The Citizenship and Immigration Services (CIS) Ombudsman’s office held a July 29, 2008 teleconference on the topic, “CIS Ombudsman’s 2008 Annual Report: Your Questions and Comments.” This was the latest in a series of teleconferences held by the CIS Ombudsman’s office. The July 29, 2008 teleconference was aimed specifically at discussing recommendations made in the 2008 Annual Report (PDF 16.8MB). Callers were invited to share their experiences and provide recommendations with regard to customer satisfaction and the U.S. Citizenship and Immigration Services (USCIS)’s ability to manage its caseload.

Read Parts 1 & 2, analyzing this May 30, 2008 Memo :
Neufeld Memo of USCIS on H1B/GC under AC21 : Part 1 Jul.04.2008
Neufeld Memo of USCIS on H1B/GC under AC21 : Part 2 Jul.11.2008
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A number of H1B-related policies contained in a USCIS memo issued on May 30, 2008 have been reported previously to LawyersDotCom and LawyersBulletin readers. This memo, issued by Donald Neufeld, Acting Associate Director, Domestic Operations at USCIS, interprets certain provisions of the American Competitiveness in the Twenty-First Century Law of 2000 (AC21). This final article in our three-part series discusses the guidance regarding changing employers during the employment-based permanent residence (”green card”) process. The specific issue relates to changes of employment in situations where the I-140 petition filed by the sponsoring employer is not approved at the time of the job change under the AC21 provisions.

In a recent published decision, the Administrative Appeals Office (AAO) affirmed the denial of an I-140, Immigrant Petition for (foreign national) Worker based upon the employer’s failure to demonstrate its ability to pay the proffered wage. The AAO decision specifically addressed whether the employer’s ability to pay the employee the proffered wage can be based upon a combination of the employer / petitioner’s net income and net current assets. The AAO held that the net income and net current assets cannot simply be combined to meet the test of the employer’s ability to pay. Long-time LawyersDotCom and LawyersBulletin readers may recall a detailed discussion of ability-to-pay issues published in our May 21, 2004 article, USCIS Memo on Ability to Pay. Meeting this requirement is fundamental to obtaining approval of an I-140 Petition. This information is provided to help employers and sponsored foreign nationals better understand the requirements for obtaining employment-based green cards. The Lawyers Law Firm did not provide representation in connection with this case. This non-precedent AAO decision (PDF 648KB) is available to the public online.

The USCIS Service Center Operations (SCOPS) has reported that the USCIS continues to receive a great many requests for I-140 premium processing that do not meet the criteria to qualify for premium processing. The rejection rate for I-140 premium processing requests is approximately 60 percent as of June / July 2008. This is simply because only limited cases qualify. All others will be rejected by the mailroom. The requirements for I-140 premium processing currently in place were set out in our June 27, 2008 article, Requirements for Premium Processing of I-140 Petitions. However, since the improper filing of the premium processing requests continues to be a problem, this reminder is included to for LawyersDotCom and LawyersBulletin readers.

The Administrative Appeals Office (AAO) recently made public a case confirming the denial of an application for reentry permit that was filed while the applicant was outside of the United States. The Lawyers Law Firm did not provide representation in connection with any aspect of this case, but we share this information to help other permanent residents understand the legal requirements for obtaining the reentry permit. This AAO decision (PDF 140KB) is available to the public online.

In a recent decision, the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a labor certification in which the employer failed to provide “reasonably obtainable” documents requested by the U.S. Department of Labor (DOL)’s Certifying Officer (CO). BALCA held the denial of the labor certification was proper, as the employer’s documents are “directly relevant to the issue of whether the employer was offering bona fide employment” and where the employer “did not establish that the requested documentation was not reasonably obtainable.” While the Lawyers Law Firm did not provide representation in connection with any aspect of this case, this information is provided to guide employers and employees in their understanding of the risks involved when one fails to provide the necessary information and documentation for a labor certification case.

The U.S. Department of Health and Human Services (DHHS) and the USCIS recently announced new vaccinations that are required as part of the permanent residence (green card) medical examination. These requirements changed as of July 1, 2008, however, there was a grace period authorized until August 1, 2008. The USCIS summary of requirements, issued July 24, 2008, is available on the USCIS WebSite.

The United States Citizenship and Immigration Services (USCIS) recently clarified the policy for eligibility for two-year employment authorization documents (EAD). Also provided was information regarding errors on some of the EAD cards.

As reported in last week’s LawyersBulletin, the U.S. Department of State (DOS) Visa Bulletin holds some very good news in the employment-based, second preference (EB2) category for nationals of certain countries. The cutoff dates for India and China were advanced in excess of two years - to June 1, 2006. More on this development can be found in our July 18, 2008 article August 2008 Visa Bulletin: EB2 India/China Jumps Forward. This has generated some questions and misunderstandings among our clients and readers of LawyersDotCom and the LawyersBulletin. Here, some of those concerns are addressed and clarifications provided on common misperceptions.

A Federal Court recently ordered the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Homeland Security (DHS) to use a 1986 priority date for an immigrant visa application that was incorrectly terminated by a U.S. consulate. Extensive information on issues at U.S. consulates can be found on LawyersDotCom, under our NewsBriefs on Consulates.