ImmiLetter Vol. I – Issue 1: September 1, 2006

· Premium Processing for EB3 (I-140s): A Brief Analysis
· Immigrant Visa Retrogression for Indians: How Does It Affect You?
· BALCA Approves First PERM Case: Fresh Hope for Denied Cases?
· Fingerprint Checks Now Mandatory For Green-Card Holders

Can This Happen To Me?
· Last Action Rules: – Ambiguities and Exceptions!

What Lawyers Aren’t Telling You!
· 7th Year Extension Possible For People Who Do Not Have A Permanent Labor Certification Pending


Premium Processing for EB3 (I-140s): A Brief Analysis
Starting from August 28, 2006 USCIS (U.S. Citizenship and Immigration Services) has extended Premium Processing Services to the employment-based third category visa EB-3. However, at present, Premium Processing is only available for EB-3s filed under “professional or skilled worker” grouping. EB3 “other workers” is not included in this extension.

What is Premium Processing? Premium processing is a service through which an applicant can get his/her application reviewed within 15 calendar days by paying an additional $1000 processing fee to the USCIS. While the USCIS does not promise a decision within this time-frame, this service does expedite the decision eventually. The USCIS can also issue a RFE (Request for Evidence), in which case another 15 days are added to this time frame.

What is EB-3 visa? The EB-3 is an employment based immigrant visa which allows foreign nationals to enter into the U.S. to obtain permanent residency. EB-3 allows for three levels of qualifications:
1. Foreign nationals with at least two years of experience as skilled workers
2. Professionals with a baccalaureate degree and
3. Other workers with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.

New Form 1-907 Issued
The USCIS has issued a new and revised Form I-907 (Request for Premium Processing Services form). The new Form I-907 has the revision date of August 28, 2006 followed by the letter “N” in the lower right corner of the form. Premium Processing Service requests made on or after August 28 must use the new Form.

Restrictions on EB-3 (I-140) Premium Processing
Not all EB-3 cases are eligible for the extended premium processing being launched on August 28, 2006. The service is not available to EB-3 cases listed below:
· Petition for EB3 “other workers” cases.
· Petition for a second I-140, where a previous I-140 is pending.
· Petitions for Labor Certification Substitutions.
· Petitions for duplicate labor certification.
USCIS have stated that these cases are excluded only for the reason that their processing requirements cannot be completed within the 15 day time limit set.

EB-3 Premium Processing for Labor Certification Substitutions cases
USCIS has not allow Premium Processing for Labor Certification Substitution cases on the grounds that the processing requirements for these cases take longer time then the 15 day limit of the Service.
Let’s look at why so much time is required. An employer can apply for Labor Certification Substitution.
. Before filing for I-140
· After filing for I-140 but before approval
· After I-140 approval, but before the employee files for I-485
· After approval and even after the employee has filed for I-485
In all the cases, except for the first, the Employer needs to produce duplicate I-140s and duplicate labor certifications from DOL and hence the need for more time.
However, in the first case, since the employer hasn’t filed the I-140 yet, he is able to produce the original Labor Certificate and the USCIS is authorized to give a ruling on the substitution request and I-140 petition without further consultation with the DOL (Department of Labor). Therefore, in this situation, petition for Labor Certification Substitution does not take more time than the allotted period.
Moreover, there is indication that the DOL and USCIS will eliminate labor certification substitutions altogether in near future. If Premium Processing is extended to these cases now, it will be a great advantage to the employers as it will help avoid build up of backlogs.

We at conclude that USCIS should consider the above situation as exception to the rule and allow these cases the advantage of Premium Processing.

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Immigrant Visa Retrogression for Indians:

How Does It Affect You?
The September 2006 Visa Bulletin, was a mixed bag for Indians. The U.S. Department of State (DOS) announced various changes to priority dates of certain employment bases visas.
1. The EB1 visa, which previously had a cutoff date for those charged to India, has been made current this September.
2. The EB-3, which was also retrogressed by 15 days, from April 15, 2001 to April 1, 2001, for persons born in India, is back to its original priority date.
3. The EB-2 immigrant visa category remained unavailable to persons born in India. This category was declared unavailable to Indian citizens in the August Visa Bulletin and the September bulletin indicates that it may remain so for the time being.

Impact on India born EB-1 Beneficiaries
EB1 is current for Indian Nationals in the month of September, as per the September 2006 Visa Bulletin released by the U.S. Department of State (DOS). So applicants for the EB1 category who are abroad may file their I-485 application now. Applicants can also file for Employment Authorization Document or Advance Parole travel permissions.

Impact on India born EB-2 Beneficiaries
As of August 1, 2006, persons born in India will neither be able to petition for an immigrant visa under the EB2 Alien Worker category nor file for adjustment of status to permanent residence, until the priority dates are made current again.

Indian’s who have already filed for adjustment of status will have their applications placed on hold by the USCIS until their priority dates are available again. In the meantime, they can still apply for or extend other benefits like EAD etc.

Indian citizen’s who were in the process of applying for EB2 visa will have to wait for the priority dates to become current to resume the process, unless they were issued immigrant visas prior to August 1, 2006.

Impact on India born EB-3 Beneficiaries
The EB3 priority date, which was retrogressed in the August Bulletin, moved forward to its original date of April 15, 2001. So, people who were unable to process their petitions for the past one month can go ahead again.

However, the September Bulletin predicts further retrogression of EB3 dates in the coming fiscal year. The DOS notes that high demand for visa numbers and cases with old priority dates are the cause of the retrogression.

Predictions for Coming Fiscal Year
The current fiscal year has seen visa caps reaching their quota incredibly fast. Keeping that in mind and the fact that the Cap will probably not be increased in many categories, the September Bulletin predicted further retrogressions in the coming financial year.

The Bulletin predicts that the categories most likely to face retrogression are the EB-1 visa category for India, and the EB-3 and EB-4 category for all countries. The EB-2 is most likely to remain unavailable for Indian citizens for a longer period. According to the Bulletin, the main reason for EB-2 unavailability is the huge backlog of cases the Department of Labor is yet to clear.

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BALCA Approves First PERM Case: Fresh Hope for Denied Cases?

The verdict on the first PERM case Matter of Health America, BALCA Case No: 2006-PER-1, delivered by the Board of Alien Labor Certification Appeals (BALCA), has gone solidly in favor of the employer.

Not only did the BALCA approved this PERM case, it also noted that “…although an agency may impose a rigid regulatory scheme to promote administrative efficiency, under the particular circumstances of this case, the ETA Certifying Officer’s (“CO”) denial of reconsideration was an abuse of discretion.”

The BACLA drew its conclusion on the basis of the preamble to the PERM regulations, which states that the PERM computerized system would assist applicants by identifying obvious errors in their applications. And BALCA felt that in this case there was no identification of an obviously erroneous date on the PERM application. The case was not reviewed beyond the computerized process, it concluded.

Thus, BALCA summarized, that the CO abused his discretion and since there was no way in the PERM process for the employer to correct the error, “the consequences to the Employer were out of proportion with the mistake.”

However, the case will not be certified just because it has been revoked. The BALCA has ordered the case be returned to the USCIS to be processes by the CO properly this time, with the typographical errors duly corrected.

DOL Considers Review of Denied Cases
Following the favorable decision given by the BALCA on the first PERM case, the U.S. Department of Labor (DOL) has requested the return of all denied cases for further review.

BALCA is yet to give an indication as to whether it will return the cases and if so, how long the DOL will take to review the cases. Many applicants may prefer to re-apply rather then wait longer.

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Fingerprint Checks Now Mandatory For Green-Card Holders

Effective August 28, 2006 U.S. green card holders, parolees and certain Canadian citizens are now having their fingerprints checked every time they re-enter the U.S. by air or sea.

The new security checks were introduced by the Department of Homeland Security on July 27, 2006 as part of the so-called US-VISIT program. The program requires the US-Visitor to submit a digital photograph and two fingerprints. The program helps the US government keep tab on criminals entering the country.

This program has helped the U.S. government catch 1,100 criminals at ports of entry since it was launched, said Bob Mocny, acting director of the US-VISIT program. Currently, there are millions people enrolled in this program from various countries, except Canada and Mexico, who may be added soon.

The new security directive states that everyone who re-enters the U.S. through an airport or seaport will be checked, Mocny said. The program doesn’t apply to Mexicans coming into the U.S. with a border crossing card.

Canadians professionals like nurses, agricultural workers, students and religious workers, will only have to submit their fingerprints, if they are questioned by a Customs and Border Protection official at land ports, Mocny added. Canadian citizens, who are only crossing the border to shop, visit or for holiday are not required to enroll in the program.

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Can This Happen To Me?

We devote this section to highlighting specific cases where you as an immigrant might find yourself in. If you have a related problem or feel the case study does not answer your question, you are welcome to post your question on our forum section.

The Rule This Week:
If at the time of entering the US on valid H-1B visa approved through a previous employer and the alien is currently in H-1B status with a different employer, if this is the case, then it is important to note the alien is permitted to re enter. However, the “last action rule” dictates that his admission to the U.S. is valid only till the expiry of the new I 94 issued at the port of entry.

Scenario 1: Mr. A entered the US on January 1, 2002 on company X’s H1B visa which was valid through December 31, 2005. On January 1, 2005, Mr. A transferred his H1B to another company “Y”, which was approved till December 31, 2008.

Mr. A went back home to his country in April 2005 for personal reasons. He re-entered the US in May 2005. The officer at the port of entry ignored his current H1B from company Y and gave an I 94 valid till December 31, 2005.

Mr. A failed to notice the date on his I-94 (December 31, 2005) and assumed that his second H1B approval from company Y will authorize him to stay until December 2008. One day Mr. A suddenly realized that his I-94 had expired 6 months ago and had stayed in the US “ILLEGALLY” for this past 6 months.

Scenario 2: Mr. A entered US on F1 visa and later applied for change-of-status to H1B. While his case was being processed, Mr. A went out of the country. It will be considered as if Mr. A abandoned his H1B application.

Scenario 3: The USCIS approves Mr. A’s status to H1B and with a future start date and, thereafter Mr. A travels outside of the US, reentering before his H1b status kicks in. In this case, does the international travel change the equation under the “last-action rule” where the last action of the USCIS governs one’s status?

USCIS clarified this issue in a letter (not to be confused with memo), saying the last action would not be the travel and re-entry in the prior status, but the previously approved petition and change of status with a future start date. Therefore the travel DOES NOT invalidate the previously approved USCIS change of status effective from a future date.

However, caution is due since USCIS gave this interpretation in a letter of guidance which has less weight that USCIS memo and also lacks the binding nature of a law.

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What Lawyers Aren’t Telling You!

In this section, we will reveal the exceptions to the rules and the ambiguities in the law – information that most lawyers won’t reveal but that can save you a lot of time and headache.

7th Year Extension Possible For People Who Do Not Have A Permanent Labor Certification Pending!

The Rule:
As per the USCIS guidelines, 7th year extension on H1B status is possible only if the alien has a pending labor certification for 365 days or more. There are many H1B aliens who do not have a labor certification pending as the company for which they work might not have the policy to sponsor the Green Cards (Not all companies sponsor Green Cards for their employees).

The Exception:
Labor Certification Substitution is the answer here. This is how it works:

Applicant A does not have a pending labor certification. However, another company X has a labor certification pending for another alien B, who in the meantime has left company X. In this situation, Company X is allowed to substitute alien A for alien B on the pending labor certification, if he fits the specified skills and education on that certificate.

The substitution can be done at the BEC level and if approved, the pending labor certification will still carry its original priority date, making it pending for more than 365 days for the new substituted alien A and hence he can get the 7th year extension.

It is not an easy process however. But it necessary, it can be handled by a competent lawyer.

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The information provided on this newsletter is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney.

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