Alerts and Updates
Recent Developments in Immigration Law
December 5, 2006
- USCIS Begins Premium Processing of Extraordinary Ability I-140 Petitions
- USCIS Launches New Web Site
- Employment-Based Immigrant Visa Availability Update
- DOS Eliminates Reciprocity Fee for Indian Citizens
DOL Issues Decision Granting Wages to H-1B Foreign National Due to Lack of Bona Fide Termination
H-1B/EB Sign-on Letter: Show Your Support
United States Citizenship and Immigration Services Updates
USCIS Begins Premium Processing of Extraordinary Ability I-140 Petitions
As of November 13, 2006, USCIS has expanded its premium processing service to include I-140 petitions filed in the category of EB-1 Petitions for Aliens of Extraordinary Ability.
The following categories will continue to be accepted under the premium processing program:
- EB-1, Outstanding Professors or Researchers
- EB-2, Advance Degree Professionals and Exceptional Ability Petitions (non-National Interest Waiver (NIW) petitions only)
- EB-2, Exceptional Ability (non-NIW)
- EB-3, Professionals and Skilled Workers; and Other Workers (less than two years' education, training or experience)
The filing fee remains at $1,000 and USCIS continues to process these cases within a 15-day period for response. An I-140 immigrant petition and eligible I-485 adjustment of status application may still be filed concurrently.
Why consider premium processing of an immigrant petition?
- Affords a sense of certainty in the "green card" process and employee feels supported
- Retention of priority date; may be transferred among alternate I-140 immigrant classifications upon approval
- Availability of three-year extensions of H-1B stay beyond six-year limit in cases of immigrant visa per country quota backlogs (versus one-year extensions - potential cost savings)
USCIS Launches New Web Site
On November 1, 2006, USCIS unveiled a redesigned Web site, which can be found at www.uscis.gov. Reportedly, the USCIS Web site is one of the most visited Web sites in the federal government. By including the most frequently viewed information on its front page, USCIS is hopeful that the new design will provide an easier way for users to find information.
Department of State Updates
Employment-Based Immigrant Visa Availability Update
The December 2006 Visa Bulletin issued by the Department of State (DOS) continues to slowly move forward in some of the employment-based (EB) categories for immigrant visa (green card) availability.
EB-1
All countries: Current
EB-2
| India: | January 8, 2003 (forward movement of 1 week) |
| China: | April 22, 2005 (forward movement of 1 week) |
| All other countries: | Current |
EB-3
| India: | April 22, 2001 (no movement) |
| Mexico: | May 8, 2001 (no movement) |
| All other counties: | August 1, 2002 (forward movement of 1 month) |
Schedule A Worker
Unavailable for all countries
The new cut-off dates become effective on December 1, 2006. At that time, foreign nationals may either file their application for adjustment of status to permanent residence or may apply for an approval of their immigrant visa at a U.S. consular post abroad, if their priority date is before the cut-off date in their category outlined above.
Lengthy EB-quota immigrant visa backlogs continue to prevent many foreign workers who qualify under EB-3 classification from securing final green card approval for many years. Indian and Chinese nationals are currently experiencing the greatest delays. Ironically, while the processing time of labor certifications under the new PERM system (the first step in the employment-based permanent residence process for the majority of foreign nationals) has been greatly reduced, most employer-sponsored green card processing has been considerably lengthened due to the retrogression in EB quotas. Fortunately, extensions of foreign workers' H-1B status beyond the six-year limit are permitted in many cases while they are waiting for their quota cut-off date to be reached.
DOS Eliminates Reciprocity Fee for Indian Citizens
On November 9, 2006, the U.S. government announced that the U.S. $50 reciprocal issuance fee for all non-immigrant visas for Indian citizens would be eliminated, effective immediately. U.S. Ambassador to India David C. Mulford made the announcement and indicated that the cut was made in an attempt to encourage more Indian business people and tourists to travel to America. Visa applicants will still be required to pay the standard application fee of $100 prior to scheduling a visa interview.
Department of Labor Update
DOL Issues Decision Granting Wages to H-1B Foreign National Due to Lack of Bona Fide Termination
The DOL's Administrative Review Board (ARB) recently issued a ruling regarding when employment is terminated such that an employer's H-1B obligations have ended. The ARB held that, because the employer did not notify USCIS that the H-1B employee had been terminated, the termination was not bona fide and that the employer's H-1B obligations continued, including its obligation to continue to pay the H-1B employee's salary. The ARB ordered the employer to pay the prevailing wage from the date of the employee's termination until the date of expiration of the H-1B period of authorized stay. As a result of this decision, it is important that employers take action to notify USCIS when an H-1B employee has been terminated, so that their obligations will end.
Legislative Update
H-1B/EB Sign-on Letter: Show Your Support
The continuing inability to hire H-1B workers and multiyear delays in obtaining employment-based (EB) green cards are hurting U.S. companies, hospitals and other employers seeking access to the best and brightest global talent. Because the H-1B visa cap was reached on May 26, 2006, a full 16 months before the end of the next fiscal year, new H-1B visas will not be available until October 1, 2007. Moreover, there's more than a four- to five-year backlog in the EB-3 classification for all nationalities and approximately a one- to three-year backlog in the EB-2 classification for certain nationalities, notably Indian and Chinese. As a result, crucial research and development projects in critical industries are being disrupted, and the lives of talented professionals are being put on hold. In many cases, these professionals simply tire of waiting and leave the U.S. to put their knowledge and skills to use in other countries eager to compete with the U.S.
Concerned corporate clients should contact their members of Congress by personalized letter, phone call or personal meeting to let them know how the H-1B cap and EB backlog problems are hurting them. A model letter that client companies may personalize, formulated by the American Immigration Lawyers Association (AILA), is located at http://capwiz.com/aila2/issues/alert/?alertid=9100046.
For Further Information
If you have any questions about this Alert or would like more information, please contact one of the attorneys in our Immigration Law Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
