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.
USCIS Reaches FY 2009 H-1B Cap
Breaking News • April 8, 2008
U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009, both in the general category (65,000) and under the "advanced degree" exemption (20,000). This means that no additional, general, cap-subject H-1B petitions for temporary professional workers can be filed until April 1, 2009, absent a legislative fix. (H-1B petitions for cap-exempt visas remain available.) Read on…
Rule Extends OPT for Certain F-1 Students
Breaking News • April 7, 2008
On April 4, 2008, the U.S. Department of Homeland Security (DHS) issued an interim final rule which allows for the extension of post-graduation optional practical training (OPT) employment authorization for many F-1 students, including individuals whose OPT would expire prior to the effective date of a cap-subject H-1B. Read on…
USCIS REISSUES PROPOSED RULES ON NO-MATCH LETTERS
Over the past several years, the Social Security Administration (SSA) has issued thousands of so-called "no-match" letters to employers around the country. These letters advise employers that certain Social Security Numbers (SSN) that were provided to the SSA by employers (vis-à-vis employees) for withholding purposes for prior tax years do not match the names of the individuals that SSA has on file for such numbers. Although not always the case, no-matches are often caused by employees who are not authorized to work in the United States (and are using either a false SSN or an SSN assigned to someone else).
On March 26, 2008, the Department of Homeland Security (DHS) issued a supplemental proposed rule to clarify its August 2007 final rule regarding an employer's legal obligations upon receiving a no-match letter. Under the 2007 rule, U.S. Immigration and Customs Enforcement (ICE) may use the receipt of a no-match letter as evidence that the employer has "constructive knowledge" that the employee (who is the subject of the letter) is not authorized to work. The 2007 rule includes "safe harbor" procedures that such an employer should follow in order to avoid liability under the Immigration and Nationality Act.
Under this most recent proposal, the August 2007 final rule and its procedures remain the same, although three aspects are purportedly clarified. The March rule: (1) defines "prompt" notification that employers must provide to workers listed in a no-match letter as being immediately upon receipt of the no-match letter or within 5 business days of the employer completing the internal review; (2) clarifies that the 2007 final rule does not apply to workers hired before November 6, 1986; and (3) states that the 2007 final rule does not require employers to make or retain any new documentation or records should employers choose to follow the "safe-harbor" steps laid out in the rule.
In response to this proposal, a coalition of labor and community organizations representing tens of millions of U.S. and immigrant workers, sharply criticized DHS for reissuing the no-match rule "without change" - as described by the agency - and for failing to address the serious problems that prompted a federal district court to issue an injunction in October 2007. The U.S. District Court for the Northern District of California had preliminarily enjoined implementation of the August 2007 rule, finding that it would cause irreparable harm to both innocent workers and employers. Because the re-issued rule was published as a proposal, DHS has an opportunity to revise its plan again before going final and risking another law suit.
In the meantime, Maggio & Kattar is preparing an updated, detailed analysis of the proposed new rule with guidance to employers. Please see our website section, I-9 and Corporate Compliance.
USCIS REVERSES DECISION IN IRAQI TRANSLATOR GREEN CARD CASE AND AGREES TO REVIEW ALL OTHER PREVIOUSLY DENIED AND PENDING CASES
On April 1, 2008, the U.S. Citizenship and Immigration Services (USCIS) Office of Chief Counsel contacted Saman Kareem Ahmad and informed him that the Secretary of Homeland Security exercised his authority to exempt Mr. Ahmad from terrorist-related grounds of inadmissibility and granted Mr. Ahmad's application for permanent residence. Mr. Ahmad is the widely-reported Iraqi translator who had assisted the United States military since 2003 but whose green card application was denied on terrorist grounds. A mere three weeks after retaining Maggio & Kattar to challenge USCIS's denial, Mr. Ahmad was approved for his green card. The Ahmad victory, however, is now also a victory for hundreds of deserving immigrants whose applications were likewise incorrectly denied in recent months. On March 27, 2008, USCIS announced that it would immediately place on hold all cases involving terrorist-related inadmissibility grounds, and that it would reexamine past denials or referrals on terrorist-related grounds. The agency gavhttp://maggio-kattar.com/washington-post.htmle itself an April 30, 2008 deadline to do so.
The case of Saman Ahmad, which was covered extensively in The Washington Post and touched off a firestorm of activity, is an example of government decision-making gone awry. Mr. Ahmad, an Iraqi national who worked closely with the U.S. Marine Corps in Iraq, was brought to the United States in 2005 under a special program for Iraqi translators who had assisted the U.S. military. After arriving, he applied for and was promptly granted asylum, based in part on his Kurdish ethnicity and past affiliation with the Kurdish Democratic Party (KDP), the principal opposition to Saddam Hussein's regime and a strong ally of Coalition Forces. In October 2006, he applied for permanent residence while he continued his service to the military.
However, on February 26, 2007, USCIS denied Mr. Ahmad's application for permanent residence. Mr. Ahmad was found inadmissible based on ties to an "undesignated terrorist organization," owing to his past association with the KDP, which had conducted "armed attacks" and "helped to incite rebellions against Hussein's regime." In reaching its conclusion, USCIS relied upon a single Oklahoma-based website of a non-profit organization despite the fact that his application was supported by dozens of letters from superiors and Marines with whom he served, including then-Maj. Gen. David Petraeus and Brig. Gen. John F. Kelly. In an instant, Mr. Ahmad's life was turned upside down. About two weeks later, Mr. Ahmad hired Maggio & Kattar to represent him. Maggio & Kattar contacted high-level officials at USCIS and urged them to review the decision and correct the agency's obvious error. When USCIS responded without any urgency, Maggio & Kattar called congressional staffers in the House and Senate, and the Post. A front-page story about Mr. Ahmad's case ran in The Washington Post, and its editorial page weighed in as well. In an e-mail to the Post, General Petraeus stated that KDP forces had performed valuable security services for coalition forces and noted that he had never heard of any U.S. agency labeling the KDP as terrorists. Senator Barack Obama's presidential campaign called Mr. Ahmad to pledge full support. According to congressional sources, individuals from the House Armed Services Committee, the Department of Defense, and a number of veterans' groups all registered their support for Mr. Ahmad and their opposition to USCIS's decision. The Post was then contacted by USCIS and advised that it had decided to halt any further denials and that Mr. Ahmad's case was under review. It ran another front-page story on USCIS's policy about-face. USCIS admitted that the impetus for USCIS's policy reversal was the article about Mr. Ahmad and the resulting pressure on the agency to change course. "The decision," the Post stated, "will potentially affect thousands of pending applications for permanent U.S. residence" as well as the cases of "hundreds of others who have been denied green cards since December."
We are proud to have made a difference. More details about the case are available on our website.
UPDATE ON H-1B CAP SUBJECT FILINGS
In an effort to facilitate the H-1B filing process, the U.S. Citizenship and Immigration Services (USCIS) issued rules governing the procedures for filing cap subject H-1B petitions. Most significantly, the rule prohibits employers from filing multiple H-1B petitions for the same employee. This new rule is intended to give companies filing H-1B petitions an equal chance to employ an H-1B worker. Multiple petitions filed by an employer for the same H-1B worker will be denied or revoked, even for different jobs, and filing fees submitted with multiple or duplicative petitions will not be refunded. The rule does not, however, preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need. The rule also changes the lottery system so that the 20,000 U.S. advanced degree cap cases are selected first. If any advanced degree petitions are left after that process, they will be included in the overall 65,000 pool. Moreover, if a petitioner claims to be exempt from the cap and is later found to be subject to the cap, USCIS will not refund or return fees and that petition will be denied if no cap numbers are available.
The rule also changes the period of time during which cap-subject H-1Bs can be received to be included in the lottery that is likely to occur. Under the new rule, although USCIS could receive enough H-1B petitions on the first day that the agency will accept H-1B petitions for fiscal year 2009 (i.e., April 1, 2008) to fill all available H-1B slots, USCIS will continue to accept all H-1B petitions received within 5 business days, or until April 7, 2008, of the six-month period immediately preceding the beginning of fiscal year 2009. Thus, all petitions that USCIS receives by April 7, 2008 will be included in the random selection lottery.
Petitioners and beneficiaries are also advised that this year USCIS shall issue receipt notices only to those who receive a cap number.
CONSULAR PROCESSING UPDATE - PIMS AND OTHER DELAYS
While generally the new Petition Information Management Service (PIMS) database system, now being used at consular posts for issuance of nonimmigrant visas, has resulted in visa issuance within two days, human resource personnel and their employees are advised that the system is not seamless and reports of delays still occur. In some instances, delays of 5 days to even a month have been reported. This is particularly so for extensions of status or change of status applicants. (Lengthy delays also continue to occurred due to security clearances.) In response to the problem, USCIS and the Department of State (DOS) have agreed to a process that presumably will facilitate the data entry of such NIV petitions into the PIMS system. Upon approval of a petition where a change, extension, or amendment is requested, and where the petitioner provides duplicate original petitions to the USCIS, with original signatures on all forms as would otherwise be done for consular notification, the USCIS will send the duplicate copy to the DOS's Kentucky Consular Center (KCC) for scanning and entry into the PIMS database. Presumably, KCC staff can have the workload capacity to assume the data entry previously done by USCIS.
In any event, we advise such extension, change of status, and amendment-related applicants to plan for at least a week in their consular district when making their traveling plans.
USCIS NOW REQUIRES BIOMETRICS FOR RE-ENTRY PERMITS AND REFUGEE TRAVEL DOCUMENTS
USCIS recently announced that it now requires applicants for re-entry permits and refugee travel documents to provide biometrics (e.g., fingerprints and photographs) at a USCIS Application Support Centers (ASC) for background and security checks. A re-entry permit allows a permanent resident or conditional resident to apply for admission to the United States upon returning from abroad during the permit's validity without having to obtain a returning resident visa from a U.S. Embassy or consulate. A refugee travel document is issued to a person classified as a refugee or asylee, or to a permanent resident who obtained such status as a result of being a refugee or asylee in the U.S. Persons who hold asylee or refugee status, and are not permanent residents must have a refugee travel document to return to the United States after temporary travel abroad.
Such applicants are advised that they must be physically present in the United States when the re-entry permit application is filed, and are strongly encouraged to apply well in advance of their anticipated travel dates to allow time to attend their ASC appointments and to receive their travel documents. However, a re-entry permit may be sent to a U.S. Embassy or consulate or DHS office abroad for pick up, if requested when the application is filed. However, where biometric collection is required and the applicant departs the United States before the biometrics are collected, the application may be denied.
If applicants require expedited processing, the instructions recommend that two prepared, self-addressed express mailers be provided with the application, for USCIS to send the applicant his or her receipt and ASC appointment notice, as well as the completed re-entry permit or refugee travel document, if approved. A request for expedited processing should contain the applicant's reasons for such processing.
APRIL VISA BULLETIN
Despite rumors that the employment-based second preference (EB-2) (members of the professions with advanced degrees and individuals of exceptional ability) might become unavailable, conventional wisdom is that the category will likely remain current for the remainder of the fiscal year. As expected, the April Visa Bulletin reveals that visas for Indian nationals in the employment-based second preference are now available with a priority date of December 1, 2003. The employment-based third preference (skilled workers, professionals and other workers) experienced some forward movement as did other workers.Family-based immigrant visa categories remain discouragingly backlogged; at least, however, there was no retrogression reported in April. For additional information, see the April Visa Bulletin.
SNEW RULES FOR BORDER CROSSING DOCUMENTS GO INTO EFFECT IN JUNE 2009
The Departments of Homeland Security (DHS) and State (DOS) issued a final rule for the land and sea portion of the Western Hemisphere Travel Initiative (WHTI), which requires travelers to present a passport or other approved secure document denoting citizenship and identity for all land and sea travel into the United States. WHTI establishes document requirements for travelers entering the United States who were previously exempt, including U.S. citizens and citizens of Canada and Bermuda. These document requirements will be effective June 1, 2009. Upon implementation of WHTI, travelers will be required to present a single WHTI compliant document denoting both citizenship and identity when seeking entry into the United States through a land or sea border. The WHTI secure document requirement is already in place for all air travelers.
Many cross-border travelers already have WHTI-compliant documents such as a passport, a "Trusted Traveler Card" (NEXUS, SENTRI, and FAST), or a Washington State enhanced driver's license (EDL), and in the meantime, other states and Canadian provinces will be issuing EDLs specifically designed for land and sea border use.
This announcement comes two months since DHS ended acceptance of oral declarations alone of identity and citizenship at the land borders. Since that time, U.S. and Canadian citizens ages 19 and older have been asked to present proof of identity and citizenship. Children ages 18 and under are currently asked only to present proof of citizenship, such as a birth certificate.
MAGGIO & KATTAR IN THE NEWS
Managing Partner Jim Alexander was recently interviewed on German Public Radio by Gunnar Schultz-Burkel, a leading journalist in Germany, based in Washington, DC. Jim addressed E visas, EB-5 investor visas and other immigration-related issues. The program will air in April 2008.
Beginning May 6th, Maggio & Kattar Attorneys will participate in a four-part series sponsored by the District of Columbia Bar entitled "What Every Lawyer Should Know About Immigration Law". This series is dedicated to the memory of Michael Maggio, who served as its Faculty Chair from 2002 until his passing in early February.
In keeping with the D.C. Bar's mission to continue legal education, this four-part series on immigration law will emphasize those areas which many attorneys encounter regardless of their practice areas. Faculty will provide an immigration overview, as well as an analysis of business and family-based immigration law. Also included will be a session on legal ethics and the immigration implications of criminal convictions.
AILA NAMES NATIONAL PRO BONO AWARD IN HONOR OF MICHAEL MAGGIO; AILF CONFERS FIRST MICHAEL MAGGIO YOUTH IMMIGRANT ACHIEVEMENT AWARD ON APRIL 4TH
The American Immigration Lawyers Association, the national bar association of immigration lawyers, has named its prestigious Pro Bono Award after Michael Maggio. The AILA Pro Bono Award, established in 1986, recognizes outstanding efforts in providing pro bono representation to deserving aliens in the immigration field. The award is one of eleven national awards presented at a special ceremony at the Association's Annual Conference. The AILA Executive Committee thought it particularly fitting to recognize Michael's exemplary pro bono work and leadership in this area. The firm's most recent pro bono victory, University of Nebraska v. Chertoff, resulted in the issuance of an H-1B visa to a Bolivian academic whose visa was "pending" indefinitely on security checks.
On Friday, April 4th, the American Immigration Law Foundation will hold its 13th Annual Washington Immigrant Achievement Awards ceremony in Washington, DC. The ceremony honors outstanding immigrants and first generation Americans whose contributions have greatly enriched our nation. AILF will debut is annual Youth Immigrant Achievement Award in Michael Maggio's memory.