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Immigration News

Updated April 22, 2008

USCIS provides updated average processing times for U.S. naturalization applications at local offices.  Click here to download the latest USCIS processing times.

Updated April 20, 2008

The Department of Homeland Security announced that Secretary Chertoff signed a Visa Waiver Program Memoranda of Understanding (MOU) with the Korean Minister of Foreign Affairs and Trade Yu Myung-hwan.  Please click here to read the press release. 

Immigration and Customs Enforcement (ICE) issued a FAQ regarding the increase in SEVIS fees.  Please click here to read the press release. 

USCIS conducts lottery for H-1B visa applications
The press release from the U.S. Citizenship and Immigration Services states as follows: 

U.S. Citizenship and Immigration Services (USCIS) today conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number.

USCIS conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

The approximately 163,000 petitions received on the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers.

USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers.

Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks.

For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begins today (April 14), the day of the random selection process.

USCIS has “wait-listed” some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.

USCIS Releases New Version of Medical Examination Form
USCIS posted a new version of Form I-693, Medical Examination of Aliens Seeking Adjustment of Status, to its website. Previous versions of the form will be accepted until May 1, 2008.

Customs and Border Protection News. CBP Announces Global Entry Pilot Program
On April 11, 2008, Customs and Border Patrol announced that the Global Entry pilot program (also known as the International Registered Traveler program), is scheduled to launch in summer 2008. The program is designed to expedite the screening of low-risk, frequent international "trusted" travelers entering the United States.  Please click here to download the FAQ. 

Updated April 13, 2008

USCIS announces the preliminary number H-1B petitions received during the filing period ending on April 7, 2008.  Click here to download the USCIS press release.

USCIS has released a new version of Form I-765, Application for Employment Authorization.  The new version will be required starting May 9, 2008.  Please visit www.uscis.gov to download the latest version of the form.

USCIS has released Questions and Answers regarding the Extension of Optional Practical Training for Qualified Students.  Click here to download the Q&A.

USCIS projects shorter naturalization application processing times.  Please click here to download the USCIS press release that shows a 13-15 month processing time, 3 months better than its last projection 6 months ago. 

USCIS announces plan to eliminate FBI background check backlog.  Please click here to download the USCIS press release concerning its plan to eliminate the FBI name check backlog.

DHS Announces Release of No-Match Supplemental Proposed Rule. A March 21, 2008, Department of Homeland Security press release announced the release of a no-match supplemental proposed rule, following the August 2007 final rule, which was temporarily enjoined by a California District Court.  Click here to download the DHS press release.

USCIS Confirms that Naturalization Interviews Are Being Scheduled for Weekends and After Hours. USCIS posted a notice to its website advising that naturalization interviews are being scheduled for weekends and after hours to address the increase in naturalization applications received in FY 2007. 

H-1B visa cap reached.  U.S. Citizenship and Immigration Services (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 under the "advanced degree" exemption.  Click here to read press release.

Updated April 6, 2008

17-Month Extension of Optional Practical Training for Certain Highly Skilled Foreign Students

The U.S. Department of Homeland Security released today an interim final rule extending the period of Optional Practical Training (OPT) from 12 to 29 months for 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 will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy,” said Homeland Security Secretary Michael Chertoff. “By extending the training period by an additional 17 months to students who are employed by businesses enrolled in E-Verify, we are further ensuring a legal workforce in the U.S. and aiding good corporate citizens.”

Another aspect of the rule responds to the situation in which an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this problem by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. The rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation.

To be eligible for an OPT extension, an F-1 non-immigrant 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.

The interim final rule and additional information on the H-1B program is available at www.dhs.gov.

Updated March 22, 2008

USCIS Fact Sheet: Changes to the FY2009 H-1B Program

USCIS issued a Fact Sheet on March 19, 2008 regarding the interim final rule that prohibits employers from filing more than one petition for an H-1B visa for a single employee in a fiscal year. The interim final rule will become effective upon publication in the Federal Register.

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) issued an interim final rule today that prohibits employers from filing more than one petition for an H-1B visa for a single employee in a fiscal year. The change is intended to promote a fair and systematic process for H-1B petitioners. This rule ensures that companies filing H-1B petitions that are subject to numerical limits will have an equal chance to receive consideration for an H-1B worker.

The interim final rule will become effective upon publication in the Federal Register and may be accessed via USCIS’ website at www.uscis.gov.

U.S. businesses utilize the H-1B program to employ foreign workers in fields that require theoretical and practical expertise in specialized occupations requiring a bachelor’s degree or higher (or its equivalent), such as scientists, engineers, or computer programmers. By law, USCIS cannot grant more than 65,000 new H-1B visas per fiscal year, subject to certain limited exceptions. The first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees are exempt from the H-1B numerical limitation of 65,000. USCIS administers a separate “20,000 cap” for such exempt petitions.

USCIS will use a random selection process for all the master’s degree or higher cap-exempt cases received on the first five business days available for filing H-1B petitions for a given fiscal year, if necessary. In the event that the U.S. master’s exemption limit is reached on the first five business days, USCIS will first conduct the random selection process for such petitions before it begins random selection for petitions to be counted toward the 65,000 cap. Petitions eligible for the U.S. master’s degree or higher exemption that are not selected to receive an H-1B visa number from the 20,000 cap will be considered with the other H-1B petitions in the random selection for the 65,000 cap filed on the first five business day.

USCIS also notes that petitions for new H-1B employment are exempt from the cap if the aliens will work at the defined institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H-1B categories regardless of H-1B visa number availability.

USCIS will use the following process for handling H-1B petitions subject to the FY 2009 cap:

• April 1, 2008 is the first day petitions may be received for an October 1, 2008 start date. When it is determined that the numerical limitations have been reached, USCIS employs a random selection process to choose among the petitions received on the “final receipt date.” If the “final receipt date” falls within any one of the first five business days, the random selection will be run using all the cap-subject petitions received on those five days.

• USCIS will reject and return the filing fee(s) for all cap-subject H-1B petitions that are not selected in the process described above. The new rule clarifies that this provision only applies to petitions that indicate they are cap-subject. If a petitioner claims to be exempt from the cap and is later found to be subject to the cap, USCIS will not refund or return fees and that petition will be denied if no cap numbers are available.

• Petitions for the FY 2009 cap received before April 1, 2008 will be rejected. A petition is considered received when USCIS takes possession of and stamps the petition as received, not by the date the petition is postmarked.

In order to fully utilize its data entry and initial processing capacity, USCIS may choose to distribute filings received at one service center to other service centers for data entry. In the event that USCIS exercises this option, petitioners may receive receipt notices or other correspondence from a service center other than the one to which their H-1B petition was mailed.

Cap-subject petitions requesting premium processing that are received on the “final receipt date,” or during the initial five business day period mentioned above, cannot be processed until after the random selection has been completed. The premium processing 15-day adjudication period (processing deadline) will not begin until such time as USCIS has completed the random selection process.

The number of master’s exemption cases received cannot be determined until all the petitions have been sorted and counted. The same holds true for the master’s exemption premium processing cases. In accordance with established guidelines, USCIS will refund premium processing fees for any filings for which it cannot meet processing deadlines. Even if USCIS issues a refund of the premium processing fee, it will continue to provide premium processing for these filings until completion.

Petitions filed on behalf of current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, this rule does not affect USCIS processing of petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;

• Change the terms of employment for current H-1B workers;

• Allow current H-1B workers to change from one cap-subject position to a different capsubject position with a different employer; or

• Allow current H-1B workers to work concurrently in a second H-1B position.

March 21, 2008

Naturalization Interviews to be Conducted on Saturdays, Sundays and After Normal Business Hours on Weekdays

In Fiscal Year 2007, USCIS received a significant increase in naturalization applications (Form N-400). To address the increase, USCIS is expanding work hours and adding staff to complete these filings within our processing time goals.  If you have received a notice from USCIS that your naturalization interview has been scheduled on a Saturday, Sunday, or after traditional business hours, the notice is correct and you should appear at the scheduled time.

USCIS Announces Interim Rule on H-1B Visas
Rule Modifies Selection Process and Prohibits Multiple Filings

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal Register today that prohibits employers from filing multiple H-1B petitions for the same employee.  These changes will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker. To ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions. 

This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need.   The interim final rule becomes effective upon publication in the Federal Register.

Last August, President Bush announced that the Administration would be undertaking a series of immigration and border security reforms.  The changes to the H-1B filing process under this rule are an important part of that initiative.

On April 1, 2008, employers may file petitions requesting H-1B workers for fiscal year 2009 employment starting on October 1, 2008.   For fiscal year 2009, Congress has set a limit of 65,000 for most H-1B workers.  Additionally, the first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap.  Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap.  Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap.

This rule also stipulates that if USCIS determines the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during this time period.  If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit.  Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit. 

The rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits.  Those filing fees will not be returned. 

Updated March 11, 2008

Updated March 8, 2008

Biometric Changes For Re-entry Permits and Refugee Travel Documents

Updated February 26, 2008

NOTICE FOR ILLINOIS EMPLOYERS ABOUT E-VERIFY

What is the status of E-Verify in Illinois?

Earlier this year, the State of Illinois passed a new law—Section 12(a) of the Illinois Right to Privacy in the Workplace Act—that would effectively prohibit employers in the state from enrolling in the Department of Homeland Security’s E-Verify program. In September of 2007, DHS sued Illinois and asked a court to declare the new law illegal.

The law was scheduled to take effect on January 1, 2008, but the state has agreed to not enforce this law until DHS’ lawsuit is over. What does all this mean?

If your business already has enrolled in E-Verify, you may continue to use E-Verify after January 1, 2008 to confirm that your newly-hired employees are authorized to work in the United States. If your business has not yet signed up for E-Verify, you may enroll in the program before or after January 1, 2008 by going to www.dhs.gov/E-Verify and following the link for employer registration. Illinois has agreed that it will not penalize employers simply for participating in the program, at least until the lawsuit is finished.

Are there any state requirements I have to follow before enrolling in or using E-Verify?

Possibly. For example, Illinois did pass other new laws that are not a subject of the DHS lawsuit. Because Illinois only agreed to not enforce Section 12(a), you are encouraged to consult with a lawyer to determine whether any of these other provisions may be applicable to your business and to understand your rights and responsibilities under state law. DHS cannot give legal advice to individual employers.

What should I do if the state says I violated Section 12(a)?

If Illinois state officials attempt to enforce Section 12(a) of the Right to Privacy in the Workplace Act against your business, please contact DHS immediately at 1-888-464-4218. This would include any attempt by the state to: (a) prevent your business from enrolling in E-Verify; (b) requiring your business to stop using E-Verify; or (c) bringing or threatening to bring any legal action (including fines) against your business simply for participating in E-Verify. You may also want to contact a lawyer.

What will happen next?

The state legislature is now considering possible changes to the Illinois law. At this time, DHS cannot predict with certainty whether Illinois will, in fact, change its law, what those changes may be, or when the changes may occur. DHS intends to post future developments regarding the Illinois law on the E-Verify website, www.dhs.gov/E-Verify, so employers should check that site on a regular basis for any updates. We remain hopeful that the state will act to preserve the ability of Illinois employers to participate in E-Verify without having to continue with our lawsuit. In the meantime, Illinois mployers are able and encouraged to take advantage of the E-Verify program.

USCIS Reaches H-2B Cap For Second Half of Fiscal Year 2008

USCIS announced on January 3, 2008 that the H-2B Cap for the second half of FY2008 has been reached.

USCIS Field Office Adopts Teletech Appointment System for Filing Waiver of Inadmissibility Applications

As of December 17, 2007, immigrant visa applicants seeking to file an application for waiver of inadmissibility (Form I-601) with the USCIS field office in Ciudad Juarez can now use the Teletech Call Center to make an appointment.

Evidence to Enter the U.S. updated

Effective January 31, 2008, U.S., Canadian and Bermudian citizens entering the United States at land or sea ports-of-entry must establish their identity and citizenship to the satisfaction of a U.S. Customs and Border Protection (CBP) Officer. Under current CBP procedures, such individuals may provide any proof of identity and citizenship. While most individuals provide documentary evidence of citizenship, such as a passport or birth certificate, individuals may, depending on the circumstances, be admitted on an oral declaration. Accordingly, CBP is amending its field guidance procedures to instruct CBP officers that citizenship ordinarily may not be established using only an oral declaration.
 

Border Security and Immigration Enforcement
Release Date: November 6, 2007

The Department of Homeland Security (DHS) has put out a fact sheet about border security and Immigration enforcement.

Securing the Border

• DHS has completed more than 76 miles of pedestrian fence for a total of more than 150 miles of pedestrian fence and 115 miles of vehicle fence on the Southwest border.

• DHS plans to build an additional 225 miles of pedestrian fence and 200 miles of vehicle fence. We expect to have about 670 miles of total pedestrian fence and vehicle fence by the end of 2008.

• The Border Patrol now has roughly 15,000 agents and by the end of next year we will have more than 18,300 agents. This doubles the size of the Border Patrol under President Bush’s leadership.

• The National Guard continues to support the Border Patrol under Operation Jump Start. This partnership has been extremely productive as we work to the build the fence and train Border Patrol agents.

• The National Guard has assisted with the apprehension of nearly 124,000 illegal aliens and the seizure of more than 900 vehicles, 250,000 pounds of marijuana, nearly 5,000 pounds of cocaine, and more than $68,000 in currency since the start of Operation Jump Start.

• DHS saw a more than 20 percent reduction in apprehensions of illegal aliens at the Southern border in Fiscal Year 2007. This is an indication that there are fewer attempts to cross the border illegally.

Interior Enforcement

• In Fiscal Year 2007, U.S Immigration and Customs Enforcement (ICE) arrested 3,563 gang members and their associates. This includes 1,489 criminal arrests.

• Under Operation Community Shield ICE has arrested more than 7,655 members and associates of approximately 700 different gangs. Of those apprehended 2,444 have been charged criminally and 5,211 have been charged with immigration violations and processed for removal.

• Over a three month period this summer ICE arrested more than 1,300 violent street gang members and associates in 23 cities across 19 states.

• ICE has expanded its Criminal Alien Program to identify incarcerated criminal aliens. In Fiscal Year 2007, ICE identified for removal 164,296 criminals who were incarcerated in federal, state and local facilities.

• ICE has increased its fugitive operations teams from 15 in 2005 to 75 today. As a result, the fugitive alien population has plummeted by more than 35,000.

• ICE continues to increase worksite enforcement operations. In Fiscal Year 2007, ICE made 863 criminal arrests and 4,077 administrative arrests for a total of 4,940 arrests.

• In Fiscal Year 2007, DHS obtained more than $30 million in criminal fines, restitutions and civil judgments as a result of worksite enforcement.

No-Match Letters

• DHS issued a regulation earlier this year which outlines specific steps an employer should take if they receive a “no-match” letter from the SSA informing them they have an employee whose name and Social Security Number do not match the government records.

• The regulation sets forth clear guidance for businesses to comply with “no-match” notices and provides a safe harbor for employers who follow the guidance and perform due diligence so they are not found in violation of their legal obligations.

• The implementation of this regulation has been delayed to lawsuits filed by the ACLU and U.S. Chamber of Commerce preventing DHS from issuing “no-match” letters.

To view the fact sheet, please click here.

To learn more about border security and interior enforcement, please contact the LL.M. Law Group.

Immigration and Customs Enforcement publishes a National Detainee Handbook outlining detainee’s rights and responsibilities.  Click here for a copy.

U.S./Australian Work and Holiday visa update.  

In September 2007, the government of Australia announced a new initiative called the Work and Holiday Visa.  What follows are some common questions asked about this program:

What is the purpose of the Work and Holiday visa?

The Work and Holiday visa program provides opportunities for young people to engage in social and cultural exchange and promotes mutual understanding between Australia and the United States. The reciprocal nature of the arrangement allows young Australians and Americans to experience each other’s countries through work and travel.

What are the eligibility requirements for the visa?

US citizens wishing to go to Australia must:
• be between the ages of 18 to 30
• be outside of Australia when they apply for and are granted the visa
• show evidence that they are enrolled in a post secondary course of study or hold post secondary qualifications
• have a return ticket or sufficient funds for a return or onward fare as well as sufficient funds for the first part of their stay, and
• meet health and character requirements.

Australian citizens wishing to travel to the USA must:
• qualify for a J-1 visa.  J-1 visa categories meeting the reciprocity requirements of the Australian Work and Holiday visa include: Intern, Trainee, Summer Work/Travel, and Camp Counselor.

What is the duration of the visa and can it be renewed?

The Work and Holiday visa allows a stay of up to 12 months in Australia. US citizens can have only one Work and Holiday visa. However, they can apply for most other visas without having to leave the other country.

What is the definition of “student” under the arrangement?

The definition of “student” is a person who is currently studying or has deferred study for the period of the exchange, or a person who has graduated from a post-secondary institution within the previous 12 months. Australia will include all graduates of post secondary courses.

What opportunities are there for young people who are not post secondary students or do not have a post secondary qualification?

Young US citizens may be eligible under the Youth from the US Program, a four month work program.

Young Australian citizens may be eligible for the Camp Counselor or Trainee J-1 Exchange Programs.

Is there a visa application fee?

The application fee for the Australian Work and Holiday visa is AUD180.

When will the visa arrangement commence?

The Work and Holiday visa arrangement to Australia from the USA will commence on October 31, 2007.

Where can I find further information on the program?

US citizens can find further information about traveling to Australia at the Department of Immigration and Citizenship’s website. See: http://www.immi.gov.au/visitors/workingholiday/visa-options.htm

Australians citizens should contact a J visa sponsor. A list of J visa sponsors can be found at the U.S. Department of State’s Bureau of Educational and Cultural Affairs’ website. See: http://www.exchanges.state.gov/

Please contact the LL.M. Law Group to assist you with the preparation and submission of travel documentation.

Information on 2009 Diversity Visa Lottery Program Registration
 

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The LL.M. Law Group practices immigration law, which is federal in nature, and does not claim expertise in the laws of states or countries other than where our attorneys are licensed. Certification as an Immigration Specialist is not currently available in Illinois. The LL.M. Law Group retains clients only after following specifically outlined immigration consultation procedures. The information contained on this site is intended to educate members of the public generally and is not intended to provide solutions to individual problems.  Readers are cautioned not to attempt to solve individual immigration problems on the basis of information contained herein and are strongly advised to contact an immigration lawyer.

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