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Wins and Losses in Sin City, Las Vegas This year, the 2009 Annual American Immigration Lawyers Association (AILA) Conference was held in Las Vegas, Nevada from June 3 to June 6, 2009 at the Palazzo/Vincentian Hotel on “the strip.” The City of Las Vegas needs no introduction or a description. There is something for everyone in Las Vegas: ranging from casinos, spas, world-class dining, to shows of all genre, nightlife, scenic destinations, Las Vegas is a unique city that brings tourists from all over the world. The AILA Annual Conference is the largest and foremost conference on immigration law in the country, packed with events and opportunities for immigration lawyers to network with the thousands of members and government officials in attendance. The purpose is to exchange information in an environment of learning and understanding for meaningful discussions and to advocate for our clients and for positive changes in immigration. Two experienced attorneys from the firm attended the conference this year, one Attorney who has been with the firm for over 3 years and another attorney. The Conference offered a diverse range of program tracks with about 100 educational sessions to learn, enhance, and to share up-to-date information on important topics in immigration law. Various hot topics and practice specialty issues were discussed in meetings, panel discussions attended by attorneys, senior officials of the USCIS, the U.S. Department of Labor (DOL), the U.S. Department of State (DOS), and other government agencies. In light of the visa retrogression for certain nationalities and the promise of new hopes from the new Obama administration, AILA conference in Las Vegas underscored both wins and losses in immigration law. The following are some of the recent developments we want to share: 1. Visa Retrogression in EB-2 and EB-3 for China and India: EB-2 and EB-3 dates for India and China continue to be backlogged due to enormous demand. The DOS projects that all 140,000 employment-based visa numbers will be used up by the end of this fiscal year, including EB-1. There are very few unused numbers in the EB-1, EB-4 and EB-5 classifications. The current visa number availability for EB-1 for Chinese and Indian nationals is also expected to retrogress next year. By September 2009, EB-2 for India will become unavailable. EB-3 will remain unavailable for all of FY2009. There are currently 25,000 approved I-485 cases in queue for EB-2 visas and another 25,000 for EB-3 visas, notwithstanding the several hundred thousand I-485s that are pending at USCIS. Many were hopeful that the new Comprehensive Immigration Reform that may bring in creative solutions to resolve this vast backlog in employment-based immigration with the new Administration. 2. PERM: Backlogs in processing PERM cases at the National Processing Centers (NPCs) are also extensive. At this time, there are 58,000 PERM cases pending, 54% of which are under final review; 38% in Audits, and 6% in Appeal. If PERM case has been pending for longer than one year, it should be brought to DOL’s attention, excluding audit cases. We may see increased number of worksite enforcement and LCA audits. Implementation of PERM filing through iCERT will not be effective on October 1, 2009 as projected. 3. iCERT and LCA: DOL expects to implement LCA filing through iCERT by June 30, 2009, with large system enhancements to follow in August 2009. LCA approvals through iCERT should take approximately 7 days, and if it takes any longer, it may signify review by analyst. 4. Prevailing Wage Requests: From January 01, 2010, prevailing wage requests for PERM, H-1B, H-1B1, and E-3 cases will be handled by the DOL, National Processing Center, and not the SWA (State). Thus, Prevailing Wage Requests may take longer than when completed by the states. I-140 premium processing option was suspended on July 2, 2007, and been reinstated only on a limited basis ever since. When this article is nearly finalized on June 22, the USCIS announced that it will further resume Premium Processing Service for Form I-140, beginning on June 29, 2009. The option of requesting Premium Processing for the Form I-140 Immigrant Petition for Alien Worker will now be available to all applicants filing under: EB-1(A), EB-1(B), EB-2 (except NIW), and EB-3 applicants. For an additional $1000 fee, a petitioner who is filing in one of the eligible categories can elect to file for Premium Processing. With Premium Processing, petitioners are guaranteed to receive an approval notice, intent to deny, or a request for evidence within 15 days of USCIS receiving their petition. If USCIS fails to fulfill their 15 day guarantee, a full refund will be awarded to the petitioner. In addition, those who already have a pending EB-1A, EB-B, EB-2 (except NIW) or EB-3 I-140 filing, will be eligible to upgrade their filing to premium processing by filing the appropriate form and submitting the additional premium processing fee. This new development is extreme valuable for those aliens who would like to try EB-1A and EB-1B petitions, as they may now know their case result within 15 days. In addition, this new development is beneficial for EB-2 and EB-3 I-140 petitioners in two areas 1) for those who are facing the 6 years limitation, the approval of an I-140 may allow them to take the benefit of a three year extension (this only applies to those visa numbers that are not current); and 2) it will allow alien beneficiaries to affix the priority date received from the labor certification to the alien, even if the alien, later on, can not process their I-485 through the same employer (due to a layoff or employer bankruptcy, etc). 6. Employment-based cases and I-485 New online tool for reporting cases outside of processing times may become available at the end of the year 2009. Denials are reviewed by supervisors. The Nebraska Service Center expects to pre-adjudicate all Employment based I-485 by August 2009, although due to reduced staff, the Texas Service Center expects to do the same by the end of year 2009. The TSC “Plus Project” is aiming for 90 days adjustment of Status application processing for cases that are approvable on their face. USCIS is hopeful that the 1,500 I-140 cases left from the July/August 2007 rush will fall into their processing dates. 7. H-1B Cap is not yet reached As the economy regulates the demand for H-1Bs, USCIS is still accepting H-1B petitions since cap is not yet reached. The CSC is expected to issues filing tips for I-129s to prevent RFEs. 8. Immigration Reform Many are hopeful that the Obama administration will bring about new positive changes in immigration law. At the moment, there are new leaderships at many agencies. For instance, the DOL is in a transition time, while waiting for the new Secretary of Labor to be confirmed. USCIS currently has no Director named, with only nominees. DOS is also working on promoting more inter-agency electronic data sharing, and working on electronic IV form. ICE is also under numerous new leaderships. Many attorneys expressed hope that the backlog will be addressed and 245i will return once again in the near future. ------ (06/23/2009) For more immigration news, please click here |
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