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Employment preference categories available until August 17, 2007
Breaking News
In yet another unprecedented move, the U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS) reversed themselves again and announced late today that the State Department's original July Visa Bulletin (No. 107), issued on June 12, 2007, controls and thus all employment-based preference categories, with the exception of "other workers", are "current" or available. Effective immediately, USCIS announced that it will accept employment-based applications to adjust status (I-485) filed by foreign nationals whose priority dates are current under the June 12th July Visa Bulletin and will accept such applications filed no later than August 17, 2007. Click here for the USCIS announcement. In a companion release, the DOS announced that its revised July Visa Bulletin (No. 108), dated July 2, 2007, is withdrawn. In doing so, both agencies end a two-week saga that reflected disastrously on their collective management of the visa processing system and caused tremendous public confusion and heartache.
USCIS's announcement that it will allow anyone who was eligible to apply under the original Visa Bulletin to do so through August 17, 2007 effectively extends the application period and provides those applicants the same filing period they would have had if the July 2 actions had not taken place. USCIS also announced that the current fee schedule will apply to all applications filed under this Visa Bulletin through August 17, 2007, despite new fees that goes into effect on July 30, 2007.
The Department of State's notification that its revised July Visa Bulletin is withdrawn and that its original June 12th Visa Bulletin should be relied upon for determining employment-based visa availability was made in the context of its Visa Bulletin for August 2007. Please note that while the August Visa Bulletin shows all employment-based preference categories as "unavailable", those that were deemed "available" in the June 12th July Visa Bulletin (No. 107) remain so through August 17, 2007.
The favorable solution reached today ends an unfortunate chapter in our visa processing system. The resolution of this issue no doubt was a result of a concerted effort mounted by those in the affected communities, the press, Members of Congress, and the legal community.
Stay tuned.
More on Employment-Based Visas from USCIS
Breaking News
The U.S. Citizenship and Immigration Services (USCIS) has issued further "clarification" on today's news from the Department of State (DOS) regarding employment-based visa availability. USCIS states that beginning today it is "rejecting applications to adjust status filed by aliens whose priority dates are not current under the revised July Visa Bulletin." This announcement begs the question regarding whose priority dates are current in July given today's earlier announcement from DOS, and, as such, provides little additional clarity to what are now very muddled waters. We expect that additional and better clarifying information will be released from the government over the course of the next several days.
Employment-Based Categories Unavailable
Breaking News
In an unprecedented move by the Department of State, the government just announced that visa numbers for employment-based preference cases are unavailable despite the official announcement two weeks ago that all employment categories are available for July. Today's notice from the government states that new visa numbers will become available again on October 1, 2007, but is unclear with regard to EB-1 priority workers and EB-2 members of the professions holding advanced degrees or persons of exceptional ability. These two preference categories have been available (or "current") historically, except for China and India, and while one cannot fathom that these categories too will be unavailable, the announcement from the Department of State could be interpreted to mean that these categories also will be impacted as of today. The announcement also does not specifically address the fate of those applications delivered today, July 2nd. While the announcement seems to imply that those petitions will be rejected, we do not know if this will be the case. We expect further clarification from the government on these issues, and will advise you accordingly. We are greatly disturbed and shocked by this development. Please be assured we will provide further information and analysis as soon as more information becomes available.
The Debacle Surrounding Employment-based Visa Availability and Unavailability
Now that the dust is starting to settle on the unconscionable and unprecedented visa number debacle witnessed at the beginning of this month, we can reflect on the chain of events surrounding the sudden news that employment-based immigrant visas were available and then -- puff - already allocated and unavailable. Please see our recent news alerts on the issue.
The announcements from the Department of State (DOS) and the U.S. Citizenship and Immigration Services (USCIS) reflect much more than the flawed communication between two federal agencies that has been cited. Conflicting interests between the agency that manages visa issuance - DOS - and the agency that processes visa petitions and applications for adjustment of status - USCIS - were laid bare. And, there's more. Caught in the middle were thousands of highly skilled foreigners working here legally while waiting patiently for years to adjust their status to lawful permanent residents. Sponsoring employers also were caught in the middle of this mess.
So, how is the system supposed to work? What went wrong this time, and why did this happen?
By way of background, under the immigration laws, a maximum of 140,000 employment-based immigrant visas can be allocated each fiscal year, October 1st-September 30th. These visas are divided among several skill levels, known as preference categories, and also are limited by per-county quotas. The per-country limit is the reason for the backlog in certain countries with high immigration rates, such as Mexico, India, China, and the Philippines. Other backlogs in the individual preference categories result from the overall limit imposed by law.
There are two agencies involved in the immigrant visa process, the State Department and the Immigration Service. The DOS is the agency that has responsibility for maintaining the quota, or counting the number of visas used. DOS publishes its count and visa availability each month in the Visa Bulletin, which is released approximately 15 days before the first of every month. The USCIS defines the process for issuing green cards, and its regulations require USCIS to follow the current monthly Visa Bulletin in determining when to accept applications for adjustment of status.
Foreign nationals in the U.S. who have applied for and who are deemed eligible for an immigrant visa can adjust their status to that of a lawful permanent resident, or in other words, submit their final "green card" applications when their priority date (place in line) is current, according to the Visa Bulletin. Sometimes, priority dates move backwards, or retrogress, in the next-issued Visa Bulletin. If that happens, those who applied for adjustment of status when their priority date was current are not penalized; USCIS normally continues routine processing and retains the adjustment application until a visa number becomes available again. This is important because a pending adjustment applicant and dependents (spouse and minor children) are eligible for work authorization and travel permits (advance parole), and those benefits are renewable until the underlying application is adjudicated.
Here's what happened. On June 13, 2007, the State Department published the Visa Bulletin for July 2007, announcing that all but one employment-based green card category would be "current" as of July. Why this great jump forward? DOS saw many unused visa numbers as the close of the 2007 fiscal year (September 30th) rapidly approached. Apparently, in prior years, DOS allocated visa numbers but because USCIS did not adjudicate enough pending adjustment applications - USCIS was plagued by delay - those employment-based visas were never used and thus were lost. Those visa numbers were wasted despite the fact that many foreign nationals had adjustment applications pending with USCIS and had been otherwise waiting for years. That's right. Thousands were not granted permanent resident status because USCIS just did not get around to acting upon their cases. How many people were affected by USCIS' inaction? According to reports, over 180,000 work-based visas have been lost during the last six years because the immigration agency fell behind in processing applications. DOS did not want this to occur this year, so it front-loaded the visa numbers, making it possible for a large number of individuals to file for adjustment. In so doing, DOS effectively pressured USCIS to adjudicate adjustment applications and thereby use all the remaining available visa numbers for fiscal year 2007.
Seemingly caught off guard, USCIS soon realized that it could not possibly adjudicate all of the applications it expected in a very short period of time. Under its rules, applicants can file concurrently for an employment-based immigrant visa (I-140) and for adjustment of status (I-485) if an immigrant visa is available to the applicant according to the DOS Visa Bulletin. Under other rules, USCIS must adjudicate an employment-based visa within 15 days if filed under premium processing. Expecting a barrage of concurrently filed I-140s and I-485s under premium processing because of this very small filing window, USCIS first suspended premium processing of I-140 applications. Next, USCIS announced that I-485s submitted must include medical examinations even though it had been its practice to allow medical exams to be submitted later. Suspending premium processing and requiring medical exams were tactics intended to slow down the receipt of adjustment applications in July. USCIS also did its own internal audit of cases in the pipeline and apparently estimated - but did not advise the public - that it already had enough applications pending to use up all the remaining visa numbers for 2007. USCIS also intimated - but did not tell the public - that it would reject applications rather than accept the applications until a visa number became available on October 1, 2007, the start of the next fiscal year. One can only assume that very substantial USCIS filing fees increases, which take effect on July 30, 2007, also played a role in its later announced decision to reject rather than accept such applications.
On July 2nd, the first day that visa numbers were to become available, DOS suddenly revised its Visa Bulletin, announcing that all employment-based immigrant visas for the fiscal year ending September 30, 2007 have been allocated. The announcement was perplexing and without precedent. Adding to the confusion, the revised Visa Bulletin indicated that all employment-based categories were now unavailable, even those for EB-1 priority workers and EB-2 members of the professions holding advanced degrees or persons of exceptional ability, preference categories that historically have been available (or "current"), except for China and India. That same day, USCIS announced, in convoluted government-speak, that it would no longer accept - it would reject - adjustment applications even though the Visa Bulletin for July 2007 had showed that visas are available. Not only did this announcement cause tremendous uncertainty but it represented a significant departure from long established practice: for years, when employment-based applications had been filed in these circumstances, INS/USCIS accepted applications filed during the entire month that the Visa Bulletin showed availability even if the visa numbers actually run out during that month. However, in prior years, DOS did not issue a revised Visa Bulletin. By the end of the day on July 2nd, immigrants, employers, and immigration lawyers alike found it nearly impossible to decipher how to apply for a statutorily provided benefit. One week later, no new information has been released from the agencies despite Congressional and other inquiries.
As those involved know, the mid-June issuance of the July Visa Bulletin provoked immediate action from thousands. Employees, employers, and their attorneys rushed to obtain the necessary supporting documentation and undertook extraordinary and costly steps to assemble the required information to file adjustment applications with the USCIS by the end of July 2007, the one-month time frame provided by the Visa Bulletin. The "bait and switch" fiasco last week ultimately left hundreds of thousands of would be immigrants and their employers empty handed and still wondering, what next?
It is anticipated that a class action lawsuit will be filed challenging this behavior by the USCIS. This litigation likely will argue that the immigration agency violated its own regulations and its refusal to accept adjustment applications in July has no precedent in decades of legal practice. If successful, the July adjustment of status filing window may be opened for those applicants whose cases were rejected, and they may be able to re-file at some later point in time. Arguably, those whose applications were delivered on July 2nd - before any official notice was released to the public - stand the greatest chance of success. In theory, however, individuals may still be able to file in July and avail themselves of the July adjustment window. The decision, however, to file an adjustment of status application now in order to obtain a rejection notice within the coming month and thereby retain the possibility of an advantage later on down the road, must be individually made in consultation with an attorney.
We will keep our readers posted as information unfolds.
Comprehensive Immigration Reform Dies in Senate
After weeks of delaying tactics and other maneuvers, the Senate late last month failed to pass a key procedural tool, which would have limited debate and ultimately cleared the way for a final vote on the comprehensive immigration reform bill. The "grand compromise" immigration overhaul - flawed as it was - finally was pulled from the Senate floor by Majority Leader Harry Reid when support for moving the bill forward failed to garner the necessary 60 votes required to invoke "cloture." By doing do, nearly six months of intensive negotiations among a dozen Senators and top administration officials came up short. The bill, the first comprehensive immigration reform overhaul in more than twenty years, combined tough border enforcement with a pathway to citizenship for 12 million undocumented immigrants, a new guest worker system, and changes to the system of legal immigration, among other sweeping changes. (For more details on the proposal, see the April and June issues of Immigration News & Analysis.) All agree it is unlikely that comprehensive immigration reform legislation will be seriously considered before the next Presidential election and new Congress. This has always been the conventional wisdom and the reason why debate and passage now were so critical. In the end, what had become a bipartisan effort and compromise could not withstand the emotional and extreme tactics of the right and left.
By deciding not to proceed, the Senate effectively also denied the House of Representatives a chance to weigh on what has become a critical national issue. While news that the House Democrats are pondering what their next steps are and whether alternatives to comprehensive reform are viable, major leaders in the debate believe that moving the legislation as a series of smaller bills is not an option. Rep. Luis Gutierrez, a key supporter of the comprehensive package and a leader in the Congressional Hispanic Caucus, added "Breaking up the bill is the worst thing we can do at this particular moment."
Update on J Visas and Waivers
The Department of State published new rules, effective July 19, 2007, that tighten the eligibility requirements for J-1 trainees and exact more obligations on program sponsors. Basically, the rules make it more difficult for individuals to qualify for J-1 trainee status. First, the rules require that sponsors screen and vet all third parties and then enter into written agreements with such parties that outline the full relationship between the parties. Second, each new host company must be visited in person ("site visit of host organization"). Third, each trainee or intern must have a documented interview, either in-person or via webcam, as part of the screening process to verify English language skills or obtain documentation of such from an academic institute or English language school.
In another area of J visa practice, we are monitoring how the USCIS and Department of State are interpreting two distinct requirements for those who are subject to the two-year home residency requirement and seek to comply. Many J-1 visa holders are required to have "resided and been physically present" in their country of nationality or last residence for two years before they can apply for certain nonimmigrant visas or permanent residence. Statutorily, this two-year home residence requirement can be fulfilled in the aggregate. However, the issue of whether the individual must establish both "physical presence" in the home country as well as "residence" itself is not so clear cut. Under the law, residence means a person's principal, actual dwelling place which is different from being physically present in the home country. "Residing" is not necessarily "residence." Those who have been physically present for two years in their home country historically have been deemed by most to have complied with the two-year home country rule. That approach is now being challenged by at least some USCIS adjudicators. Consular officers have taken differing positions on this question, too. Clarity may be coming forth.
Reminder: Immigration Filing Fees Increase Dramatically on July 30, 2007
As reported previously, dramatic increases in immigration filing fees start July 30, 2007. (See June 2007 Immigration News & Analysis.) Employers and individuals who wish to avoid these higher filing fees should immediately begin preparing immigration applications that can be filed within the next few weeks.
Non-Business Issues That Can Derail an Employment-Based Client
An employee comes to the U.S. on an F-1 student visa, graduated, had a year of optional practical training (OPT), obtained an H-1B visa, has an approved labor certification, and is now ready to file concurrently for an employment-based immigrant visa (I-140) and adjustment of status (I-485). In a few months, he will have his residence. Sounds simple, right? While this scenario may play out hundreds of times, there are many clients whose individual facts can throw the immigrant beneficiary off his carefully planned route to residency and can lead to delay, denial, detention, deportation, and despair.
For example, conviction of criminal offenses is one of the most obvious immigration stumbling blocks. Many crimes can lead to immediate detention and near-certain removal, whereas others may create inadmissibility but be waivable, and still others may have virtually no consequence at all. However, not all convictions have serious immigration consequences. Generally, for a crime to create inadmissibility it must be a crime involving moral turpitude, a drug offense, involve trafficking in humans, money laundering, or alien smuggling. Conviction of any of these offenses can trigger inadmissibility.
Another area often overlooked is encounters or any prior communication with the government. Previous applications have a way of never going away. Certain applications can result in the initiation of removal proceedings and could drastically affect the ability of an employer to obtain residence for an employee. Often the individual has no idea that he has been placed into removal proceedings and is completely unaware that an order of removal has been entered against him in absentia. For example, if the person has been placed in removal proceedings, unless those proceedings have been terminated, s/he is not eligible to apply for adjustment of status before the USCIS because jurisdiction over an application for adjustment is with the immigration court. A lack of jurisdiction is not only basis for a denial, but also creates jeopardy for the applicant if there is a final order of removal. Individuals with final orders of removal are often arrested at interviews for adjustment of status before USCIS, and this may be the first time the person learns of an in absentia order of removal. Because USCIS only analyzes for jurisdiction at the end of the adjudicatory process, rather than upon filing, it is possible to file an unapprovable application for adjustment of status and have it remain pending for several months before the lack of jurisdiction is revealed.
In his recently published article, Andres Benach provides an overview of potentially troublesome issues, including those described above, that can arise even in employment-based immigration. The article helps identify, respond, and address non-business issues that can affect clients' immigration status and options. Andres' article will be posted on our website this week.
Ranked at the Top: Maggio Listed in Who's Who Legal as Leading Business Immigration Lawyer; Nahajzer Featured in Corporate Immigration Video Seminar; Tekach, Quinn, and Benach Speak at National Immigration Conference, and Han Joins Firm
We report on several news items involving Maggio & Kattar attorneys. First, the just released 2007 edition of Who's Who Legal, The International Who's Who of Business Lawyers, recognizes Michael Maggio as one among fifteen of the most highly regarded individuals practicing corporate immigration law in the United States. In its preamble, Who's Who Legal acknowledges the vital role played by corporate immigration lawyers who facilitate the flow of personnel across international borders on behalf of corporations and individuals. Michael is described as "a star" and was recognized after having been recommended by numerous peers and clients alike for his work over the ten-year period Who's Who Legal has been conducting independent research.
Next, ReedLogic, a prominent Boston-based producer of video-based seminars and interactive learning and development tools for executives, recently issued a corporate immigration educational video featuring John Nahajzer, one of our senior attorneys and shareholders. In "Corporate Immigration Legal Strategies," John provides practical advice on corporate immigration issues of concern to human resource personnel, managers, and others who touch upon immigration legal matters through the course of their employment. To view the video, click here.
Our senior attorneys and shareholders Andres Benach, Elizabeth Quinn, and Cora Tekach, were selected to lecture at the 2007 Annual Conference on Immigration Law conducted by the American Immigration Lawyers Association. Selection to speak at this program - attended by more than 3,000 immigration lawyers, government officials, and others involved in the field - is an honor that reflects an immigration attorney's standing among his or her peers. Andres discussed non-business related issues that affect business clients, Elizabeth addressed waivers of the two-year home residency requirement that attaches to J-1 visas, and Cora reviewed various considerations for employers who employ foreign nationals.
And, finally, we are pleased to announce that Haesung Han recently joined our firm as an Associate Attorney. Haesung is a 2003 graduate of the Boston University School of Law and has been practicing business immigration law for the past two years in Washington, DC.