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Immigration Updates for 2009

February 2009
Immigration Updates for 2009

Customs & Border Patrol to Check Legal Permanent Residents at Border

The Department of Homeland Security (DHS) issued a rule on December 19 2008, greatly expanding those who will be subject to the United States Visitor and Immigrant Status Indicator Technology Program ("US-VISIT") requirements, to nearly all immigrants. Now, lawful permanent residents may also be subjected to fingerprint scans and other biometric data collection procedures when traveling to and from the U.S. The rule becomes effective Immigration Updates for 2009US-VISIT automates this verification, comparing biometric identifiers with information drawn from intelligence and law enforcement watch lists and databases. Currently, people entering the US pursuant to a nonimmigrant visa, or those traveling as part of the Visa Waiver Program, are subject to US-VISIT requirements, with certain limited exceptions.

US-VISIT will now apply to all permanent residents entering or exiting from an air or seaport. Permanent residents entering through land ports of entry, however, will be required to provide fingerprints only if they are referred to secondary inspection. Permanent residents with criminal convictions traveling outside of the U.S. should be reminded that they are likely to be detected at entry, and they should be prepared to present evidence regarding their admissibility.

Unresolved questions remain about the timeline for implementation of US-VISIT departure requirements for permanent residents. We will keep Khabar readers updated as new information becomes available.

First-Time H1 Applicants Face New Obstacle

Employers planning to file H-1B petitions on April 1, 2009 for employment in Fiscal Year 2010 should be aware that processing times are expected to lengthen for a required part of the H-1B petition—the Labor Condition Application (LCA). In 2009, the Department of Labor will introduce new procedures for obtaining the LCA. Employers must take these increased processing times into account when planning for the Fiscal Year 2010 H-1B filing season, which opens April 1, 2009. LCAs are submitted to DOL online, and are typically approved very quickly, in a matter of minutes. Earlier this year, however, DOL announced that it would increase its scrutiny of LCAs in 2009 and would take up to seven days to adjudicate them. Even longer processing times could be possible, such as where DOL decides to examine the information used by the employer to determine the required wage for the H-1B position.

In the LCA, employers make several attestations concerning H-1B employment, including that they will pay the H-1B worker the higher of the prevailing wage for the position in the area of employment or the actual wage paid to other employees in the same position.

Employers should not wait until the final weeks before April 1, 2009 to obtain certified LCAs. Note that obtaining an LCA early can shorten an H-1B worker's initial period of stay, since LCAs can only be obtained six months before a requested start date and are valid for a maximum of three years. However, the certified LCA will be in hand and ready to file with the H-1B petition on April 1.

Labor Certification Processing at a Standstill at Department of Labor

Although the promise of the PERM system of labor certification was faster processing, current processing times indicate otherwise. Labor certifications are now filed at the Atlanta Processing Center, and lawyers around the country are reporting that not a single of their cases filed after May 30, 2008 has been processed. When the PERM system began in 2005, the DOL vowed to shorten processing times to 60 days. Although inconsistent, it had been processing cases close to that timeframe until this year. Now, we believe that DOL manpower is being diverted to handle the backlog of “Motions to Reconsider”—cases that were denied and are being appealed. Although we applaud the DOL’s efforts to clear this backlog, it should not be done at the expense of those who have been filing cases for the last 8 months and patiently awaiting a decision.


FAMILY India                      Pakistan/Bangladesh

1st 08Jul02             08Jul02

2A 01Jun04 01Jun04

2B 08May00 08May00

3rd 01Aug00 01Aug00

4th 15Jan98 15Jan98

EMPLOYMENT India           Pakistan/Bangladesh

1st Current Current

2nd 01Jun04 Current

3rd 15Oct01 01May05

Other 15Oct01 15Mar03

4th Current Current

5th Current Current

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