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Headlines: Ø 1. Impact of Priority Date Retrogressions Expected to Be Severe - Multi-year backlogs in the third employment-based green card category have hit, and the first and second preference employment-based categories for Chinese and Indian nationals have also retrogressed. Ø 2. USCIS Notifies I-90 Applicants of Process Change, Issues New Form - USCIS announced that it has made changes to the filing process for the I-90 Application to Replace a Permanent Resident Card, and has issued a new I-90 form. Ø 3. No Sanctions for Hiring Katrina Victims, DHS Says; FEMA Issues Guidance - The DHS announced that, for a limited period of time, it will not sanction employers for hiring victims of Hurricane Katrina who are otherwise eligible for employment, and FEMA has issued guidance on eligibility for cash assistance. Ø 4. New Diversity Visa Registration Began October 5 - Online-only registration for the 2007 Diversity Visa (DV) lottery runs from noon on October 5, 2005, through noon on December 4, 2005. Ø 5. Fee Increases Expected Soon - Fee increases will apply to many immigration applications or petitions filed on or after October 26, 2005. Ø 6. Backlog Reduction Centers Continue Work - The Department of Labor is working through the 345,000 labor certification applications received at the backlog reduction centers, including at least 100,000 pending cases where only partial data entry has been completed. Ø 7. DOL Releases Updated Compliance Assistance Tool - The Department of Labor has announced the availability of its updated Employment Law Guide. Ø Also in this issue: Recent Articles & News from other ABIL Members – Steve Clark speaks at Boston Bar Association; Steve Clark chairs conference at Center for Advanced Legal Studies; more news from ABIL around the USA.
Details... 1. Impact of Priority Date Retrogressions Expected to Be Severe As warned in last month's newsletter, multi-year backlogs in the third employment-based (EB) immigrant visa categories have hit, with most countries backlogged to March 1, 2001, and EB-3 applicants from China and India backlogged even further. The first and second employment-based preference categories for Chinese and Indian nationals have also retrogressed: the cut-off date for EB-1 (China) is January 1, 2000, and for EB-1 (India) is August 1, 2002. The cut-off date for EB-2 (China) is May 1, 2000, and for EB-2 (India) is November 1, 1999. Mexico and Philippines are expected to be backlogged by December. Because waits for employment-based green cards now could run into several years, the timing of green card applications has become especially important. A failure to begin the process early could create serious problems later. The ability to extend H-1B status is still possible, however, based on the date when the green card application process (either the labor certification or the I-140) is filed. This means that the retrogression does not affect one's ability to maintain nonimmigrant status. Also, H-1B portability is still permitted even during periods of retrogression. Green card applicants usually are charged to the numbers available for their country of birth, regardless of current citizenship. There are a few exceptions, however. 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 be counted against the numbers available for the United Kingdom, thereby avoiding the lengthy delay with which he or she otherwise would be faced. ABIL member Pete Larrabee has issued a FAQ on this topic, including an explanation of the employment-based categories, discussion of how the backlogs affect processing, and advice on specific situations. See http://www.larrabee.com/FAQs/GreenCardQuotaBacklog.html. Also, ABIL member Angelo Paparelli has posted a related commentary, "Immigration Blue Laws: Never on Sunday, Monday or Any Other Day for the Next Several Years." See http://www.nationofimmigrators.com/. See the October 2005 Visa Bulletin for the latest priority dates for filings this month: http://travel.state.gov/visa/frvi/bulletin/bulletin_2631.html. The November 2005 Visa Bulletin is also out at: http://travel.state.gov/visa/frvi/bulletin/bulletin_2712.html. 2. USCIS Notifies I-90 Applicants of Process Change, Issues New Form U.S. Citizenship and Immigration Services (USCIS) announced on September 8, 2005 that it has made changes to the filing process for the I-90 application to replace a permanent resident card (green card). USCIS made the changes "to correct previous USCIS errors on an expedited basis without charging applicants an additional filing fee." Because USCIS's current systems for permanent resident card replacement cannot accommodate these changes, an alternative process has been established for those affected by a USCIS error in production and delivery of cards, including those received through the immigrant visa process. All applicants filing an I-90 with application reason "b" ("my authorized card was never received") or "d" ("my card was issued with incorrect information because of a USCIS administrative error") under Part 2, Section 2 of the I-90 application should follow the detailed instructions available at http://uscis.gov/graphics/publicaffairs/newsrels/I-90_050908.pdf. Applicants who file an I-90 using reason "b" or "d" should not file their applications via the direct mail program or the e-filing system, but rather should follow the instructions on the USCIS Web page noted above, which provides a list of addresses to be used by applicants. Applicants with reasons other than "b" or "d," however, should continue to file their applications via the direct mail program or e-filing system. USCIS also noted that some applicants who filed an I-90 with reason "b" or "d" on or after May 31, 2005 may be entitled to a refund because of a USCIS error, See the Web page above for further information. Meanwhile, USCIS issued a new version of the I-90, dated 8/24/05. Previous versions are no longer accepted. The new form is available at http://uscis.gov/graphics/formsfee/forms/i-90.htm. 3. No Sanctions for Hiring Katrina Victims, DHS Says; FEMA Issues Guidance The Department of Homeland Security (DHS) announced on September 6, 2005 that for the next 45 days, it will not sanction employers for hiring victims of Hurricane Katrina who are otherwise eligible for employment, have been displaced or evacuated, and are unable to provide documentation that normally is required under section 274A of the Immigration and Nationality Act. Employers still need to complete the I-9 employment eligibility verification form "as much as possible," the DHS said, but should note that the documentation normally required is not available due to Hurricane Katrina. At the end of 45 days following the announcement, the DHS plans to review this policy and make further recommendations. The full text of the Hurricane Katrina notice is available at http://www.dhs.gov/dhspublic/display?content=4788. The Federal Emergency Management Agency (FEMA) stated that to be eligible for FEMA cash assistance, a person must be a U.S. citizen, noncitizen national, or qualified alien. A qualified alien includes anyone who has been granted permanent residence, refugee or asylee status, withholding of deportation, conditional entry, parole into the U.S. for at least one year, or who is a Cuban-Haitian Entrant or a battered spouse or child with a pending or approved spousal petition or petition for relief. Additional information is available at http://www.fema.gov/news/newsrelease.fema?id=12562. 4. New Diversity Visa Registration Began October 5 The Department of State announced that registration for the 2007 Diversity Visa (DV) lottery began at noon on October 5, 2005. Online registrations only will be accepted via submission of an Electronic Diversity Visa Entry Form (EDV Entry Form) at http://www.dvlottery.state.gov from noon on October 5, 2005 through noon on December 4, 2005. Paper and mail-in registrations will not be accepted, and multiple registrations for the same person will disqualify that applicant. Photos are required and must be submitted electronically. Persons submitting entries will receive a notice of receipt and a time/date stamp. There is no fee, and a signature is not required. To qualify, applicants must have either a high school education or equivalent, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience. The Department of Labor's O*NET will be used to determine qualifying work experience. Applicants will be selected at random by computer. Those selected will be notified by mail between May and July 2007, and will be provided further instructions. Persons not selected will not receive any notification. DV-2007 visas will be issued between October 1, 2006, and September 30, 2007. For DV-2007 instructions, a comprehensive list of qualifying and nonqualifying countries, and additional details on the requirements for DV applications, see http://travel.state.gov/visa/immigrants/types/types_1318.html and http://www.state.gov/r/pa/prs/ps/2005/53629.htm. 5. Fee Increases Expected Soon Immigration filing fee increases, adding an average of $10 to each application, will take effect for applications or petitions filed on or after October 26, 2005. The smallest increase is $5; the largest is $20. U.S. Citizenship and Immigration Services said the fee increases are being implemented due to inflation. The notice, which includes a table showing the current and new fees, was published in the Federal Register on September 26, 2005, and is available at http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/05-19226.pdf. Meanwhile, the House Judiciary Committee has approved a bill that, if it becomes law, would impose a $1,500 fee on foreign nationals seeking L-1 classification. Stay tuned. 6. Backlog Reduction Centers Continue Work The total number of old labor certification cases forwarded to the Department of Labor's backlog reduction centers is roughly 345,000. In addition, there are still cases waiting in the San Francisco and New York regional offices, which will be closed in early January 2006. Of the 345,000 received, there are at least 100,000 pending cases where only partial data entry has been completed; only full data entry triggers mailing of a "45-day letter." During the next two to three months, the backlog reduction centers plan to work to complete full data entry on these backlogged cases and issue 45-day letters. For more on 45-day letters, see article #5 in the September 1, 2005, issue of the ABIL Immigration Insider. The backlog reduction centers have been working on reduction in recruitment and traditional cases where recruitment was completed previously and no further recruitment was required. Although they are not yet ready to process cases that will require recruitment, in the coming months they will be preparing to work on these cases and to deal with all related issues, such as prevailing wage and job orders. 7. DOL Releases Updated Compliance Assistance Tool The Department of Labor has announced the availability of the updated Employment Law Guide, located at http://www.dol.gov/compliance/guide. The guide, which has been updated to reflect recent regulatory and statutory changes, summarizes basic requirements, employee rights, compliance assistance available, and penalties for noncompliance for the DOL's most widely applicable laws. The guide is geared toward employers needing information to develop wage, benefit, safety, health, and nondiscrimination policies for their businesses. A print version of the guide may be obtained at no charge by calling 1-866-4-USA-DOL. Flynn & Clark partner Steve Clark is a Founding Fellow of the Academy of Business Immigration Lawyers (ABIL). Recent Articles & News from ABIL Members · On October 13 Steve Clark gave a well-received talk on PERM at the Boston Bar Association. One listener described Steve’s mastery of the subject as “the gold standard in the profession." · 2. On October 28, Steve Clark will chair a full day conference on PERM and will also speak at two sessions at the conference. The conference is at the Center for Advanced Legal Studies at Suffolk University Law School and is entitled "A PERM Odyssey: Obtaining labor certifications." The Center is sponsoring this conference with the New England Chapter of AILA. · Angelo Paparelli has opened a new office in Manhattan. From its headquarters in Irvine, California, Paparelli & Partners LLP represents some of the world's most well-known businesses, including Microsoft Corporation. Angelo will split his time between Irvine and Manhattan. The firm has gained expertise in legislative advocacy, due diligence and immigration compliance in mergers, acquisitions and corporate restructuring, immigration public relations messaging, Sarbanes-Oxley-style audits of immigration-related business practices for publicly traded and private companies, representation in immigration-related enforcement actions against employers, management guidance in formulating immigration-related corporate policies, and collaboration with international tax attorneys, employment lawyers and criminal defense counsel in "white-collar" immigration matters. For more information, see http://www.entertheusa.com. Links Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: USCIS Service Center processing times and case status online: https://egov.immigration.gov/cris/jsps/index.jsp Department of Labor processing times and information on backlogs: http://www.ows.doleta.gov/foreign/times.asp Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html Who else should subscribe?Are there other persons in your organization who should receive free copies of the Flynn & Clark Immigration Update Newsletter? Just let us know at ddinardo@flynnclark.com and we will send the person(s) an invitation. In order to be sure that only people who want to be subscribers are receiving the newsletter, we distribute it via Topica, using an invitation and confirmation approach. How can I get more information on the topics in the newsletter?Contact your Flynn & Clark attorney. We are staying on top of developments in these areas. Steven A. Clark FLYNN & CLARK, P.C. provides a full range of inbound as well as outbound immigration legal services for United States and foreign companies under the leadership of Steven Clark, Past President of the American Immigration Lawyers’ Association (AILA) which has over 9000 members worldwide. The Immigration Update provides periodic alerts about noteworthy developments in immigration affecting the business community. It is provided as a service of the Firm regarding legal developments; it is not a substitute for legal counseling and may constitute advertising material in some jurisdictions. If you have questions about the information contained in the Immigration Update or would like to know more about our Immigration services and nationwide visa processing capabilities, please visit our website, www.flynnclark.com or contact ddinardo@flynnclark.com.
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