DOL Confirms Additional iCERT Glitch Discovered

DOL has confirmed Aila member reports of a new problem with the iCERT system that can lead to LCA denials. Specifically, when registering a company or when adding a company to your account list, if the company’s FEIN begins with zero (”0″), the system drops some digits and inserts errant digits. The erroneous FEIN then populates new LCAs. If the user doesn’t notice the incorrect FEIN, and submits an LCA, that LCA can be denied for FEIN no-match. DOL is aware of the problem and is working on a fix. Meanwhile, attorneys are advised to review iCERT LCA submissions closely, and to correct when necessary the FEIN before submission.

DOS on Employment-Based Visa Availability Before October 1, 2009

The State Department has advised AILA at due to the large number of approvals issued in the past few weeks, employment-based visa numbers are no longer available for this fiscal year that concludes on September 30, 2009. This affects all categories of employment based immigrant visas. Numbers will become available again on October 1, 2009, as stated in the October 2009 Visa Bulletin. USCIS will continue to accept I-485 applications in categories showing visa availability based on the September Visa Bulletin, USCIS will not able to approve pending I-485 applications unless a visa number was previously captured.  Where a USCIS officer adjudicated or pre-adjudicated a case and it was in the DOS “pending” queue and DOS has sent the electronic notification allocating a number to the Service Center, USCIS should issue the approval. For those consular processing because visa numbers for scheduled cases have already been allocated as part of the scheduling process, scheduled immigrant visa appointments at consulates for September will continue and immigrant visas may be issued.

USCIS Updates FY 2010 H-1B Count

September 18, 2009 H-1B Cap Count

As of September 18, 2009, approximately 46,000 H-1B cap-subject petitions have been received by USCIS and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.

CSC Update on Non-Minister Religious Worker I-485s and EB-5 Pilot Program I-485s

The California Service Center is in the process of identifying all pending Adjustment of Status Applications in the EB-5 category based on the pilot program, and all non-Minister Religious Worker I-485s. They will expedite these applications due to the sunset date on March 6, 2009.

If you have a pending AOS application in the EB-5 category that you would like to bring to the attention of the CSC, please contact your immigration lawyer as soon as possible.

If you have a pending AOS application for a non-minister Religious Worker that you would like to bring to the attention of the CSC, please contact your immigration lawyer immediately.

USCIS Update: USCIS Revises Direct Mail Program for the Application for Naturalization (Form N-400)

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) announced that it is revising the Direct Mail Program for the Application for Naturalization (Form N-400). The notice of this addition is effective on Jan. 22, 2009 . The notice advises the public to file non-military N-400s with the appropriate Lockbox facilities and provides a 30-day transition period after the effective date for USCIS service centers to forward N-400 applications received at their facilities to the appropriate Lockbox location.

Applicants should continue to file military N-400 cases with the Nebraska Service Center (NSC). In order to assist military spouses, NSC will also accept and process N-400s filed by spouses of military members.

Effective Jan. 22, 2009, applicants must submit Form N-400 and related supplements to one of two new USCIS Lockbox facilities for initial processing, using the following addresses:

If You Reside In: Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming, Territory of Guam, or Northern Mariana Islands, file your N-400 with:

USCIS Lockbox Facility
U.S. Citizenship and Immigration Services
P.O. Box 21251
Phoenix, AZ 85034

Courier and Express Mail Deliveries
USCIS, Attn: N-400
1820 E. Skyharbor Circle S. Floor 1
Phoenix, AZ 85034

If You Reside In: Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia, or U.S. Virgin Islands, file your N-400 with:

USCIS Lockbox Facility
U.S. Citizenship and Immigration Services
P.O. Box 299026
Lewisville, TX 75029

Courier and Express Mail Deliveries
USCIS, Attn: N-400
2501 S. State Hwy 121, Bldg. 4
Lewisville, TX 75067

The N-400 form instructions will be updated to reflect the new filing procedures.

Fact Sheet: E-Verify Strengthening the Employment Eligibility Document Review Process for the Nation’s Employers

* E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. U.S. Citizenship and Immigration Services (USCIS) administers the program.
* Free, safe, secure and simple to use, E-Verify is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. The program provides participating employers an automated Internet-based resource to verify the employment eligibility of newly hired employees. Participating employers run authorization checks on all newly hired employees, including U.S. citizens and non-U.S. citizens, against SSA and DHS databases (about 449 million, and 60 million records respectively). Through this process, E-Verify assists employers in maintaining a legal workforce and protects jobs for authorized U.S. workers.
* USCIS began testing a photo screening tool enhancement to E-Verify and formally launched it on Sept. 17, 2007. The tool allows a participating employer to check the photos on Employment Authorization Documents (EAD) or Permanent Resident Cards (green cards) against images stored in USCIS databases. The goal of the photo tool is to detect and deter identify fraud by helping employers determine whether the document presented is the same document issued by USCIS (e.g., that it is not a forgery involving photo-substitution).
* More than 100,000 employers are currently using the E-Verify program to verify that their new hires are authorized to work in the United States. For FY2009 to date, more than 2 million employment verification queries have been run. During FY2008, approximately 6.6 million employment verification queries were run (as compared to a total of 3.27 million in all of FY2007). The Department of Homeland Security’s FY2009 appropriation legislation, signed into law on Sept. 30, 2008, provided $100 million to continue, expand and improve E-Verify in FY2009.
* Employers can register for E-Verify on-line, (see the “Related Links” section on the upper-right hand side of this page for a link.) The site provides instructions for completing the Memorandum of Understanding (MOU) needed to officially register for the program. Once registered, employers use E-Verify by entering information captured on the Employment Eligibility Verification form (I-9).

* A recent study conducted by Westat, a social science research firm which monitors the effect of various changes made to the E-Verify program, found that between April and June 2008:

- Approximately 96.1 percent of all cases queried through E-Verify were instantly found to be employment authorized (this is a substantial improvement from 94.2 percent);

- About 99.6 percent of all work-authorized employees verified through E-Verify are verified without receiving a tentative nonconfirmation or having to take any type of corrective action;

- Erroneous tentative nonconfirmations (those that were work-authorized but who received a nonconfirmation) have improved from 0.5% to 0.4%. Ultimately, these mismatches are successfully resolved; and

- Of all queries received, final nonconfirmations (meaning not work-authorized) are 3.5 percent; down from 5.3 percent.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) first authorized the program. E-Verify evolved from the Basic Pilot/Employment Eligibility Verification Program, which originally developed in 1997 and was made available to employers as a Web-based program in 2004. The Basic Pilot Extension and Expansion Act of 2003 extended E-Verify until November 2008. Employers can obtain additional information about E-Verify – see the “Related Links” section on the upper-right hand side of this page.

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced that petitions and applications related to the Alien Entrepreneur (EB-5) immigrant classifications and Regional Center Proposals under the EB-5 Immigrant Investor Pilot Program must be filed at the California Service Center (CSC). A Federal Register notice announcing the change was published on Jan. 9, 2009.

Currently, EB-5 petitions and applications are filed at either the Texas Service Center (TSC) or the CSC, depending on where the alien’s commercial enterprise is located. Regional center proposals are currently submitted to the Chief of Service Center Operations at USCIS headquarters. This change in filing locations is necessary to improve the efficiency in the processing of EB-5 related filings.

USCIS has established a unit at the California Service Center comprised of specially-trained adjudicators dedicated to EB-5 adjudications. By consolidating adjudications at the center, USCIS believes that it will be able to reduce overall processing times and better monitor EB-5 related adjudications.

Filing changes are effective Jan. 26, 2009. For a 30-day period that began on Jan. 9 and ends Feb. 9, 2009, EB-5 related petitions and applications mailed to USCIS headquarters or the Texas Service Center will be forwarded to the California Service Center. After February 9, EB-5 petitions and applications received at an incorrect filing location will be rejected and returned with instructions to re-file at the correct address.

For direct mail, send to:

U.S. Citizenship and Immigration Services
California Service Center Attn: EB-5 Processing Unit
P.O. Box 10526
Laguna Niguel, CA 92607-0526

For non-U.S. Postal Service deliveries (e.g. private couriers), send to:

U.S. Citizenship and Immigration Services
California Service Center Attn: EB-5 Processing Unit
24000 Avila Road, 2nd Floor
Laguna Niguel, CA 92677

USCIS Delays Rule Changing List of Documents Acceptable to Verify Employment Eligibility
Reopens Public Comment Period for 30 days

WASHINGTON—U.S. Citizenship and Immigration Services USCIS announced today it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification” published in the Federal Register on Dec. 17, 2008. The rule streamlines the Employment Eligibility Verification Form I-9 process.

The delay will provide DHS with an opportunity for further consideration of the rule and also allows the public additional time to submit comments. A notice announcing the delay was transmitted today to the Federal Register. In addition, USCIS has reopened the public comment period for 30 days, until March 4, 2009.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The interim final rule will amend regulations governing the types of acceptable identity and employment authorization documents employees may present to their employers for completion of the Form I-9. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9.

The interim final rule and an informational copy of the revised Form I-9 will continue to be available for public comment at www.regulations.gov.

FY2009 Cap-Subject H-1B Update

USCIS Service Center Operations has provided the following information to AILA liaison regarding processing cases under the FY2009 H-1B cap:

1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The CSC and VSC completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on May 24, 2008.

2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as “protective filings” due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.

3. USCIS has determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. USCIS has begun to mail out rejections this week.

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced recently that it is publishing a Notice of Proposed Rulemaking (NPRM) to increase the maximum amount of time a Trade-NAFTA (TN) professional worker from Canada or Mexico can remain in the United States before seeking readmission or obtaining an extension of stay. The proposal will extend the maximum period of admission for TN workers from one year to three years, the same term that USCIS currently may grant to H-1B specialty occupation workers.

The proposed rule will further allow eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years, as opposed to the current maximum of one year. TN nonimmigrants are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. Current regulations require that TN workers seek readmission or apply for an extension of stay each year.

Canadian and Mexican citizens seeking temporary entry to the United States as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor’s degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

The NPRM, once implemented as a final rule, will ease administrative burdens and costs on TN nonimmigrants and will benefit U.S. employers by increasing the period of time beneficiaries are allowed to remain in the United States under a TN visa. The proposed changes would also apply to spouses and unmarried, minor children of TN nonimmigrants in their corresponding nonimmigrant classifications as NAFTA dependents.

This improvement to the TN nonimmigrant category was initially announced by Homeland Security Secretary Michael Chertoff and Department of Commerce Secretary Carlos Gutierrez on Aug. 10, 2007. This is part of the Administration’s 26 initiatives to address current immigration challenges, including making existing temporary worker programs like the TN program more effective, using the tools and authorities available under existing law.

The NPRM is available under the related links section of this page. It will soon publish in the Federal Register. Once published, persons wishing to comment on the TN professional worker NPRM may access the Federal e-Rulemaking Portal and follow the instructions for submitting comments. USCIS will accept public comments until 30 days from the date the NPRM is published in the Federal Register.