June - July 2009

Headlines:

1. Outlook Grim for India, China Employment-Based Visa Categories - The July cut-off date for the India and China EB-2 categories is January 1, 2000; both could become unavailable in August or September and remain unavailable indefinitely.

2. Current I-9 Form Validity Extended Beyond June 30 - The I-9 form currently in use will continue to be valid beyond June 30, 2009.

3. H-1B Processing Time Will Increase July 1 - The ability to file an H-1B extension or change of employer petition for an H-1B employee on a same-day, or even same-week, basis will end on July 1.

4. USCIS Revises Filing Instructions and Direct Mail Program for Application to Replace Green Card - The revised filing instructions require applicants to submit supporting documentation with their applications.

5. New Border Document Requirements in Effect June 1 - New document requirements went into effect on June 1, 2009, for entry into the U.S. at land or sea ports

6. CBP Reminds Visa Waiver Travelers of New Emergency/Temporary Passport Requirements Effective July 1 - Effective July 1, 2009, all VWP emergency or temporary passports must be electronic.

7. USCIS Provides Guidance for EB-5 - Guidance on counting jobs should ease concerns of potential investors.

8. USCIS Resumes Premium Processing for Certain I-140s - Effective June 29, 2009, USCIS has resumed Premium Processing Service for certain I-140 Immigrant Petitions for Alien Worker.

9. President, Members of Congress Discuss Immigration Reform - Department of Homeland Security Secretary Janet Napolitano will lead a group that will work with key members of the House and the Senate on immigration issues.

10. ABIL Global: EU Adopts Blue Card for Highly Skilled Foreign Workers - The Council of the European Union has created a fast-track procedure for third-country citizens in highly qualified employment.

Ø Also in this issue:

Publications and Items of Interest

1. Outlook Grim for India, China Employment-Based Visa Categories

The July cut-off date for the India and China EB-2 categories is January 1, 2000. The Department of State reports that these categories could become unavailable in August or September and remain unavailable indefinitely. The Department said there is a backlog of at least 25,000 India EB-2 cases awaiting visa numbers. Charles Oppenheim of the Department of State's Visa Office reportedly stated that without legislative relief, the waiting time for Indian EB-2 applicants may be measured in years, even decades.

Meanwhile, the EB-1 category for India and China is not likely to stay current, although the EB-1 category worldwide is expected to remain current. EB-3 visa numbers worldwide and for India, China, and Mexico are expected to remain unavailable for the remainder of this fiscal year at least. The EB-3 category for India could remain unavailable indefinitely.

The third preference and "other workers" employment categories are unavailable in July.

The Visa Bulletin for July 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4512.html.

2. Current I-9 Form Validity Extended Beyond June 30

USCIS has requested that the Office of Management and Budget approve the continued use of the current I-9. While this request is pending, the form will not expire.

USCIS will update the I-9 when the extension is approved. Employers will be able to use either the I-9 with the new revision date or the I-9 with the 2/2/09 revision date at the bottom of the form.

The announcement is available at http://www.uscis.gov/files/article/update_employ_eligible_i9.pdf.

3. H-1B Processing Time Will Increase July 1

The ability to file an H-1B extension or change of employer petition for an H-1B employee on a same-day, or even same-week, basis will end on July 1.

In the era of iCert, advance planning is a must. Employers should monitor the expiration dates of H-1B employees and allow sufficient time (4-6 months) for the preparation and filing of H-1B extensions and amendments. This delay in filing H-1B petitions will also affect the usefulness of H-1B portability, because an individual in H-1B status will only be authorized to work for the new employer upon the filing of the new petition, and a certified LCA is required to make that filing. Under the new system, LCA delays will likely add at least a week to 10 days to that process. Unfortunately, employees who fall victim to the economy will also feel the impact of the delayed LCA certification timing because it will delay their ability to file a new H-1B petition once they have obtained new employment.

If you have further questions on how iCert affects your workforce, contact your Alliance of Business Immigration Lawyers attorney for more information.

4. U.S. Citizenship and Immigration Services (USCIS) has changed the filing location and filing instructions for the Application to Replace Permanent Resident Card (Form I-90).

The revised filing instructions require applicants to submit supporting documentation with their applications. Before this change, applicants were instructed to bring their supporting documentation to their biometrics appointments. The notice also revises the Direct Mail address for the I-90. Applicants must now file their I-90s and supporting documentation with the USCIS Lockbox facility in Phoenix, Arizona.

This change in filing location affects all I-90 applicants filing a paper form, including those applicants filing the I-90 because their previously issued card was never received or because their existing card has incorrect data due to a USCIS error. This notice does not affect applicants filing an I-90 electronically or whose place of residence is outside the U.S.

As noted above, applicants now must submit their I-90s and supporting documentation to the USCIS Lockbox facility in Phoenix for initial processing, using the following addresses:

USCIS
P.O. Box 21262262
Phoenix, AZ 85036

USCIS
Attn: I-90900
1820 Skyharbor Circle S Floor 1
Phoenix, AZ 85034034

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=21079cb6ab8e0210VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The updated I-90 instructions are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b3f7ab0a43b5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD and http://www.uscis.gov/files/form/i-90instr.pdf. The form is available at http://www.uscis.gov/files/form/i-90.pdf. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1e229cb6ab8e0210VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The Federal Register notice is available at http://edocket.access.gpo.gov/2009/E9-9620.htm.

5. New Border Document Requirements in Effect June 1

U.S. Customs and Border Protection (CBP) issued a reminder to U.S. and Canadian citizens that new document requirements took effect on June 1, 2009, for entry into the U.S. at land or sea ports under the Western Hemisphere Travel Initiative (WHTI). CBP said it is committed to working with travelers to ensure that they have access to, and can obtain, appropriate travel documents. Those who lack WHTI-compliant documents but are otherwise admissible "will not be denied entry into the United States on June 1, and are encouraged to continue with their travel plans and to obtain facilitative and secure WHTI travel documents as soon as possible," CBP said.

WHTI-compliant documents include:

· U.S. or Canadian passports

· Trusted Traveler Cards (NEXUS, SENTRI, or FAST/EXPRES);

· U.S. Passport Cards

· State or province-issued Enhanced Driver's Licenses (when and where available)

Children under age 16 arriving by land or sea from Canada, Mexico, or the Caribbean need only present proof of citizenship, such as an original copy of a birth certificate, a consular report of birth abroad, a naturalization.