US IMMIGRATION NEWS UPDATE - APRIL 2007 HEADLINES

H1B CAP FOR FY2008 REACHED ON FIRST DAY
USCIS ADVISES PETITIONERS OVERSEAS: DO NOT RE-FILE I-130
USCIS ANNOUNCED NEW FILING INSTRUCITONS FOR I-129 AND I-539 FORMS
BIA ADDRESSES TERMINATION OF PROCEEDINGS FOR ADJUDICATION OF NATURALIZATION APPLICATIONS
THE DREAM ACT REINTRODUCED IN CONGRESS
USCIS CIUDAD JUAREZ (MEXICO) OFFICE REVISED WAIVER APPLICATION PROCEDURES
NEW BIOMETRICS PROCESS FOR CONDITIONAL PERMANENT RESIDENTS
USCIS CLARIFIES CRITERIA TO EXPEDITE FBI NAME CHECK
US EMBASSIES RESUME ACCEPTING I-130 FAMILY PETITIONS

H1B CAP FOR FY2008 REACHED ON FIRST DAY

US Citizenship and Immigration Services (USCIS) announced that it has received enough H1B petitions to meet the congressionally mandated cap for fiscal year 2008 (FY2008). USCIS will use a random selection process (described below) for all cap-subject filings received on April 2, 2007 and April 3, 2007. USCIS will reject and return along with filing fee(s) all petitions received on those days that are not randomly selected.

Cap Procedures: In keeping with USCIS regulations, USCIS will use the following process to handle H1B petitions subject to the FY2008 cap:

- USCIS has determined that as of April 2, 2007, it had received enough H1B petitions to reach the FY2008 H1B cap and has set the “final receipt date” as April 2, 2007.

- In keeping with its regulations, USCIS will subject H1B petitions received on the “final receipt date” and the following day to a computer-generated random selection process.

- USCIS will reject all cap-subject H1B petitions for FY2008 received on or after Wednesday, April 4, 2007.

- USCIS will reject and return along with the filing fee(s) all cap-subject H1B petitions that are not randomly selected.

- Petitioners may re-submit petitions on April 1, 2008 when H1B visas become available for FY 2009. This is the earliest date for which an employer may file a petition requesting FY 2009 H1B employment with a start date of October 1, 2008.

As of late Monday afternoon (April 2), USCIS had received approximately 150,000 cap-subject H1B petitions. USCIS must perform initial data entry for all filings received on April 2 and April 3 prior to conducting the random selection process. In light of the high volume of filings, USCIS will not be able to conduct the random selection for several weeks.

In order to fully utilize its data entry and initial processing capacity, USCIS may choose to distribute filings received at one service center to other service centers for data entry. In the event that USCIS exercises this option, petitioners may receive receipt notices or other correspondence from a service center other than the one to which the H1B submission was sent. USCIS advises employers that there is no need for concern should that occur and that there is no need to contact USCIS.

Cap-Exempt Petitions: As directed by the H1B Visa Reform Act of 2004, the first 20,000 H1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees are exempt from any fiscal year cap on available H1B visas. USCIS does not yet know how many of these petitions it has received as those petitions are mixed with the cap-subject cases received on April 2 and 3. USCIS will make a future announcement regarding the “final receipt date” for these petitions.

Current H1B Workers: Petitions filed on behalf of current H1B workers do not count towards thecongressionally mandated H1B cap. Accordingly, USCIS will continue to process petitions filed to:

- Extend the amount of time a current H1B worker may remain in the United States.
- Change the terms of employment for current H1B workers.
- Allow current H1B workers to change employers.
- Allow current H1B workers to work concurrently in a second H1B position.

USCIS also notes that, in addition to the cap exemption for aliens with U.S. earned master’s degrees discussed above, certain H1B petitions are exempt from the cap. Those petitions are not affected by this release.

USCIS ADVISES PETITIONERS OVERSEAS: DO NOT RE-FILE I-130

On February 27, 2007, the U.S. Citizenship and Immigration Services (USCIS) advises anyone who filed an I-130, Petition for Alien Relative with an American embassy or consulate since July, 2006 that they do not need to re-file the petition. USCIS is working with the US Department of State to process those petitions.

USCIS ANNOUNCED NEW FILING INSTRUCITONS FOR I-129 AND I-539 FORMS

Effective April 2, 2007, all Forms I-129 and I-539 are to be filed with the California Service Center or Vermont Service Center based on the place of temporary employment or place of residence. Applicants are responsible for filing the forms with the correct Service Center and should verify that they use the correct filing address by referring to the instructions on the relevant form. To find out where to file your application, please click on following links to view the I-129 and I-539 filing charts.

Form I-129 Filing Chart

Form I-539 Filing Chart

BIA ADDRESSES TERMINATION OF PROCEEDINGS FOR ADJUDICATION OF NATURALIZATION APPLICATIONS

The Board of Immigration Appeals (BIA) reaffirmed its 1975 opinion in Matter of Cruz, holding that because the BIA and the Immigration Judges lack jurisdiction to adjudicate applications for naturalization, removal proceedings may only be terminated pursuant to 8 C.F.R. § 1239.2(f) (2006) where the Department of Homeland Security (DHS) has presented an affirmative communication attesting to an alien’s prima facie eligibility for naturalization.

The BIA also held that an adjudication by the DHS on the merits of an alien’s naturalization application while removal proceedings are pending is not an affirmative communication of the alien’s prima facie eligibility for naturalization that would permit termination of proceedings under 8 C.F.R. § 1239.2(f).

THE DREAM ACT REINTRODUCED IN CONGRESS

On March 6, 2007, Senator Richard Durbin (D-IL) introduced the Development, Relief, and Education for Alien Minors (DREAM) Act of 2007 (S. 774) in the Senate. During the previous week, on March 1, 2007, Representative Howard Berman introduced similar legislation, the American Dream Act (H.R. 1275), in the House.

The DREAM Act and American Dream Act would make certain undocumented students eligible for a 6-year conditional permanent resident status upon high school graduation. These students could then apply to have the conditional basis of their permanent residence status lifted after completing at least two years of higher education or serving for at least two years in the U.S. military.

The bills would also repeal section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which requires states that provide the in-state tuition rate to undocumented students to provide the same tuition rate to out-of-state residents.

Original cosponsors of the American Dream Act (H.R. 1275) include Representatives Howard Berman (D-CA), Lincoln Diaz-Balart (R-FL), Ileana Ros-Lehtinen (R-FL), and Lucille Roybal-Allard (D-CA).

Original cosponsors of the DREAM Act (S. 774) include Senators Richard Durbin (D-IL), Chuck Hagel (R-NE), Richard Lugar (R-IN), Edward Kennedy (D-MA), Patrick Leahy (D-VT), Russ Feingold (D-WI), Barack Obama (D-IL), Joseph Lieberman (I-CT), Larry Craig (R-ID), Mike Crapo (R-ID), and John McCain (R-AZ).

USCIS CIUDAD JUAREZ (MEXICO) OFFICE REVISED WAIVER APPLICATION PROCEDURES

On March 6, 2007, the US Citizenship and Immigration Services (USCIS) office in Ciudad Juarez (CJ), Mexico will begin the following new pilot program for waiver application processing:

1. When a consular officer makes a determination of inadmissibility at the time of the immigrant visa interview and a waiver application may be submitted under 8 CFR 212.7, the applicant will be given a USCIS waiver letter, which indicates that the applicant may go on-line via INFOPASS to make an appointment to come back to the US consulate in CJ to submit an I-601 or I-212 waiver application, as applicable, with a fully documented waiver packet.

2. These INFOPASS appointments may be scheduled prior to the immigrant visa interview, but they must not be made for the day of the immigrant visa interview. For those with waiver packets fully documented and ready for adjudication, the earliest such a waiver review appointment should be made is a day after the immigrant visa interview. A better approach may be to wait at least two days to make sure that the fingerprints taken on the date of the immigrant visa interview have cleared.

3. In order to set up this process, the USCIS had to find staff to be able to do fingerprint intake on the date of the immigrant visa interview as well as to accept the G-325.

4. When the waiver applicant comes back to the consulate with the complete and fully documented waiver application, a USCIS employee will review the packet (not interview the applicant), and if the case is a clean one and clearly approvable, the waiver application may be approved that day. Then, the consulate will either approve the immigrant visa that day or within the next one to two days.

5. If the submitted packet is not clearly approvable, then the application will go into the regular processing waiting line (10 TO 11 months) and the applicant will be instructed to provide additional supporting documentation to USCIS. Thus, using this process, the applicant will get a second chance for review versus exposure to a denial at the time of the first review.

The purpose of the new procedure is to try to reduce the backlog of pending waiver cases. The idea is that reducing the level of growth of the backlog by using this pilot will eventually result in an overall reduction of the waiver processing times.

NEW BIOMETRICS PROCESS FOR CONDITIONAL PERMANENT RESIDENTS

On February 28, 2007, the US Citizenship and Immigration Services (USCIS) announced the implementation of a new nationwide biometric process for conditional permanent residents who file Form I-751, Petition to Remove Conditions on Residence. The new process is effective immediately. Under the old process, following the approval of Form I-751, an approval notice was issued instructing the applicant to appear at a USCIS District Office for processing of his or her Form I-551, Permanent Resident Card (a.k.a, Green Card). The approved applicant would manually submit passport-style photos, index fingerprints, and a signature on Form I-89, I-551, or I-586 Card Data Collection Form, for creation of his or her permanent resident card.

The new process requires all conditional permanent residents to appear at a USCIS Application Support Center (ASC) after filing Form I-751 in order to have their biometrics electronically captured. An ASC appointment notice will automatically be sent by mail to the applicant with the specific date, time and location for biometric processing. Biometric processing includes the electronic capture of an applicant’s photograph, signature, index fingerprint and ten-print fingerprints. The photo, signature and index fingerprint are used to generate the permanent resident card, if the Form I-751 is approved. The 10-print fingerprints are captured for the purpose of conducting a criminal background check and are processed for applicants between the ages of 14 and 79. Applicants will no longer be required to submit passportstyle photos, since photos will be captured at an ASC. USCIS requires all conditional permanent residents, including those residing overseas pursuant to military or government orders, to submit the standard base petition fee of $205 and a biometric services fee of $70. Following the submission of all applicable fees, a scheduled appearance at an ASC and the approval of Form I-751, applicants will be issued a permanent resident card by mail. The process for “applicants overseas due to military or government orders” is different and is described below.

It is important to note that each conditional resident dependent eligible to be included on the principal applicant’s Form I-751 and listed under Part 5 of Form I-751, must submit an additional biometric services fee of $70. This includes dependents residing overseas pursuant to military or government orders, regardless of age.

Exception For Conditional Resident Applicants and Conditional Resident Dependent Children Residing Overseas Due to Military or Government Orders

Since USCIS does not have ASCs overseas, conditional resident applicants and their conditional resident dependents will not receive an ASC appointment notice. In order for USCIS to conduct biometric processing of these conditional residents residing overseas and to generate a permanent resident card for approved applicants, principal applicants and their conditional resident dependent/s between the ages of 14 and 79 are required to submit two fingerprint cards (Form FD-258). In addition, all applicants and eligible dependents, regardless of age, are required to submit two passport-style photos. As indicated on the instructions of Form I-751, both items are required at the time of filing the form. Conditional resident applicants currently residing abroad pursuant to military or government orders must have their fingerprints taken at a U.S. Military Installation, Overseas USCIS Office, U.S. Consulate, or U.S. Embassy. In order for USCIS to identify filings based on military or government orders, applicants are required to indicate on top of Form I-751, “ACTIVE MILITARY or GOVERNMENT ORDERS”, and submit a copy of their current military or government orders. USCIS customers inquiring about their pending petitions may use the following two methods to receive information:

USCIS CLARIFIES CRITERIA TO EXPEDITE FBI NAME CHECK

US Citizenship and Immigration Services (USCIS) is no longer routinely requesting the FBI to expedite a name check when the only reason for the request is that a mandamus (or other federal court action) is filed in the case.

USCIS may continue to request an expedited FBI name check if the case meets one of the other approved criteria, including:

1. Military deployment;
2. Age-out cases not covered under the Child Status Protection Act, and applications affected by sunset provisions such as diversity visas;
3. Significant and compelling reasons, such as critical medical conditions; and
4. Loss of social security benefits or other subsistence at the discretion of the USCIS District Director.

The FBI name check is an invaluable part of the security screening process, ensuring that our immigration system is not used as a vehicle to harm our nation or its citizens. USCIS also requests an FBI name check to screen out people who seek immigration benefits improperly or fraudulently and ensure that only eligible applicants receive benefits.

US EMBASSIES RESUME ACCEPTING I-130 FAMILY PETITIONS

Effective March 21, 2007, US consular posts abroad will accept Form I-130 petitions for immediate relative immigrant classification from American citizens who are residents in their consular district, including members of the military, as well as true emergency cases, such as life and death or health and safety, and other determined to be in the national interest. As of January 21, 2007, consular offices abroad were instructed to cease accepting immigrant visa petitions, because consular officers lacked the means to perform the required criminal background checks on American citizen petitioners.

Subsequently, the US Department of State (DOS) and the US Citizenship and Immigration Services (USCIS) worked to develop a mechanism whereby USCIS will perform these required background checks for any petitions accepted abroad by consular offices.

To demonstrate residency in a consular district, American citizen petitioners must be able to show that they have permission to reside in the consular district and that they have been doing so continuously for at least 6 months before filing the petition. Individuals who are in the country on a temporary basis, such as student or tourist, would not be considered to meet the residency standard.

Examples of family emergency include minor children who would be unexpectedly left without a caretaker. Examples of national interest include facilitating the travel of United States military and other US government direct hire employees assigned overseas who are pending transfer on orders and need to petition for immigrant classification of their spouse and minor children at posts overseas.

All lawful permanent residents, and American citizen resident in the United States or with a permanent address in the United States, must file I-130 petitions at the USCIS Service Center having jurisdiction over their place of residence.

OUR OFFICE PUBLISHES THIS NEWS UPDATE TO PROVIDE THE PUBLIC WITH GENERAL INFORMATION REGARDING THE LATEST DEVELOPMENTS IN US IMMIGRATION LAW. THE INFORMATION IN THIS NEWS UPDATE SHOULD NOT BE INTERPRETED AS LEGAL ADVICE. READERS ARE STRONGLY ADVISED TO CONSULT A QUALIFIED IMMIGRATION LAWYER TO RESOLVE THEIR INDIVIDUAL CIRCUMSTANCES. FOR CONSULTATION WITH AN IMMIGRATION LAWYER, PLEASE CALL US AT (626) 279-5341 OR E-MAIL US AT INFO@BCCVISALAW.COM. AN ATTORNEY IN OUR OFFICE WOULD BE HAPPY TO ASSIST YOU.