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Immigration Updates

March 2004
Immigration Updates

US CIS Announces That H1B Cap Has Been Reached

USCIS (formerly INS) announced on February 17, 2004 that enough cap-subject H-1B cases are in the pipeline to reach the fiscal 2004 cap. Cap-subject cases filed after February 17, 2004 will be returned. This means that the congressionally mandated cap of 65,000 workers had been reached 5 months into the fiscal year.

Members of the South Asian community have been closely following the issuance of H1B visas, for Specialty Occupations. The H-1B visa program allows U.S. employers to hire, on a temporary basis, highly educated foreign professionals for "specialty occupations." Examples include doctors, engineers, professors, accountants, researchers, medical personnel and computer professionals. Besides using these foreign professionals to obtain essential skills or rare and unique knowledge, U.S. employers use the program to acquire special expertise in overseas markets, trends or distribution (therefore allowing U.S. businesses to compete in global markets), or to alleviate temporary shortages of U.S. professionals where they occur in specific occupations.

The H-1B visa is a tool to keep the U.S. economy vibrant and keep jobs in America. As evidenced by reaching the cap so early in the fiscal year, H-1B professionals remain essential to fill specific positions in companies across the country.

This cap does not affect the issuance of visas at consulates (when the individual already received an H1 approval from US CIS, but does not yet have a visa stamp), H1 to H1 transfers, or H1 extensions. Also, it is possible that Congress will act on the cap, increasing it to a reasonable number and perhaps reinstating the $1000 "training fee" which lapsed this fiscal year.

Update on PERM Regulation

The PERM Regulation, discussed in previous issues of Khabar's Immigration Update, will revolutionize the labor certification process by allowing for certifications to be issued weeks after the initial filing, and by allowing for online processing.

Recently, the DOL budget now was approved, and now the DOL will submit the PERM regulation to the Office of Management and Budget (OMB). The OMB must clear the regulation before it can be published in the Federal Register, which can take up to 90 days. The regulation will be effective 120 days after publication in the Federal Register. Therefore, those people who are closely following PERM will have to wait for the DOL to send the regulation to OMB, the OMB to process the regulation, and the Federal Register to publish the regulation.

As PERM may be within six to twelve months of becoming reality, those who want to file for labor certification using current procedures need to take action very soon. To pre-advertise and use the RIR (Reduction in Recruitment) procedure, the case generally must begin at least four months in advance of filing. It is always better to allow more than the minimum time. Once PERM is put into place, the existing labor certification procedures may no longer be available for new cases.

Companies that currently have labor certifications being processed may also benefit from the DOL budget, if the backlog reduction plan goes into effect. This program, designed to clear out the backlog of labor certification cases, was also on hold awaiting the budget. Due to the influx of filings during the existence of INA �245(i), also known as the LIFE Act, which allowed for those without status to file labor certifications and other petitions, the majority of State and Regional Departments of Labor have been backlogged by several years.

USCIS Proposes Filing Fee Increase

On February 3, 2004, US CIS proposed adjusting the fee schedule for immigration benefit applications and petitions, as well as the fee for capturing biometric information of applicants/petitioners (i.e. the fingerprinting fee) who apply for certain immigration benefit applications and petitions. The fee increases are attributed to a number of factors including national security enhancements, improved refugee processing, naturalization services for military personnel, and the Office of Citizenship. Other expenses to be covered by the fee increases are a competitive sourcing study for public-private job competitions for Immigration Information Officers and Contact Representatives positions, litigation settlements, administrative support costs, and a cost of living adjustment. This rule proposes to adjust the immigration benefit application fees by approximately $55 per application, and increases the biometric (fingerprinting) fee by $20, in order to ensure sufficient funding to process incoming applications.

The Proposed Rule appeared in the Federal Register on February 3, 2004, and comments on it are due by March 4, 2004. A Proposed Rule is not one that is immediately implemented. Therefore, the fees have not yet increased. Comments must be reviewed and considered in the rulemaking process. We will update readers once a date is set in place for implementing the filing fee increase. In the meantime, those who would like to avoid the higher fees may wish to take steps to file their applications or petitions in the near future, if possible.

Newest DS-156 Needed for Visa Revalidation

The U.S. Department of State (DOS) Revalidation Unit recently announced that they now require all visa applicants to use a new DS-156 form that generates a bar code. They will no longer accept older, non-bar coded versions. The proper DS-156 application form is available through the State Department website, at www.state.gov. This change is only for persons seeking to revalidate their existing visas from within the U.S. If an outdated form is used, the State Department will most likely decline to process the case.

Regional US CIS Service Center Update

In a teleconference with the American Immigration Lawyers Association (AILA), US CIS provided several pieces of useful information for those with cases pending at the Regional Service Centers. Summaries from the Question & Answer session are below:

Why are I-140s taking so long?

The I-140 Petition for Immigrant Worker are filed by an employer/employees in several situations, most commonly when the employee is in the US on an L visa or if the employer filed and received a labor certification from the US Department of Labor. The processing times for I-140s have become quite lengthy throughout the United States, especially now that many labor certifications filed during the LIFE Act are getting approved. When questioned as to when applicants and beneficiaries can expect some improvement, the answer was unclear. The USCIS advises that each Service Center is on a "production plan." USCIS must first address legally required deadlines and its plan to reduce waiting times at the local level. There is a hope, but not a promise, to move some USCIS examiners to I-140 adjudication after backlogs are reduced in other areas and now that the H1B cap is reached.

Photograph Specifications

Immigration photographs must meet certain, very specific requirements, including the size of the image in the photo. The USCIS was asked whether the photos are scanned and, if so, if the dimensions of photographs can be adjusted digitally to meet the regulations. The USCIS confirmed it scans the photographs. There are, however, limits to the ability of the USCIS to make adjustments to photographs. The Service Center will issue a Request for Evidence to obtain new photographs if those submitted are unacceptable. It is best, therefore, to submit photographs with the correct specifications, to avoid delays in the case processing.

To whom should checks for filing fees be made payable?

The filing fee checks for cases filed with the Service Centers should be made out to USCIS. However, checks will be accepted at this time if they are made out to: CIS, Citizenship and Immigration Services, BCIS, Bureau of Citizenship and Immigration Services, US CIS, U.S. Citizenship and Immigration Services, DHS, Department of Homeland Security, Immigration, Immigration Services, U.S. Immigration Services, INS, and Immigration and Naturalization Service. Senior USCIS officials also stated that some checks made out to DOJ or Department of Justice will be accepted, if it is clear that the intent was to pay immigration-filing fees. Of course, it is best to make the check out to the proper entity, not to non-existent organizations or incorrect divisions of the government. The policy now seems to be quite broad, due to the progressive transition from INS to USCIS. There is no assurance, however, that the USCIS will indefinitely continue to accept checks made out to all the listed variations.

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