority date is 06/01/03.

These figures change on a monthly basis.  Updates can be found on our Immigration Links Page.

Employers with any cases pending with the Department of Labor Backlog Elimination Center for which conversion to RIR (Reduction in Recruitment) processing is desired must notify the Dept of Labor of their intent to convert no later than 1/22/07 in order to take advantage of the ‘hold-harmless’ provisions of the policy.  Amendment requests to the application must also accompany the conversion intent notice.  To encourage employers to use this option, the DOL has provided a list of the advertisements that will be considered sufficient under RIR to establish the ‘Pattern of Recruitment’ needed. 

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Under the pre-PERM system, an employer would file a Traditional Recruitment (TR) labor certification application except in cases where they could document a pattern of recruitment over a six month period prior to filing & not found any eligible workers.  If the employer could document the pattern of recruitment for six months, they could request a Reduction in Recruitment (RIR) with the filing.  The majority of RIR cases pending with the Backlog Elimination Centers were finally processed in 2006; the TR filings, however, have not seen movement beyond the 45-day letter phase.  The TR process requires significantly more processing on the part of the Department of Labor---and hence, these cases are take longer to move through the system.  Recently, the Department of Labor announced that all traditional labor certifications filed on or before March 28, 2005 are now eligible to be converted from a TR application to a RIR application provided that a job order has not been initiated yet by the DOL.  The employer needs to demonstrate a pattern of recruitment for the six month period preceding the date of the conversion request filing with the Backlog Elimination Center. 

11-8-06:  CIS EXPANDS PREMIUM PROCESSING TO EB1 ALIENS WITH EXTRAORDINARY ABILITY:  The CIS began accepting premium processing applications for EB1 Aliens with Extraordinary Ability beginning on 11/13/06.  Upon payment of $1,000 filing, the CIS will issue either an Approval, Request for Evidence, or Notice of Intent to Deny within 15 calendar days.

12-1-06:  CALIFORNIA SERVICE CENTER STOPPING FAXING OF PREMIUM PROCESSING CASE APPROVALS: Reasons cited for the procedural change are a significant increase in number of receipts & the time required for faxing notices.

9-22-06:  CIS EXPANDS PREMIUM PROCESSING TO IN EB2 & EB3 CATEGORIES:  Beginning 9/25/06, the CIS will begin accepting Premium Processing applications for I-140 filings for EB1 Outstanding Professors & Researchers, EB2 Members of Professions with Advanced Degrees or Exceptional Ability (not seeking a National Interest Waiver), and EB3 Workers Other Than Skilled Workers & Professionals.

8-18-06:  CIS EXPANDS PREMIUM PROCESSING TO EB3:  The USCIS issued a News Release on 8/18/06 stating that beginning on 8/28/06 it will begin accepting Premium Processing requests for petitions involving two employment-based immigration categories within the third employment-based preference (i.e. EB3 filing category).  Beginning on 8/28/06, the USCIS will allow premium processing petitions for EB-3 Professionals (immigrant workers with bachelors degrees who are members of the professions) and EB-3 Skilled Workers (immigrant workers capable of performing skilled labor requiring at least two years of education, training, or experience).  Premium Processing allows an employer to pay an additional $1,000.00 filing fee to the USCIS for the guarantee that it will issue either an approval notice, notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation, within 15 days of receipt.    If more than 15 days passes without the USCIS taking action on the case, they will refund the $1,000 fee.

8-18-06:  NO LOCAL ISSUANCE OF EAD CARDS:  Michael Aytes, USCIS Acting Director, Domestic Operations, issued a memorandum  on 08/18/06 regarding the elimination of local issuance of EAD cards by 10/01/06. 

7-11-06:  DOL ANNOUNCEMENT REGARDING 45 DAY LETTERS:  For most types of employment-based green card cases, the first step is filing a labor certification application with the US Department of Labor.  Advertising is done as part of this process in order to establish that no US workers are “ready, willing, and able to take the position.”  Prior to the implementation of the Department of Labor’s PERM online labor certification system, cases were filed with the state’s employment security agency (SESA).  Once the SESA completed their review process, the case was forwarded to the US Department of Labor for final processing.  Because the SESA agencies were understaffed, a significant backlog had occurred at the state level.  In late 2004 & early 2005 all of the pending cases were transferred from the SESAs to Department of Labor Backlog Elimination Centers in an effort to consolidate the process and speed up the processing time.  Because many of the backlogged cases have become obsolete due to the long waiting time for certification, the Department of Labor came up with a procedure to eliminate the need to process obsolete cases.  The procedure is to send a ’45-day letter’ prior to commencement of processing of the case by the Department of Labor.  The ’45-day letter’ is sent to the employer and employer’s attorney and requests that a designation be made whether to continue with processing of the case or whether to withdraw the case.  If no response is received, the case is withdrawn.  If the decision is made to respond to the 45-day letter with a request to proceed with the processing, then the Department of Labor continues with the case.  The Department of Labor began the 45-day letter process after initial transfer of the backlogged cases from the SESA to the Department of Labor Backlog Elimination Centers.  They announced that the final letters were sent on 7/18/06.  On 7/11/06, the Department of Labor announced procedures to follow in the event that you have not received a 45-day letter by 7/21/06 or if a case closure notice has been received from the Department of Labor after a timely response was filed to the 45 day letter.

7/06:  DECISION MADE IN FIRST PERM APPEAL CASE:  BALCA (Board of Alien Labor Certification Appeals) issued a decision in the first PERM case appeal, Matter of Health America.  The decision was firmly in favor of the employer!  The PERM application had been denied because of a typographical error in the date of an advertisement.  The Board made the decision that the Certifying Officer's denial of reconsideration of the case was an abuse of discretion.

5-23-06:  PREMIUM PROCESSING OF I-140, I-539 & I-765:  On 5/23/06, the USCIS issued a notice in the Federal Register designating that Form I-140 ("Immigrant Petition for Alien Worker"), Form I-539 ("Application to Extend/Change Status") and Form I-765 ("Application for Employment Authorization") are eligible for Premium Processing Service.  Premium Processing Service guarantees that the these petitions will be processed by the CIS within 15 calendar days upon payment of an additional processing fee to the CIS of $1,000.  On 5/24/06, the USCIS issued a press release explaining that it will place a formal notice on the US CIS website providing an effective date for when the designated petitions can be filed via this method.  Nothing has been posted as yet, but we remain hopeful that the implementation date is imminent!

4-27-06:  CIS DELAY IN ISSUING RECEIPT NOTICE:  On 4/27/06, the USCIS issued a Public Notice stating that their issuance of I-140 & I-129 receipts is delayed due to the 'unusually large volume of receipts' at the Service Centers in the first few weeks of April.

3-30-06:  BI-SPECIALIZATION SYSTEM:  Beginning 04/01/06, all I-129 petitions will be filed at the Vermont Service Center and all I-140 petitions will be filed at the Nebraska Service Center. Previously, petitions were filed at the Service Center having jurisdiction over the employer's location.