Month: July 2007

As we wait to hopefully get some news from the CIS regarding this fiasco, a couple of interesting facts are worth noting. First, CIS HQ has apparently ordered all I-485 petitions filed in July to be held for the time being. With the exception of very few applications that were returned before the order came down, cases are being held and filing fee checks are not yet being processed.

Second, there are reports of very strange patterns of I-485 applications that were not current in June that were approved in July.  This is not only contrary to what the CIS states about rejecting I-485 applications filed in July, but these cases were apparently approved out of order in the CIS’ rush to use up the available numbers.

On Monday, new PERM regulations go into effect. The reasons for the regs, according to the Department of Labor are twofold: (1) to avoid fraudulent submissions; and (2) to add to the employer’s burden of sponsoring a foreign national to make certain that the employer REALLY wants to go through with the time, effort and money required to engage in the process of sponsoring an employee.

Although the goals are understandable, some of the requirements mandated by the rules arguably discriminate against smaller employers, unduly interfere with the attorney-client relationship or simply add additional constraints to the already restrictive and complex process of obtaining permanent residence through employment.

Effective Monday, July 16:

A. Employers must pay all attorney fees and other costs related to the PERM process. Although employees may hire their own separate counsel, the DOL argues that PERM is an employer-based process and all associated costs should be paid for by the employer. The regs and comments stipulate that the employee may not: (1) reimburse the employer or (2) have the PERM related costs taken from his or her salary (even if the difference between the offered and prevailing wages exceeds the costs of the PERM process).

As a result of this regulation, lawyers have been asking what exactly constitutes the “PERM” portion of an entire employment-based immigration process. Can a lawyer offer to do PERM pro bono for the employer and only represent the employee? There will likely be an FAQ issued by the DOL clarifying some of these issues. This restriction on who pays what is only applicable to the PERM process, not at the I-140 or I-485 stages. The penalties for noncompliance are severe and include debarment from the PERM system for employers and attorneys.

B. Certified PERM applications will expire 180 calendar days after certification. This means that a Form I-140 must be filed within that time or the Labor Certification process would have to start again from scratch.

C. Employer substitution of aliens on labor certification for the purpose of filing an I-140 petition will no longer be allowed.

My two cents:

Smaller employers who are willing to sponsor a foreign national and already agree to go through the paperwork, advertise, interview job applicants, and sign attestations on the application, disclose their tax returns and other financial documents to the CIS, as of Monday will have to pay attorney fees as well, even if the employee would have been willing to pay.

The 180 day shelf-life for PERM applications will serve to rush employers through the process. There are often strategic reasons for waiting to file an I-140, now everyone will be on the clock.

Finally, considering the length of time the process takes and how some job mobility is desirable in today’s day and age, to not allow an employer with an unused approved labor certification for a particular position to replace one candidate with another qualified foreign national is just another draconian measure causing undue burden and expense to employers and immigrants.

Next rant will be about the CIS filing fee increase effective July 30.

No news was released yesterday on how the CIS will be handling the July visa bulletin mess. However, considering the Department of State’s delay in issuing the August Visa Bulletin, I suspect something is brewing. Normally Visa Bulletins are issued within the first ten days of the previous month (although the July bulletin came out on June 12th). Stay tuned for further developments.

Rumor has it that either today or early next week there will be good news regarding how the CIS will handle adjustment applications from hereon.   No clear details or confirmation available as of yet.  As soon as  confirmation and more details become available, I will post them.  Not sure if Friday the thirteenth is the best day for any announcements from the CIS.

The press release that includes the letter from Representative Zoe Lofgren (D-San Jose, CA) to Secretary Chertoff to which I linked earlier today includes the following passage:

“It has also come to my attention that USCIS began returning visa numbers to the State Department as early as Thursday, July 5, 2007, due to their inability to review applications effectively. The Department of Homeland Security has once again demonstrated its inability to complete even its core missions. This debacle demonstrates the need for more transparency and oversight of the department’s operations and procedures.”

If the CIS returned numbers to the DOS, will these numbers be made available to those who submitted their applications in July? Or will they be wasted as the CIS and DOS stick to their guns and refuse to process any additional permanent residence applications until October 1st? I think the agencies are pondering their next move in light of the looming lawsuit and Representative Lofgren’s aggressive pursuit of the truth behind this mess.

Representative Lofgren issued a letter to Secretary Chertoff requesting documents related to the July Visa Bulletin fiasco. At least one congressperson is standing up for the rights of legal immigrants as it relates to the DOS and CIS bait and switch that occurred earlier this month. I link to the congresswoman’s Press Release and text of the letter to the left.

We have not had any of our July I-485 application filings returned yet. Could the CIS be holding onto them or is their mail room just backlogged? I will update as I learn more.

Between March 23, 2007 and June 5, 2007, notices from the USCIS listed the incorrect customer service number.  Immigration lawyers were inundated with individual letters from the CIS correcting the error for each application/petition filed. The correct telephone number for the CIS National Customer Service Center is:  800-375-5283.
Although I have not heard any first-hand stories of this occurring, it is rumored that some customers who initially called the incorrect number on the I-797 forms were directed to call another number, and those who called the second number were advised that they would be charged a $5 fee for the correct CIS customer service number.  A link to the notice can be found to the left (for free!).

After thousands of immigrants were played for fools by the CIS and DOS with the July Visa Bulletin, what should they do? Send flowers to the head of the CIS, of course (along with a note asking that they please not return your application).

This is what the folks at www.immigrationvoice.com are suggesting. If you would like to learn more about this initiative taking place over the next couple of days, please click on the link to the left.

Please also see the link to the USCIS’ response to the flowers, they will be sending them to hospitalized injured veterans at the Walter Reed Medical Center.

AILF is reporting that it does not need more plaintiffs who filed in July for the class-action lawsuit it will file against the USCIS and DOS at this time. Below is a what AILA wrote about the lawsuit:

“The response has been so strong that currently we do not need any more potential plaintiffs who submitted an adjustment application for receipt in July, unless the individuals have an unusual situation or especially compelling facts, such as an aging-out child. At this time, we also would like to hear from the “non-filers” — people who did not and do not plan to submit an adjustment application for receipt in July but would have done so “but for” the DOS and USCIS actions. These individuals will represent a separate class of plaintiffs. And we’d like to hear from more “other worker” adjustment applicants who applied in June, even if they have not yet received a rejection notice. These individuals will represent a separate class as well. They should read the FAQ, and complete and return to AILF the short form and retainer agreement at visabulletin@ailf.org.

If the lawsuit is successful (and we fully expect it will be), the court will certify classes, and all people who meet the class descriptions will receive the relief the court orders. The class members will not need to “sign up” with AILF to enjoy those rights.”

We will keep you posted.

This is not legal advice. Contact a qualified immigration lawyer to discuss your particular situation.

In deciding whether to apply to be a potential plaintiff in the AILF class-action suit to be filed against the USCIS and Department of State over the July Visa Bulletin fiasco, many understandably want to know what is the downside to being a named plaintiff in the lawsuit.

In reviewing the FAQs published by AILF, the only issues I see are: (1) plaintiffs’ names are public information (although there will likely be hundreds, maybe thousands of plaintiffs); (2) plaintiffs cases MAY be subject to greater scrutiny when being adjudicated (although retaliation by the government because you participated in the suit is unlawful and unlikely to occur); (3) plaintiffs may be called by the government to answer questions relating to the suit either in person or in writing and plaintiffs would be responsible for their transportation costs, this too is a very unlikely scenario; and (4) if a class is certified by the court, then those who would have been eligible to be plaintiffs in the lawsuit, even if they were not named plaintiffs, would be entitled to the same relief as the named plaintiffs.

We will be mailing and e-mailing FAQs, questionnaires and Retainer Agreements to our eligible clients today. Contact your immigration lawyer if you would like to participate in the suit or contact AILF directly at: visabulletin@ailf.org.