WOLFSDORF IMMIGRATION NEWSLETTER
Congratulations to Managing Partner Bernie WolfsdorfOn June 4, 2009, Bernie Wolfsdorf was installed as the President of the
American Immigration Lawyers Association (AILA) for the 2009-2010-term.
Mr. Wolfsdorf was installed as the President of AILA during the
association’s 53rd Annual Conference held in Las Vega, Nevada. This is the
text of his speech, in which he outlines his goals, strategies and
initiatives for guiding AILA in the coming year:
on Being Installed
as President of AILA!
EMPLOYMENT-BASED IMMIGRATION NEWS
1. Outlook Grim for India, China Employment-Based
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
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
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
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:
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
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
• 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
• Failure to use E-Verify, consistently or at all, once registered;
• Failure of a SAVE agency to initiate additional verification when
• 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
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
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
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
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
For more information, see
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
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.
SPECIAL IMMIGRANT UPDATES
7. Court Orders USCIS To Accept Concurrently Filed Religious Worker,
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
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
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
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
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
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
• 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
The announcement is available at
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coasts, the firm serves an extensive and diverse client base, ranging from
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Our large and dedicated staff of 50 employees ensures prompt and expert
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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
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