New Information on Affidavits of Support

Michael Aytes, the acting director for domestic operations of the USCIS, this week posted a memo to adjudicators guiding them on the final rule relating to the use of Affidavits of Support (Forms I-864). According to the final rule, which was published on June 21, Affidavits of Support must be “sufficient both at the time the adjustment of status application is file and at the time the adjustment application is adjudicated [and] subject to limited exceptions, an Affidavit of Support is sufficient at the time of the adjudication if it was sufficient at the time it was filed with the Form I-485, Application to Register Permanent Residence or to Adjust Status,” said Aytes.

USCIS Has Entered All H-1B Cap Petitions; Receipts Issued

According to the USCIS, all H-1B petitions subject to the annual cap that were received on May 26 of this year were entered into the system and receipts were issued to the petitioners. USCIS states that the number of petitions entered into their system exceeded the set cap by roughly 100 petitions.

Do note, however, that the random selection process was conducted after the issuance of receipts. What this means is that, even though you may receive a receipt, you may not have been selected in the lottery.

House Reauthorizes H-1C Visa for Foreign Nurses in Medically Underserved Areas

The House of Representatives today passed the Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005. This amended bill would extend for a total of three years the 1999 act that provided H-1C visas for up to 500 foreign nurses per year to work in medically undeserved areas.

The original Reauthorization Bill was introduced by Rep. Bobby Rush (D-IL) on 3/14/05 and cosponsored by Rep. Henry Hyde (R-IL), and would have indefinitely extended the Act.

A similar bill, introduced by Sen. Richard Durbin (D-IL), is currently pending in the Senate.

DOS Proposes New Regulations Regarding Intercountry Adoptions

The Department of State has proposed to implement new regulations regarding intercountry adoptions. In a recent notice, the DOS is requesting comments on utilization of the certification and declaration provisions of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and the Intercountry Adoption Act of 2000 for all intercountry adoption and custody proceedings that take place in the U.S. for immigrations and emigrations of children. According to DOS, a process for seeking certification that adoptions done in the U.S. in accordance with the Convention will also be established.

To view the full text of the Hague Convention, please click here.

The USCIS also has detailed information about the Intercountry Adoption Act of 2000.

ICE Completes its “Operation Return to Sender” Initiative

U.S. immigration and Customs Enforcement, or ICE, has just completed its “Operation Return to Sender” initiative and has announced that it apprehended more than 2,000 criminal aliens, illegal alien gang members, fugitive aliens and other violators of immigration status. The initiative, which ran from May 26 to June 13, include virtually every ICE field office in the nation, working in collaboration with state and local law enforcement agencies.

According to ICE, about half of the apprehended individuals had criminal records for crimes such as sexual assault of a minor, assault with a deadly weapon and abduction. In a press release published today, ICE representatives note the following statistics:

“Approximately 146 of those arrested had convictions for sexual offenses involving minors. In addition, roughly 367 of the arrested aliens were members or associates of violent street gangs, including Mara Salvatrucha (MS-13). Finally, roughly 640 of those arrested were fugitive aliens who had been issued final orders of removal by an Immigration judge but failed to comply.”

According to ICE: “America’s welcome does not extend to immigrants who come here to commit crimes. ICE will leave no stone unturned in hunting down and deporting aliens who victimize our communities. Interior enforcement initiatives like Operation Return to Sender are a critical and necessary complement to our nation’s border security measures.”

It is, however, important to note that the other half of the apprehended individuals were picked up by ICE for administrative immigration violations. These people have been either placed in deportation proceedings or have already been repatriated to their home countries.

USCIS To Issue Requests for Evidence to Alien Fiancés

The U.S. Citizenship and Immigration Services (USCIS) announced this week that it will begin issuing “Requests for Evidence” for over 10,000 Alien Fiancé(e) Petitions (Form I-129F) that are currently being held at USCIS Service Centers. In accordance with provisions of the International Marriage Brokers Regulation Act of 2005, the USCIS will immediately start issuing these RFEs to petitioners affected by this provision.

According to USCIS all petitions that were filed on or after March 6 of this year are required to be supplemented with additional information, including data related to the petitioner’s criminal history (if relevant). A new Form-I-129F with these changes incorporated will be available later this month.

The goal of these changes are to ensure protection of alien fiancées against situations of domestic violence. This is an essential change in process and is quite important to ensure that those alien fiancées that do come to the U.S. do so in a safe and meaningful way.

USCIS REACHES H-1B CAP

Washington, D.C. °©- U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to meet the congressionally mandated cap for fiscal year 2007 (FY 2007). The “final receipt date” for H-1B petitions subject to the FY 2007 annual cap was May 26, 2006. Affected H-1B petitions received on that date will be subject to the random selection process described below. H-1B petitions subject to the FY 2007 annual cap that are received by USCIS after the “final receipt date” will be rejected. Additional information regarding the specific number of H-1B petitions processed is available at: www.uscis.gov/graphics/services/tempbenefits/cap.htm .

Cap and Set Asides : Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the “H-1B cap.” Under the terms of the legislation implementing the United States-Chile and United States-Singapore Free Trade Agreements, 6,800 of the 65,000 available H-1B visas are annually set aside for the Chile/Singapore H-1B1 program. As a result of reserving 6,800 H-1B1 visas for FY 2007, the H-1B cap for that fiscal year is 58,200. However, USCIS has added back to the H-1B cap 6,100 unused FY 2006 H-1B1 visas, for a total of 64,300, as described below.

Unused Chile/Singapore visa numbers for a particular fiscal year are to be used within the first 45 days of the next fiscal year. As FY 2007 H-1B petitions are approved for start dates beginning no earlier than the first day of fiscal year 2007 and reasonable anticipated usage of approved H-1B petitions for any 45-day period exceeds 8,000, USCIS has incorporated its reasonable projection based on H-1B1 usage to date that 700 H-1B1 visa numbers will be used in FY 2006 into the FY 2007 H-1B cap count by adding the remaining 6,100 unused H-1B1 visas back into that count, resulting in a total cap of 64,300 FY 2007 H-1B visas approvable. Because unused H-1B1 visas for FY 2006 have been already allocated in this manner, there will be no additional later H-1B filing season to use these visas. The 6,800 visas reserved from the FY 2007 H-1B count for FY 2007 H-1B1 purposes are anticipated to be handled in a similar manner with respect to the FY 2008 H-1B cap count during calendar year 2007. This allocation of FY 2006 H-1B1 visas based upon reasonable projections of usage to the end of the fiscal year will not affect the availability of H-1B1 visas in any way; they will continue to be fully available, with any year-end difference between actual and projected usage expected to be minimal.

Cap Procedures : In accordance with the procedures announced in the Federal Register at 70 FR 23775 (May 5, 2005) (Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004) USCIS has implemented the following process for handling H-1B petitions subject to the FY 2007 cap:

• USCIS closely monitored FY 2007 H-1B filings and used projections to determine the date on which it received the number of petitions necessary to reach the Congressionally mandated cap.
• USCIS determined that the Congressionally mandated cap had been exceeded on May 26, 2006, the “final receipt date.”
• USCIS will subject H-1B petitions received on the “final receipt date” to a computer-generated random selection process. This process will enable USCIS to apply the remaining number of available H-1B visas to petitions received on that day.
• Cap subject H-1B petitions that are not randomly selected in the process described above will be rejected and returned along with the filing fee(s).
• Petitioners may re-submit the petitions when H-1B visas become available for FY 2008.
• The earliest date for which a petitioner may file a petition requesting FY 2008 H-1B employment with an employment start date of October 1, 2007, is April 1, 2007.

Current H-1B Workers : Petitions filed on behalf of current H-1B workers do not count towards the Congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.

Cap-Exempt Petitions : As directed by the H-1B Visa Reform Act of 2004, the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees will be exempt from any fiscal year cap on available H-1B visas. For FY 2007, USCIS has received approximately 5,830 exempt petitions.

USCIS also notes that petitions for new H-1B employment are exempt from the annual cap if the aliens will be employed at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, petitions for these exempt H-1B categories may be filed for work dates starting in FY 2006 or 2007.

H-1B in General: U.S. businesses utilize the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. As part of the H-1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) require U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted, while the DOL’s Wage and Hour Division safeguards the treatment and compensation of H-1B workers.