Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
“No-Match Rule” Implementation Blocked by District Court
On October 10th, a federal district court in California granted a preliminary injunction preventing the implementation of the Department of Homeland Security’s (DHS) final rule on Social Security Number (SSN) “no-match” letters. (See our articles on the final rule and special guidance posted on our web site.) The rule was to go into effect on September 14th, and the Social Security Administration was set to begin disseminating letters to 140,000 U.S. employers in early September. Overall, the rule would affect some eight million employees. The court found that the plaintiffs, a consortium of unions and business groups, raised serious issues and that preliminary relief was warranted to prevent irreparable harm, including erroneous termination of lawfully employed workers because the no-match letters are based on incorrect SSA records. The court also held that the threat of criminal prosecution under the guise of the no-match rule’s safe harbor provision reflects a major change in DHS policy and that DHS failed to make such change under mandated administrative requirements. The court’s ruling is not a final adjudication of the merits of the claim, and the parties are expected back into court on October 12th to map out the details of the form of the injunction.
Compelling DHS Action on Long-Pending Adjustment and Naturalization Cases
Even before this summer’s deluge of petitions and despite massive fee increases, the U.S. Citizenship and Immigration Services (USCIS) has been incapable of processing tens of thousands of applications for permanent residence and citizenship within a reasonable period of time. For some applicants, many years go by without a word about the resolution of their case, despite diligent follow-up with USCIS. Major processing delays reportedly affect up to 300,000 cases. Although lengthy delays are most common in citizenship and adjustment of status applications, unreasonable delays also affect applications for employment authorization and travel permission, petitions for nonimmigrant status, and green card renewals. Besides an overloaded immigration system, what causes these delays, and more importantly, what can be done to compel DHS action? (Read on…)
Massive Adjustment of Status Filings Means Massive Processing Volatility
With 320,000 adjustment of status applications and related employment authorization and travel document applications received by USCIS just this summer, in addition to huge numbers of other applications filed in advance of the July 13th fee increase, USCIS is experiencing tremendous “inventory overload.” Consequently and significantly, USCIS has been unable to keep pace with receipting. Wide variations exist, and it is not uncommon for applicants who submitted cases early in July to have not yet received formal USCIS notification that their case has been received. Because USCIS is required by regulation to adjudicate employment authorization applications within 90 days, it will prioritize receipting adjustment cases and related employment authorization (EADs) and travel documents (advance parole applications). The ripple effect is likely to mean that the receipting and processing of naturalization applications will be delayed, among others. Reportedly, hundreds of thousands of naturalization applications alone were filed this summer to avoid the higher fees.
Going forward, what changes will USCIS make to avoid a repeat of the summer’s chain of events? For starters, USCIS has informally announced that it is now not in any great hurry to finalize and roll out its planned green card replacement program, realizing that it must be in a better position to handle the volume, as well as tackle in advance issues addressing expiration of cards, validity periods, LPR eligibility, and other concerns. It is estimated that some 700,000 people will be affected. USCIS also is evaluating the mechanics of the H-1B application process, reviewing how it will handle on April 1, 2008 what is expected to be three times as many applications as there are visas. And, on a fast track, is a regulation to eliminate the requirement that an H or L with a pending adjustment application be in possession of an adjustment receipt notice in order to travel and be readmitted.
November Immigrant Visa Numbers: Employment-Based Visas Show No Movement from October
Citing the need to determine what the impact of the summer forward movement of cut-off dates will have on demand, the Department of State’s (DOS) November Visa Bulletin shows no forward movement of the employment-based immigrant visas from October where those categories that historically have been backlogged continue to have long waits and those historically “current” reflect visa availability. Those fortunate to qualify as priority workers (first preference) and members of the professions holding advanced degrees or exceptional ability foreign workers (second preference) are able to file employment-based immigrant visa applications and adjust their status, as they were in October despite predictions in September that these too may become backlogged. Nationals from China and India in the second preference category, however, with priority dates later than January 1, 2006 and April 1, 2004, respectively, still must wait. Immigrant visas for investors also are available. The cut-off date for skilled workers and professionals for all chargeability and the Philippines, however, is August 1, 2002, or where the cut off was almost a year ago. (For India and Mexico, the cut-off date is April 22, 2001; for China, September 1, 2001.) Other workers still have a long, six-year wait, as the priority date remains October 1, 2001.
While waits of five and ten or more years in some categories on the family-based side are considered relatively short especially when compared to 15 plus year waits for certain nationals of the Philippines, there has been some steady movement, and the Department of State has predicted that more visas will be made available during the next couple of months.
Overall, however, with immigrant visas scarce and new H-1B specialty visas unavailable until next October, migration to the United States increasingly will become complex, laborious, and challenging for American business and foreign nationals alike.
Labor Certification Update
The Department of Labor (DOL) recently advised that 99% of all backlogged labor certification cases have been adjudicated and that remaining cases are expected to be completed by the end of this month. DOL also advised that beginning in February 2008, it expects to review cases more thoroughly both in terms of recruitment and for possible fraud. (Read on…)
Miscellanea: DHS Google Searches, New Citizenship Test, and More on E-Verify
The following immigration news is noteworthy:
- Beware that Department of Homeland Security (DHS) now routinely seeks information about foreign nationals, their employers, and those who support them in immigration cases from Google and even MySpace and YouTube. Immigration adjudicators including judges and U.S. Customs and Border Protection (CBP) agents have been known to use the Internet to obtain information used to deny entry into the United States and other immigration benefits. This, of course, is not surprising given the overall usefulness of the Internet. However, the reach of DHS in this context can be particularly broad because applicants for admission to the United States must prove their admissibility, and needless to say, not everything said on the Internet is true.
- U.S. Citizenship and Immigration Services (USCIS) has moved forward on its revamped naturalization exam; the new test goes into effect for most applicants on October 1, 2008. While USCIS has stated that the goal of a revamped citizenship exam is to increase immigrants’ knowledge of U.S. history rather than just memorize facts, many are concerned that the test will place unreasonable burdens on immigrants and will serve as an impediment to naturalization. Indeed, CNN’s Anderson Cooper could not answer correctly one of the new questions that may be asked: name one of the three author’s of The Federalist Papers, a document which served as a basis for the U.S. Constitution. Cooper, on his evening news program’s story about the new test, failed to give the correct answer despite three attempts and an elite education. The new naturalization exam questions are available on the USCIS web site.
- USCIS has added photographs to its voluntary electronic employment eligibility program, E-Verify, which now allows employers to access USCIS records to view a copy of photos from documents some employees present to an employer to prove work eligibility. This is part of the government’s multi-step process to expand use of the E-Verify by increasing data sources to verify an individual’s identity and work authorization.
“All Politics Is Local”: States and Cities Witness Complexity of Immigration Policy
In the wake of Congressional failure to enact comprehensive immigration reform, states and municipalities across the country are taking immigration matters into their own hands, considering legislative proposals and resolutions aimed at undocumented foreign nationals. (Read on…)
New Maggio & Kattar Web Site to Be Launched Later This Month
Our substantially improved website will be launched later in October 2007, with more information, user-friendly intuitive navigation, and a search engine that gets the results you need. Our new “Key Practice Areas” will direct visitors quickly to informational immigration materials. Detailed articles address visa eligibility and procedural requirements, designed to help readers better understand immigration law and procedures. Comments and suggestions will be greatly appreciated.