Immigration Updates

In terms of procedural change, consular offices will now verify work-related visa categories that require petition approval, such as H-1B and L-1, through the Petition Information Management System (PIMS), a new Department of State database of approval notices and related documents. Although in theory this should not create substantial delays, some technical issues have caused increased waiting time. Hopes are the situation will be resolved. New procedures have gone into effect at consulates along with increased visa application fees. The new application fee for non-immigrant visas is $131 (up from $100).

International travel has become a bit easier for individuals who have valid H or L status and have filed an application for adjustment of status (AOS) to permanent resident. Previously, such an individual would need either Advance Parole, which could take several months, or their AOS receipt, which could take up to two months to receive from time of filing. Caution to applicants in other statuses-these relaxed rules do not apply, so please consult your attorney before planning any travel outside of the U.S.

Nonimmigrant visa applicants who have DUI arrests and convictions should be prepared to have medical exams prior to issuance of their visas. Individuals who have been arrested for public drunkenness or other non-vehicular alcohol-related offense, should also be prepared to take a physical if asked by a consular officer.

Employees and potential employees are precluded from paying any expenses related to Alien Labor Certification pursuant to Department of Labor regulation. Employers can neither have repayment agreements nor enforce previously written repayment agreements. Employees can be held responsible for costs, including attorneys' fees and filing fees, for subsequent parts of the process involving the USCIS, including filing of Forms I-140 and I-485.

1. If an employee changes jobs, the new employer does not have to pay the exact wage stated in the labor certification. There will be a review, so a substantial difference may evoke the questions as whether it is in the same or similar job category. Of course, the wage must also be sufficient for the employee to support himself or herself. This law office has handled many of these situations and understands there are numerous factors that go into a salary. We will carefully review the situation to make sure the AC21 requirements are being met.

2. An employee can change job locations and meet the AC21 requirements.

3. There are no regulations, forms, applications or petitions that are part of the AC21 law that specify how the provisions of the law are implemented. As a general practice, this law firm notifies the USCIS regarding the use of AC21.

4. An individual can use AC21 in the situation of a promotion or transfer by the sponsoring employer. It is important that the new job is of a similar job classification.

5. An Employment Authorization Document (EAD) can be used in connection with AC21, but there are other options, such as an H-1B extension. This is possible even when the 6-year H-1B period has expired, if there is a qualifying green card case in process.

6. There is no limitation on the number of job changes using AC21. Of course, it's preferable to avoid job changes, but given the current backlog of priority dates coupled with the current economy, changes are likely and not detrimental. Loss of job can be very problematic. The I-140 must stay in effect until the 180-day point of the I-485. A new case can be a solid back-up, but before taking any action consult a qualified immigration attorney.

7. The receipt date of filing with USCIS governs the counting period.

8. It is not necessary to have worked for the sponsoring employer prior to filing the labor certification, I-140 or I-485, but it does help allay questions about the validity of the case.

9. If an employer revokes an I-140 before the I-485 has been pending for at least 180 days, there could be severe problems. If more than 180 days have passed since the filing of the I-485, the foreign national can show eligibility under AC21. If supporting documentation is sufficient, the case should be able to continue. The employer is under no obligation to notify USCIS about revocation of the I-140 if employment is terminated.

Immigration Consequences of Criminal Convictions

Even seemingly small offenses can have permanent consequences in terms of immigration. It is always best that the criminal attorney work together with the immigration attorney, so that all relevant details are considered. It is absolutely important an individual provide his or her immigration attorney with thorough details of past issues, so these issues can be addressed.

1. Unlike in criminal law, where an adjudication of guilt may be withheld-most notably for first-time offenders-in immigration law, it still can be considered a conviction if two conditions exist. Condition one is if a guilty or no-contest plea is entered or if the judge or jury find there are facts sufficient to have a guilty verdict. Condition two is if the judge levies a punishment involving a restraint on liberty, such as probation, community service or rehabilitation classes.

2. Foreign nationals must be aware of cases with deferred adjudication. In such a case, an individual would admit guilt, but the judgment of guilt is deferred. If the individual complies with terms of probation, etc., the judgment is never entered. If successful, the record of a U.S. citizen would reflect no conviction. It is considered a conviction for immigration purposes. This could also serve to postpone or void any pending matters where the defendant is the petitioner.

3. If a case is dismissed, there could still be consequences for a foreign national. If the dismissal was based on the defendant entering some sort of first-offender program, this could be considered a conviction for immigration purposes. If the case is dismissed on its merits by the Court, there are no lasting repercussions for the defendant.

4. If an individual's record is expunged, a U.S. citizen will have no criminal record because the record is sealed. This is not the case with a foreign national. All expunged records, arrests, charges and citations must be revealed as well as convictions. For immigration purposes there is a record that must be explained. It does not necessarily have consequences, but it is important the foreign national retain complete and accurate records of the matter.

5. U.S. Citizenship and Immigration Services (USCIS) has recently issued directions on how Form I-90, Application to Replace Permanent Resident Card, should be handled if criminal or security issues exist. These factors would become known through the IDENT (Automated Biometric Identification System) database. Lawful permanent residents run the same risks as non-residents in terms of consequences for criminal actions or security issues. They may not realize this, but the filing of an I-90 in the case or loss, theft or expiration of the alien's permanent resident card (green card) can set the wheels in motion for a Notice to Appear (NTA) to address the issues of arrest or conviction. A permanent resident with any criminal issues should consult a qualified immigration attorney before filing I-90.

6. USCIS field offices will be notified by USCIS Application Support Centers (ASC) if IDENT identifies criminal or security issues. USCIS may refer the matter to Immigration and Customs Enforcement (ICE). Processing of the case won't continue until ICE gives its intent in terms of initiating removal proceedings (deportation).

PERM Audits

The U.S. Department of Labor has announced that there are an increasing number of audits of PERM cases. As of December 2007, approximately 44 percent of pending PERM cases were in "audit review."DOL is scrutinizing these cases to ensure full implementation of the regulations and preservation of the integrity of the PERM program. Audits can considerably extend the processing time beyond the expected 45-to-60-days. It is crucial to work with a qualified and experienced immigration attorney to increase chances of avoiding an audit, and if an audit does occur be prepared to meet all the standards and achieve approval.

A new PERM form for labor certification filings, ETA 9089, is expected in summer 2008. The current ETA expires in March, but the validity is being extended until the new form is issued.

I-485 Motion to Reopen

It is essential that foreign nationals who are applying for immigration benefits or anticipate applying keep thorough records and retain all documents, forms, receipts and communications related to their immigration case or status. Anything involving U.S. Citizenship and Immigration Services (USCIS), U.S. Department of Labor (DOL) and U.S. Department of State (DOS) should be kept. This law office has successfully filed Motion to Reopen I-485 because records existed. Even if a document seems trivial or unimportant, keep it as it may be needed to bring your case to successful conclusion. If a foreign national relocates after the filing of the I-485 Application for Adjustment of Status, he or she must file the Non-U.S. Citizens Change of Address with USCIS and keep a record of this filing.

R-1 Religious Workers

USCIS has extended the suspension of premium processing of R-1 religious worker petitions until July 8, 2008. The USCIS has noted high levels of fraud in R-1 visa applications and non-immigrant petitions, which has caused them to become more stringent in reviewing these cases. In the past, premium processing, which guaranteed processing in 15 days or less, was available at an additional fee of $1,000. The more stringent reviews make such a time frame impossible. Premium processing for R-1s may be re-instituted at some future point.

Non-U.S. Citizens Must File Change of Address with USCIS

All foreign nationals, including permanent residents must file Form AR-11 with the USCIS in Washington, DC, if they have a change of address. This can be done online at the USCIS Web site or by mail. Also, if the foreign national has any pending applications or petitions, they must notify USCIS relative to these applications and/or petitions. There is an online system, the USCIS Web site, as well as a phone system, Customer Service Center, telephone # 1-800-375-5283. Anyone who is in immigration proceedings must follow additional requirements. These are not just administrative functions, they are the law.

H-2B Cap Reached

USCIS has announced that H-2B filings for fiscal year 2008 have reached the maximum. H-2Bs are for temporary workers in industries of a seasonal or fluctuating nature that ebb and flow in terms of staffing needs. An employer must obtain a temporary labor certification from the U.S. Department of Labor before filing the H-2B petition. It cannot be filed more than 120 days before the employee is needed. H-2Bs can be extended, but not for more than 12 months at a time. Maximum stay is three years. Industries that typically utilize H-2Bs are construction, healthcare, landscaping, manufacturing, resort and hospitality services.

Two BECs Closed

The Dallas and Philadelphia Backlog Elimination Centers (BECs) closed on Dec. 21, 2007. Labor Certification cases are now handled at the National Processing Center in Chicago. Any outstanding questions should be directed to that center. The email is bec.chicago@dol.gov. Please put Attn: Backlog in the subject line. Inquiries may also be sent by regular mail.

The Public Disclosure system (PDS) has information on all appeals. This will continue until all cases have completed the BALCA appeal process.

The PERM system is now in effect, and while it is imperfect it does appear to be a significant improvement.

Proof of Citizenship

As of Jan. 31, 2008 citizens of the U.S., Canada and Bermuda must submit documentary evidence of citizen to enter the U.S. at either land or seaports. U.S. Customs and Border Protection (CBP) are in the process of amending procedures. Most people utilize passports, birth certificates or drivers' licenses, which are satisfactory.

FBI to Improve Biometrics Database

The U.S. Federal Bureau of Investigation (FBI) announced it would be building what is anticipated to be the world's largest database of biometric data, such as fingerprints, digital images and face prints as well as iris patterns, scars and other physical information. The purpose is to identify criminals and security threats. It will also be available to employers seeking background checks on present or potential employees.

The Department of Homeland Security (DHS) already has extensive biometric data. This new database, if completed as announced, will centralize the expanded information.