The Centers for Disease Control (CDC) instructs "panel physicians" designated in other countries for conducting medical examinations of immigrants to the U.S. in coordination with consular immigrant visa processing. In late 2007, CDC announced two changes for these medical exams. First, CDC Schanged the vaccination requirements for all applicants examined abroad by panel physicians.  Second, CDC has concluded that the 1991 system currently in effect misses applicants with smear-negative but culture-positive tuberculosis, as well as tuberculosis in applicants <15 years of age, and fails to provide clear standards for treatment of applicants with TB. For details, see the CDC’s 2007 Technical Instructions for Vaccinations.  Visit CDC at www.cdc.gov.

CDC does not appear to have made any changes to the instructions for Civil Surgeons who conduct medical examinations of applications for adjustment of status within the U.S., as reflected at http://www.cdc.gov/ncidod/dq/civil.htm

Source: AILA InfoNet Doc. No. 08022763 (posted Feb. 28, 2008)

USCIS is aware of approximately 47,000 applications for permanent residence (I-485) cases that are otherwise approvable but have an FBI name check pending.  A portion of these cases are both outside normal processing times and have an FBI name check that has been pending for more than 180 days.  These cases will be subject to processing under the new policy.  USCIS anticipates the majority of the cases that can now be adjudicated will be processed by mid-March 2008.  See Questions & Answers to see what applications qualify, what changes will be made, how long the process will take, etc.

Related USCIS Fact Sheet: Immigration Security Checks—How and Why the Process Works

·         Helpful Hints for Filing a FY 2009 H-1B Cap Case: Quick Tips

·          What are the main errors in an H-1B petition that can cause USCIS to have to reject or deny the petition?

·          Frequently Asked Questions on Completing and Submitting a FY 2009 H-1B Cap Case
H1B Filing Worksheet

On February 26, 2008, the Department of Labor published a Notice in the Federal Register announcing the 2008 Adverse Effect Wage Rates (AEWRs), allowable meal charges, and maximum travel subsistence expenses. For complete notice click here.

On February 1, 2008, the ETA Office of Foreign Labor Certification (OFLC) released its official FY 2007 public disclosure data covering cases processed under the Permanent Labor Certification Program (PERM). For complete data click here.  (Posted February 26, 2008)

Effective March 27, 2008 civil fines against employers who violate immigration laws will increase to $5,000.  Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing unauthorized aliens or for other violations, including failure to comply with the requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud. For each of these violations, the employer has the right to a hearing before an administrative law judge in the Executive Office for Immigration Review.

Under the new rule and applicable law, civil penalties for violations of the Immigration and Nationality Act are adjusted for inflation. Because these penalties were last adjusted in 1999, the average adjustment is approximately 25 percent. Under the specific rounding mechanism of the law, the minimum penalty for knowing employment of an unauthorized alien increases by $100, from $275 to $375. Some of the higher civil penalties are increased by $1,000; for example, the maximum penalty for a first violation increases from $2,200 to $3,200. The biggest increase under the rounding mechanism raises the maximum civil penalty for multiple violations from the current $11,000 to $16,000. These penalties are assessed on a per-alien basis; thus, if an employer knowingly employed, or continued to employ, five unauthorized aliens, that could result in five fines.  Source Immediate Press Release 02.22.08

The Migration Policy Institute states that USCIS will take approximately 3 years to clear the naturalization application backlog.  As of October 2007, USCIS had almost 1 million naturalization applications pending approval. In response to the past summer’s increase in naturalization applications, “USCIS expanded work hours for its employees, detailed 84 staff members to its application processing centers, and hired additional contract staff. The agency also plans to hire 1,800 additional employees, including retired USCIS workers, to help cope with the increased workload. USCIS Director Emilio Gonzalez has stated that he hopes these efforts will reduce processing times to presurge levels by April 2010.”  Source Migration Policy Institute.

USCIS Update released 02/15/2008: The biometrics collection for the Form I-485 and a concurrent Form I-765 is being consolidated in order to improve customer service and make the most of agency resources. Previously, customers received a biometrics appointment from the ASC for the I-485, but were required to submit any necessary biometrics for an I-765 directly to the service center with jurisdiction over their case.

In the matter of Mocanu, et al. v. Mueller, et al. (E.D. PA 2/8/08), the U.S. District Court for the Eastern District of Pennsylvania specifically concluded that

“USCIS’ use of the FBI name check program has never been authorized by statute or regulation, and its continued application to Plaintiffs is improper because of the unreasonable delays it has caused in the adjudication of Plaintiffs’ applications for naturalization. The Court will give USCIS an opportunity to promptly initiate notice and comment procedures leading to revised regulations.” (See Memo re cross MSJ.wpd pg. 2).

“Ruling in favor of Plaintiffs, but only setting deadlines for USCIS action on their naturalization applications, would be similar to dealing only with the risks posed by the tip of an iceberg, but ignoring the submerged dangers – here, the unreasonable delays that have occurred. These delays are caused by USCIS relying on the inadequately authorized FBI name check program, without any transparency or explanation to Plaintiffs of why their applications have been pending for some 30 to 47 months. Another apt metaphor is the screaming two-year-old child who can be quickly appeased by giving in to demands, but doing so frequently only causes more serious, long-term problems as the child grows older. The Court has determined that it is necessary and appropriate to require USCIS to address the delay by revising its regulations, which is accomplished by initiating the notice and comment rule-making procedure.” (See Memo re cross MSJ.wpd pg. 30-31).

The US District Court for the Eastern District of Pennsylvania also determined that it is necessary to require USCIS to revise its regulations to address these delays.

This means that in the upcoming months we will be seeing significant changes in processing and hopefully immediate adjudications and approvals of cases that have been placed on the backburner due these FBI Name Checks.  We will provide you with up-to-date information as it becomes available. But for now this is a certainly a victory!

Source Mocanu, et al. v. Mueller, et al., MEMORANDUM RE: CROSS MOTIONS FOR SUMMARY JUDGMENT.

1. Should Premium Processing be used for cap-subject filings? USCIS expects that the cap-subject H-1B receipt volume will be similar to last year. While Premium Processing is currently available, it may need to be suspended (as it was last year) for some period of time. Applicants should be aware that the 15 days may not be available.

2. Can a petitioner file duplicate H-1B filings to increase chances of obtaining a cap number?USCIS is currently drafting a regulation to address this question.  Please note that it is AILA's understanding that a petition filed under both the regular and the master's cap would not be considered a duplicate, but we will need to wait for the regulation to confirm.

3. What will happen to cap cases filed in the wrong Service Center? Applications should be filed based on the jurisdiction of the worksite. Applications that are filed at a wrong service center will be rejected and will not be counted towards this year’s H1B visa quota.

4. What about e-filing? E-filing will not be available for I-129 H petitions, including those which are cap-exempt.

5. Please clarify what petitions are to be filed at the California Service Center (CSC)? On February 1, 2008, the USCIS published a USCIS Update designating the CSC as the place to file petitions by institutions of higher education and organizations and affiliated entities, and non-profit and governmental research institutions. See http://www.uscis.gov/files/pressrelease/H-1B_Filing_30jan08.pdf

Source: AILA InfoNet Doc. No. 08021230 (posted Feb. 12, 2008)

Employment Based Visa Bulletin

Family Based Visa Bulletin

See full visa bulletin.

Employment Eligibility Verification Program Growing by 1,000 Employers Each Week

U.S. Citizenship and Immigration Services (USCIS) announced today that more than 52,000 employers have voluntarily signed up to participate in E-Verify, the nation’s employment authorization status verification program. The program has been growing by approximately 1,000 new employers each week since last October.

E-Verify is a free, easy to use Web-based system that allows participating employers to electronically verify the employment eligibility of newly-hired employees. E-Verify evolved from the Basic Pilot/Employment Eligibility Verification Program which was originally developed in 1997 and was made available to employers as a Web-based program in 2004. USCIS operates the program in partnership with the Social Security Administration.

Participation in E-Verify is voluntary. However, a number of states require certain employers to participate in and comply with a federal work authorization verification program. Arizona is a prominent example of such a state with more than 18,000 employers currently participating in EVerify compared to just 325 one year ago. Details on the program are available on the E-Verify Web site at www.uscis.gov/e-verify. A fact sheet on the program follows this release.

Source: USCIS Press Release 02/12/2008

US Border and Customs Protection Answers:  What documents does a foreign national or green card holder need to enter the U.S.?  Click Here to see what documents are required for permanent residents, nonimmigrant visa holders, and foreign students to travel in and out of the US.

Effective February 11, 2008, the Department of State will require color photographs for Diversity Immigrant Visa applications as color photographs enhance facial recognition and reduce the opportunity for fraud.  Federal Register: February 11, 2008 (Volume 73, Number 28).

In response to pending civil action in the District Court of the Eastern District of Pennsylvania regarding required criminal background checks as part of adjudication of certain immigration benefits, on February 4, 2008, an Interoffice Memorandum was released from Associate Director, Domestic Operations, Michael Aytes to Field Leadership, re: Revised National Security Adjudication and Reporting Requirements providing a revised guidance for processing FBI background checks.  The memo specifically offers the following:

1. USCIS will continue to initiate FBI name checks when those applications are received.
2. Where the application is otherwise approvable, and the FBI name check has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698, and proceed with card issuance. 
3. The FBI has committed to providing FBI name check results within this 180 day timeframe.
4. There is no change in the requirement that FBI fingerprint check, IBIS check, and FBI name check results be obtained and resolved prior to the adjudication of an Application for Naturalization, Form N-400.
5. If after issuing an approval of the I-485, I-601, I-687, or I-698, if derogatory or adverse information is received from the FBI after the application is approved, USCIS will determine if rescission or removal proceedings are appropriate and warranted.

In conclusion, it appears that should this revised guidance go into effect, many 485 applicants who have been waiting a significant period of time may receive a green card on a "conditional-type basis" where so long as once the FBI background clearance is completed and there are not derogatory or adverse information for that applicant, s/he will be able to retain his/her green card.  However, should any derogatory or adverse information appear at the end of the FBI background clearance, then that applicant's green card may be revoked.

Of course this revised guidance still offers no hope for those who have pending N400 applications due to pending background checks.

U.S. Citizenship and Immigration Services, anticipating that April 1, 2008 will see a repeat of the mass filings from last year, wishes to offer the information show in the related links section of this page. 

·         Helpful Hints for Filing a FY 2009 H-1B Cap Case: Quick Tips

·         What are the main errors in an H-1B petition that can cause USCIS to have to reject or deny the petition?

·         Frequently Asked Questions on Completing and Submitting a FY 2009 H-1B Cap Case

USCIS emphasizes that employment authorization card renewals can only be filed 120 days prior to the expiration of your current employment authorization card.  USCIS warns that should you try to file the renewal application earlier than 120 days prior to the expiration date, USCIS will return your application.  Click Here

Senior Coordinator on Iraqi Refugee Issues Ambassador James Foley, Deputy Assistant Secretary of State for Consular Affairs Tony Edson,and the Department of Homeland Security’s Senior Advisor to the Secretary on Iraqi Refugee Issues Lori Scialabba

The Administration  has set a goal of 12,000 arrivals for fiscal year 2008.  The latest figures show that 375 Iraqi refugees arrived in the U.S. during the month of January. This brings the total for this fiscal year to 1,432. Since the program started last year, 3,040 Iraqis have arrived in the U.S. as refugees. Others have come in under different immigrant visas.  So there are still 10,568 to go between now and September 30.  Click Here For Full Briefing.

H-1B “cap exempt” petitions, as referenced here, include petitions filed by:

1. Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
2. Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
3. Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C).

H1B Exempt Applications should be directly mailed to:

U. S. Citizenship and Immigration Services

California Service Center

ATTN: CAP EXEMPT H-1B Processing Unit

P.O. BOX 30040

Laguna Niguel, CA 92607-3004

See http://www.uscis.gov/files/pressrelease/H-1B_Filing_30jan08.pdf

DHS announced that it has begun collecting 10 fingerprints from international visitors arriving at Hartsfield-Jackson Atlanta International Airport, George Bush Houston Intercontinental Airport, and Chicago O'Hare International Airport.