LitwinLaw Newsletter 9/1/06

September 1, 2006
Headlines:
1. USCIS Expands Premium Processing Service, Issues New Form –
USCIS has begun accepting premium processing requests for EB-3
professional and EB-3 skilled worker petitions. While this will be more
expensive and not needed in many cases, it may help those running out
of H-1 time.
2. Labor Dept. Asks BALCA to Return Cases for Processing –
BALCA was asked to return numerous cases held pending a decision in
In re HealthAmerica, the first appeal of a labor certification denial
under the new PERM system, in which the employer prevailed. This
is the next step in the evolution of PERM applications.
3. USCIS Releases FAQ on Completing I-9 Verification Form –
USCIS has provided answers to employers’ questions about how to
complete employment authorization verification using the I-9 form.
Good information for those responsible for completing I-9 forms.
4. State Dept. Proposes to Require Passports at Certain
POEs Beginning in January – The DOS proposes to require that
U.S. citizens and nonimmigrants from Canada, Bermuda, and
Mexico entering the U.S. at air and most sea ports of entry present
a valid passport beginning in January.
5. Study Finds Immigration Increases Have Not Hurt
Employment for U.S. Workers – The Pew Hispanic Center’s new
report shows that large increases in immigration have not hurt
overall employment prospects for U.S. workers.
6. NAFSA Releases Statement on Comprehensive
Immigration Reform – NAFSA says that Senate-passed
comprehensive immigration reform legislation contains
important provisions that would bolster the U.S. position
in the competition for international students and scholars.
7. Employment Third Preference Visa Availability
May Retrogress – It cannot be assumed that recent
advances in the employment third preference cut-off
dates will continue during the coming months and
retrogression is possible. The immigration process
for employer may take longer.
Government Agency Links
Details…
1. USCIS Expands Premium Processing Service, Issues New Form
U.S. Citizenship and Immigration Services (USCIS) announced
that as of August 28, 2006, it has begun accepting premium
processing requests for EB-3 professional and EB-3 skilled
worker petitions. EB-3 professionals include immigrant workers
with bachelor’s degrees who are members of the professions;
EB-3 skilled workers include immigrant workers capable of
performing skilled labor requiring at least two years of education,
training, or experience.
Under premium processing, USCIS guarantees a petitioner that it
will issue an approval notice, a notice of intent to deny, or a
request for evidence, or that it will open an investigation for
fraud or misrepresentation, within 15 calendar days of receipt.
If the petition is not processed within 15 calendar days, USCIS will
refund the fee and continue to process the request on an
expedited basis. The fee for premium processing is $1,000.
Employers may file for both categories using the Immigrant
Petition for Alien Worker (Form I-140). A new Request for Premium
Processing Services (Form I-907) has been issued and, as of
August 28, 2006, previous versions of the form are no longer being
accepted.
In addition to faster processing, participating petitioners may use
a dedicated telephone number and e-mail address to check on the
status of their petitions or ask questions. Since 2001, premium
processing has been available for several classifications using
the Petition for Nonimmigrant Worker (Form I-129), including
E treaty traders and investors, H-1B specialty occupation workers,
H-2B temporary workers performing agricultural services, H-3
trainees, L intracompany transferees, O aliens of extraordinary
ability and those performing essential support services, P
performers and athletes and those performing essential services,
Q international cultural exchange visitors, R religious workers,
and NAFTA professionals from Canada and Mexico. I-129 petitions
for these nonimmigrant worker classifications will continue to
be eligible for premium processing service unless the filing period
has closed (for example, when the annual numerical limit for
a specific category has been reached).
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2. Labor Dept. Asks BALCA to Return Cases for Processing
The Department of Labor (DOL) has asked the Board of Alien
Labor Certification Appeals (BALCA) to return to the DOL’s
certifying officers (COs) for processing numerous cases the
BALCA was holding pending a decision in re HealthAmerica.
In that decision, which was the first appeal of a labor certification
denial under the new PERM system, the BALCA found that the
CO abused his discretion in denying the employer’s labor
certification application. Specifically, the application had been
denied on the basis of a non-material typographical error; the
employer, on a motion to reopen, presented evidence that was
in existence at the time the application was filed that
demonstrated its compliance with the law.
The letter sent from Gary M. Buff, the DOL’s Associate Solicitor
for Employment and Training, to John M. Vittone, Chairman of
the BALCA, states that the COs have reviewed HealthAmerica
and concluded that no purpose would be served in filing briefs
in cases that were held in abeyance pending the decision.
There may be potentially significant differences between
the facts in at least some of these cases and the facts in
HealthAmerica, Mr. Buff acknowledged, but he said that how
those distinctions affect the adjudication of a particular case
would be dealt with “more appropriately” by the COs in a new
determination. The DOL therefore requested that “the relief
provided for in HealthAmerica be applied to all of the cases
being held in abeyance. Those cases should be returned to
the for review in order to complete processing of these
cases in accordance with that decision.”
The HealthAmerica decision is available at
U.S. Department of Labor
Mr. Buff’s August 2 letter is at
http://www.bibdaily.com/pdfs/Sheinfeld 8-2-06.pdf.
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3. USCIS Releases FAQ on Completing I-9 Verification Form
U.S. Citizenship and Immigration Services’ USCIS Today publication
includes a frequently asked questions (FAQ) section. The August
2006 issue’s FAQ provides answers to employers’ questions about
how to complete employment authorization verification using the
I-9 form. Among other things, the FAQ notes that an employer
“is not required to know with absolute certainty whether a
document is genuine or false.” USCIS notes that the law merely
requires that an employer examine the original document, not
a photocopy, and make a good-faith determination that the
document appears to relate to the employee, appears to be
genuine, and is listed as an acceptable document on the back
of the I-9 form. The FAQ is available at page 7 of USCIS Today,
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4. State Dept. Proposes to Require Passports at Certain
POEs Beginning in January
The Department of State (DOS) issued a notice of proposed
rulemaking on August 11, 2006, that would require as of
January 8, 2007, that U.S. citizens and nonimmigrants from
Canada, Bermuda, and Mexico entering the U.S. at air ports
of entry (POEs) and most sea POEs, with certain limited
exceptions, present a valid passport. The proposed rule
would not change the requirements for U.S. citizens and
nonimmigrant aliens entering from Canada, Bermuda, and
Mexico and certain types of arrivals by sea (e.g., ferries
and pleasure vessels), which will be addressed in a
separate, future rulemaking. The DOS said this proposed
rule is the first phase of a joint plan by the Departments
of Homeland Security (DHS) and State to implement new
requirements under the Intelligence Reform and Terrorism
Prevention Act of 2004, which provides that U.S. citizens
and nonimmigrant aliens may enter the U.S. as of January
1, 2008, only with passports or alternative documents
designated by the DHS.
General information about the Western Hemisphere Travel Initiative,
as it is called, is available at
https://travel.state.gov/
The proposed rule is available at
https://travel.state.gov/.

• Comments on the proposed rule are due September 25.

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5. Study Finds Immigration Increases Have Not Hurt
Employment for U.S. Workers.
The Pew Hispanic Center released a study on August 10, 2006,
showing that large increases in immigration since 1990 have
not hurt overall employment prospects for U.S. workers. Other
factors, such as economic growth, played a larger role than
immigration, said Rakesh Kochhar, the author of the study.
He noted that immigration may affect job markets in local
areas but that there were no national trends supporting such
a link. The study did not examine the effects of immigration
on wages. The report is available at http://pewhispanic.org/
reports/report.php?ReportID69. An article summarizing the
report’s findings is available at
http://www.federalnewsradio.com/index.php?sid=876849
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6. NAFSA Releases Statement on Comprehensive
Immigration Reform
NAFSA: Association of International Educators released a statement on August 3, 2006, estimating that international students and their dependents spend more than $13 billion  on the U.S. economy each year. NAFSA said that attracting  international students and scholars promotes U.S.  foreign policy and international leadership and supports  the U.S. position in cutting-edge innovation. The statement
notes that Senate-passed comprehensive immigration  reform legislation “contains important provisions that  would bolster the U.S. position in the competition for  international students and scholars,” and that NAFSA  is “alarmed by the attempts of the House leadership to  promote the idea that nothing else should be done until  the border is secure.” NAFSA quoted New York City Mayor  Michael Bloomberg: “It is as if we expect border control  agents to do what a century of Communism could not —  defeat the natural forces of supply and demand and defeat  the natural human instinct for freedom and opportunity.  You might as well sit on the beach and tell the tide not to come in.”
NAFSA’s statement is available at
http://www.nafsa.org/press_releases.sec/press_releases.pg/
comprehensive_immigration.
NAFSA has summarized its position in a June 2006 report, Restoring
U.S. Competitiveness for International Students and Scholars, available at
http://www.nafsa.org/press_releases.sec/press_releases.pg/
comprehensive_immigration. Restoring U.S. Competitiveness.
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7. Employment Third Preference Visa Availability May Retrogress
The Department of State noted in its Visa Bulletin for September
2006 that the employment third preference cut-off date for most
countries has advanced rapidly in recent months in an effort to
maximize number use under the annual numerical limit. As a
result, applicant demand for numbers, particularly for adjustment
of status cases at U.S. Citizenship and Immigration Services
(USCIS) offices, is expected to increase significantly. Therefore,
it cannot be assumed that such advances will continue during the
coming months. The Visa Bulletin noted that the Department of
Labor expects to complete its backlog reduction effort during fiscal
year (FY) 2007. This effort “will result in tens of thousands of
cases, including many with very early priority dates, becoming
eligible for processing” at USCIS offices, which could require the
retrogression of the employment third preference cut-off dates
at any time during FY 2007, the Department said.
Government Agency Links
Follow these links to access current processing times of the USCIS
Service Centers and the Department of Labor, or the Department
of State’s latest Visa Bulletin with the most recent cut-off dates
for visa numbers:
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