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VAN DER HOUT, BRIGAGLIANO & NIGHTINGALE
. . . OCTOBER 2011 EDITION

Employers and HR Officers Take Care 

Important Original Approval Notices
Now Sent to Petitioner, Not Attorney of Record 

In mid-September, USCIS began sending original I-797 receipt and approval notices directly to applicants and petitioners, while sending copies of the notices to their G-28 attorney of record. Previously, the original notice had been sent to the attorney listed on the G-28, while a copy was sent to the address provided by the applicant or petitioner in the applicable application or petition form. According to USCIS, it implemented the change to ensure that documents are mailed directly to the address specified by the applicant or petitioner. A formal regulation will be promulgated governing the change in late November. However, the sending of original notices, especially those approval notices that contain an I-94, can cause problems for the foreign national if the document is lost or otherwise not timely received.

In a terse letter to USCIS Director Alejandro Mayorkas, the immigration bar association, AILA, requested that USCIS resume its prior practice of sending the original I-797 approval notice to the attorney of record. Not only does the change violates current regulations governing the representation of parties in immigration benefits proceedings, AILA expressed deep concern that the change could impair the ability of petitioners and beneficiaries to comply with obligations to verify employment authorization, to maintain status, and to comply with alien registration obligations. Serious harm could result from a misrouted, mishandled, or lost document. For example, when an I-797 notice is sent to an employer in a large operation, the document can easily be misrouted internally, resulting in delays in its reaching the proper unit and to the foreign national. In the worst case, it can be lost. Moreover, in large-scale operations, employers rely on immigration counsel to properly handle immigration-related documents. Finally, sending the original documents to attorneys of record allows for immediate review of key data, and, in the event there are errors (spellings, validity dates, etc.), immediate action to correct the errors can be taken. 

During this transition, USCIS will permit petitioners for nonimmigrant workers to use the attorney's address as the mailing address on the petition but the petitioner will not receive any I-797 notices. Special accommodations also are being made for cases that are premium processed.

For now, employers and human resource personnel should pay close attention to the I-797 Notice of Action Approval Notices received on behalf of their foreign national workers, share copies with their immigration counsel, and make sure that original documents are distributed to their workers in a timely fashion.

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October 28 is Deadline for Certain
Widow(er)s to File for Green Card

A foreign national widow or widower who was married to an American citizen for less than two years prior to October 28, 2009 is eligible to file a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant; however, the deadline for that filing is October 28, 2011.  Widow(er)s with pending  I-130s, Petitions for Alien Relative, filed prior to the death of the spouse will automatically have their cases converted to an I-360 petition.

On October 28, 2009 a new law was enacted that eliminated the requirement that widow(er)s of U.S. citizens to be married for at least two years before becoming eligible to file an I-360. (Immigrants who were married for more than two years are governed by other provisions.) Under the 2009 provisions, a surviving spouse who was married a U.S. citizen for less than two years at any time in the past and who has not remarried can apply for his or her green card but may have to do so during the law's transitional period, October 28, 2009 to October 28, 2011. In other words, if widow(er)'s spouse passed away prior to October 28, 2009, he or she is still eligible to apply for immigration benefits but is required to file by October 29, 2011. If the U.S. citizen spouse passed away on or after October 28, 2009, the I-360 must be filed within two years of the U.S. citizen's death. USCIS advises that if a case was denied prior to October 28, 2009 based on evidence of less than two years of marriage, it may be considered a pending case.

Please contact our office if you believe your case would apply or seek related advice.

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Most Immediate Relative Petitioners Residing Abroad Now Must File Their I-130s in United States

In mid-August, USCIS announced that petitioners residing outside the U.S. in countries without USCIS offices will no longer be eligible to file immediate relative green card petitions, Form I-130, with the Department of State (DOS) nor have the option of filing at the USCIS overseas office governing their jurisdiction. Instead, they will be required to file only with the USCIS Chicago Lockbox. Petitioners residing in countries where a USCIS office is located will continue to have the option to file either with that office or with the Chicago Lockbox.

Why is this significant for some? Because, the processing time for the overseas filing of Form I-130 is significantly shorter than the time for processing through the Lockbox. So, in most locations, a petitioner who can file locally abroad may have his immediate relative issued an immigrant visa within two to three months of filing an application whereas a petitioner filing via the Lockbox may not result in an immigrant visa being issued for nine or more months.  Those who may be impacted may still be eligible for "local" processing if warranted by special circumstances and USCIS authorizes the DOS to accept and adjudicate an I-130 petition. USCIS provides examples of circumstances in which it would consider authorizing local DOS adjudication: certain military and medical emergencies; threats to personal safety; certain "aging out" cases; certain cases where the petitioner has recently naturalized; and certain cases involving adoption of a child.

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Update on H-1B Visas


H-1B Professional Specialty Worker Cap Update: As October 1 marked the beginning of the new fiscal year, visas are now immediately available for new H-1B cap-subject petitions. As of October 7, USCIS reports that 41,000 new H-1B cap-subject petitions were receipted and another 19,100 petitions for foreign nationals with advanced degrees for FY2012. There are 85,000 new H-1B visas available annually, of which 20,000 are designated for advanced degree holders.  For FY2011, H-1B visas became unavailable as of January 26, 2011.

Tough Penalties Levied Against School District in Maryland for H-1B Violations Become Final:  A Department of Labor Administrative Law Judge approved a settlement agreement with Maryland's Prince George's County School District (PGCSD), located in the Washington, D.C. metro area, to pay sizeable fines for major violations of the H-1B program, including failure to pay wages and to maintain documentation as required. Under the agreement, PGSCD is barred from hiring any new foreign workers for two years and must pay a civil penalty of more than $100,000 for violating the H-1B program and over $4 million in back wages to more than 1,000 teachers.

Over the last several years, government agencies involved with the H‑1B program have stepped up their enforcement and auditing efforts. Employers and their human resource personnel are wise to make sure their public access files and other records relating to their H‑1B employees are up to date and in good order.

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Driver’s Licenses and F, M and J Nonimmigrants

Over past several years, obtaining a driver's license from a state issuing authority has become tremendously difficult and confusing both for native born and foreign-born alike. Recently, Immigration and Customs Enforcement (ICE) issued a fact sheet for designated school officials (DSOs) and responsible officers (ROs) to help foreign students and exchange visitors (F, M or J nonimmigrants) obtain a driver's license or state identification (ID) card. While DSOs and ROs can and often do provide guidance about the specific requirements, the following are some general, helpful tips:

  • Wait at least 10 calendar days from the date of entry into the United States to apply for a driver's license or ID. Most states and territories use the Systematic Alien Verification for Entitlements (SAVE) Program to determine a noncitizen's eligibility for many public benefits, including the issuance of a driver's license. SAVE uses an online system to check the applicant's immigration status information against records contained in DHS immigration databases. Since the verification process is reliant on the underlying data source, an applicant for a driver's license or ID must allow time for arrival of that data.
  • The nonimmigrant must be in Active status when he or she applies for a benefit; wait at least two business days from the activation date.
  • Several states require that a nonimmigrant have at least six months left on the Form I-20 or Form DS-2019 to be eligible for a driver's license.
  • Make sure the name on all supporting documents as well as the date of birth is consistent.  The earliest official document, usually the passport, sets the standard. Otherwise, DMV may and often will deny the application.
  • The nonimmigrant must be within the program start and end dates in SEVIS, unless participating in optional practical training (OPT) or 17‑month STEM OPT extension.

Finally, ICE advises that the nonimmigrant does not need an SSN to apply for a driver's license or ID, but most states will require him or her to apply for one. A nonimmigrant who is ineligible for an SSN will receive a Form SSA-L676, "Refusal to Process SSN Application," and may have to present this letter when applying at the DMV office to fulfill the SSN requirement, if any.

The ICE fact sheet covers a myriad of other circumstances governing F, M, and J nonimmigrants and driver's licenses and IDs. For details, www.ice.gov/doclib/sevis/pdf/dmv_factsheet.pdf

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Update on Visa Availability

In the November Visa Bulletin, the Department of State (DOS) provides its prognosis on the likely availability and movement of visas for the next few months:

For Family (Worldwide) Categories: F1, expected to advance three to six weeks; F2A, three to six weeks; F2B, one to two weeks; F3, one to two weeks; and F4, up to one month.

For Employment Categories:  EB-1, current; EB-2, current for Worldwide, Mexico, and The Philippines. (For China EB-2 and India EB-2, DOS reports that the current EB-2 cut-off date is approaching the most favorable date previously reached for such applicants; the dates reflect an effort to generate demand based on new filings for adjustment of status at USCIS offices. DOS advises, however, that once the level of demand increases sufficiently, the forward movement may be slowed or stopped, and a retrogression of the cut-offs at some point during the year is possible); EB-3, for Worldwide, expected to advance up to one month; China EB-3, one to three weeks; India EB-3, up to two weeks; Mexico EB, up to one month; Philippines EB-3, up to one month; EB-4, current; EB-5, current.

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Federal Courts Tackle
Alabama’s Anti-Immigration Law

In late September, a federal district court blocked certain portions of Alabama's controversial immigration law, HB 56, from taking effect, ruling that there is a substantial likelihood that the U.S. government can establish that the provisions are preempted by federal law. The provisions upheld, however, include those that authorize local police to inquire about a driver's immigration status during routine traffic stops or arrests if reasonable suspicion exists that the person is in the United States illegally; and requires public schools to verify students' immigration status. The law also provides that undocumented foreign nationals can be charged criminally for willful failure to carry federal immigration papers, and any contracts entered into by an individual who is undocumented as well as transactions between any division of the state and an undocumented immigrant are legally nullifiable.

After the Department of Justice (DOJ) sought an emergency stay of the decision, the U.S. Court of Appeals for the 11th Circuit ordered an injunction on October 14, blocking (1) the provision of HB 56 that made it a state crime to be undocumented in the state, and (2) the provision requiring public school students to prove their immigration status or be presumed undocumented. But the court also allowed two provisions to remain in effect while the legal challenge continues: (1) the section making it a felony for undocumented individuals to enter into business transactions with the state, and (2) the provision allowing local law enforcement to stop, detain, or arrest anyone they suspect of being undocumented.

While the status of the law remains uncertain, its effects are already being felt.  Many undocumented immigrants are fleeing the state, workers are no longer reporting to their jobs, and undocumented children (and children of undocumented parents) are no longer attending classes. In requesting the emergency stay, DOJ claimed that the new law was highly likely to expose persons lawfully here, including schoolchildren, to new difficulties in their daily affairs, and that the legislation could impact diplomatic relations with foreign countries. DOJ set up a hotline to report potential civil rights concerns related to the impact of Alabama's immigration law. Call 1‑855‑353‑1010, or e-mail hb56@usdoj.gov.

While clearly one of the most draconian new state laws, the National Conference of State Legislature reports that from January 1 to June 30, 2011, 40 state legislatures have passed 151 immigration-related laws and 95 resolutions.

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News in Brief

DV Lottery; DED for Liberians; TPS for Haitians, South Sudanese

Diversity Visa "Lottery" Now Open Through 11/5/2011: The 2013 Diversity Visa Program or visa lottery registration period is now opened through noon on November 5, 2011. Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV) at www.dvlottery.state.gov. The Department of State advises applicants to register before the last week of the registration period when heavy demand may result in website delays. Under the program, visas are made available to persons from countries with low rates of immigration to the United States.

DED Extended for Liberians until 3/31/2013; Work Authorization Extended to 3/31/2012:  USCIS announced that it will automatically extend the validity of employment authorization documents for Liberians covered under Deferred Enforced Departure (DED) through March 31, 2012. The announcement follows President Obama's decision to extend DED for Liberians until March 13, 2013.

Haitians are Reminded to File for TPS: Eligible nationals of Haiti (and persons without nationality who last habitually resided in Haiti) are reminded to file for Temporary Protected Status (TPS), which currently remains in effect through January 22, 2013.  Individuals who have not yet applied may do so through November 15, 2011.  Individuals who already applied but whose applications were still pending as of May 19, 2011 need not file a new application. In mid August, USCIS auto-extended employment authorization documents (EAD)  through January 22, 2012.  For more details on whose EADs were extended and on the program in general, see http://1.usa.gov/haitian-tps.

DHS Designates South Sudan for TPS: DHS has designated the new Republic of South Sudan (South Sudan) for TPS for a period of 18 months, effective November 3, 2011 through May 2, 2013. This designation allows eligible South Sudan nationals (and aliens having no nationality who last habitually resided in that region) who have continuously resided in the U.S. since October 7, 2004 to obtain TPS. In addition to demonstrating continuous residence, applicants for TPS under this designation must demonstrate that they have been continuously physically present in the U.S. since November 3, 2011

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