WOLFSDORF IMMIGRATION NEWSLETTER
Mid-June 2009

Congratulations to Managing Partner Bernie Wolfsdorf
 on Being Installed as President of AILA!

EMPLOYMENT-BASED IMMIGRATION NEWS

1. Outlook Grim for India, China Employment-Based Visa Categories

The July cut-off date for the India and China EB-2 categories is January 1, 2000. The Department of State reports that these categories could become unavailable in August or September and remain unavailable indefinitely. The Department said there is a backlog of at least 25,000 India EB-2 cases awaiting visa numbers. Charles Oppenheim of the Department of State's Visa Office reportedly stated that without legislative relief, the waiting time for Indian EB-2 applicants may be measured in years, even decades.

See AILA leadership blog comment at
http://ailaleadership.blogspot.com/2009/06/immigrant-visa-numbers-hopelessly.html

Meanwhile, the EB-1 category for India and China is not likely to stay current, although the EB-1 category worldwide is expected to remain current. EB-3 visa numbers worldwide and for India, China, and Mexico are expected to remain unavailable for the remainder of this fiscal year at least. The EB-3 category for India could remain unavailable indefinitely. The third preference and "other workers" employment categories are unavailable in July.

Mr. Charles Oppenheim of the Department of State Visa Office has advised of the following predictions for the movement of priority dates for the remainder of Fiscal Year 2009 (“FY 2009”) and future years. He estimates that all 140,000 employment-based immigrant visa numbers will be used this fiscal year (October 1, 2008 through September 30, 2009). Mr. Oppenheim notes that the estimates provided on visa availability for the remainder of FY 2009 were based on USCIS processing during the first 7 ½ months of the fiscal year, and any changes to USCIS processing patterns would impact availability. Mr. Oppenheim reported:

• The employment-based fourth preference, which includes religious workers and other special immigrants, has experienced a surge in usage of immigrant visa numbers this year. While this preference is current for June 2009, continued heavy demand for numbers could require the establishment of a cut-off date later in the fiscal year.
• The employment-based fifth preference (immigrant investors) has also experienced a surge in usage of immigrant visa numbers this year.
• The surge in usage of the employment-based fourth and fifth preference numbers is significant beyond those specific categories themselves because, historically, there have been substantial unused numbers in these categories which have been used to meet demand for visas in the employment-based first and second preference categories, allowing the China and India cut-off dates to advance further than would be possible if those categories are limited to only their annual limits. This means EB2 immigrants from China and India could have an even longer wait to obtain green cards.
• The EB1 category worldwide will remain current the rest of the fiscal year but demand is high.
• The EB1 categories for India and China will be current during the month of July 2009, but could require the establishment of a cut-off date in August or September should EB1 demand remain heavy. As noted above, China and India have previously benefited from the excess EB1 numbers for all other countries because excess visa numbers from other countries "fall across" the EB1 category to India and China. The high demand from other countries this year means there are fewer numbers to "fall across" to India and China.
• EB2 India. The prognosis is grim. For July 2009, the cut-off date is January 1, 2000, and the category may become unavailable in August or September of 2009. There are currently approximately 25,000 EB2 India cases, which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for the "green cards" to be approved. Like all other countries, India has a limit of 2,800 EB2 numbers available per year plus any "fall across" and "fall down" numbers from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for Indian EB2 applicants may be measured in years, even decades.
• EB2 China. The prognosis is equally grim. As of July 2009, the cut-off date will be January 1, 2000 and the category may become unavailable in August or September of 2009. There are a significant amount of EB2 China cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for approval of the adjustment of status. Like all other countries, China has a limit of 2,800 EB2 numbers available per year plus any "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for China born EB2 applicants may also be many years.
• EB3 Worldwide will be unavailable the remainder of this fiscal year. As the Department of Labor cleared its long backlog of Alien Labor Certification cases, there were tens of thousands of I-485 applications with priority dates in 2004 and earlier years which were processed by USCIS this year. The Department of State currently estimates that, as of October 1, 2009, the EB3 worldwide cut-off date will be March 1, 2003. There will be extended delays in this category.
• EB3 visas for India, China and Mexico applicants will be unavailable for the remainder of the fiscal year. It is estimated, based on current demand for visa numbers that as of October 1, 2009, the following cut-off dates could be established: China will be March 1, 2003; India will be November 1, 2001; and Mexico will be March 1, 2003. These estimates are based on "current demand" in the first 7 ½ months of FY2009, and a lot could change between now and early September when October dates are established.
• There are approximately 25,000 EB2 and 25,000 EB3 applicants currently queued at the Department of State awaiting visa numbers.
• There are 2.7 million family-based applicants on the waiting lists for consular processing. Note that this information was provided in the March Visa Bulletin. (See AILA InfoNet Doc. No. 9021063 < http://www.aila.org/Content/default.aspx?docid=27954> .)
• There could be approximately 50,000 employment-based applicants on the waiting lists for consular processing.
• Currently almost 90% of all employment-based visa numbers are used by USCIS and 75% of all family-based visa numbers are used by consular posts.

 The Visa Bulletin for July 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4512.html.

2. E-Verify Federal Contractor Rule Delayed Until September 8, 2009

The effective date to require federal contractors to use the E-Verify system to confirm the work authorization of new hires has been delayed again, to September 8, 2009. There is strong bipartisan support for electronic verification of new hires using federal systems, so Wolfsdorf Immigration Law Group cautions all employers not already using E-Verify to be prepared for it in 2010.

Contact your Wolfsdorf attorney for guidance on I-9 audits, transitioning from paper to electronic I-9s, E-Verify training and policies, and related matters. We are available to assist employers in navigating through the new era in employment verification.

For more on this topic, see U.S. Citizenship and Immigration Services' (USCIS) response to the USCIS Ombudsman on E-Verify: http://www.dhs.gov/xlibrary/assets/uscis_response_cis_ombudsman_recommendation_38.pdf.

3. DHS Proposes To Expand E-Verify Monitoring and Compliance Efforts

U.S. Citizenship and Immigration Services' Verification Division has created a Monitoring and Compliance (M&C) Branch, which will seek to "identify potential cases of misuse, abuse, discrimination, breach of privacy, or fraudulent use of SAVE [Systematic Alien Verification for Entitlements] and E-Verify."

The M&C Branch is developing detailed procedures for both monitoring verification transactions and performing compliance activities on defined non-compliant behaviors. For example, DHS notes, with respect to the misuse of Social Security numbers, M&C will identify when a single social security number is used multiple times for employment authorization verifications through E-Verify. DHS acknowledges that it would not be uncommon for a single individual to be verified several times through E-Verify because one person may hold multiple jobs or change jobs frequently, but it would be unusual for a single individual to hold 30 or 40 jobs simultaneously. M&C has developed procedures for identifying when a certain threshold number of verifications of a single SSN would be likely to indicate misuse. If this threshold is met, M&C may contact or visit an employer to research the issue and determine if there is a system problem the Verification Division needs to correct; a user misunderstanding that requires additional training for the employer; or potentially fraudulent activity that may need to be reported to a law enforcement agency. Information also may be shared with other government agencies.

The management of compliance activities and storage of the supporting information will be handled by the Compliance Tracking and Management System (CTMS). Activities that will be monitored may include:

• Fraudulent use of Alien Numbers (A-Numbers) and SSNs by E-Verify users;
• Termination of an employee because he receives a tentative nonconfirmation (TNC);
• Failure of an employer to notify DHS, as required by law, when an employee who receives a final nonconfirmation (FNC) is not terminated;
• Verification of existing employees (as opposed to new hires);
• Verification of job applicants, rather than new employees (pre-screening);
• Selectively using E-Verify or SAVE for verifications based on foreign appearance, race/ethnicity, or citizenship status;
• Failure to post the notice informing employees of participation in E-Verify;
• Failure to use E-Verify, consistently or at all, once registered;
• Failure of a SAVE agency to initiate additional verification when necessary;
• Unauthorized searching and use of information by a SAVE agency user; and
• Fraudulent use of visas, permits, and other DHS documents by SAVE users.

DHS also notes that employers are required to post notification of their participation in E-Verify conspicuously for their employees. This notification provides the employees with information concerning their rights and responsibilities regarding E-Verify, including contact information. M&C compliance activities on this front most likely would occur based on a complaint or hotline report, or during a compliance visit researching other potential noncompliance. M&C might also identify potential noncompliance from media reports or tips from law enforcement agencies.

The related proposed rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-11966.pdf. The Privacy Act notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-11967.pdf.

4. USCIS Ombudsman Reports on Denials of Adjustment of Status Applications Following a Change of Employment

The U.S. Citizenship and Immigration Services (USCIS) Ombudsman has received inquiries stating that the agency is not issuing Notices of Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications.

If a foreign national is: (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has a Form I-485 pending for 180 days or more, he or she is eligible to change to a same or similar position. If the underlying approved I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then USCIS must issue a Notice of Intent to Deny the pending I-485.

However, the ombudsman noted that USCIS may deny the I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances. These include, for example, where the beneficiary is ineligible for the benefits of the I-485 by statute, or the I-140 is withdrawn before the I-485 was pending for 180 days.

If you think your case was erroneously denied, the ombudsman asks that you forward a description of the problem using DHS Form 7001 with the subject line, "AC21 Evidence of Immediate Denial." Include a copy of your denial notice, detailed information about the reasons for the immediate denial, and, if appropriate, evidence that you submitted a Motion to Reopen or Reconsider. "If we consider your case to be an erroneous denial, we will forward it directly to USCIS for further review," the ombudsman states. For additional guidance, contact your Wolfsdorf attorney.

For more information, including links to USCIS Interoffice Memoranda further clarifying USCIS processing of these cases, see http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#1.

STUDENT & EXCHANGE VISITOR UPDATES

5. SEVP Posts New Information on Upcoming SEVIS II

The Student and Exchange Visitor Program (SEVP) has added a new section to its Web site on the development of the SEVIS II database. SEVIS II supports the application and admission of students and exchange visitors under the F, M, and J classifications. SEVIS II maintains personal information about these foreign nationals and any accompanying dependents. In addition, SEVIS II maintains personal information about officials of approved schools and designated exchange visitor sponsors who host nonimmigrant students and exchange visitors.

SEVIS II will deploy in two phases: the first phase is expected to occur in October 2009, and the second, final phase will occur in March 2010. With the full deployment of SEVIS II, U.S. Immigration and Customs Enforcement says it will retire the original SEVIS system. All necessary data from the original system will be migrated to SEVIS II before the deployment of the first phase.

For more information, see http://www.ice.gov/sevis/sevisii/index.htm.

6. DOS Proposes Electronic Submission of SEVIS Annual Reports

The Department of State (DOS) has proposed allowing electronic submission of Student and Exchange Visitor Information System (SEVIS) annual reports. Annual reports from designated program sponsors assist DOS in oversight and administration of the J-1 visa program. The reports provide statistical data on the number of exchange participants an organization has sponsored by category. The reports also summarize the activities in which exchange visitors were engaged and evaluate program effectiveness. Program sponsors include government agencies, academic institutions, and private sector entities.

Annual reports currently are completed through SEVIS and then printed and signed by a sponsoring official, and sent to DOS by mail or fax. DOS is working with the Department of Homeland Security to expand SEVIS functions and enable the collection of electronic signatures. Annual reports will be submitted to the Department electronically as soon as the mechanism for doing so is approved and in place, DOS said.

See http://edocket.access.gpo.gov/2009/pdf/E9-12147.pdf.

SPECIAL IMMIGRANT UPDATES

In Ruiz-Diaz v. U.S., Washington District Court has found that the bar against concurrent filings on behalf of religious workers for adjustment of status is invalid and unenforceable. The court ordered U.S. Citizenship and Immigration Services to begin accepting concurrently filed special immigrant religious worker petitions and adjustment of status applications, along with related employment authorization applications.

The case is available at http://www.aila.org/content/default.aspx?docid=29247.

8. DHS Establishes Interim Relief for Widows of U.S. Citizens

The Department of Homeland Security (DHS) has granted deferred action for two years to widows and widowers of U.S. citizens, and their unmarried children under 21 years old, who reside in the U.S. and were married for less than two years before their spouse's death.

U.S. Citizenship and Immigration Services (USCIS) will suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse before the second anniversary of the marriage. Additionally, U.S. Immigration and Customs Enforcement (ICE) will defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children.

USCIS will also consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law. DHS said it will soon issue guidance on how to apply for this relief.

While the directive provides a short-term arrangement for widow(er)s of deceased U.S. citizens, the agency noted that legislation is required to amend the definition of "immediate relative" in the Immigration and Nationality Act to permit surviving spouses to remain indefinitely after the U.S. citizen spouse dies, enabling them to seek permanent resident status.

The DHS notice is available at http://www.dhs.gov/ynews/releases/pr_1244578412501.shtm.

TRAVEL UPDATE FOR NON-CITIZENS

9. DHS Begins Exit Pilot Test of Fingerprint Collections at Two Airports

The Department of Homeland Security (DHS) has begun collecting digital fingerprints from non-U.S. citizens departing the U.S. as part of a pilot program at Hartsfield-Jackson Atlanta International Airport and Detroit Metropolitan Wayne County Airport.

Non-U.S. citizens leaving from Detroit and Atlanta airports should expect to have their fingerprints collected before boarding their flights. U.S. Customs and Border Protection (CBP) officers will collect fingerprints at the boarding gate from non-U.S. citizens departing from Detroit; U.S. Transportation Security Administration (TSA) officers will collect fingerprints at security checkpoints from non-U.S. citizens departing from Atlanta. The pilot tests are expected to continue through early July. US-VISIT plans to begin implementing new biometric exit procedures based on these pilots for non-U.S. citizens departing the U.S. by air within the next year.

Non-U.S. citizens departing the U.S. from all other ports of entry will continue to follow current exit procedures, which require travelers to return their paper Form I-94 (Arrival-Departure Record) or I-94W (for Visa Waiver Program travelers) to an airline or ship representative.

Since 2004, the U.S. Department of State (DOS) and U.S. Customs and Border Protection (CBP) have collected biometrics from most non-U.S. citizens between the ages of 14 and 79, with some exceptions, when they apply for visas or arrive at U.S. ports of entry. The US-VISIT program has simultaneously worked to create a congressionally mandated automated biometric exit capability, which these pilots are testing.

For more information, see http://www.dhs.gov/ynews/releases/pr_1243605893203.shtm.

GLOBAL NEWS

10. European Union Adopts Blue Card for Highly Skilled Foreign Workers

The Council of the European Union has created a fast-track procedure for issuing a special residence and work permit, the "EU Blue Card," for third-country citizens in highly qualified employment. Under the rules set by the directive, EU Blue Card holders will enjoy equal treatment with nationals of the member state issuing the Blue Card regarding:

• working conditions, including pay and dismissal;
• freedom of association;
• education, training, and recognition of qualifications;
• a number of provisions in national law regarding social security and pensions;
• access to goods and services, including procedures for obtaining housing,
• information and counseling services; and
• free access to the entire territory of the member state concerned within the limits provided for by national law.

Following its publication in the Official Journal of the EU, the member states will have two years to incorporate the new provisions into their domestic legislation.

The announcement is available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/misc/107989.pdf.

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The Wolfsdorf Immigration Law Group is one of the largest immigration boutique firms in the United States. With offices on both the east and west coasts, the firm serves an extensive and diverse client base, ranging from Fortune 500 corporations to entertainers and leading academic institutions. Our large and dedicated staff of 50 employees ensures prompt and expert attention to your immigration law matters. For more information about any of the above-mentioned issues, or any immigration-related questions or concerns, please contact our team of professionals or your assigned Wolfsdorf professional at (310) 570-4088 or contact us via email at visalaw@wolfsdorf.com

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This email does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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