USCIS Resumes Premium Processing Services for Many I-140 Petitions

USCIS announced in late June that it will resume Premium Processing Services for Form I-140, the Immigrant Petition for Alien Worker. Effective June 29, 2009, the federal agency started again accepting premium processing requests for Forms I-140 for EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability that are not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

Please note that premium processing services are not available for Forms I-140 for cases involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Under USCIS’s Premium Processing Service, the agency guarantees that it will either issue an approval notice or, if applicable, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation within 15 calendar days for all petitioners that provide a $1,000 processing fee along with their I-140 petition. If this 15-day period is not met, the processing fee will be returned to the petitioner and USCIS will continue to process the request as part of the Premium Processing Service.

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USCIS Notes that Current I-9 Form Will Remain Valid Past June 30

USCIS announced today that the version of Form I-9, the Employment Eligibility Verification form, currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget approve the use of the current version of the Form I-9. This request is still pending, but during this period, the current form, revised on February 2, 2009, will remain valid.

USCIS notes that they will update the I-9 form when the extension is approved by the Office of Management and Budget. Employers will then be able to use either the newly revised form or the form currently available (revised 02/02/2009).

USCIS Posts Update of Cap-Subject H Visas Received

USCIS has just posted an update regarding the amounts of petitions received for visas in the H category that are subject to annual caps.

H-1B Visas

H-1B visas are available to some U.S. employers to use to bring foreign workers in specialty occupations that require technical or theoretical expertise in a specialized field. H-1B occupations include architects, computer programmers, accountants and doctors, among other professions. Each year, a total of 65,000 cap-subject H-1B visas are available to such individuals.

According to USCIS, as of June 19, 2009, only 44,500 H-1B cap-subject petitions and approximately 20,000 petitions that qualify for the advanced degree cap exemption have been filed by U.S. employers. USCIS notes that they will continue to accept petitions for both the cap-subject and advanced degree categories until they have received enough to adequately fill the Fiscal Year limit of 65,000 available visas.

VWP Passports Must Now Be E-Passports

According to the U.S. Customs and Border Protection (CBP), as of July 1, 2009, all Visa Waiver Program (VWP) emergency or temporary passports must be electronic passports. Only individuals holding these e-Passports will be able to travel to the U.S. under the VWP. Included in this category are applicants who present for proof of identification emergency or temporary passports. E-Passports contain integrated chips that store biographic data, digitized photographs and other information about the passport holders.

CBP notes that they have the right to exercise discretion at ports of entry for cases in which VWP applicants are traveling to the U.S. for medical or other “emergency” reasons. VWP applicants entering the U.S. with passports that do not comply to this regulation (with the exception of those that are traveling for emergency reasons and have been given discretionary approval) may be detained for processing and may potentially be denied admission to the U.S.

U.S. Justice Department Facing Highest Backlog of Immigration Cases in a Decade

According to a report just published by the Transactional Records Access Clearinghouse (TRAC), a nonpartisan group that conducts analysis on the performance of the federal government, U.S. immigration courts are facing major slowdowns. According to TRAC, even though the Justice Department three years ago reported that U.S. immigration courts were severely overburdened and called for the hiring of 40 new judges, only a few judges have been hired and the reported backlog of immigration cases has hit the highest level this decade. TRAC reports that the lack of necessary judges has led to a 19 percent increase in case backlog since 2006 and a 23 percent increase in the time it takes to resolve cases.

In mid-April the Justice Department noted that there were 234 immigration judges practicing in the U.S., an increase of only 4 judges since two years prior. At the same time, the number of immigration cases received by U.S. courts peaked to exorbitant numbers; last year, more than 350,000 cases were received, due in large part to the Bush Administration’s crackdown on factories and immigrant communities in the Midwest and Southwest regions of the country.

Charles Miller, a spokesman for the U.S. Justice Department, recently commented that the Justice Department intends to hire 19 new immigration judges. By 2010, they plan to have hired 28 more judges and 28 clerks.

USCIS Again Updates FY 2010 H-1B Numbers

On June 5, USCIS again updated the current amount of H-1B visa applications received for Fiscal Year 2010. According to USCIS, roughly 44,000 H-1B cap-subject visas have been received. Approximately 20,000 petitions that qualify for the advanced degree cap exemption have been additionally filed. USCIS notes that they will continue to accept cap-subject and advanced degree exemption petitions until they believe a sufficient number have been received.

A total of up to 65,000 H-1B visas are allowed for Fiscal Year 2010, along with an additional 20,000 visas for petitioners with a U.S. master’s degree or higher. When the agency receives the necessary number of petitions to meet these caps for FY 2010, it will issue a notice to advise the public that the cap has been met by its specified final receipt date. That final receipt date will be based on the date that USCIS received the petition and not the date that the petition was postmarked.

USCIS will then randomly select the number of petitions required to reach the cap limits for the H-1B program for FY 2010 from all petitions received on or before the specified final receipt date. Cap-subject petitions not randomly selected will be rejected by USCIS, as will those petitions received after the final receipt date.

Please note that petitions filed on behalf of H-1B workers who have previously been counted against an annual cap will not count toward the FY 2010 H-1B cap. USCIS will continue to process petitions for H-1B workers (or those petitioning on their behalf) that wish to extend the amount of time they may remain in the U.S., change their terms of employment, change employers, or work concurrently in a second H-1B position.

Department of Homeland Security Provides Temporary Relief for Certain Widows and Widowers of U.S. Citizens Facing Immigration Action

Earlier this week Janet Napolitano, Secretary of the Department of Homeland Security (DHS) amended immigration regulations for widows and widowers of U.S. citizens, and their unmarried children under the age of 18, who live in the U.S. and who were married for less than two years before their spouse’s death. Any immigration actions against these individuals, according to the newly granted reprieve, will be deferred for two years.

“Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues,” said Napolitano. “Granting deferred action to the widows and widowers of U.S. citizens who otherwise would have been denied the right to remain in the United States allows these individuals and their children an opportunity to stay in the country that has become their home while their legal status is resolved.”

In addition Napolitano provided guidance to USCIS to suspend the adjudication of visa petitions and adjustments of status applications filed for widows and widowers, in cases where the only reason for a reassessment of the individual’s immigration status was the death of their U.S. citizen spouse (in cases where they were married for less than two years).

Finally, USCIS has received guidance to favorably consider requests for the humanitarian reinstatement of immigration status in cases where previously approved petitions for widows and widowers were revoked due to regulations.