Many immigrant visa applicants often find themselves unsure of what will come next at the end of their immigration process. The Department of State has taken time to clarify the procedures following the Adjustment of Status. Once a case has been finalized, the Officer will submit a request for visa authorization to the Visa Office using the IVAMSWEB automated system.

With this program the system is able to verify,  that the applicant’s priority date is within the applicable cut-off date for that month. When this request  has been made three outcomes can occur: 1) it is Authorized,2) it is identified as a “Duplicate” request, meaning that the A-number was previously authorized, or 3) it is beyond the established cut-off date and is placed in the “Pending Demand” file.

What kind of effort is an employer required to make in its attempts to contact U.S. applicants in the course of a recruitment effort?  In Matter of Technivate, Inc., 2008-INA-00065 (BALCA, August 27, 2008), the Board of Alien Labor Certification Appeals (BALCA) upheld the Certifying Officer’s findings that an employer did not make a good faith effort to recruit U.S. applicants when it failed to send recruitment letters to two candidates who could not be reached by phone or e-mail.  While the case was decided under the pre-PERM regulations, it still serves as a useful illustration of the fact that the procedures an employer normally follows in its recruitment efforts may insufficient to satisfy the demands of the labor certification process.

The employer in Technivate received five referrals from a regional job center for the position of Heavy Equipment Operator, a job paying $21.89 an hour with no experience required.  The employer left a phone message for one of the candidates, but the call was not returned.  An e-mail was sent to a second candidate, but it was returned due to an inoperable e-mail address.  The employer did not make any further efforts to reach either candidate, inferring that an applicant who does not even bother to return a call for a well-paying job with no experience required must not be interested in the position.  The certifying officer took the position that, while an employer might be justified in making such assumptions in the course of a standard job recruitment, the efforts made in this case to reach the applicants were not sufficient for the purposes of obtaining a labor certification.

The Board agreed with the assessment of the certifying officer, finding that the employer had not made a good faith effort to contact the two candidates in question.  “Clearly,” the Board found, “sending a recruitment letter to the two applicants who could not be reached by telephone would not be an undue burden.”  While not deciding exactly what type of communication would have met the standard, the Board found that the employer’s efforts here were clearly insufficient, as the record contained no evidence of any attempted contact after the voicemail and e-mail went unreturned.  The Board held that, on these facts, the employer had made only a “minimalist effort” at recruitment, and that the certifying officer’s denial of the labor certification should be upheld.

This case, while not decided under the current regulations, should serve as a cautionary tale for employers pursuing a labor certification.  No matter what a company has done in the past to recruit candidates, one should never assume that such efforts will be sufficient for the purposes of labor certification.  A recruitment plan must be created with the labor certification process in mind, and it must be strictly followed from start to finish in order to have any chance at ultimate success.  Any candidate identified for the job opening must be seriously considered, and all efforts to reach such candidates must be well documented.  By preparing—and scrupulously following—a comprehensive recruitment plan in conjunction with competent legal counsel, employers can avoid the fatal mistakes made by the employer in Technivate.

In an attempt to implement IT systems, and eliminate paper-based application/petition filing, the U.S. Department of Homeland Security and USCIS has struck a deal with IBM hoping to speed up services over the next five years. The Contract, worth $14.5 million, seeks to upgrade USCIS’ outdated procedures to a more centralized, electronic system, however additional options over the next five years could total up to $491.1 million.

President Bush announced the addition of 7 new countries into the visa waiver program which includes the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea. In about a month citizens of these nations will be able to travel to the U.S. without a visa. In addition to these approvals, President Bush extended his offer to a number of America’s other close friends are including Bulgaria, Cyprus, Greece, Malta, Poland, and Romania stating he looks forward to the day when these countries join the Visa Waiver Program.

The U.S. Department of State (DOS) released the November 2008 Visa Bulletin on October 14, 2008. Visa dates are announced by the DOS every month. Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  Should it become necessary during the monthly allocation process to immediately retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.

Slight movements in both the EB-2 and EB-3 Categories however most advancements vary by as little as 3 or 4 months. Unfortunately if you are categorized as an other worker visa numbers have only moved forward by a mere two weeks.

Make sure to stop by our website for the latest updates and information on the DOS Visa Bulletins. Pursuant to INA § 245(a)(3), aliens with priority dates prior to the cut-off dates shown on the Visa Bulletin will be eligible to file adjustment of status (green card) applications during the month of November 2008.

The U.S. Citizenship and Immigration Services (USCIS) has increased the maximum period of time a Trade-NAFTA (TN) professional worker from Canada or Mexico may remain in the United States before seeking readmission or obtaining an extension of stay. This final rule changes the initial period of admission for TN workers from one to three years, making it equal to the initial period of admission given to H-1B professional workers. Eligible TN non-immigrants may now be allowed to receive extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year.

The TN nonimmigrant classification is visa category available to eligible Mexicans and Canadians with at least a bachelor’s degree or appropriate professional credentials who work in certain qualified fields pursuant to the North American Free Trade Agreement (NAFTA). Qualified professions identified within NAFTA include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

This final rule will ease administrative burdens and costs on TN workers. It will also benefit U.S. employers by increasing the amount of time TN non-immigrants will be able to work for them before having to seek an extension of status. Spouses and unmarried minor children of TN non-immigrants in their corresponding nonimmigrant classifications will also benefit from the new regulation.

The new law, first introduced by Sen. Schumer (D-NY), requires that USCIS process and issue a citizenship decision within six months of receiving an application from a current or former member of the armed forces, or their surviving dependents. If a decision is not made within that time frame, USCIS will now have to explain the delay and provide a new decision target date.  The law also establishes an FBI liaison office inside USCIS and processing deadlines for other naturalization applications.

U.S. Citizenship and Immigration Services (USCIS) announced today it will delay implementation of the Direct Mail Program for the N-400, Application for Naturalization. A Federal Register notice is scheduled to be published Oct. 10, 2008, announcing this delay. Last month, USCIS published a notice in the Federal Register, which would have changed the filing address for N-400s from USCIS Service Centers to two lockbox facilities in Arizona and Texas. Implementation of this new process would have begun Oct. 14, 2008. USCIS is delaying implementation of this new filing procedure to conduct additional tests of the technology involved. Accordingly, the Sept. 12 notice will be withdrawn Oct. 10, 2008. Applicants for naturalization should continue to submit their Form N-400 according to the instructions on the form until further notice. In almost all cases, this means applicants will submit their N-400s to a USCIS Service Center.

This bill introduced by Rep.  Lucille Roybal [D-CA] calls for a mandatory training of all personnel who come into contact with unaccompanied alien children and seeks that all unaccompanied children who will undergo any immigration proceedings before the Department of Homeland Security and the Executive Office for Immigration Review are duly transported and placed in the care and legal and physical custody of the Office of Refugee Resettlement within a maximum of 24 hours of their apprehension absent narrowly defined exceptional circumstances. In addition, the bill wants to ensure that female officers are responsible and at all times present during the transfer and transport of female detainees who are in the custody of the Department of Homeland Security.

On 09/28/08, the House passed the Military Personnel Citizenship Processing Act (S. 2840) by a 416-0 vote. The measure, introduced by Sen. Schumer (D-NY), would require that USCIS process and issue a citizenship decision within six months of receiving an application from a current or former member of the armed forces, or their surviving dependents. If a decision is not made within that time frame, USCIS would be required to explain the delay and provide a new decision target date.  The bill would also establish an FBI liaison office inside USCIS and processing deadlines for other naturalization applications. The Senate passed the measure by voice vote on 09/24/08, and it now heads to the president for final approval.