Stern Elkind Curray & Alterman News and Updates

On May 13, 2008, the Colorado Legislature revised the Colorado Public Contractor Rule allowing contractors with public services contracts with the state, or political subdivisions within the state of Colorado, to choose between using E-Verify, or a newly created program through the Colorado Department of Labor, called the "Department Program." Either of these programs can be used to verify that newly hired workers working on public service contracts are authorized to work.

The Department Program requires contractors to notify the Colorado Department of Labor that they will be participating in the program by completing a form that is available online for this purpose. Under the Department Program, the contractor must affirm within 20 days of hiring a new employee that the contractor has examined the legal work status of the new employee. The contractor must retain file copies of the documents required under Colorado law and not alter or falsify any of these documents. The contractor must then fill out an affirmation that must be notarized and submitted to the contracting state agency or political subdivision.

The affirmation and participation forms are available at http://www.coworkforce.com/LAB/pcs/. Once completed, the forms must be submitted to the contracting state agency or political subdivision.

Labels: New Option for Contractors with Public Contracts in Colorado

Extensions beyond six years

USCIS has made it clear that if an individual is attempting to extend his/her H-1B status beyond six years based on the filing of a labor certification, the labor certification will expire unless an I-140 form is filed. Generally speaking, the filing of a labor certification prior to the expiration of five years of H-1B status will allow an individual to extend his/her H-1B status beyond six years. If the labor certification is approved, an I-140 must be filed within 180 days. If an I-140 is not filed during this time period, the labor certification can no longer be used to extend H-1B status.

If the H-1B beneficiary did not file a labor certification application prior to the end of the fifth year of H-1B status, an extension beyond six years can still be obtained if he or she has an approved I-140 and cannot file for adjustment of status due to a backlog in visa numbers. USCIS has announced that it will expedite I-140 applications under these circumstances.

On a related note, in order for a beneficiary to be eligible for I-485 portability, the underlying I-140 must be approved in addition to demonstrating that the adjustment of status application has been pending for more than six months.


Official termination

There has been a lot of activity in the area of what constitutes an official termination of an H1-B employee. At the annual AILA Conference in Vancouver, at a joint panel with USCIS and DOL, the statement was made that an official termination will not occur until the following four events occur:

- The employee is notified;
- USCIS is notified;
- The employer has made an offer to pay the beneficiary's transportation to his/her home country; and
- The LCA has been withdrawn.

The requirement of withdrawing the LCA is a new development which is not supported by regulation or case law. In fact, there have been a number of recent cases on this point which do not mention the necessity of withdrawing the LCA. These cases also support our position that return transportation does not need to be paid. Rather, an offer to pay such transportation must be made to the employee. Our practice has always been to inform the employee that if he or she is leaving the United States on a permanent basis and can document his or her transportation costs, the employer will reimburse the H-1B beneficiary for those expenses. Recent case law supports this practice.

Our firm has revamped the way in which we assist employers in terminating H-1B status in order to be in full compliance with these developments.

Labels: New developments in the area of H-1B visas

On June 6, 2008, President Bush issued an executive order mandating all federal government contractors to use E-Verify to verify employment eligibility for all newly hired and future employees that will be working in federal contracts. Employers are also to use E-Verify to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the United States on the federal contract. Under the current E-Verify rules, you are not allowed to use E-Verify to screen current employees, but are required to re-verify employees who will be working on that federal contract. The federal government will be modifying the E-Verify system process to accommodate this new provision.


While states like Colorado have backed off of using E-Verify by creating alternative programs to verify work eligibility, the trend nationally is to make E-Verify mandatory. There are several bills in Congress including the Save Act which makes E-Verify mandatory for all employers across the United States. While this bill has not been enacted or signed into law at this time, it signifies the federal government's push to get employees to use E-verify.

Labels: E-Verify Mandatory for Federal Contractors

In recent pronouncements, the Department of Labor seems to be adopting the "testing the job market" approach to labor certification application. This approach has been advanced by immigration attorneys for many years.

There has been a great deal of publicity surrounding the issue of a law firm's involvement in recruitment. The largest immigration firm in the country has been notified that all of its cases will be audited based upon an allegation that the law firm was involved in the recruitment process. This confirms our office's practice of providing advice and checklists with respect to the recruitment process in general, but not being involved in the review of resumes and the determination of whether applicants are, or are not, qualified.

The Department of Labor will go live with a new version of the PERM application (9089) on January 1, 2009. This form has some positive elements to it. For example, the form can handle multiple work sites and eliminates the distinction between experience in the job offered and related experience. The form makes it clear that training and internships can be counted as experience, which is a good development. The form also creates a check off as to whether the employer will consider any reasonable combination of experience, education and training in determining if the applicants qualify for the position.

Our firm has always included this language in the labor certification form. Failure to include it can lead to a denial. The creation of a check off for this language will avoid these denials.

There has been an ongoing debate as to what constitutes "normal" in regards to the PERM question which asks if the minimum requirements set forth in the labor certification application are normal for the position. Many attorneys have taken the position that "normal" should be interpreted in a common sense fashion to represent normal practices on the part of the employer or in the industry. Other attorneys, including our firm, have interpreted the term "normal" to mean consistent with O-NET standards. The new form makes it clear that the latter perspective is consistent with the Department of Labor's interpretation. Since this has been our firm's practice since the creation of the PERM process, it will not require any change in how we handle labor certification applications.

Finally, the new 9089 form allows for substitute signatures, which will eliminate difficulties if the individual who authorized the application on the part of the employer is no longer affiliated with that company.

Labels: New developments in the PERM process

The Department of Homeland Security has created an internet-based travel authorization system to verify that people who are entering the United States on the Visa Waiver Program are pre-authorized to travel before they arrive in the United States. While the ESTA program will be pre-authorizing travel to the United States, it only authorizes a traveler to board a carrier to travel and is not designed to make a determination on a non-citizen's admissibility to the United States. The information that is submitted through the ESTA program is the same information that is currently submitted on the I-94W form when a visa waiver applicant arrives in the United States.

The information that is submitted on the electronic application will be checked against all appropriate databases including lost and stolen passport databases and various government watch lists. An ESTA travel authorization will be good for two years, or until the individuals passport expires, whichever comes first. ESTA will have the capability to accommodate last-minute and/or emergency travel needs. ESTA will start on August 1, 2008 as a voluntary program. Using ESTA for travel pre-authorization will become mandatory as of January 12, 2009. The ESTA website is at http://www.cbp.gov/xp/cgov/travel/id_visa/esta/

Labels: Electronic System for Travel Authorization (ESTA)

USCIS to Issue Two-Year Employment Authorization Documents
New EADs Limited to Certain Individuals Who Have Applied for LPR Status

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) announced today that beginning on June 30, 2008 it will issue Employment Authorization Documents (EAD) valid for two years. The new two-year EAD is only available to individuals who have filed to become a lawful permanent resident (LPR) using a Form I-485, Application to Register Permanent Residence or Adjust Status, and filed for employment authorization under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) but are unable to become an LPR because an immigrant visa number is not currently available.

USCIS will decide whether to renew an EAD for either a one or two year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

For applicants who have an available immigrant visa number and who are filing for employment authorization under 8 C.F.R. Section 274.a.12(c)(9), USCIS will continue to grant EADs that are valid for one-year. USCIS may issue a two-year renewal EAD if the applicant's immigrant visa availability date retrogresses (when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed.

If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the applicant's priority date and the Department of State Visa Bulletin.

For more information on Employment Authorization Documents, please contact the USCIS National Customer Service Center at (800) 375-5283 or review the USCIS Employment Authorization Documents web page at: http://www.uscis.gov/.

Office of Communications USCIS Update June 11, 2008
USCIS to Offer Premium Processing For Certain Form I-140 Petitions
Service Begins June 16, 2008

WASHINGTON- U.S. Citizenship and Immigration Services (USCIS) announced today that on June 16, 2008, it will begin accepting Premium Processing Service requests for Forms I-140 (Immigrant Petition for Alien Worker) filed on behalf of certain alien workers who are nearing the end of their sixth year in H-1B nonimmigrant status.
Premium Processing Service offers 15 calendar-day processing for designated employment-based petitions and applications upon request. There is a nonrefundable fee of $1000 for this service. During the 15-day period, USCIS will issue either an approval or denial notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation. USCIS previously designated certain classifications under Form I-140 for Premium Processing Service in the May 23, 2006 issue of the Federal Register. See 71 FR 29662.
USCIS is limiting Premium Processing Service for Form I-140 petitions that are filed on behalf of aliens:
- Who are currently in an H-1B nonimmigrant status;
- Whose sixth year will end within 60 days;
- Who are only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
- Who are ineligible to extend their H-1B status under section 106(a) of AC21.

Section 104(c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

For more details on Premium Processing Service for the Form I-140 petitions described in this announcement, visit the USCIS web site at http://www.uscis.gov/files/article/premiumproc_factsheet_i140_061108.pdf.
More information on Premium Processing Service in general can be found on the USCIS web site at www.uscis.gov, or by calling the USCIS National Customer Service Center at (800) 375-5283.

AILA InfoNet Doc. No. 08061261 (posted Jun. 12, 2008)

USCIS Service Center Operations has provided the following information regarding processing cases under the FY2009 H-1B cap:

1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The CSC and VSC completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on May 24, 2008.

2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as "protective filings" due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.

3. USCIS has determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. USCIS has begun to mail out rejections this week.

In a memo by Associate Director, Domestic Operations, Michael Aytes, dated Feb. 4, 2008 USCIS outlined revised FBI name check procedures for adjustment of status cases. The memo states, in part, "where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698 and proceed with card issuance." This means that most long-standing I-485 applications for permanent residency should see significant progress up to and including final adjudication in the coming months. However, the memo adds, "[i]f derogatory or adverse information is received from the FBI after the application is approved, USCIS will determine if rescission or removal proceedings are appropriate and warranted." Please note the policy change does not apply to delayed security checks in N-400 Application for Naturalization cases. Please contact your SECA attorney if you have questions regarding this new development.

On January 22, 2008 the United States and Vietnam entered into a repatriation treaty. Prior to this agreement, Vietnamese nationals with final orders of deportation could not be removed to Vietnam. Now, however, the US may effectuate orders of deportation to Vietnam provided that the alien (1) arrived in the U.S. on or after July 12, 1995, (2) is subject to a final order of removal, (3) is not a citizen of the U.S. or any other country aside from Vietnam, and (4) does not have residence in another country. This agreement is valid for 5 years and will be automatically renewed every three years thereafter unless the U.S. or Vietnam objects to such extension. It is estimated that this agreement will trigger the deportation of 1,500 Vietnamese currently living in the U.S.

After December 26, 2007, employers who fail to use the new Form I-9 may be subject to all applicable penalties. All employers are required to complete a Form I-9 for each new employee hired in the United States.

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.

Border crossing cardholders (BCC) may remain in the U.S. for up to six months and travel more than 25 miles from the border when they are issued I-94 cards. During the holiday season, the busy ports of entry at San Ysidoro, Otay Mesa and Calexico process approximately 3,000 I-94 applications a day. Unfortunately, this high volume leads to processing times in excess of three hours. To avoid inconveniences and unnecessary delays, CBP has stressed that BCC travelers wishing to use I-94 cards for holiday vacations should apply early for their I-94 cards at the San Ysidoro, Otay Mesa and Calexico ports of entry. The Calexico West facility, located in downtown Calexico, will be open 24 hours a day and the Calexico East facility will be open from 6:00 a.m. to 10:00 p.m. The ports at San Ysidoro and Otay Mesa will begin 24-hour operation December 14, 2007. These extended hours will last until January 6, 2008. All ports allow for applications up to 30 days in advance of the travel. It is important that all members of the family wishing to travel on BCCs and I-94s present themselves at these ports of entry when applying for the I-94 cards in advance of travel.