At the end of this eventful year, this article summarizes the most significant developments in Immigration Law that may be relevant to you.

EB-2 CATEGORY FOR CHINESE AND INDIAN NATIONALS STILL SUBJECT TO BACKLOG

In the last year, there has not been a very significant change in the long backlog for visa processing of EB-2 category I-140 applicants from India and China. Currently, Indians face approximately a four and a half year backlog while Chinese nationals face approximately a three and a year half backlog in the EB-2 category, which would include many of our clients who have filed in the NIW [National Interest Waiver] category. The good news is that there were significant improvements in the visa backlog during the past year, as visa numbers became available to a backlog of Indians waiting for visas in the EB-2 over three and a half years [visa bulletin improved from Jan. 1, 2000 to June 1, 2003, from the beginning of ’08 to the end of ‘08] and to a backlog of Chinese nationals waiting for visas in the same category over an eighteen month period [visa bulletin improved from Jan. 1, 2003 to June 1, 2004]. In light of the progressive changes in the visa bulletin, we will be closely monitoring the visa bulletin to keep our clients informed when a visa number becomes available to them.

FY2009 H-1B CAP WAS REACHED DAYS AFTER THE QUOTA BECAME AVAILABLE
Reflecting a trend that has been repeated for several years, the H1B quota for the 2009 fiscal year was fully reached within the first few days after it opened in April 2008. The USCIS issued an update on April 8, 2008, reporting that both the regular FY2009 H-1B cap and the 20,000 cap for advanced degree graduates had been reached.

Implications of this Fact:
Zhang and Associates forecasts that the quota will once again be exhausted in a few days after it opens in FY 2010. Under USCIS rules in 2008, H1B applications received within the first five working days after the quota opens on April 1 have an equal chance of becoming eligible for approval. Therefore, it is imperative that our clients who wish to apply for the H1B visa category should have their employers submit their application to the USCIS on April 1, 2009 or within a couple of days of this date. The specific window will be announced by the USCIS closer to the actual deadline.

“CAP GAP BRIDGE” RULE BENEFITS STUDENTS CHANGING STATUS TO H1B

On April 18, 2008, USCIS announced that individuals in F1 status facing the “cap gap” with respect to an approved H-1B petition could change status in the United States instead of having to leave the country for consular processing. The “cap gap” refers to instances where a gap exists between the termination of an individual’s F1 status and the date of eligibility for H1B status. This problem has previously affected many F1 OPT status non-immigrants with approved H1B petitions since their H1B visa would normally not become effective until Oct. 1 of a given year and F1 OPT status often ends before that date. Many individuals facing this “cap gap” were forced to leave the country temporarily and obtain their H1B visa at a US Consulate since they faced a temporary period where they lacked any valid immigration status in the United States. In FY 2009, F1 status non-immigrants whose status expired before Oct. 1, 2008 would have faced the “cap gap” problem. Instead, the new rule creates a bridge during this period that allows them to remain in the United States and change status to H1B on Oct 1, 2008, if their H1B visa petition is approved. The bridge also allows them to continue working until the effective date of their H1B visa, if approved, or until their H1B petition is rejected.

Benefits of this rule:
This new rule will primarily benefit individuals facing the cap gap since they no longer have to leave the country simply for visa processing. By reducing the incidental burdens on employees, this rule will also benefit employers.

17 MONTHS EXTENSION OF OPTIONAL PRACTICAL TRAINING AVAILABLE FOR STUDENTS IN SELECTED DISCIPLINES

In April, 2008, the USCIS made it easier for graduating F-1 students with a degree in science, technology, engineering, or mathematics [STEM] to remain employed in the United States by extending Optional Practical Training [OPT] up to 29 months. The OPT program is open to students in valid F-1 status who seek practical employment relating to the topic of their studies after they graduate. Under the new rule, qualified individuals in OPT status with STEM degrees employed by employers enrolled in E-Verify are eligible to file for an extension of their OPT period by 17 months, thereby giving them a total of 29 months in OPT status. By contrast, although all individuals in OPT status are given a starting duration of twelve months, non-STEM F-1 candidates cannot extend their OPT period and thus cannot spend more than twelve months in OPT status. The USCIS’s rules employ a carrot and stick approach. Although STEM students can enjoy a 29 month OPT period, they cannot accrue more than a total of 120 days of unemployment during this twenty-nine month period. If they do, their OPT status will terminate immediately. The rule with respect to unemployment for those enjoying only twelve months of OPT remains unchanged, i.e. they can accrue a maximum of ninety days of unemployment before their OPT status expires.

In the same rule, the USCIS also allows individuals to automatically extend their OPT status as detailed above to resolve the “cap gap” problem. To avail themselves of this benefit, the individual must be the beneficiary of an H1B petition that specifies a start date of Oct. 1st in the year when their OPT status expires, the petition must be filed by an employer while the beneficiary is in OPT status and the petition must request change of status rather than consular processing. Lastly, the individual must have committed no violations of their status in the United States.

E-Verify is a free, internet-based system operated by the USCIS in partnership with the Social Security Administration that helps employers determine the employment eligibility of newly hired employees.

Benefits of this Rule:
This change in policy is very important to the ability of F-1 students or OPT holders with a STEM degree to obtain H-1B status. As is well-known, there is a limited quota of available H-1B visa and therefore there is no guarantee that an H1B application will be approved into the quota on its first attempt. A 29-month OPT period allows a OPT holder to make at least two attempts for H-1B applications sponsored by an employer. We believe that some of our clients in F-1 students will benefit from this new rule. Furthermore, automatic extension of OPT status for those otherwise facing the “cap gap” problem allows extension of employment and ensures that they do not have to leave the country to face the challenges of consular processing for their H1B visa.

USCIS EXTENDS TN VISA PERIOD FROM ONE YEAR TO THREE YEARS
Effective October 2008, a TN status can now be issued for a period of three years. The TN visa is a special visa category for citizens of Canada and Mexico who fall within categories of practicing professionals in the United States that are defined under NAFTA [North American Free Trade Agreement], such as accountants, architects and engineers. Until this change in rule, a TN visa could only be issued for a maximum of one year and renewable yearly. Although there was and still is no limit on the number of renewals and hence the total time spent in TN status, the obligation to renew TN status every year was burdensome on employees as well as employers.
Benefits of this Rule:
This rule significantly eases burdens on employees and employers by reducing the frequency of the renewal procedure, and it will also benefit individuals in TN status by offering them multiple opportunities to petition for Permanent Residency or an H1B visa while in TN status. It should be noted that the new rule requires the USCIS to issue TN visa for the period requested or for three years, whichever is less. Thus, it is incumbent upon the Petitioner to file for a TN visa with duration of at least three years to take advantage of this rule.
TWO -YEAR EADS MAY BE ISSUED TO CERTAIN I-485 APPLICANTS
On June 30, 2008, the USCIS began issuing two-year employment authorization documents (EADs) in selected cases involving pending applications for Adjustment of Status [I-485]. An EAD allows its holder the right to work for an employer in the United States. In pending I-485 cases, the EAD is generally issued for a period of one year.
This rule will benefit individuals who filed their I-485 application while an immigration visa number is available, but subsequently becomes unavailable due to retrogression. To file an application for Adjustment of Status, a visa number must be available to the alien. However, the cut off dates on the Visa Bulletin carried by the Department of State often retrogresses, meaning that a Visa number which was available to an alien may subsequently become unavailable. To alleviate the hardship on individuals who would otherwise have to renew their EAD yearly, the USCIS has directed officers to consider on a case-by-case basis with reference to the Visa Bulletin whether a two-year EAD is warranted. Individuals with a pending I-485 for whom a visa number is available will continue to receive only one-year EADs.
Benefits of this Rule:
This new rule will minimize disruption of the employment of individuals holding EADs. The rule also significantly benefits individuals born in India and China who filed their I-485s while their visa numbers were available, which subsequently retrogressed, and EB-3 and other applicants who have filed their I-485s but cannot adjust status due to visa retrogression and need uninterrupted work authorization.

RESUMPTION OF PREMIUM PROCESSING FOR CERTAIN I-140s
The USCIS announced that on June 16, 2008, it would accept Premium Processing service requests for a form I-140 filed in the EB-2 or EB-3 category after the employer sponsored PERM has been approved on behalf of an alien worker nearing the completion of a sixth year in H-1B status. Six years is the maximum duration of H-1B status under normal circumstances. Premium processing of an application guarantees some type of action on the application, such as its approval or denial, within fifteen days. This resumption of Premium Processing for I-140 under limited circumstances represents a shift in policy, since the USCIS had previously provided Premium Processing for the I-140 but subsequently retracted it.

Benefits of this rule:
Resumption of Premium Processing in these cases benefits individuals who are in the last year of their H-1B status. By guaranteeing a timely decision in such I-140 cases, this process will significantly reduce the processing period for their applications and enables such individuals to live and work in the United States through an extension of H1B status. Moreover, employees whose I-140s are approved through premium processing may continue working for their employers in H1B status if no immigrant visa number is available as the beneficiaries of special approved three year H-1B extensions.

RE-ENTRY PERMIT APPLICATION REQUIRES FINGERPRINTS.

In light of security concerns, the USCIS has announced that applicants for re-entry permits through the I-131 form must go to an Application Support Center to provide biometrics [fingerprints and a photograph] before the document can be issued. It is worth noting that the USCIS may honor a request for expediting I-131 processing. Some of Zhang and Associate’s clients have successfully obtained re-entry permits within days or weeks through our assistance.
USCIS WILL ADJUDICATE ADJUSTMENTS WHERE FBI NAME CHECK HAS BEEN PENDING BEYOND 180 DAYS
Taking into account the delays being encountered by numerous applicants for immigration benefits such as employment authorization or adjustment of status that have been caused by untimely completion of the FBI name check screening process, the USCIS now requires officers to grant the application where the FBI name check has been pending for more than 180 days and the application is otherwise approvable.

Implications of this Rule:
By requiring relatively greater efficiency, applicants for EADs and other immigration benefits can now expect faster processing of their applications than before. This will benefit them and all employers intending to hire or currently hiring these individuals.

LABOR CERTIFICATIONS HAVE SIX MONTHS OF VALIDITY

The DOL has decided to limit the validity of an approved labor certification to six months after its approval and to prohibit substitution of beneficiaries in labor certification cases. New rules will result in the expiration of an approved labor certification after 180 days if no I-140 is filed to further proceed with the case. The DOL also confirmed that employers should bear all attorney fees and costs for filing a labor certification. Labor certification refers to the DOL mandated process that an employer must complete to sponsor certain categories of employees for Permanent Residency.

Implications of this Rule:
The ongoing limitation of the validity of a labor certification to six months limits the employer’s ability to extend the petitioning process for immigrants based on labor certification, also known as PERM. This rule also makes it virtually impossible to substitute the beneficiary of the labor certification. Therefore, it is imperative that if you hold an approved PERM, a corresponding I-140 should be filed as soon as possible but no later than six months after the PERM’s approval.

NEW CLARIFICATION REGARDING ROLE OF ATTORNEY IN PERM PROCESS
In June 2008, the Department of Labor (DOL) issued a press release announcing it was auditing all of the PERM labor certification applications filed by the law firm Fragomen, Del Rey, Bernsen & Loewy LLP on behalf of its clients. Fragomen is the largest immigration law firm in the United States and represents many public and private companies and institutions. The basis for the one hundred percent audit was centered on what DOL perceived as “improper attorney involvement” in the consideration of U.S. worker applicants. On October 24, 2008, DOL and the Fragomen firm filed a Joint Settlement Stipulation and Order with the U.S. District Court for the District of Columbia, setting forth terms for settlement of the lawsuit and case dismissal. The Settlement issued several guidance points on the role of Counsel in Labor Certification. In particular, the Settlement confirmed the risk of an immigration attorney’s pre-screening candidates who submit resumes during the recruitment process conducted for a Labor Certification. The Settlement confirmed the employer’s requirement to exercise good faith in evaluating applicants.

Implications of the Settlement:
The Settlement has once again highlighted the risks of an immigration attorney’s improper involvement during the recruitment process.

IN BRIEF: Z & A’S PREDICTIONS ABOUT IMMIGRATION LAW AND PROCESSES IN 2009

I. H-1B Quota for FY 2010

Congress has the power to legislate changes in the H-1B quota for a given impending fiscal year. Although there have been many calls for increasing the H-1B quota during the past several years due to the continuing shortages and high demand, with testimony from high profile individuals such as Bill Gates about the economic impact of the limited quota before Congress, it remains to be seen whether any changes will be made. At least in the 2010 fiscal year, it is unlikely that the new President or Congress will be willing to expand the H-1B program quote due to the political unpopularity of doing so during a recession.

II. Visa Number Retrogression for EB-2 for Indians and Chinese Will Likely Remain in 2009

Congress has the authority to make additional visa numbers available to resolve significant backlogs for nationals of certain countries. The overall quota has been fixed for several years though and so long as overall demand remains high, it is unlikely that Congress will be willing to expand the quota which would be necessary to resolve the backlog comprehensively. Like an expansion of the H-1B program, taking any immediate action to resolve the current backlog in the EB-2 category for Indians and Chinese nationals could have some political fallout due to our current recession. Therefore, Zhang and Associates believes that it is unlikely that any immediate action will be taken this year by Congress to resolve the EB-2 backlog for our Indian and Chinese clients. Nevertheless, in light of improvement in the visa backlog during 2008, many of our clients could be eligible for adjustment of status in 2009.

III. No significant Immigration Law & Regulatory Changes

Prior to the economic worries and the elections in the United States during the past two years, immigration reform was an important topic under political consideration in the United States. Outgoing President George W. Bush has gone on to record as to state that his failure to secure comprehensive immigration reform is one of his significant regrets, while the election itself pitted two prominent proponents of immigration reform against each other. Although President-elect Obama is a proponent of immigration reform, the economy will be the immediate focus for the current administration and any changes to immigration laws will likely be merely incidental to this central focus.

IV. Tougher to Obtain PERM Approval During a Recession

As the unemployment rate approaches 8% nationally, it is likely that there will be significant pressure on the Department of Labor [DOL], which plays a central role in labor certification for PERM applications for immigrants, to prevent any further increases. One tool that the DOL can and will likely use during this recessionary period is stepped-up review of PERM applications, meaning that it will be tougher to make the case that no U.S. workers are qualified and willing to fill positions that are being offered to immigrants. In light of the restrictions on the attorney’s role in labor certification that were confirmed during the Fragomen settlement, 2009 promises to be a challenging year for PERM applicants.

V. EB-1(a) and NIW are bright spots

The EB-1(a) category for Permanent Residency applicants applying as Aliens of Extraordinary Ability and the EB-2 category for applicants applying based on a National Interest Waiver continue to remain bright spots in an immigration landscape that otherwise appears somewhat dismal. These categories benefit foreigners with a history of achievement in essential areas of importance to the United States. Especially at a time when the President-elect has publicly stated his administration’s intent to kick-start the economy by making massive investments in alternative energy infrastructure and development, researchers and scientists from places like China who are playing a globally leading role in such research will become more important. The administration and hence the Citizenship and Immigration Services [USCIS] are likely to look upon certain areas with great favor, which would significantly benefit individuals with a history of achievement and prominence in those areas who are applying for Permanent Residency in the United States.

Zhang and Associates will be closely monitoring events when the new administration takes office and will examine the impact of the administration’s actions and its priorities on the strength of NIW and EB-1A applications filed by foreigners working in a variety of scientific fields. Please visit our website regularly for more information.

VI. L-1 and EB-1C Applications are welcome.

At a time when the country is facing a recession, the administration will welcome any efforts to improve local and national economies. The administration’s economic focus will significantly benefit individuals who are interested in immigrating to the United States in the L visa and EB-1C visa categories for multinational executives and managers, and the E visa category for treaty traders and investors. All of these visa applications are connected to projects that would start or expand new businesses benefiting the United States through job creation and economic growth. Applications for these visas must meet all applicable immigration requirements and require a related business plan. For more information about these visa categories, please visit the immigration library on our website.