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July Visa Number Update

Since July 2 we have been operating under the directive of the U.S. Citizenship and Immigration Services (USCIS) notification that the agency would NOT accept for filing ANY Adjustment of Status applications from applicants in any of the Employment Based categories. The agency apparently made this decision after being informed by the Department of State that no visa numbers for these categories were available for the duration of the fiscal year (ending September 30, 2007), despite the fact that earlier in June the Visa Bulletin indicated that all categories would be “current” (i.e. visa numbers would be available) for the month of July.

USCIS further stated that all such applications received at an Immigration Service Center on or after July 2, 2007 would be returned to the applicants.

Recently we have learned that the American Immigration Law Foundation (AILF), an affiliate of the American Immigration Lawyers Association, will soon file a class action lawsuit challenging the government’s action and seeking relief for the thousands of applicants disadvantaged by this unprecedented step. Other individuals or organizations may be planning similar litigation.

We have been asked whether we recommend attempting to file an Adjustment of Status application this month in order to possibly benefit from such litigation. For the reasons stated below, we are not advising that everyone who could possibly file based on the June prediction of the State Department’s July 2007 Visa Bulletin do so. Rather, we are advising that each individual make this decision after considering the following:

  • The clear stated intention of the USCIS, based on the July 2 statement, is to reject and return all such applications.

  • The prospect for this or other possible litigation to succeed is entirely speculative at this point.

  • If litigation is successful, it could possibly benefit anyone who was eligible to file even though they did not do so.

  • We cannot rule out the possibility that USCIS will make other surprise decisions about the situation during the two weeks remaining in this month.

  • Preparing to file an application in the short period of time available until the end of the month, for those who are not already completing the process, may be extremely difficult, since doing so involves arranging for medical exams, obtaining birth, marriage, and other documents from abroad, etc.

  • Preexisting travel and/or vacation plans may be disrupted because of the requirement that all Adjustment of Status applicants must be physically present in the U.S. at the time of filing and until such time as a receipt is issued for the Application.

  • If an application is filed in spite of the clear directive from USCIS, and is rejected, additional time, effort, legal fees, and expenses will be required to resubmit an application when it becomes possible.

 Those who in spite of the above precautions would like to proceed, and who have already prepared the majority of the required documentation, should contact us immediately.

Immigration Reverses Decision on July Visa Numbers, 2007

On July 17, U.S. Citizenship and Immigration Services reversed its earlier decision to reject all Employment Based Adjustment of Status applications filed in July. Those applications were being filed on the basis of the Department of State’s July Visa Bulletin issued on June 12 which stated that those Visa Numbers would be current in July.

The chaos resulting from the earlier decision led to a public outcry, threats of litigation, and the potential for Congressional investigation of the agency.

The revised procedures now in effect are as follows:

Any applications received on or after July 2, 2007 will be accepted and processed.

USCIS will continue to accept Employment Based Adjustment of Status applications from applicants whose Priority Dates are current under the original July Visa Bulletin which provided that all Employment Based categories were “current” for all countries (with the exception of the “Other Worker” category for unskilled workers).

These applications will be accepted until August 17, 2007.

The current fee schedule will apply to applicants who file on the basis of the July Visa Bulletin on or before August 17, 2007. These applicants WILL NOT be subject to the substantial fee increase which is otherwise effective as of July 30, 2007.

As a reminder, applicants for Adjustment of Status must be physically present in the U.S. on the date of filing and must not depart from the U.S. before a receipt is issued for the I-485 Application. We expect that it will take several weeks or possibly longer for receipts to be issued.

We are in the process of contacting all of our clients who may be eligible to move forward with their Applications on the basis of this development.

H-1B “Cap” Reached April 3, 2007

The Immigration Service (USCIS) announced yesterday that it had received enough H-1B petitions to meet the congressionally mandated cap on non-US Master’s Degree holders for fiscal year 2008 (FY 2008). These petitions are for employment to begin on October 1, 2007. USCIS will use a random selection process for all cap-subject filings received on April 2, 2007 and April 3, 2007. USCIS will reject and return along with filing fee(s) all petitions received on those days that are not randomly selected, as well as all cases received after April 3, 2007.

USCIS must perform initial data entry for all filings received on April 2 and April 3 prior to conducting the random selection process. As they received over 150,000 petitions, the Service is stating that it will take several weeks to conduct the random selection.

The Immigration Service does not yet know how many of the Advanced Degree petitions it has received. The 20,000 Advance Degree H-1Bs may already be exhausted too; however Immigration will make a future announcement regarding the “final receipt date” for these petitions. If they are not already used up, they will be shortly.

Immigration will continue to process the following types of H-1B Petitions:

  • Extensions of stay for current H-1B workers.
  • Changes in the terms or conditions of employment for current H-1B workers.
  • Transfers of current H-1B workers to new employers.
  • Petitions for concurrent employment of H-1B workers.
  • Petitions for new employment by cap-exempt employers.

Immigration Service Sharply Increases Filing Fees

The Immigration Service (USCIS) has announced a new fee schedule that sharply increases the filing fees for a wide variety of immigration applications and petitions. The final schedule, effective on July 30, 2007, largely implements the fee structure described in the proposed rule published in the Federal Register on February 1, 2007.

USCIS has stated that the current fees do not reflect the full costs of services that the Agency should provide and that these increased fees will result in a more efficient and effective organization. They state that without an immediate adjustment of the fee schedule, they cannot provide adequate capacity to process all applications and petitions in a timely and efficient manner. Specifically, they state that the increased fees will help to reduce application processing times by an average of 20 percent over the next two years and that the revised fees will eliminate USCIS’s dependency on revenue from interim benefits, temporary programs, and premium processing fees. USCIS states that this final rule will enable USCIS to meet national security and public safety concerns, prevent and detect fraud, and invest in comprehensive transformation efforts.

In addition to the increased fees, this rule merges fees for certain applications and petitions so applicants and petitioners will only have to pay a single fee. The rule also expands the classes of aliens that will be exempt from paying filing fees for certain immigration benefits and modifies the criteria for waiving the filing fee due to an individual’s inability to pay. Based on comments received by USCIS during the public comment period, this final rule changes fees for adjustment of status applications, and the fee waiver and exemptions eligibility criteria for several immigration benefits.

Here are a few examples of fee increases for some of the more frequently sought after benefits: Form I-140:

(Immigrant Petition for Alien Worker) will increase from $195 to $475.

Form I- 485: (Application for Adjustment of Status) will increase from $325 to $1,010. However, this fee now includes the cost for an initial Advance Parole and Employment Authorization Document for the first year, and the biometric fee. (There are reduced fees for children under 14 years old and adults 79 years old or older.)

Form I-765: Application for Employment Authorization will increase from $180 to $340 for subsequent years.

Form I-131: Application for Advance Parole documents will increase from $170 to $305.

Form I-129 (Petition for a Nonimmigrant Worker) will increase from $190 to $320.

Form N-400: (Application for Naturalization) will increase from $330 to $675. This fee includes the biometric fee.

This rule is effective on July 30, 2007. Applications or petitions mailed, postmarked, or otherwise filed on or after July 30, 2007 must include the new fee.

A complete list of filing fees may be found on the USCIS website at www.uscis.gov.

We are urging our clients who may be considering filing for immigration benefits of any kind to consider this rule in deciding when to proceed.

Immigration Proposes Sharp Increase in Filing Fees

The Immigration Service (USCIS) has proposed a sharp increase in filing fees for a wide variety of immigration application and petitions. The Notice of Proposed Rulemaking was published in the Federal Register on February 1, 2007.

USCIS has stated that the current fees do not reflect the full costs of services that the Agency should provide and that these increased fees will result in a more efficient and effective organization. They also state that the increased fees will help to reduce application processing times by an average of 20 percent over the next two years.

Here are a few examples of fee increases for some of the more frequently sought after benefits:

Form I-140: (Immigrant Petition for Alien Worker) will increase from $195 to $475.

Form I- 485: (Application to Register Permanent Resident or Adjust Status) will increase from $325 to $905. This fee will include an automatic Advance Parole and Employment Authorization for the first year.

Form I-765: Application for Employment Authorization will increase from $180 to $340 for subsequent years.

Form I-131: Application for Advance Parole documents will increase from $170 to $305.

Form I-129 (Petition for a Nonimmigrant Worker) will increase from $190 to $320. Form N-400: (Application for Naturalization) will increase from $330 to $595.

The weighted average increase for application and petition fees will be approximately 86 percent.

This is a proposal, not a final rule. Comments in opposition to (or in support of!) the increases may be made, identified by DHS Docket No. USCIS-2006-0044, before April 2, 2007 by one of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

E-mail: OSComments@dhs.gov. Include the docket number in the subject line of the message. Facsimile: Federal eRulemaking portal at 866-466-5370.

Mail: Director, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW, 3rd Floor, Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2006-0044 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions.

We are urging our clients who may be considering filing for immigration benefits of any kind to consider these proposed increases in deciding when to proceed.

Immigration Service Announces New, Beneficial H-1B and L-1 Policies

On December 5, 2006 Citizenship and Immigration Services issued an internal Memorandum modifying its earlier position on three important issues. As a result, it will make it possible for many applicants to obtain H-1B status immediately despite the fact that the “cap” for the current year has been reached.

1. The Service now holds that time spent in H-4 or L-2 dependant status DOES NOTcount toward the six year limitation on stay for H-1B workers, or the five or seven year stay for L-1B or L-1A workers.

Previously, time spent in H-4 (or L-2) status WAS counted toward the limitation.  For example, an applicant for H-1B status who spent fours years as an H-4 would only be eligible for only two years.  Now that same applicant would be entitled to a full six years in H-1B status.

2. A request for a “7th year extension” for H-1B workers who qualify on the basis of a pending green card application may be made regardless of whether the applicant is currently in the U.S. or abroad and regardless of whether they currently hold H-1B status.  Until now, the “7th year extension” was only available to applicants who were in the U.S. maintaining lawful H-1B status.

3. An H-1B worker who spent less than six years in the U.S., and who has been outside the U.S. for more than one year, would be deemed already “counted” toward the cap and could elect to seek H-1B status anew for the “remainder” of the six year period without regard to the current “cap.”   Having been abroad for more than one year, that same individual could elect to seek a new admission for the full six years if H-1B numbers were available (or if he/she was seeking entry to work for a cap-exempt institution).

Please feel free to contact our office if you have any questions.

Department of State Announces DV 2008 Visa Lottery

The Immigration Service has announced that effective August 28, 2006 Premium Processing service will be available to a limited number of I-140 Employment Based Immigrant Visa Petitions.

Specifically, only I-140’s seeking classification in the E3 Professional (positions requiring at least a Bachelors Degree) and E3 Skilled Worker (positions requiring at least two years of experience) are eligible at this time.

For an additional filing fee of $1,000, Petitioners are guaranteed an initial review of their petition within 15 calendar days of receipt. The initial review may result in an approval, a Request for Evidence (RFE), an outright denial, or a referral for a fraud investigation. In addition, the Premium Processing Unit offers a dedicated telephone number and direct email address for assistance or inquiries. If the Service is unable to meet the deadline, the fee will be refunded and the case will continue to be handled in the Premium Processing Unit.

A new Premium Processing application (Form I-907) will be made available on the USCIS website this week, and must be used for ANY Premium Processing requests filed on or after August 28.

The availability of Premium Processing for these categories of I-140’s may be especially valuable for applicants who will require extensions of H-1B status beyond the normal six year limit. H-1B workers with an approved I-140 who are unable to file for adjustment of status due to quota backlogs may be able to seek an H-1B extension in increments of up to three years

Possible Quota Backlogs Coming for All Countries

Dear Clients and Friends,

Possible Quota Backlogs Coming for All Countries

When the Department of State released the October Visa Bulletin, we were confronted, for the first time in memory, with backlogs in visa number availability for natives of China and India in the E1 and E2 employment based categories (the E3 category has been backlogged for several months). Applicants born in any other countries were not affected by these developments.

There is now widespread speculation that in the near future, these backlogs may extend to all countries of the world. If this happens, it will no longer be possible to file an Adjustment of Status (I-485) application concurrently with an I-140 Immigrant Visa Petition claiming eligibility for E1 or E2 status. Neither will these applicants be able to secure an appointment to obtain an Immigrant Visa at an American Consulate unless they have a “Priority Date” which precedes the cut-off date on the Visa Bulletin (see below).

The earliest possible date that any backlog would go into effect is November 1, 2005. WE DO NOT KNOW FOR SURE THIS WILL HAPPEN, ONLY THAT IT IS A POSSIBILITY. Moreover, we should know within the next week the when the State Department releases the November Visa Bulletin. If the backlog develops as of November 1, it is crucial that any applications currently in preparation by these individuals be received by the Immigration Service on or before October 31 to take advantage of concurrent filing. The applications may remain pending for a long time but the applicants will continue to have access to Employment Authorization and Advance Parole for the duration. They may also continue to extend H-1 status beyond the normal six year limit.

Even if no backlog develops as of November 1, it seems likely that it will occur in the coming months. This is simply the result of the Immigration Service moving more quickly to approve cases in the pipeline, therefore drawing down on the available pool of numbers allocated for each fiscal year.

The E1 category (referred to collectively as “Priority Workers”) includes Managers/Executives, Outstanding Professors or Researchers, and Aliens of Extraordinary Ability.

The E2 category includes applicants with an approved Labor Certification where the job requires at least a Masters Degree, or applicants who claim National Interest Waivers.

If a backlog develops, it will STILL BE POSSIBLE to file I-140 Immigrant Visa Petitions claiming eligibility for any of these categories. Doing so will establish a Priority Date on the waiting list of visa applicants. However, applicants cannot obtain Employment Authorization or Advance Parole travel authorization on the basis of an I-140 filing alone. If the I-140 is approved, the applicant can proceed with an I-485 OR Immigrant Visa interview only when their Priority Date is reached on a future Visa Bulletin. However, there is clearly the potential for a lengthy delay before that time comes.

Alternate Chargeability

Applicants are usually charged to the quota of their country of birth, regardless of current citizenship. However, there are a few exceptions. The most common is the ability to be charged to the country of birth of an accompanying spouse. For example, a principal applicant born in India whose accompanying spouse was born in the United Kingdom may use the quota of the United Kingdom, thereby avoiding the lengthy delay he or she would otherwise be faced with.

This subject matter can be quite confusing and therefore we welcome specific questions.

Quota Backlogs Coming October 1 for China, India

Dear Clients and Friends,

Quota Backlogs Coming October 1 for China, India

The Department of State has released the October Visa Bulletin. For the first time in memory, the Bulletin reflects backlogs in visa number availability for natives of China and India in the E1 and E2 employment based categories (the E3 category has been backlogged for several months). Applicants born in any other countries are not affected by these developments.

As of October 1, it will no longer be possible for natives of China and India to file an Adjustment of Status (I-485) application concurrently with an I-140 Immigrant Visa Petition claiming eligibility for E1 or E2 status. Neither will they be able to secure an appointment to obtain an Immigrant Visa at an American Consulate unless they have a “Priority Date” which precedes the cut-off date on the Visa Bulletin (see below).

Any applications currently in preparation by these individuals MUST be received by the Immigration Service on or before September 30 to take advantage of concurrent filing. The applications may remain pending for a long time but the applicants will continue to have access to Employment Authorization and Advance Parole for the duration. They may also continue to extend H-1 status beyond the normal six year limit.

The E1 category (referred to collectively as “Priority Workers”) includes Managers/Executives, Outstanding Professors or Researchers, and Aliens of Extraordinary Ability.

The E2 category includes applicants with an approved Labor Certification where the job requires at least a Masters Degree, or applicants who claim National Interest Waivers.

The Visa Bulletin does not state that NO visa numbers are available for these applicants, but that numbers are available ONLY for applicants who have already established a Priority Date which precedes the cut-off dates listed in the Bulletin.

The cut-off date for E1 China is January 1, 2000 and for E1 India is August 1, 2002.

The cut-off date for E2 China is May 1, 2000 and for E2 India is November 1, 1999.

It is STILL POSSIBLE to file I-140 Immigrant Visa Petitions claiming eligibility for any of these categories; doing so will establish their Priority Date. However, applicants cannot obtain Employment Authorization or Advance Parole travel authorization on the basis of an I-140 filing alone. If the I-140 is approved, the applicant can proceed with an I-485 OR Immigrant Visa interview only when their Priority Date is reached on a future Visa Bulletin. However, there is clearly the potential for a lengthy delay before that time comes.

Alternate Chargeability

Applicants are usually charged to the quota of their country of birth, regardless of current citizenship. However, there are a few exceptions. The most common is the ability to be charged to the country of birth of an accompanying spouse. For example, a principal applicant born in India whose accompanying spouse was born in the United Kingdom may use the quota of the United Kingdom, thereby avoiding the lengthy delay he or she would otherwise be faced with.

This subject matter can be quite confusing and therefore we welcome specific questions.

H-1B Numbers for FY 2006 used up as of August 10, 2005

Dear Clients and Friends,

H-1B Numbers for FY 2006 used up as of August 10, 2005

The Immigration Service has announced that there were sufficient H-1B petitions already on file as of August 10, 2005 to use up all of the approximately 58,000 numbers available for “regular” H-1B visas for the next fiscal year beginning on October 1, 2005 and continuing through September 30, 2006. Therefore, any petitions for H-1B “cap” cases (i.e. subject to the cap-see below for information about exempt petitioners) received after August 10, 2005 would be rejected and returned to the petitioner.

There may be insufficient numbers for all cases received ON August 10, 2005. Therefore the Immigration Service will apply a random selection process to identify cases which may be processed, and will return all others to the petitioner.

Unless the Immigration Service “finds” some unused numbers (which based on past experience is a possibility) or new legislation is passed by Congress to provide relief, no H-1B petitions that are subject to the “cap” can be filed before April 1, 2006-and the earliest start date for those petitions will be October 1, 2006.

In addition to the 58,000 numbers available for “regular” H-1B petitions, Congress passed the H-1B Visa Reform Act late last year creating an additional 20,000 H-1B visa numbers for applicants who earned at least a Masters Degree or higher in the U.S. Of these, approximately 10,000 remain available for the current fiscal year ending September 30, 2005 (therefore making an immediate start date possible for these applicants) and approximately 12,000 remain available for the next fiscal year beginning October 1, 2005.

It is still possible to obtain H-1B status for regular cases in the following situations:

  • Extensions of H-1B status for aliens currently employed in H-1B status by the petitioner
  • “New” employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition does require a number under the cap and can not be filed at this time unless the applicant has earned at least a Masters Degree or higher in the U.S.!].

Exempt Organizations

The following organizations are exempt from the “cap” and may continue to obtain H-1B status for new employees:

  • institutions of higher education
  • a nonprofit organization related to or affiliated with an institution of higher education
  • a nonprofit research organization or governmental research organization

(These exempt classes are often referred to informally as “educational H-1B” cases, though this label is somewhat misleading.)

Note carefully: this does not exempt all nonprofit organizations; only those affiliated with an institution of higher education

Alternatives to the H-1B

The inability to access the H-1B visa status will require a closer look at other visa alternatives. Briefly, these include:

  • TN visa status for citizens of Canada or Mexico
  • L-1 status for employees who have worked abroad for the same or affiliated employer for at least one year
  • O-1 visa status for aliens of extraordinary ability
  • J-1 status available to employers who have their own J-1 visa program in place (these are generally academic institutions)
  • J-1 status through third party sponsors where the goal of the employer is to train the visa applicant

Finally, some applicants who might have been considered for H-1B status may have the ability to obtain an Employment Authorization Document (EAD) independent of the prospective employer. There are many examples, the most common of which are the following:

  • An alien whose spouse is in the final stages of applying for a green card through his or her employer and who as a result is already an applicant for “Adjustment of Status.”
  • An alien who may have (or will consider) filing a “self petition” for a green card as an alien of Extraordinary Ability or on the basis of a National Interest waiver
  • An alien who has married or will marry a U.S. citizen and will be eligible to obtain an EAD on that basis.

Urge Congressional Action

If you believe that the availability of H-1B workers is vitally important to your organization, we urge you to make your views known to Congress immediately. Contact directly the office of your Congressman or Senator and call for action to increase the supply of H-1B visa numbers. Contact information may be found atwww.congress.org as well as at many other websites.

As always, please contact our office if you have any questions.