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Please check back frequently for updates to immigration law, firm announcements and other items of interest. To subscribe to our newsletter which will provide information and breaking news related to immigration law changes and announcements, please e-mail Joseph Law Firm, P.C.: mail@immigrationissues.com BREAKING NEWS:
________________________________________________________________________________________________ 5/7/2008 USCIS announces proposed rule to extend TN validity period from one year to three years USCIS released an advance copy of a proposed rule to extend the period of admission and extension of stay for TN nonimmigrants. The rule proposes to increase the maximum allowable period of admission, and extensions of stay, from one to three years. For more information, click here: TN proposed rule . __________________________________________________________________________________________________ 4/8/2008 USCIS announces that it has sufficient H-1B visa petitions in the pipeline to reach the visa cap for both regular petitions and "Master's Cap" petitions for fiscal year 2009. USCIS announced that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009. The cap has been reached in both the regular H-1B category in which 65,000 visas are available, as well as the advanced degree exception category in which 20,000 are available. This means that no additional, general, cap-subject H-1B petitions for temporary professional workers can be filed until April 1, 2009, absent a legislative fix. Because the cap has been reached and more cases were filed on the first day of visa availability that there are visas available, all petitions filed on that date will be subjected to a computer-generated random selection lottery process. USCIS will first complete data entry for all filings received during the filing period that ended on April 7, 2008. According to its March rules, the selection process for "advanced degree" exemption petitions will be run first, and all "advanced degree" petitions not selected will be part of the random selection process for the 65,000 general category limit.
For more information regarding H-1B visas click here: H-1B visas __________________________________________________________________________________________________ 4/4/2008 DHS proposes a rule to extend Optional Practical Training for certain F-1 students from 12 months to 29 months The Department of Homeland Security issued an interim rule which will allow for the extension of post-graduation optional practical training (OPT) employment authorization for many F-1 students. The interim rule expands the maximum period of available OPT from 12 months to 29 months for F-1 students who have earned a bachelor's degree or higher in a science, technology, engineering, or mathematics (STEM) field in the U.S. To be eligible for this additional period, the STEM degree for which the F-1 student has obtained his or her OPT must have been in one of the degree programs on the current STEM Designated Degree Program List, and the student must be employed by an organization which is enrolled in DHS' "E-Verify" program.
The rule also eliminates the "cap-gap" problem for individuals whose F-1 optional practical training expires after he or she files for a change of status to H-1B, but prior to the October 1st start date for the H-1B petition (which is the date the H-1B visas are actually released and available). Under the rule, F-1 status and OPT work authorization is extended until October 1st for all individuals who are the beneficiaries of pending or approved cap-subject H-1B petitions and who have requested a change of status from F-1 to H-1B but whose H-1B start date does not begin until October 1 when the fiscal year begins and H-1B numbers are available. This avoids a gap in authorized stay and continuous employment. The automatic extension of F-1 and OPT status only applies to individuals who have applied for adjudication under the H-1B cap. Thus, individuals who are not beneficiaries of approved or pending H-1B petitions may not avail themselves of this benefit. One of the issues that has arisen with the proposed rule is the requirement in the rule that the employer must have requested a "change of status" in the petition rather than consular notification. This issue has been raised at a national level and is currently under discussions. It may be possible that there will be some sort of fix to this issue or the allowance for amendments to currently pending petitions. The automatic extension also terminates immediately if the H-1B is rejected, denied or revoked.
In addition to the above, the final rule provides that F-1 students may now apply for OPT during the 60-day grace period following the completion of their studies. Further, the rule limits the time in which an F-1 student may be unemployed during the validity of their OPT. F-1 students who have been approved for a 12-month OPT now fall out of status if they are unemployed for an aggregate period exceeding 90 days during their OPT time. Students who have been approved for a total period of 29 months of OPT fall out of status if they have an aggregate period of unemployment of more than 120 days during the OPT validity. For more on F-1 student visas click here: F-1 Student Visas __________________________________________________________________________________________________ 2/25/2008 Attorney General Mukasey Announces Higher Civil Fines Against Employers for Immigration Violations Attorney General Michael Mukasey today announced higher civil fines against employers who violated federal immigration laws. Under the new rule, civil fines will increase by as much as $5,000.00. The new rule will take effect on March 27, 2008. Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing unauthorized aliens or for other violations, including failure to comply with the requirements related to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud. For each of these violations, the employer has a right to a hearing before an administrative law judge in the Executive Office for Immigration Review. Under the new rule, civil penalties for violations of the law are adjusted for inflation. Because the penalties were last adjusted in 1999, the average adjustment is approximately 25%. The minimum penalty increases by $100 from $275 to $375. Some of the higher civil penalties are increased by $1000. The biggest increase under the new law raises the maximum civil penalty for multiple violations from the current $11,000 to $16,000. These penalties are assessed on a per-alien basis. These changes follow a series of reforms aimed at interior and worksite enforcement and an environment of dramatically increased worksite raids and criminal prosecutions of employers for employing unauthorized workers. For more information on employer compliance, please click here: Employer Compliance with the Immigration Laws.
_________________________________________________________________________________________________ 2/14/2008 March 2008 Visa Bulletin Released and Shows Significant Forward Movement in Employment-based Visa Categories The Department of State has released the Visa Bulletin for March 2008 and there is significant forward movement in some employment based categories. To view the bulletin, click here: March 2008 Visa Bulletin _________________________________________________________________________________________________ 2/13/2008 USCIS Announces that I-485 Adjustment Applications that have been Pending for more than 180 Days Due to Security Checks will be Approved Notwithstanding the Pending Security Checks if the Case is Otherwise Approvable Associate Director for USCIS, Michael Aytes announced a change in policy for the adjudication of I-485 applications that have been pending due to security checks. In an abrupt change is longstanding USCIS position, USCIS announced that adjustment applications that have been pending for more than 180 days can be approved despite the fact that the FBI name checks have not been cleared. USCIS had previously taken the position that no positive adjudication could be made on a pending I-485 application until the necessary "name checks" had been completed. USCIS will continue to initiate name checks upon receipt of an I-485 application, but in those cases where the case is otherwise approvable and has been pending for more than 180 days, USCIS will proceed to approval of the application notwithstanding the fact that the name check has not yet cleared. If, after approval of the I-485, derogatory information is received, USCIS will review the case to determine if rescission of the permanent resident status or the initiation of removal proceedings is appropriate. This change in policy only applies to I-485 applications and does not effect naturalization cases. Those cases remain subject to security checks and cannot be approved until the security checks are resolved. _________________________________________________________________________________________________ 2/11/2008 Arizona District Court Upholds Restrictive Law Requiring all Employers to Use E-Verify The Legal Arizona Workers Act (A.R.S. sections 23-211 and 23-214 (2007)) allows the Superior Court of Arizona to suspend the business licenses of all employers in the State of Arizona who knowing employ unauthorized workers. Under the Act, county attorneys may bring suit against employers who knowingly hire or employ unauthorized workers and an employer found liable faces possible suspension of business licenses, and can be ordered to file quarterly reports of new hires and to file an affidavit that it has terminated all unauthorized workers. The law also requires that after December 31, 2007, all employers must verify the employment eligibility of employees through E-Verify. Several Plaintiffs including trade organizations, business chambers, and non-profits challenged the law on the grounds that it was facially unconstitutional and preempted by federal law. On February 7, 2008, the United States District Court for the District of Arizona upheld the law and ruled that the law is not preempted by federal law. In so holding, the Court found that the federal immigration law provides explicit authority to the States to regulate business licenses as a means of supplementing federal authority to enforce employer compliance laws. Arizona enforcement officials have indicated that enforcement proceedings will commence March 1, 2008. The law does not appear to apply to out-of-state employees of a company with multiple job sites where one job site is located in Arizona. Only Arizona employees of such a company would be subject to E-Verify. However, the Memorandum of Understanding that an employer must sign to enroll in E-Verify requires that all new hires be treated equally, so it is unclear how the Courts will treat this apparent conflict between the State law in Arizona and the federal requirements of E-verify. _________________________________________________________________________________________________ 12/13/2007
Application Fees for Non-Immigrant Visas to Increase On January 1, 2008
From the Department of State Website: Effective January 1, 2008, the application fee for a U.S. non-immigrant visa will increase from $100 to $131. This increase allows the Department to recover the costs of security and other enhancements to the non-immigrant visa application process. This increase applies both to non-immigrant visas issued on machine-readable foils in passports and to border crossing cards issued to certain applicants in Mexico. Applicants who paid the prior $100 application fee before January 1 will be processed only if they are scheduled and appear for a visa interview before January 31. Applicants who paid the prior $100 application fee and appear for visa interviews after January 31, 2008 must pay the difference -- $31 -- before they will be interviewed. The Department is required by law to attempt to recover the cost of processing non-immigrant visas through the collection of the Machine-Readable Visa application fee. Because of new security-related costs, new information technology systems, and inflation, the $100 Machine-Readable Visa fee is lower than the actual cost of processing non-immigrant visas. In fact, the $100 fee was already lower than the cost of processing non-immigrant visas when the fee was reviewed as a part of the cost of service study in 2004. The Department has been absorbing the additional cost. We are now collecting 10 fingerprints from each applicant, and the cost charged by the FBI to review those fingerprints no longer allows us to do this. The application fee has increased twice since September 11, 2001, the last time in 2002. ________________________________________________________________________________________________ 12/6/2007 Immigrants' rights groups sue the Department of Homeland Security over FBI name check delays A group of immigrants in Southern California sued the federal government Tuesday to get an answer on their applications to become U.S. citizens, which have been tied up for months or years in lengthy FBI name checks. The class-action lawsuit, which was filed by the ACLU of Southern California and immigrant rights groups, aims to help immigrants who filed citizenship applications and passed their civics and English tests but have had their cases held up pending FBI name checks, which can require officials to sift through papers by hand. The suit also represents green card-holders who have applied for citizenship but not been given an interview because their name checks are pending _________________________________________________________________________________________________ 11/30/2007 DHS Secretary Chertoff announces an effort to significantly decrease the FBI name check security delay backlog In a meeting with various NGOS, DHS Secretary Chertoff indicated that USCIS and the FBI are changing parts of the name check process, with the expected result that a large proportion of the backlog should be cleared within six months. The changes are consistent with Secretary Chertoff's risk management approach. The Secretary hopes that, in addition to clearing the backlog, a large percentage of the kinds of applications and situations that have previously been caught in name check delays will, in the future, be cleared quickly. However, he cautions that some checks still will be delayed by investigations, but that that number should represent a small proportion of the numbers previously delayed. For information on how Joseph Law Firm can assist you with getting your case out of security name check backlogs, please click here: Filing writs of mandamus to remedy inaction or delays by the government. _________________________________________________________________________________________________ 11/26/2007 USCIS announces that processing times are likely to increase due to the influx of petitions received prior to the fee increase. From the USCIS website: "USCIS has received a significant increase in the number of applications filed. In July and August, nearly 2.5 million applications and petitions of all types were received. This compares to 1.2 million applications and petitions received in the same time period last year. This fiscal year, we received 1.4 million applications for naturalization; nearly double the volume we received the year before. The agency is working to improve processes and focus increased resources, including hiring approximately 1,500 new employees, to address this workload. As a result, average processing times for certain application types may grow longer. In particular, naturalization applications filed after June 1, 2007 may take approximately 16-18 months to process. USCIS has several informational services to keep you apprised of the agency's progress. We encourage you to take advantage of information posted on our website and to create and monitor your profile in our Case Status Online system to properly track your case. You will find a link to Case Status Online in the Related Links section of this page. We will continue to provide additional information on application processing times as it becomes available." ________________________________________________________________________________________________ 11/26/2007: USCIS Publishes new I-9 form that must be used effective November 7, 2007 From the Federal Register: "U.S. Citizenship and Immigration Services is issuing this Notice to introduce the newly amended Form I-9, ``Employment Eligibility Verification.'' Employers are required to use the Form I-9 to verify the identity and employment authorization of newly hired employees. The amended Form I-9 contains an updated list of acceptable identity and employment authorization documents that reflect the current regulations. As of November 7, 2007, the amended Form I-9 is the only valid version of the form. The Department of Homeland Security will not seek penalties against an employer for using a previous version of the Form I-9 on or before December 26, 2007. For a link to the new version of the form, please click here: New I-9 form. For information about how Joseph Law Firm, PC can assist you with your employer compliance and I-9 processes, please visit the employer compliance page of our website. _________________________________________________________________________________________________ 11/24/2007 USICE Announces that it will abandon the Social Security "No Match" Rule pending proper rulemaking The Department of Homeland Security (DHS) has abandoned its attempt to enforce the proposed "no match" rule that would attempt to use social security records as a tool for immigration enforcement. In a late Friday afternoon court filing in federal court in San Francisco, DHS requested that a lawsuit challenging the rule be put on hold until March 2008. The proposed policy would have required employers to penalize or fire U.S. citizens and legal workers whose social security numbers did not match up with the Social Security Administration (SSA) database. The lawsuit charged that the SSA database is fundamentally flawed and error-prone, and that the rule would result in the firing of countless legal workers as well as discrimination against those who look or sound "foreign." The government plans to publish a revised rule in December 2007 that it claims will pass legal muster. Last month, U.S. District Judge Charles R. Breyer issued a preliminary order stopping the government from enforcing the proposed rule – which would affect more than eight million workers – finding that it would cause irreparable harm to both innocent workers and employers. The SSA's own Inspector General found that more than 70% of the discrepancies in the SSA database belong to native-born U.S. citizens. Discrepancies between workers' social security numbers and SSA records can result from many innocent factors including clerical errors, name changes due to marriage or divorce, or the common use of multiple surnames. For more information about employer sanctions and "no match" letters, please visit the employer compliance page of our website. |
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