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Significant Changes In Employment Immigration Regulations

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July 2007
Significant Changes In Employment Immigration Regulations

Significant Changes In Employment Immigration Regulations In Effect As Of July

A Department of Labor (DOL) regulation and the latest visa bulletin released by the Department of State (DOS) have significant effects on the immigrant community; one limits the uses and validity dates of the popular labor certification application used for the employment-based Green Card process, while the other allows for thousands of employees holding these approved labor certifications to file their petitions for permanent residency immediately.

CHANGES TO LABOR CERTIFICATION SUBSTITUTIONS:

United States Citizenship and Immigration Services (USCIS) is introducing new procedures for filing an I-140 Petition for Alien Worker that requires an approved labor certification application. These procedural changes are in response to the DOL rule that takes effect on July 16, 2007. The immigrant visa classifications that generally require an individual labor certification include members of professions holding advanced degrees or aliens of exceptional ability (EB-2); and skilled workers, professionals and other workers (EB-3).

The DOL rule will significantly impact the filing of Form I-140 petitions with USCIS because it:

1.Prohibits substitution of alien beneficiaries on any permanent labor certification application after the application has been filed with DOL.

2.Establishes a 180-day time period within which a DOL-approved labor certification must be filed with USCIS in support of a Form I-140 petition in order to remain valid.

3.Requires that any labor certification approved by DOL prior to July 16, 2007 be filed with USCIS in support of an I-140 petition within 180 days after the effective date of the DOL final rule in order for the certification to remain valid.

1.Requests for Labor Certification Substitution filed with USCIS prior to the Effective Date of the DOL Final Rule

USCIS will accept and adjudicate Form I-140 petitions that request labor certification substitution and that are filed with USCIS prior to July 16, 2007. USCIS has, in a separate notice, announced that Premium Processing (adjudication in 15 days) for such petitions will no longer be available as of May 18, 2007. Any I-140 petitions filed after July 16th that request a substitution will be denied.

MOST EMPLOYMENT BASED VISAS CURRENT AS OF JULY 1st:

The July 2007 Visa Bulletin shows that all Employment Preference categories except for Third "Other Workers" have been made "Current" for July. This has been done in an effort to generate increased demand by Citizenship and Immigration Services (CIS) for adjustment of status cases, and to maximize number use under the annual numerical limit. However, all readers should be alert to the possibility that not all Employment preferences will remain Current for the remainder of the fiscal year. Should the rate of demand for numbers be very heavy in the coming months, it could become necessary to retrogress some cut-off dates for September, most likely for China-mainland born and India, but also possibly for Mexico and the Philippines. Severe cut-off date retrogressions are likely to occur early in FY-2008.

Practically speaking, this means that all EB-2 and EB-3 Skilled Worker labor certifications that are approved by July 2008 can be used to file I-485 petitions for permanent residency by the sponsored employee. Substitutions in these labor certifications can be made before July 16th, as outlined by the article above. Although actual Green Card issuance may still take some time, this will allow employees that file, and their dependent family members, to obtain work and travel permits until that time.


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