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Immigration News – April 09

Ranchod Law Group Immigration Update

760 Market Street, Suite 921
San Francisco, CA 94102
Phone: 415-986-6186

Updated Count of FY2010 H-1B Petition Filings

The USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap.  The agency continues to accept petitions subject to the general cap.  Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, USCIS continues to accept advanced degree petitions since experience has shown that not all petitions received are approvable.  Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

Do you have a Conditional Green Card?

If your marriage was less than two years old at the time you obtained permanent residence through marriage to a US citizen, he or she will be granted “Conditional Permanent Residence,” meaning that permanent residence is granted for two years. Prior to the end of the two years (within 90 days of the expiration of conditional residence), the spouse must submit an application to USCIS to remove conditional status. The applicant and the U.S. citizen must jointly file a petition to remove conditional residence. If applicant is divorced at the time of filing, applicant may submit a waiver application to USCIS for removal of the conditional status. The USCIS may call in applicant for a second interview to verify that the marriage was bona fide at the time it was contracted. Removing conditional status is an extremely important step, because if a spouse fails to submit this application, his or her permanent residence is automatically terminated, and will be removable from the U.S.

Addressing Employment-Based Visa Wait Times

As this topic has generated much concern, there are several steps that have been taken by USCIS to help ease the situation. These include the following steps:

  • Increasing emphasis on processing employment-based petitions. It is USCIS’ goal to complete adjudication on the older I-140 petitions and to process newer petitions within the targeted processing time of four months. USACIS anticipates reaching this goal by the end of September 2009.
  • Issuing employment authorization documents valid for two years, as needed.
  • USCIS is working with the State Department to make sure they use every available visa number. In 2007, USCIS had more visas available in the family-based categories than were needed, so as permitted by law, USCIS transferred those available family-based visas for use in the employment-based application process.

New Requirements for Hiring H-1B Foreign Workers Changes Apply to Companies that Receive TARP Funding

There are now additional requirements for employers, who receive funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category. The new “Employ American Workers Act,” (EAWA) was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application. EAWA applies to any Labor Condition Application (LCA) and/or H-1B petition filed on or after Feb. 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date. EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

$1.2 Million Citizenship Grant Program: Up to 12 Grants Offered to Community-Based Organizations Serving Immigrant Population

A competitive grant program is being offered through Grants.gov for a $1.2 million grant program to support citizenship preparation programs for legal permanent residents. To apply for this funding opportunity, visit the Grants.gov Web site at http://www.grants.gov.

Reminder for all U.S. Employers of Requirements to Use Revised Form I-9, Employment Eligibility Verification

The revised Form I-9, Employment Eligibility Verification (Rev. 02/02/09), goes into effect today for all U.S. employers. The revision date is printed on the lower right-hand corner of the form. The revised list improves the security and effectiveness of the Form I-9 process. The list specifies that expired documents are no longer acceptable forms of identification or employment authorization. Allowing for expired documents makes it more difficult for employers to verify an employee’s identity and employment authorization and compromises the Form I-9 process.

EB-5 Immigrant Investor Pilot Program Extended Certain Form I-526 Petitions and Form I-485 Applications Affected

The Immigrant Investor Pilot Program has been extended through September 30, 2009 due to yesterday’s signing of the “Fiscal 2009 Omnibus Appropriations Bill,” H.R. 1105.

As a result of the extension of the Pilot Program, USCIS will continue to receive, process, and adjudicate all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Forms I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on “indirect” job creation analysis.

Disclaimer: This information is not intended to provide solutions to individual problems and does not constitute an attorney client relationship. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel before relying on this information. The above information should not be construed as legal advice and any reliance on this information is taken at your own risk. Please note that laws change frequently.