WASHINGTON – (August 11, 2008) U.S. Citizenship and Immigration Services (USCIS) announced today that it continues to make steady progress in reducing the significant number of naturalization applications it received last year. USCIS now anticipates naturalization application processing will average 10-12 months nationally by the end of September 2008 – a substantial improvement from its estimated average processing time of 16-18 months first announced last year.

"USCIS is committed to providing customers with clear expectations and regular updates about the agency's progress to reduce its backlog," Acting USCIS Director Jonathan Scharfen said. "We are working steadily toward achieving our goal of processing all naturalization applications within five months by this time next year." During Fiscal Year 2007, USCIS received 1.4 million naturalization applications, nearly double the normal annual volume. In July alone, USCIS received 460,000 applications for naturalization prior to the implementation of its July 30, 2007 fee increase. As a result, average processing times significantly increased. In response to the surge in applications, USCIS implemented a work plan to reduce the backlog, including implementing an aggressive hiring plan and expanded work hours. As a result of this effort, USCIS anticipates completing more than one million naturalization applications by the end of this fiscal year, including most of the applications received during the summer of 2007. Last year's application surge did not impact USCIS offices evenly across the country. Although most offices have already processed cases received during the 2007 filing surge, a handful of offices will have a small percentage of their 2007 cases pending at the end of Fiscal Year 2008. That will result in processing times longer than the 10-12 month national average. USCIS will continue to shift resources to ensure that all local offices achieve the goal of five month processing times. USCIS field office projections are listed below. These projections indicate the average time it will take to complete a naturalization case as of the end of September 2008. Estimate of Local Office Naturalization Processing Times by September 2008. Following are the offices (left) and number of months (right) Agana, Guam.................................. 5.0 Memphis, Tenn. ............................. 8.4 Albany, N.Y. .................................. 5.6 Miami, Fla.................................... 12.0 Albuquerque, N.M.......................... 8.4 Milwaukee, Wis. ............................ 6.6 Anchorage, Alaska ......................... 5.0 Mount Laurel, N.J. ......................... 5.0 Atlanta, Ga...................................... 6.7 New Orleans, La. ......................... 14.5 Baltimore, Md. ............................... 7.0 New York, N.Y. ........................... 10.0 Boise, Idaho.................................. 10.5 Newark, N.J.................................... 7.4 Boston, Mass. ................................. 8.8 Norfolk, Va. ................................... 7.2 Buffalo, N.Y. .................................. 7.0 Oklahoma City, Okla. .................... 8.6 Charleston, S.C............................. 14.1 Omaha, Neb. .................................. 5.0 Charlotte Amalie, Virgin Islands.... 7.2 Orlando, Fla. .................................. 9.5 Charlotte, N.C............................... 14.9 Philadelphia, Pa............................ 10.0 Chicago, Ill. .................................... 5.1 Phoenix, Ariz. ................................ 8.6 Cincinnati, Ohio ............................. 7.0 Pittsburgh, Pa. ................................ 6.0 Cleveland, Ohio.............................. 6.8 Portland, Maine.............................. 5.5 Columbus, Ohio.............................. 5.7 Portland, Ore. ................................. 5.4 Dallas, Texas ................................ 11.0 Providence, R.I............................... 6.7 Denver, Colo. ................................. 5.2 Reno, Nev....................................... 5.0 Des Moines, Iowa........................... 5.7 Sacramento, Calif........................... 5.0 Detroit, Mich. ................................. 5.0 Salt Lake City, Utah....................... 5.0 El Paso, Texas ................................ 7.9 San Antonio, Texas ........................ 5.0 Fort Smith, Ark............................... 7.6 San Diego, Calif............................. 5.0 Fresno, Calif. .................................. 6.7 San Francisco, Calif. ...................... 5.5 Harlingen, Texas ............................ 5.0 San Jose, Calif................................ 5.0 Hartford, Conn.............................. 14.3 San Juan, Puerto Rico .................. 10.4 Helena, Mont. ................................. 5.0 Seattle, Wash.................................. 9.0 Honolulu, Hawaii ........................... 5.0 Spokane, Wash............................... 5.0 Houston, Texas............................... 5.1 St Albans, Vt. ................................. 9.5 Indianapolis, Ind............................. 5.0 St Louis, Mo................................. 10.3 Jacksonville, Fla. ........................... .7.4 St Paul, Minn.................................. 5.5 Kansas City, Mo............................. 7.0 Tampa, Fla. .................................... 8.6 Las Vegas, Nev............................... 9.0 Tucson, Ariz................................. 12.0 Los Angeles, Calif........................ 12.5 Washington, D.C.......................... 12.7 Louisville, Ky................................. 7.1 West Palm Beach, Fla. ................... 5.0 Manchester, N.H............................. 5.3 Yakima, Wash................................ 5.0

Complaint filed against the Dept. of Labor on 8/8/08 by the Fragomen law firm, whose labor certification filings had been subjected to special audits by DOL. In addtion to the other refiefs sought, the law suit specifucally request for an order directing the Secretary of Labor to rescind and reverse all implementing actions the Department has taken based on its unlawful iterpretation of the Regulation, including (without limitation) its determination to place 100 percent of all of the more than 2,500 PERM applications filed by Fragomen into audit, and to process those applications without further delay.

SOUTH PLAINFIELD, NJ-- On Thursday, July 17th hundreds of executives from major I.T consulting companies in the tri-state area gathered at Nanking Restaurant for a seminar sponsored by the Law Offices of Keshab Raj Seadie, P.C. The conference titled “How to navigate USCIS and DOL Investigations and not violate civil and criminal laws” offered companies who sponsor H1B visas with information and advice from specialized attorneys in the field. “This is a problem that could potentially shatter your glass house” said Attorney Seadie referring to the fragile legal framework in which I.T consulting companies operate. Attorney Seadie has been practicing immigration law for the last ten years and has guided hundreds of I.T. clients in successfully responding to government audits.

In his talk, attorney Seadie outlined “red flags” that could trigger an investigation including erroneous LCA filing, fraudulent projects, benching and back wage issues, among others. He also discussed critical steps needed to successfully overcome an audit once a notice arrives in a company’s mailbox. Other panelists also offered their expertise on the matter, including Attorney Rosa Barreca, a former Deportation Officer with the Department of Homeland Security and attorney Marc Garber. The presentation was followed by an extensive Q&A session that was the highlight for many participants. “This kind of approach to a seminar is something I have never seen before” said Mala Rao, Human Resources Manager with Diaspark Inc. “Keshab answered everyone’s questions in a candid and clear way that is not commonly seen from an attorney, you could tell the crowd was impressed.” In addition to a delicious lunch, the Law office also provided attendees with a “goodie bag” filled with sample letters, forms, checklists and other relevant information needed to navigate through USCIS and DOL investigations. All of the information included in the seminar is accessible free of charge to the public by visiting www.seadie.com. The talk is the first in a newly created Speaker Series sponsored by the Law Office and future seminars will be advertised in advance on the website. With over 150,000 H1B visas filed by employers this year it is no wonder this popular event has drawn such a crowd and caught the attention of Mr. Seadie “We see now that there is a need for this kind of seminar and we are happy to do more in the future and continue to inform the public and our clients”

The U.S. Conference of Mayors 76th Annual Meeting June 20-24, 2008 Miami: At its annual meeting in June, the U.S. Conference of Mayors officially adopted a resolution recognizing the important economic and cultural contributions immigrants have made to this country. The resolution also called on ICE to exercise better and more reasonable judgement when engaging in worksite enforcement activities.

2008 ADOPTED RESOLUTIONS OF THE U.S. CONFERENCE OF MAYORS 76TH ANNUAL MEETING JUNE 20-24, 2008 MIAMI) : U.S. IMMIGRATION AND CUSTOMS WORKSITE ENFORCEMENT WHEREAS, the United States is a nation of immigrants, the overwhelming majority of whom are making an important and positive contribution to both our economy and our culture; and WHEREAS, immigration reform is one of the most pressing issues facing The U.S. Conference of Mayors; and WHEREAS, the federal government has not been able to pass comprehensive immigration reform legislation; and WHEREAS, as a consequence of such inaction has been a dramatic increase in identity theft of the Social Security numbers of U.S. citizens; and, WHEREAS, due to a lack of a workable immigration policy, our country is inhabited by more than 12 million undocumented individuals; and WHEREAS, many of these undocumented individuals are working in well-established businesses that contribute significantly to the local economy; and WHEREAS, responsible employers often have to rely on documentation that appears facially valid in order to determine an individual's status to accept employment; and WHEREAS, the current federal E-Verify system has not been reliable in ascertaining a prospective employee's right to work;and, WHEREAS, some employers will prey upon undocumented workers, with substandard wages, long hours and unsafe working conditions, knowing these workers will not complain to authorities; and WHEREAS, the U.S. Immigration & Custom Enforcement (ICE) has increased worksite enforcement activities; WHEREAS, ICE worksite enforcement activities are often the result of "anonymous" tips from the competitors of legitimate employers, thereby using ICE raids to disrupt production; and, WHEREAS, ICE enforcement activities targeting companies that have had no record or suspicion of engagement in exploitative practices will negatively impact local economies and may drive employers to locate manufacturing facilities overseas; and WHEREAS, ICE has limited resources and time to conduct worksite enforcement activities; NOW, THEREFORE BE IT RESOLVED that The U.S. Conference of Mayors calls upon U.S. Immigration & Customs Enforcement to develop a national policy for its workforce enforcement activities that focuses on employers with a demonstrated history or reasonable suspicion of engaging in exploitative practices, such as violation of wage, hour or occupational safety laws and regulations; and BE IT FURTHER RESOLVED that ICE not prioritize responsible employers for worksite enforcement activities before accurate verification systems are available or comprehensive immigration reform regularizes the status of workers on whom they rely; and BE IT FURTHER RESOLVED that ICE should strive to keep in close communication with the nation's mayors when conducting worksite enforcement activities in their cities.

BALCA upholds denial of PERM application filed for an Appendix A "finance manager" at a used car dealership, underscoring that an Appendix A occupation requires use of the professional recruitment standard, even if the employer does not require a bachelor's for the position. Matter of A One Auto Center, 2008-PER-00043 (6/17/08).

In May 2008, CBP released a Fact Sheet on Enhanced Driver's Licenses (EDLs), and the effort to develop alternative documents to meet Western Hemisphere Travel Initiative (WHTI) implementation requirements. It also covers the alignment of EDL and REAL ID requirements, use of RFID chips and privacy protection.

AAO non-precedent decision upholds denial of skilled worker petition, finding that the petitioner had not established that it had the ability to pay the proffered wage as of the priority date. AAO concludes that net income and net current assets are two different methods of demonstrating ability to pay and cannot be combined for a cumulative sum.

WASHINGTON — ETA News Release: [07/08/2008] The U.S. Department of Labor today announced that it has begun placing pending permanent labor certification applications filed by the Cohen & Grigsby law firm into department-supervised recruitment. Supervised recruitment requires the employer to receive advance approval from the department for all recruitment efforts to ensure that U.S. workers are fully considered for available positions.

The department may institute supervised recruitment when, among other reasons, it has concerns that an employer, attorney or agent may not have complied with department regulations or properly recruited or considered U.S. workers for available positions. "Supervised recruitment is one of many tools the department uses to safeguard the integrity of the permanent labor certification process and protect job opportunities for American workers," said Solicitor of Labor Gregory F. Jacob. "The department takes seriously its statutory responsibility to ensure that American workers have access to jobs they are qualified and willing to do." Last year, the department began auditing applications filed by Cohen & Grigsby as a result of information indicating the firm may have improperly advised its clients regarding the recruitment of U.S. workers. Because of concerns identified in the audits, the department is requiring supervised recruitment for certain applications filed by Cohen & Grigsby. Today's announcement reflects the department's ongoing enforcement of its statutory responsibility to ensure that U.S. workers are fairly considered for all permanent labor certification openings. The Immigration and Nationality Act requires the secretary of labor to certify that there are not sufficient U.S. workers who are able, willing, qualified and available for an open position prior to an alien being permanently admitted to the country to fill it. The department's regulations require employers to "test" the labor market for U.S. workers in a manner that is open, fair and not biased toward foreign workers, including temporary foreign workers already employed by the employer seeking the permanent labor certification.

Washington (June 16, 2008) The Department of Labor has a statutory responsibility to ensure that no foreign worker (or "alien") is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. 8 U.S.C. 1182(a)(5)(A)(i). The Department fulfills this responsibility by determining the availability of minimally qualified domestic workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application. Accordingly, the Department relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith, even if the employer already has a temporarily-admitted foreign national occupying the position.

The Department has long held the view that good faith recruitment requires that an employer's process for considering U.S. workers who respond to certification-related recruitment closely resembles the employer's normal consideration process. In most situations, that normal process does not involve a role for an attorney or agent (as defined in 20 C.F.R. 656.3) in assessing the ability of applicants to fill the employer's needs. It also does not involve any role for the foreign worker or foreign national in any aspect of the consideration process. However, given that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer's normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process, and respects the right of employers to consult with their attorney or agent during that process to ensure they are complying with all applicable legal requirements. By prohibiting attorneys, agents, and foreign workers from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. 656.10 (b)(2)(i) and (ii), the Department does not thereby prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer, and not the attorney or agent, must determine whether a U.S. applicant's credentials meet the minimum qualifications for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. After an employer evaluates a U.S. worker and concludes that the worker is unqualified, the employer may seek the advice of its attorney or agent to ensure that its reasons for rejecting the U.S. worker are lawful, and the attorney or agent may review the qualifications of the U.S. worker to the extent necessary to provide that advice. By contrast, if an employer evaluates a U.S. worker and determines that the worker is minimally qualified, the attorney, agent, or foreign worker may not thereafter consider the applicants' qualifications and attempt to substitute his or her own judgment for that of the employer. In the Department's view, an employer's determination that a U.S. worker is minimally qualified for a position constitutes clear evidence that there are U.S. workers who are able, willing, qualified and available for the work to be undertaken. More specifically, the types of actions prohibited by 20 C.F.R. 656.10(b)(2)(i) and (ii) include: Attorneys and agents may receive resumes and applications from U.S. workers who respond to the employer's recruitment efforts; however, they may not conduct any preliminary screening of applications before the employer does so, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. The attorney or agent may not withhold from the employer any resumes or applications that it receives from U.S. workers. Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. Such involvement, because of its uniqueness, has resulted in an impermissible "chilling effect" on the interests of U.S. worker-applicants in the position. After the evaluation of applications by the employer has been completed, the employer may consult with its attorney or agent about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question. Where the Department finds evidence of potentially improper attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department may audit applications to determine whether the employer's recruitment and hiring processes were conducted in good faith and to ensure adherence to all statutory and regulatory requirements.

New EADs Limited to Certain Individuals Who Have Applied for Legal Permanent Residence Status

What is an EAD? Certain aliens who are temporarily in the United States may file a Form I-765, Application for Employment Authorization, to request an Employment Authorization Document (EAD), which authorizes them to work legally in the U.S. during the time the EAD is valid. Who is eligible for an EAD that is valid for two years? The two-year EAD is available to pending adjustment applicants (i.e., those who have filed a Form I-485, Application to Register Permanent Residence or Adjust Status) who have filed for an EAD under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) and who are currently unable to adjust status because an immigrant visa number is not currently available. USCIS will continue to grant EADs that are valid for one-year for adjustment applicants who have an available immigrant visa number and are filing for employment authorization under 8 C.F.R. Section 274a.12(c)(9). When will applicants expect to receive the new two-year EAD? USCIS expects to implement this initiative for cases pending on June 30, 2008. Applicants filing Form I-765 under 8 C.F.R., Section 274.a.12(c)(9) should begin to receive their two-year EAD a couple of weeks after the anticipated June 30, 2008 implementation date. Where can someone get more information on the new EADs? For further information, please review the USCIS Update on the new two-year EAD posted online at: http:/www.uscis.gov. Will applicants get a two-year EAD when they file an I-765 with their I-485 adjustment of status application? Generally no. Initial EAD filings will generally receive an EAD that is valid for one- year because they are usually submitted with the Form I-485 that can only be filed when there is an immigrant visa number immediately available to the individual. Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses (i.e., when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an immigrant visa number is available, USCIS will grant the one-year EAD. How will USCIS decide whether to issue an EAD valid for one or two years? USCIS will decide whether to renew an EAD for either a one or two-year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. If an applicant’s visa number has retrogressed and is unavailable, USCIS may issue a renewal EAD valid for two years. USCIS will continue to issue the EAD in one-year increments when the Department of State Visa Bulletin shows an employment-based preference category is current as a whole or the applicant’s priority date is current. If I am filing for a replacement EAD under 8 C.F.R., Section 274.a.12(c)(9), how long is the EAD valid? If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the Department of State Visa Bulletin and the applicant’s priority date. If USCIS determines that an applicant has filed multiple Forms I-765, the agency may deny the applications for the replacement or renewal EAD. Why is USCIS changing the validity period for some EADs? USCIS views this change as a way to better serve its customer base, and in particular, persons who are waiting to become lawful permanent residents and are impacted by the lack of immigrant visa numbers. On July 30, 2004, USCIS published an interim rule, “Employment Authorization Documents," at 69 Federal Reg. 45555. This interim rule authorized USCIS, in its discretion, to issue EADs with validity periods other than one year based on certain criteria deemed appropriate by the Department of Homeland Security. I filed my Form I-765 more than 90 days ago and I have not received a decision, who should I contact? If you have not received a decision within 90 days of the USCIS receipt date and you have properly filed your EAD application, you may apply to obtain an interim EAD by appearing in person at your local USCIS District Office. You must bring proof of identity and any notices that you have received from USCIS in connection with your application for employment authorization. If I believe I have received an EAD with the wrong validity period or other incorrect information who should I contact? If you believe that you have received the wrong validity period, you should contact the USCIS National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TTY).

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that on June 16, 2008, it will begin accepting Premium Processing Service requests for Forms I-140 (Immigrant Petition for Alien Worker) filed on behalf of certain alien workers who are nearing the end of their sixth year in H-1B nonimmigrant status.

Premium Processing Service offers 15 calendar-day processing for designated employment-based petitions and applications upon request. There is a nonrefundable fee of $1000 for this service. During the 15-day period, USCIS will issue either an approval or denial notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation. USCIS previously designated certain classifications under Form I-140 for Premium Processing Service in the May 23, 2006 issue of the Federal Register. See 71 FR 29662. USCIS is limiting Premium Processing Service for Form I-140 petitions that are filed on behalf of aliens: Whose sixth year will end within 60 days; Who are only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and Who are ineligible to extend their H-1B status under section 106(a) of AC21. Section 104(c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days. For more details on Premium Processing Service for the Form I-140 petitions described in this announcement, see the "How Do I Use the Premium Processing Service" page in the Related Links section of this page or the Fact Sheet also linked in the Related Links section.

Washington DC - (June 9, 2008) The Department of Homeland Security today designated E-Verify, operated by U.S. Citizenship and Immigration Services in partnership with the Social Security Administration, as the electronic employment eligibility verification system that all federal contractors must use as required by Executive Order 12989, as amended. E-Verify is a free Internet-based system that allows enrolled employers to confirm the legal status of new hires within seconds. "A large part of our success in enforcing the nation's immigration laws hinges on equipping employers with the tools to determine quickly and effectively if a worker is legal or illegal," said Homeland Security Secretary Michael Chertoff.

"E-Verify is a proven tool that helps employers immediately verify the legal working status for all new hires." President George W. Bush has amended Executive Order 12989 in order to direct all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system – designated by the Secretary of Homeland Security – to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the United States on the federal contract. In response to this Executive Order, Secretary Michael Chertoff today designated E-Verify as the system of choice to ensure that the federal government only does business with companies that agree to verify the legality of their new hires and further, that the specific employees tapped to perform contract services in the United States for the federal government are authorized to work in this country. Federal departments and agencies within the executive branch are already enrolling with E-Verify to check the status of all new hires within the federal workforce. Agencies responsible for federal acquisition regulations (FAR) will send a Notice of Proposed Rulemaking (NPRM) to the Federal Register today soliciting public comment on proposed changes to these regulations. Comments will be accepted for 60 days. More than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in fiscal year 2008. Of those queries, 99.5 percent of qualified employees are cleared automatically by E-Verify.

Washington (June 2, 2008) - AILA DOL Liaison has received an update from the DOL concerning the change in processing between the Chicago and Atlanta PERM National Processing Centers which went into effect on June 1, 2008.

The Chicago NPC will complete the processing of any pending PERM cases located there, including any that were issued an audit before April 15, 2008, or which were denied and an appeal was filed before April 15, 2008. (Note: all audits and denials issued since April 15, 2008, require the employer to submit the response to the Atlanta NPC). The DOL expects the Chicago NPC will not complete all the cases by June 1, 2008 but that they will complete the cases in a short period of time after June 1, 2008.

Department acts to protect employment opportunities for American workers WASHINGTON (June 2nd, 2008) Department of Labor today announced that it has begun auditing all permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP. The department has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants.

"The department's decision to further investigate these applications will help ensure the integrity of the permanent labor certification process and ultimately protect job opportunities for American workers," said Gregory F. Jacob, solicitor of labor. "The department takes seriously its responsibility to ensure that American workers have access to jobs they are qualified and willing to do and that their wages and working conditions are not adversely affected by the hiring of foreign workers." The permanent labor certification process, established by the Immigration and Nationality Act, allows employers to sponsor aliens for permanent residence (secure a "green card") to fill positions for which no qualified, willing and available U.S. workers can be found. The department's regulations set forth detailed procedures by which an employer seeking certification must demonstrate that no qualified U.S. workers can be located. The department's regulations specifically prohibit an employer's immigration attorney or agent from participating in considering the qualifications of U.S. workers who apply for positions for which certification is sought, unless the attorney is normally involved in the employer's routine hiring process. Where an employer does not normally involve immigration attorneys in its hiring process, there is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program. In 2004, the department adopted reforms streamlining the permanent labor certification process by moving to an attestation-based system. Audits of applications are one of the major deterrents used by the department to ensure program integrity.

AILA liaison has learned that DOL has conducted a review of denied PERM cases in the appeals/motions queue for "clear error," and that 350-- more than one-third of the approximately 900 cases reviewed thus far --have been returned to the PERM queue for processing

This is the result of a pilot program advocated by AILA, as discussed in this passage from the minutes of the April 3, 2008, stakeholder meeting: "The DOL has initiated a pilot 'sub-queue' of 'government error' cases by pre-screening them. Examples of 'government error' would be requiring Kellogg language when it is not required; a clear communication problem such as where an audit letter is not received by an employer or representative, or where an audit reply is timely submitted but is not matched with the case, and data entry errors on mail-in cases."

EXTENSION OF OPTIONAL TRAINING PROGRAM FOR QUALIFIED STUDENTS.

For more detail information, please read the article issued by USCIS on 5-23-08 below. http://www.uscis.gov/files/article/supplemental_opt_052308.pdf

The American Immigration Lawyers Association (AILA) recently offered comments on the Interim Rules on Petitions Filed on Behalf of H-1B Temporary Workers Subject to or Exempt from the Annual Numerical Limitation.

The current Interim Regulation precludes an employer from filing more than one H-1B petition for an alien during a single fiscal year regardless of whether the alien is subject to the numerical limitations or exempt. AILA suggests that the ban on multiple filings be removed for exempt aliens. AILA indicates that the Regulation makes a lot of sense for cases subject to the numerical limitations, but is not necessary for those exempt. In particular, nonprofit organizations may have valid reasons for filing two or more petitions for the same employee during a fiscal year because of the complexity in defining what entities qualify as "affiliated or related to an institution of higher education." AILA also points to extraordinary circumstances, where a second petition would be considered "protective filing," meaning the petitioning employer has bona fide reason to believe the initial filing may have been lost, destroyed, delayed, or otherwise not delivered in a timely manner. AILA encourages USCIS to permit the second petition accompanied by an explanation and such petitions would be screened. AILA finds that there is usually sound reasoning behind "protective filings" and are not many of them. AILA recommends that the filing period for H-1B petitions subject to the cap remain at five days. It had previously been two days. AILA agrees with USCIS treatment of Advanced Degree random selection

Form I-751 to be filed with the California or Vermont Service Centers

WASHINGTON—U.S. (May 23, 2008) Citizenship and Immigration Services (USCIS) will soon be revising the filing instructions for the Petition to Remove Conditions on Residence (Form I-751) to require filing at the California or Vermont Service Centers, where all Forms I-751 are currently adjudicated. The adjudication functions for these petitions have already been assigned to these locations in anticipation of this change. Therefore, all petitioners filing a Form I-751 are requested to file the petition with the California or Vermont Service Centers, depending on the state in which they reside. Form I-751 is used by individuals who were granted conditional residential status through marriage to a U.S. citizen or a lawful permanent resident and who desire to petition USCIS to remove the conditions on their residence. Petitioners who live in the following states or territories should file their Form I-751 with the California Service Center (CSC): Alaska, American Samoa, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming. The mailing address for CSC is: USCIS California Service Center P.O. Box 10751 Laguna Niguel, California 92607-0751 Petitioners who live in the following states or territories should file their form I-751 with the Vermont Service Center (VSC): Alabama, Arkansas, Connecticut, Delaware, Washington, D.C., Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, and West Virginia. The mailing address for VSC is: USCIS Vermont Service Center 75 Lower Welden St. St. Albans, Vermont 05479-0001 Petitions filed with the Nebraska or Texas Service Centers after this announcement but prior to a change in the form instructions will be forwarded to the California or Vermont Service Centers, respectively, without any need for action by the petitioner. However, there could be a slight delay in the adjudication of the petition as a result of the transfer; so, petitioners are encouraged to file directly with the appropriate service center as outlined above. If a petitioner receives a receipt notice from the Nebraska or Texas Service Center, his or her case will be transferred to the California or Vermont Service Center for adjudication. The petitioner should receive a notice advising him or her that the case has been transferred

Kechkar v. Gonzales, (A person who falsely claims U.S. citizenship for the purpose of obtaining private employment is inadmissible under INA §212(a)(6)(C)(ii)(I)). Petitioner was placed in removal proceedings for failing to maintain his nonimmigrant status. When allegations surfaced that Petitioner had, in 2002, completed a Form I-9 to work for Dillard's department store and checked the box indicating that he was a "citizen or national of the United States," DHS added charges of misrepresenting United States citizenship

Petitioner was placed in removal proceedings for failing to maintain his nonimmigrant status. When allegations surfaced that Petitioner had, in 2002, completed a Form I-9 to work for Dillard's department store and checked the box indicating that he was a "citizen or national of the United States," DHS added charges of misrepresenting United States citizenship. Petitioner, who was married to a U.S. citizen, sought a continuance based on his wife's pending I-130 petition. The immigration judge scheduled another hearing, but stated that he would not continue the case further if he found a misrepresentation of citizenship. At the next hearing, Petitioner testified that he did not check the "citizen or national" box and that he actually left all the boxes blank because he did not fit any of the categories. A Dillard's human resources secretary testified that she was "99.9%" sure that no one at Dillard's would have checked the box if Petitioner had left it blank and that if it was blank, the form would have been returned to Petitioner to complete, or it would have been otherwise flagged as incomplete. The IJ found that Petitioner had checked the "citizen or national" box and rejected any suggestion that he checked the box to claim he was a U.S. national. Because of his false claim to U.S. citizenship, the IJ concluded that Petitioner was ineligible for adjustment of status, denied his request for a continuance and ordered him removed to Morocco. The BIA dismissed his appeal and denied Petitioner's subsequent motion to reopen and reconsider. In order to be eligible for adjustment of status, an applicant must be "admissible to the United States." INA §245(a). Under INA §212(a)(6)(C)(ii)(I), a person who "falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including [INA §274A]…) or any other Federal or State law is inadmissible." INA §274A(a)(1)(A) states, "[i]t is unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien…." The court rejected Petitioner's argument that §212(a)(6)(C)(ii)(I) does not cover a misrepresentation of citizenship made in connection with private employment, noting that Petitioner cited no authority in support of his argument except for a concurring opinion in Ateka v. Ashcroft, 384 F.3d 954, 958 (8th Cir. 2004), which pointed out that the issue raised by Petitioner was not before the court. Moreover, §212(a)(6)(C)(ii)(I) specifically references INA §274A, entitled "Unlawful employment of aliens." The court concluded, "It appears self-evident that an alien who misrepresents citizenship to obtain private employment does so, at the very least, for the "purpose" of evading §274A(a)(1)(A)'s prohibition on 'a person or other entity' knowingly hiring aliens who are not authorized to work in this country." The court also concluded that it lacked jurisdiction to review the BIA's denial of voluntary departure and found that the BIA did not abuse it discretion in refusing to reopen and reconsider Petitioner's case. The petition for review was dismissed in part and denied in part.

WASHINGTON—(April 26, 2008) U.S. Citizenship and Immigration Services (USCIS) announced today that it has revised Form I-765, Application for Employment Authorization. The form now includes additional eligibility codes. These changes have been made in accordance with the Department of Homeland Security's recent interim final rule regarding Optional Practical Training (OPT), published on April 8, 2008 in the Federal Register. The rule modifies the conditions and duration of OPT for qualified F-1 non-immigrant students.

ICE website, posted Apr. 25, 2008: "SEVP Policy Guidance: 0801-01; Title: Updates to Post-Completion Optional Practical Training (OPT); Applicability: Designated school officials (DSOs) for SEVP-certified schools with F-1 students who are eligible for or pursuing post-completion OPT; Effective Date: April 25, 2008."

ICE website, posted Apr. 25, 2008: "SEVP Policy Guidance: 0801-01; Title: Updates to Post-Completion Optional Practical Training (OPT); Applicability: Designated school officials (DSOs) for SEVP-certified schools with F-1 students who are eligible for or pursuing post-completion OPT; Effective Date: April 25, 2008."

Washington, D.C. More good news for students with F-1 visas. U.S. Citizenship and Immigration Services announced those who are beneficiaries of selected H-1B petitions for fiscal year 2009 will be allowed to request change of status instead of consular notification.

Washington, D.C. More good news for students with F-1 visas. U.S. Citizenship and Immigration Services announced those who are beneficiaries of selected H-1B petitions for fiscal year 2009 will be allowed to request change of status instead of consular notification. On April 8, it was announced F-1 status would be automatically extended until the start of employment in October for qualifying students who are the beneficiaries of approved H-1B petitions. The job must begin on Oct. 1 for fiscal year 2009, and the student-beneficiary must have requested change of status. If USCIS rejects, denies or revokes the petition, or if the student violates his or her status, the F-1 extension is terminated. Since the rule was published after the filing period for fiscal year 2009, many F-1 students did not request change of status with the H-1B petition, because they did not know it would be possible. Therefore, USCIS instructs those F-1 students whose H-1B petitions were randomly selected to file request for change of status within 30 days of issuance of the receipt notice Petitioners or authorized representatives should send an email to the USCIS service center where the petition is pending to request change of status rather than consular notification. Requests should include the receipt number, the names of the petitioner and beneficiary and beneficiary's date of birth. Also include the beneficiary's I-94 number, and Student and Exchange Visitors Information System number. Do not contact the service center until after a receipt notice is received.

U.S. Citizenship and Immigration Services (USCIS) today conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number

WASHINGTON (April 14, 2008) - U.S. Citizenship and Immigration Services (USCIS) today conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number. USCIS conducted two random selections, first on petitions qualifying for the 20,000 "master's or higher degree" (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap. The approximately 163,000 petitions received in the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers. Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks. For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begins today (April 14), the day of the random selection process. USCIS has "wait-listed" some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status. USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks

We have observed in the interim final regulation revising and extending F-1 Optional Practical Training that the provision of the regulation allowing for a "bridge" for F-1 students who are picked in the H-1B lottery requires the petitioner to have marked the petition "change of status." Of course, many petitioners did not mark petitions "change of status" because of the very "cap gap" the interim final rule intended to close. Though the regulation has been published by ICE, AILA liaison has contacted USCIS for guidance going forward, and USCIS is looking for a solution. Watch www.seadie.com for further information.

We have observed in the interim final regulation revising and extending F-1 Optional Practical Training that the provision of the regulation allowing for a "bridge" for F-1 students who are picked in the H-1B lottery requires the petitioner to have marked the petition "change of status." Of course, many petitioners did not mark petitions "change of status" because of the very "cap gap" the interim final rule intended to close. Though the regulation has been published by ICE, AILA liaison has contacted USCIS for guidance going forward, and USCIS is looking for a solution. Watch www.seadie.com for further information. SUMMARY: Currently, foreign students in F-1 nonimmigrant status who have been enrolled on a full-time basis for at least one full academic year in a college, university, conservatory, or seminary certified by U.S. Immigration and Custom Enforcement's (ICE's) Student and Exchange Visitor Program (SEVP) are eligible for 12 months of optional practical training (OPT) to work for a U.S. employer in a job directly related to the student's major area of study. This interim final rule extends the maximum period of OPT from 12 months to 29 months for F-1 students who have completed a science, technology, engineering, or mathematics (STEM) degree and accept employment with employers enrolled in U.S. Citizenship and Immigration Services' (USCIS') E-Verify employment verification program. This interim rule requires F-1 students with an approved OPT extension to report changes in the student's name or address and changes in the employer's name or address as well as periodically verify the accuracy of this reporting information. The rule also requires the employers of F-1 students with an extension of post-completion OPT authorization to report to the student's designated school official (DSO) within 48 hours after the OPT student has been terminated from, or otherwise leaves, his or her employment with that employer prior to end of the authorized period of OPT. This rule also ameliorates the so-called ``cap-gap'' problem by extending the authorized period of stay for all F-1 students who have a properly filed H-1B petition and change of status request (filed under the cap for the next fiscal year) pending with USCIS. If USCIS approves the H-1B petition, the students will have an extension that enables them to remain in the United States until the requested start date indicated in the H-1B petition takes effect. This interim final rule also implements a programmatic change to allow students to apply for OPT within 60 days of concluding their studies.

WASHINGTON (April 8, 2008) – U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the "advanced degree" exemption. Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008. Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process

WASHINGTON (April 8, 2008) – U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the "advanced degree" exemption. Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008. Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process

PEGASUS CONSULTING GROUP, Plaintiff, v. ADMINISTRATIVE REVIEW BOARD FOR THE DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, Defendant.

PEGASUS CONSULTING GROUP, Plaintiff, v. ADMINISTRATIVE REVIEW BOARD FOR THE DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, Defendant. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (March 31, 2008) On June 8, 2001, the Department of Labor issued a determination letter stating that Pegasus Consulting Group had violated the Immigration and Nationality Act (INA) because it failed to pay 19 nonimmigrant workers the required wage rate. The amount of shortage was $401,228.21 and the DOL additionally assessed a civil penalty of $40,000. Pegasus requested a hearing before an Administrative Law Judge, who on Nov. 13, 2002 reduced the damages on wage deficiencies to $231,279.41, but retained the penalty of $40,000. Subsequently, both Pegasus and the DOL petitioned the DOL's Administrative Review Board to review the decision. The ARB affirmed ALJ's finding that Pegasus had failed to effect bona fide terminations of certain H-1B employees that had been laid off. Pegasus was not obligated to pay back wages for those employees. ARB accepted the $40,000 in civil penalties, but reversed ALJ's finding regarding burden of proof with regard to several witness. Despite stating they were not owed back wages, ARB found that they were. ARB also found the ALJ had improperly credited Pegasus for payments made to four employees, because these payments were not wages. Pegasus sought further review and the case was transferred to the United States District Court for the District of New Jersey as Pegasus Consulting Group, Plaintiff, v. Administrative Review Board for the Department of Labor, Wage and Hour Division, Employment Standards Administration, Defendant. Civil Action No. 05-5161. Both parties moved for summary judgment. On June 27, 2007, the court granted the motion of Pegasus and denied the motion of DOL. On July 12, 2007, DOL requested reconsideration of court's decision, which Pegasus opposed. The court ruled DOL's motion would be considered. On March 31, 2008, the court issued its opinion, granting the DOL's motion for reconsideration, vacating the court's original grant of summary judgment to Pegasus and granting summary judgment to the DOL. The judge found DOL's evidence and testimony did support the original determination

On 4/11/08 DOL published a final rule amending E-3 visa regulations regarding procedures employers must follow to obtain an LCA. The final rule is effective immediately. (73 FR 19943, 4/11/08)

On 4/11/08 DOL published a final rule amending E-3 visa regulations regarding procedures employers must follow to obtain an LCA. The final rule is effective immediately. (73 FR 19943, 4/11/08)-- The Department of Labor (the Department or DOL) is publishing this Final Rule to amend its regulations regarding the temporary employment of nonimmigrant foreign professionals in order to implement procedural requirements applicable to the E-3 visa category. This visa classification was established by Title V of the REAL ID Act of 2005 (Division B) in the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, and applies to certain Australian nationals coming to the United States solely to perform services in specialty occupations. This Final Rule clarifies the procedures that employers must follow in obtaining a DOL- certified labor condition application before seeking an E-3 visa for a foreign worker.

Kechkar v. Gonzales, (A person who falsely claims U.S. citizenship for the purpose of obtaining private employment is inadmissible under INA §212(a)(6)(C)(ii)(I). Petitioner was placed in removal proceedings for failing to maintain his nonimmigrant status. When allegations surfaced that Petitioner had, in 2002, completed a Form I-9 to work for Dillard's department store and checked the box indicating that he was a "citizen or national of the United States," DHS added charges of misrepresenting United States citizenship.

Kechkar v. Gonzales, (A person who falsely claims U.S. citizenship for the purpose of obtaining private employment is inadmissible under INA §212(a)(6)(C)(ii)(I). Petitioner was placed in removal proceedings for failing to maintain his nonimmigrant status. When allegations surfaced that Petitioner had, in 2002, completed a Form I-9 to work for Dillard's department store and checked the box indicating that he was a "citizen or national of the United States," DHS added charges of misrepresenting United States citizenship. Petitioner, who was married to a U.S. citizen, sought a continuance based on his wife's pending I-130 petition. The immigration judge scheduled another hearing, but stated that he would not continue the case further if he found a misrepresentation of citizenship. At the next hearing, Petitioner testified that he did not check the "citizen or national" box and that he actually left all the boxes blank because he did not fit any of the categories. A Dillard's human resources secretary testified that she was "99.9%" sure that no one at Dillard's would have checked the box if Petitioner had left it blank and that if it was blank, the form would have been returned to Petitioner to complete, or it would have been otherwise flagged as incomplete. The IJ found that Petitioner had checked the "citizen or national" box and rejected any suggestion that he checked the box to claim he was a U.S. national. Because of his false claim to U.S. citizenship, the IJ concluded that Petitioner was ineligible for adjustment of status, denied his request for a continuance and ordered him removed to Morocco. The BIA dismissed his appeal and denied Petitioner's subsequent motion to reopen and reconsider. In order to be eligible for adjustment of status, an applicant must be "admissible to the United States." INA §245(a). Under INA §212(a)(6)(C)(ii)(I), a person who "falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including [INA §274A]…) or any other Federal or State law is inadmissible." INA §274A(a)(1)(A) states, "[i]t is unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien…." The court rejected Petitioner's argument that §212(a)(6)(C)(ii)(I) does not cover a misrepresentation of citizenship made in connection with private employment, noting that Petitioner cited no authority in support of his argument except for a concurring opinion in Ateka v. Ashcroft, 384 F.3d 954, 958 (8th Cir. 2004), which pointed out that the issue raised by Petitioner was not before the court. Moreover, §212(a)(6)(C)(ii)(I) specifically references INA §274A, entitled "Unlawful employment of aliens." The court concluded, "It appears self-evident that an alien who misrepresents citizenship to obtain private employment does so, at the very least, for the "purpose" of evading §274A(a)(1)(A)'s prohibition on 'a person or other entity' knowingly hiring aliens who are not authorized to work in this country." The court also concluded that it lacked jurisdiction to review the BIA's denial of voluntary departure and found that the BIA did not abuse it discretion in refusing to reopen and reconsider Petitioner's case. The petition for review was dismissed in part and denied in part.