We recently reported that DHS Secretary Chertoff announced that USCIS will begin issuing Employment Authorization Documents (EAD) with a two-year validity period for a limited number of individuals who have applications for legal permanent residence status pending with the U.S. Citizenship and Immigration Services (USCIS). On June 12, 2008, USCIS issued a fact sheet addressing frequently asked questions regarding the eligibility requirements for the two year EAD. In summary the fact sheet states:

  1. The two-year  EAD cards will be available to individuals with pending adjustment of status applications who have filed for an EAD and are currently unable to adjust their status to that of a permanent resident because an immigrant visa number is currently not available. Individuals with visa numbers that are available will continue to be granted EADs that are valid a one-year period.
  1. USCIS expects to implement these new rules for issuing EADs on June 30, 2008.
  1. Applicants who file for an initial EAD application with their adjustment of status application (Form I-485) will only receive a one-year EAD because such individuals can only file for adjustment of status if visa numbers are current. EAD Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses after their adjustment of status application is filed.
  1. The USCIS will decide whether to issue a two-year EAD based upon the most recent Department of State Visa Bulletin.

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DHS Secretary Chertoff Announces that USCIS will begin issuing Employment Authorization Documents with a 2 year validity period for individuals with green card applications pending.

DHS Secretary Chertoff Announces that USCIS will begin issuing Employment Authorization Documents with a 2 year validity period for individuals with green card applications pending.

On June 9, 2008, Homeland Security Secretary Michael Chertoff announced at his State of Immigration Address that the Department of Homeland Security (DHS) will be extending the validity period of the employment authorization documents (EAD) that are issued to individuals who applications for adjustment of status to lawful permanent resident status (“green card”) pending.

Currently, such individuals are granted EADs with a maximum validity of one year. According to Secretary Chertoff, beginning later in June 2008, the U.S. Citizenship and Immigration Service (USCIS) will start issuing EADs with a validity period of two years for individuals who have adjustment of status applications filed that are expected to be pending for more than one year.


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I-140 Premium Processing to be resumed for individuals running out of time on H-1B status

The American Immigration Lawyer’s Association (AILA)  reports that beginning July 16, 2008, the U.S. Citizenship and Immigration Service (USCIS) will resume premium processing for I-140 petitions in limited circumstances. Premium processing should be available for those beneficiaries whose six year H-1B status will expire within 60 days of filing the premium processing request so that they can utilize the approved I-140 petition to become eligible for additional time on H-1B status. The I-140 petition process is the second phase of most employment-based immigration proceedings. An official notice has not yet been issued by USCIS.

This is definitely positive news for individuals who will be running out of time on H-1B status.

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USCIS Update on Adjustment of Status Applications

USCIS Announces Revised Processing Procedures for Adjustment of Status Applications


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Update on AILF's Legal Action Center Visa Bulletin Litigation (Updated 7/10/07)

The following is the latest update from AILF regarding its pening legal action as posted on "AILA InfoNet Doc. No. 07062975 (posted Jul. 10, 2007)"



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USCIS Expands Premium Processing to EB-1 and EB-2 cases

On September 22, 2006 the United States Citizenship and Immigration Services (USCIS) announced that it will begin accepting Premium Processing requests for three new categories. Starting September 25, 2006, USCIS will begin accepting premium processing requests for employment based immigration petitions (Form I-140) involving the following categories:

  • EB-1, outstanding professors and researchers
  • EB-2, members of professions and advanced degrees or exceptional ability not seeking a National Interest Waiver, and
  • EB-3, workers other than skilled workers and professionals (i.e., unskilled labor requiring less than two years of training and experience.

Starting September 25, 2006 businesses will have the option of paying an additional $1,000.00 Premium Processing fee in exchange for a 15-calendar-day processing of their I-140 Immigrant Petition for Alien Worker. To see the USCIS news release on EB3 premium processing click here. For more information on Premium Processing services offered by the USCIS visit this link.

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New Immigration Enforcement Tactics

In 2006 alone, over 400 criminal charges have been filed against companies that have hired foreign workers who are not authorized to work in the United States.

Employer sanctions, what are they?

Until the late 1980s it was not illegal for an employer to hire an undocumented worker. However, with the enactment of the Immigration Reform and Control Act of 1986 (IRCA), Congress made it illegal for employers to hire undocumented workers. IRCA’s rules are referred to as “employer sanctions.” There are three employer sanctions associated with IRCA: 1) Employers are prohibited from knowingly hiring a noncitizen who is not authorized to work fork for them; 2) Employers must verify the identity and work eligibility of all their employees, even if they are US citizens, by filling out an I-9 form and maintaining proper I-9 records. If an employee fails to comply with the verification requirements, the employer must refuse to hire them; and 3) Employers are prohibited from intentionally discriminating in hiring or firing an individual on the basis of an individual’s national origin or citizenship status.

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USCIS Expands Premium Processing to Employment Based 3rd Preference Category

On August 18, 2006 the United States Citizenship and Immigration Services (USCIS) announced that it will begin accepting Premium Processing requests for 3rd preference employment based immigration petitions (Form I-140). Starting on August 28, 2006 businesses will have the option of paying an additional $1,000.00 Premium Processing fee in exchange for a 15-calendar-day processing of their I-140 Immigrant Petition for Alien Worker. To see the USCIS news release on EB3 premium processing click here. For more information on Premium Processing services offered by the USCIS visit this link.

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Visa Retrogression Questions & Answers

In light of the recent retrogression of Employment Based Visa Categories, our office has received many queries regarding the impact of retrogression and visa availability. Below is a list of questions and answers made available by the American Immigration Lawyers Association that answers many of the queries that we have received.

The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a "Priority Date." The priority date is the single, most important, factor in any immigration case.

Employment-Based First Preference (EB-1) Employment-Based Second Preference (EB-2) Employment-Based Third Preference (EB-3) Other Workers

Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master's or Ph.D.) (The position must be one that requires a Master's or
Ph.D. to perform the duties - the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company's job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor's degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master's level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected.

Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor's degree or two years of training). The position must require a minimum of a bachelor degree or two years of training.

Other Workers includes positions that require less than two years of experience.

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Employment-Based Visa Retrogression - How Does It Effect You?

Cause-effect is defined by Webster's dictionary as, "the concept that an action or event will produce a certain response to the action in the form of another event." The State Department has taken action upon the enormous backlogs throughout the system and has effectively made a once stagnant process, a process that moves at an efficient rate. With one problem solved, another problem is faced. Due to the improved processing at the USCIS and the Department of Labor more labor certification and visa petitions have been approved, and therefore more adjustment of status applications have been granted and visa numbers are becoming very limited. This issue is not projected to get any better in the coming years. The State Department has provided some statistical data into the future visa numbers available: FY2005-249,000; FY2006-156,000; and FY2007-148,000.

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Rumor Regarding EB1/EB2 Unavailability in August is Untrue

The Department of State (DOS) advised the American Immigration Lawyers Association (AILA) that a rumor circulating on some listserves that the employment-based first and second preferences will be going unavailable for the remainder of the fiscal year is NOT correct. The August Visa Bulletin is not yet published, but the DOS has advised that both categories will remain Current in August. It may be possible that the EB-2 category will become unavailable in September either for India and China or worldwide in the second half of the month only, but DOS is not yet certain whether that will be necessary.

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PERM Filings - Some Problems Still Exist

The American Immigration Lawyers Association (AILA) reported this week that many of its members are still experiencing problems with the PERM online filing system. Many attorneys have been reporting that some of their cases that had been showing on the status screens as "denied" have now switched to "review pending," "audit" or some other status reflecting that the case is no longer denied. On the other hand, other attorneys who previously saw "review" or "audit" statuses are now reporting screens that indicate "denied". Still others report that previous "denied" screens have not changed. In response to AILA's inquiries about this to the U.S. Department of Labor (DOL), officials of the DOL stated all the issues with the PERM system's decision matrix have not been fixed yet, but the DOL is working to rectify the situation. The DOL stated that it will notify AILA when the changes are implemented and asked that attorneys and their clients be patient and not re-submit their applications.

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Why Me? Employers and the PERM Audit

This article will explain the Department of Labor (DOL) PERM audit. We will explore what a PERM audit is; reasons why an audit may occur; how the audit will be conducted; and what are the consequences for an employer if an adverse finding is the outcome of the application.


Unlike the Reduction in Recruitment (RIR) or Traditional Processing (ROR) processes, which required the employer to provide documentary evidence when filing the application, the PERM process allows the employer to file the application to the Department of Labor without submitting any supporting documentation. The regulations guide the employer as to what is required for filing a PERM application, and instruct that all documentary evidence should be maintained by the company for a period of five years. In most instances, when a government agency allows filings to occur without the submission of documentation (i.e. income tax return) they establish an audit procedure to ensure compliance with the government regulations. In basic terms, a PERM audit is merely a request by the government for the employer to provide documentary evidence, which proves all information that the employer attested to in the PERM application. The audit determines that all statutory and regulatory requirements have been met for the PERM application. The DOL will determine the following when processing the PERM application: 1) Did the employer meet the procedural requirements of the regulations; 2) Was the U.S. labor force tested and no qualified U.S. workers were found; 3) Will the employment of the alien have a damaging effect on wages and working conditions for U.S. workers likewise employed. The following are examples of what a PERM audit may review: are the employer's job requirements too restrictive, does the wage offered by the employer meet the prevailing wage requirements, did the employer conduct proper recruitment and adequately test the U.S. labor market. An employer should gather and organize all documentation into a comprehensive file prior to submitting the PERM application. This documentation should be kept readily available in the event of an audit by the DOL for a period of five years. The DOL will no longer be issuing "Notice of Findings" (NOFs) as they had previously with the prior RIR and ROR systems. In the past, NOFs had allowed the employer to have an opportunity to correct any oversights that may have occurred in the application and resubmit the application for continued processing. The new PERM system will not issue NOFs, instead an audit letter will be sent to the employer requesting legal analyses and business necessity documentation in reference to the particular application under audit.

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Update On FY2006 H-1B Numbers - Rumors That Cap Is Close To Being Met Are False

The United States Citizenship and Immigration Service (USCIS) has provided the American Immigration Lawyers Association with an update on where it stands with respect to the Fiscal Year 2006 H-1B quota numbers. According to AILA, USCIS has stated that, despite rumors to the contrary, the USCIS has not reached enough fiscal year 2006 cap-subject H-1B petitions to be nearing the cap. Unofficially, the USCIS has indicated to AILA that H-1B petitions are coming in more slowly than had been predicted. This is most likely due to the increse in USCIS filing fees that went into effect earlier thie year.

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Employment Based 3rd Preference (EB3) Category Becomes Unavailable for FY2005

According to the July 2005 Visa Bulletin released by the US Department of State (DOS), the Employment Third and Third Other Worker categories have retrogressed further. These categories have reached their annual limits and no further FY-2005 allocations are possible for the period July through September. With the start of the new fiscal year in October, numbers will once again become available in these categories. To view the July 2005 Visa Bulletion click here.

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US Department Of Labor Releases Latest FAQs On PERM

On June 1, 2005, the US Department of Labor released its latest additions to the list of frequenty asked questions (FAQs) that it has already compiled. The latest FAQs address issues pertaining to the filing of PERM applications, the withdrawal of PERM applications, the recruitment associated with PERM, and audits triggered during the PERM process. Below you can find for your reference, the complete text of the DOL's FAQs on PERM.

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Obtaining Proof of Filing of Labor Certification Application

The United States Department of Labor (DOL) recently provided the American Immigration Lawyers Association (AILA)with guideance on how to obtain documentation from the DOL Backlog Reduction Center that a labor certification application was filed more than 365 days ago. This is a very important issue for individuals currently on H-1B visas who are coming up on completling their six year term on H-1B status as in accordance with the American Competitiveness in The 21st Century Act (AC21), such individuals can extend theier H-1B visas in one year increments beyond the 6 year period provided that they can prove to the United States Citizenship and Immigration Service (USCIS) that they have applied for a labor certification application with the DOL at least 365 days prior to the completion of their sixth year H-1B term.

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The New E3 Visa for Nationals of Australia

On May 11, 2005, President Bush signed into law the Emergency Supplemental Appropriations Package (H.R. 1268). Part of the legislation contained several immigration related provisions. One of the provisions enacted by Congress created a new work visa category for Australians that in many respects will make it one of the most attractive visas in US immigration law. The new law will largely take Australians out of the H-1B quota and offer them a visa that is similar, but more flexible than the H-1B. It also incorporates some of the elements of an E treaty visa and functions as a hybrid visa that should be highly useful to Australian nationals seeking work in the US.

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Recapture of Visa Numbers for Schedule A Occupations (Nurses, Physical Therapists, and Performing Artists of Exceptional Ability)

On May 11, 2005, President Bush signed into law the Emergency Supplemental Appropriations Package (H.R. 1268). Part of the legislation contained several immigration related provisions. Section 502 of the provision, titled "Visas for Nurses" amends § 106(d) of the American Competitiveness in the Twentieth Century Act (AC21) (which provides for the recapture of unused employment-based immigrant visas) by placing the unused employment-based visa numbers from fiscal years 2001-2004 in the "bank" for use in future fiscal years when the demand for employment-based immigrant visas in EB-1, 2, and 3 exceeds the annual quota.

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The US Department of Labor (DOL) recently posted some FAQs on the Backlog Reduction process addressing issues dealing with Reduction In Recruitment (RIR) case processing, Traditional Recruitment (TR) case processing, the issuance of 45-day letters, change of attorney, and etc. We have gone through these FAQ's and summarized them for your reference.

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Department of Labor's Latest Update on PERM Denials

The Department of Labor (DOL) implemented the PERM (Program Electronic Review Management) program on March 28, 2005. The PERM program replaced the old labor certification process that was in place for well over 25 years. Labor Certification is the first step for most employment based permanent resident petitions. The transition to PERM has not been as smooth as the Department of Labor and many immigration law practitioners had envisioned it to be. Since the implementation of PERM, many attorneys have been reporting that they are getting a result of "denied" when they check the automated case status system for cases that they have submitted. At first, these denials were believed to have resulted from a system error. However, upon further investigation, DOL determined that these cases were in fact denied cases. These cases have been denied, not on substantive grounds, but rather on PERM's rule-based system that automatically denies these cases on certain bases. PERM is an electronic filining system that has certain denial triggers encoded within itself. Therefore, it is important to be very diligent in preparing and filing PERM based labor certification applications. The DOL has addressed this issue of denials in a recently released set of Frequently Asked Questions (FAQs) and also in a response to questions posed by the American Immigration Lawyers Association (AILA). This article summarizes these materials and provides an update on the PERM process.

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The Department of Labor conducted a focus group on 3/11/05 to review the form and filing process for the PERM labor certification program, which takes effect 3/28/05. Representatives of AILA's Labor Department Liaison, PERM Implementation and Business Immigration Committees participated.

Below is a summary of some of the key points that emerged.

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Immigration Options For Entrepreneurs Seeking To Start Ventures In The United States

An international entrepreneur's ownership of a U.S. business offers the entrepreneur a wide range of options for temporary and permanent immigration to the United States. Most nonimmigrant (temporary) options available to entrepreneurs are largely dictated by the individual's personal history, goals and investment. This article will explore the business immigration options for foreign nationals seeking to start new business ventures in the United States.

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