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February/March Immigration Update

Department of Homeland Security Publishes New Final Rule for REAL ID Card Standards

The DHS has established new minimum standards for state-issued driver’s licenses and other ID cards that federal agencies will accept for official purposes on or after May 11, 2008, in accordance with the REAL ID Act of 2005. These new standards encompass various aspects of the ID-issuing process: information and security features to be incorporated into all cards; application information to establish an applicant’s identity and immigration status before a card may be issued; and standards for the physical security of card-production facilities. This new final rule also provides a process by which states can pursue a further extension of the compliance deadline to May, 11, 2011 by demonstrating compliance with the Act and rule’s core requirements. Finally, considering the operational burdens on state DMVs, this rule permits the states that the DHS has determined to be in compliance with the Act to replace all licenses meant for official purposes with REAL ID-compliant cards. Those DMVs will have until December 1, 2014 to replace the cards of people born after December 1, 1964 and until December 1, 2017 for people born on or before December 1, 1964.

What are the Affidavit of Support poverty guideline requirements for 2008? The Affidavit of Support is a legal contract between the petitioner (also known as “sponsor”) and the foreign national that is required for some immigrant visas.

Sponsors must demonstrate that his or her income is equal to or greater than 125 percent of the federal poverty guidelines for his/her household size.

The Department of Health and Human Services has issued the 2008 Poverty Guidelines for the 48 Contiguous States and the District of Columbia:

Family Size Poverty Guideline ($)

For families with more than eight people, add $3600 for each extra person.

2008 Poverty Guidelines for Alaska

Family Size Poverty Guideline ($)

















For families with more than eight people, add $4500 for each extra person.

2008 Poverty Guidelines for Hawaii

Family Size Poverty Guideline ($)

















For families with more than eight people, add $4140 for each extra person.

New Centralized Filing Location for Some H-1B Cap-Exempt Petitioners

As of January 30, 2008 USCIS has created a special unit at its California Service Center (CSC) just for processing certain types of H-1B cap-exempt petitions. These “cap-exempt” petitions include petitions filed by the following:

Institutions of higher education (as defined in section 101(a) of the Higher Education Act of 1965, 20 USC 1001(a))

Nonprofits or organizations affiliated with or related to institutions of higher education

Nonprofit or governmental research organizations (as defined in 8 CFR 214.2(h)(19)(iii)(C)

H-1B petitioners should now use the mailing address that follows for their qualifying H-1B cap-exempt petitions. Your petition can only be qualified if your organization or institution falls into one of the above categories.

Direct Mail:

U.S. Citizenship and Immigration ServicesCalifornia Service CenterATTN: CAP EXEMPT H-1B Processing UnitP.O. Box 30040Laguna Niguel, CA 92607-3004

For non-USPS deliveries (FedEx, DHL, etc.):

U.S. Citizenship and Immigration ServicesCalifornia Service CenterATTN: CAP EXEMPT H-1B Processing Unit2400 Avila Road, Room 2312Laguna Niguel, CA 92677

Petitioners should write “EXEMPT” on the outside of the envelope and on Form I-129’s top margin to assure the quick identification and filing of the petition.

The largest volume of H-1B filings is in April (six months prior to the new fiscal year). Applying in April could result in receipting delays or other processing-time interruptions. Petitioners may file a qualifying H-1B cap-exempt petition at any time of the year, but no earlier than six months before their intended start date.

USCIS Revises Process for Background Checks

In cases where the application is approvable but the request for an FBI name check has been pending for more than 180 days, the adjudicator will approve the I-485, 601, 687 or 698 and proceed with card issuance. The FBI has committed to providing the results of these name checks within this time period. This is a significant step forward for the USCIS since prior to this policy applications could be pending for one or more years due to USCIS background checks.

Note that there is no change in the requirement that FBI fingerprint and name checks and an IBIS check be obtained and resolved before an Application for Naturalization (N-400) is adjudicated.

In the event that these checks reveal actionable information after the immigration judge gives permanent resident status to an alien, DHS may detain and begin removal proceedings against that permanent resident.


Kaushik Ranchod