United States: Recent Developments in Immigration Law

USCIS to Eliminate Interim Employment Authorization Documents (EADs)

Due to lengthy processing times for EADs at Service Centers, if an EAD is pending for 90 days or more, current USCIS policy permits applicants who have applied for EADs to go to their local office to request an interim EAD. At this time, USCIS has indicated that it intends to eliminate interim EADs, citing concerns over potential fraud and abuse. USCIS will require that all EADs be processed at Service Centers only. Note that USCIS has also indicated that in the near future it expects to offer premium processing of EAD renewals for employment-based adjustment applicants, which would allow applicants to pay an additional $1,000 filing fee to have their EAD adjudicated in 10-15 days. It is expected that premium processing of many EADs will provide an avenue of relief for those applicants who need an EAD quickly.

USCIS Announces Extension of Temporary Protected Status (TPS) for Nationals of El Salvador

USCIS has announced a 12-month extension of Temporary Protected Status (TPS) for nationals of El Salvador, until September 9, 2007. For those nationals of El Salvador who have been previously granted TPS status, the deadline to re-register for the 12-month extension is September 1, 2006. For information regarding re-registration, visit: http://www.uscis.gov/graphics/services/tps_elsa.htm

Winners of the DV-2007 diversity lottery have been notified. The diversity lottery was created to make a certain number of visas available annually to persons from countries with low rates of immigration to the United States to become lawful permanent residents. Although 50,000 numbers are available each year, 5,000 of these have been allocated for a special program. Each year, more than 50,000 applicants are notified in order to ensure that the maximum number is used, as not everyone who "wins" is eligible or wishes to pursue permanent residence status. Those notified must now apply for their immigrant visas in fiscal year 2007. The fiscal year for the 2007 lottery runs from October 1, 2006, until September 30, 2007. This means that applicants who do not receive visas by September 30, 2007, will not be able to become permanent residents based on their DV-2007 registration.

The State Department anticipates announcing the dates for the registration period for the DV-2008 lottery program this month. For details, visit: http://www.travel.state.gov/visa/immigrants/types/types_1318.html

For both the family-sponsored and employment-based immigrant visa categories, the State Department has set earlier cut-off dates in order to keep the number of visas issued within the applicable annual numerical limits for the various visa categories. In order to apply for permanent residence (green card), applicants must have established a priority date on or before the cut-off date for their preference category:

Worldwide: Family 1st Preference (to 01JAN97)
China: Family 4th Preference (to 01JUL94)
India: Employment 2nd has become "Unavailable"; Employment 3rd Preference (to 01APR01)
Mexico: Family 3rd Preference (to 01JAN81) and Family 4th Preference (to 01JAN93)
Philippines: Family 2B Preference (to 01DEC92) and Family 3rd Preference (to 01DEC85)

In addition, the State Department anticipates even earlier cut-off dates for employment-based categories in September. The following categories are expected to see this impact:

China: Employment 2nd and 3rd Preference
India: Employment 1st Preference
Mexico: Employment 3rd Preference

For complete Visa Bulletins, please visit: http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

Last May, a total of 50,000 numbers were provided for use in the Schedule A visa category. Based on demand in this category, that limit may require the establishment of a cut-off date as early as October for this particular category. Once all 50,000 numbers have been made available under the current limitation, processing under this category will end.

The U.S. Embassy in Beirut is closed, temporarily, for the processing of all non-immigrant and immigrant visas, but will continue to perform routine American Citizen Services. As of August 1, 2006, applicants for non-immigrant visas will apply for visa appointments at the U.S. Embassy in Athens (using either the Web site or a call center). For immigrant visas, those applicants will also process their visas through the Embassy in Athens, but will first need to send an e-mail inquiry to the Embassy at Athens-IV-Lebanon@state.gov. Information will be updated on the U.S. Embassy Beirut Internet Web site: http://lebanon.usembassy.gov/

On July 18, 2006, the Board of Alien Labor Certification Appeals (BALCA) published its first decision in the PERM era. In Health America, BALCA vacated the DOL Certifying Officer's (CO) denial of an Application for Alien Employment Certification and ordered the application returned to the CO to complete processing. Health America submitted an online application. Due to a clerical error on the form, the date shown on the application for one of the newspaper advertisements was a Monday, instead of the required Sunday. The employer provided the newspaper tear sheets to confirm the ad was placed on a Sunday, but the CO denied the application without an audit, concluding that the employer had failed to comply with the Sunday ad requirement. The employer appealed.

Reasoning that the employer was actually in compliance with the two-Sunday publication requirement, BALCA held that documentation "submitted" in support of the labor certification application "constructively includes" materials held by the employer under the recordkeeping provisions of the PERM rule. Such documentation consists of, among other items, evidence of recruitment, such as newspaper tear sheets. BALCA stated, "The CO's policy not to consider mistakes made by employer is arbitrary and capricious" and "elevates form over substance."

Addressing the DOL's concern over the possibility that unscrupulous employers might misrepresent documents in its recordkeeping files, BALCA set forth the following criteria for employers to correct mistakes without having to refile an application: (1) The evidence must be the type of specific documentation required to be held; (2) The document must have been demonstrably in existence at the time of application; and (3) The employer must establish conclusively that there was actual compliance with the requirement despite an error on the application form.

DOL reports that labor certification cases filed prior to March 28, 2005, under the pre-PERM filing system should be entered into their database with notices (e.g., 45-day letters) issued for all cases by the end of July. DOL has issued guidance regarding requests to re-open cases that were erroneously closed and has issued guidance for inquiries on cases where no correspondence was received by the employer or attorney of record. For more information and a list of frequently asked questions, visit: http://ows.doleta.gov/foreign/

DOL has proposed amendments to federal regulations at 20 CFR section 656, and a final rule is anticipated by end of 2006. In order to reduce fraud, the proposed amendments include provisions that would: (1) eliminate the current practice of allowing the substitution of alien beneficiaries on applications and approved labor certifications; (2) prohibit employees from paying attorneys fees and costs; and (3) institute a 45-day deadline for employers to file an I-140 petition after approval of labor certifications. The American Immigration Lawyers Association and other stakeholders have submitted comments opposing the proposed regulations. Some experts predict that the final rule will prohibit substitution of alien beneficiaries. Thus, employers who are considering substitution of beneficiaries may wish to review potential cases for substitution with legal counsel.

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