Newsletter – 1/1/10

January 1, 2010

Headlines:
1. FY 2010 H-1B Cap Reached – December 21, 2009, is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010. No new
2. Visa Bulletin Issues Projections for FY 2010 Cut-Off Dates – The Visa Bulletin for January 2010 includes projections for cut-off dates that will be reached by September 30, 2010.
3. USCIS Changes Address of Filing Location for Naturalization Applications – USCIS announced revised addresses for naturalization applications filed at USCIS Lockbox facilities in Phoenix and Dallas.
4. Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment? – USCIS’ ombudsman asks that those who think their cases may have been denied erroneously to forward the ombudsman a case problem.
5. USCIS Ombudsman Discusses Pending Derivative I-485s Due to File Separation – If a family member’s derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant’s I-485, the ombudsman will review e-mailed documentation.
6. State Dept. To Deploy Web-Based Nonimmigrant Visa Application Worldwide – The DS-160 will be expanded in phases, with the goal of worldwide usage for all nonimmigrant visa applications, except K visas, by April 30, 2010.
7. Labor Dept. Announces Centralization of Prevailing Wage Determinations – The National Prevailing Wage and Helpdesk Center will receive and process prevailing wage determination requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs.
8. State Dept. Proposes Increase in Nonimmigrant Visa Application, BCC Fees – The Department of State published a proposed rule on December 14, 2009, to increase nonimmigrant visa application processing and BCC fees.
9. CBP Launches H-2 Temporary Worker Exit Program in Arizona – Only H-2A and B temporary workers who enter the U.S. on a new work authorization will be required to register their final departure from the U.S. when their authorized period of stay expires.
10. CBP Announces ‘FAST’ Commercial Frequent Traveler Program Change – All old FAST cards will be deactivated on January 5, 2010.
11. ETA Announces Change in Address for Certain Temporary Labor Certification Filings – The Chicago National Processing Center has moved.
12. CNMI Update: Advance Parole, Biometrics/Interviews, Transitional Workers, P.O. Box Recommendation – Among other things, USCIS reminds noncitizens living in the CNMI to apply for advance parole before traveling abroad if they do not otherwise have U.S. lawful permanent resident status or an appropriate U.S. visa.

Also in this issue:

New Publications and Items of Interest
Government Agency Links
Details…
1. FY 2010 H-1B Cap Reached
U.S. Citizenship and Immigration Services (USCIS) announced on December 22, 2009, that it received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. December 21, 2009, is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010. Regulations provide that H-1B petitions received by USCIS on or before December 19 (because of the weekend) were submitted “under the cap,” but H-1B petitions received by USCIS on or after December 22, 2009, will have been rejected.
USCIS has applied a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. USCIS has rejected, and returned the fee, for all cap-subject petitions not randomly selected.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the U.S.
• change the terms of employment for current H-1B workers
• allow current H-1B workers to change employers
• allow current H-1B workers to work concurrently in a second H-1B position

Now that the FY 2010 cap has been reached, the earliest an employer can file a new H-1B petition will be April 1, 2010, with an employment start date of October 1, 2010.
The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem. 5af9bb95919f35e66f614176543f6d1a/? vgnextoid=153a1638367b5210VgnVCM100000082 ca60aRCRD& vgnextchannel=68439c7755cb9010Vgn VCM10000045f3d6a1RCRD.
For more details on the H-1B count, see http://www.uscis.gov/h-1b_count. For information on the temporary acceptance of H-1B petitions without Department-certified LCAs, see http://www.uscis.gov/USCIS/Laws/Memoranda/2009/ h-ib-petitions-temporary-acceptance.pdf. For a Q&A on the same topic, see http://www.foreignlaborcert.doleta.gov/pdf/FAQPERMAppealsFilingFinal 12012009.pdf.
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2. Visa Bulletin Issues Projections for FY 2010 Cut-Off Dates
The Department of State’s Visa Bulletin for January 2010 includes the following projections for cut-off dates that will be reached by the end of fiscal year 2010. The Department cautioned that the date ranges are only estimates and are subject to fluctuations in demand during the coming months. It is possible that some annual limits could be reached before the end of the fiscal year, the Department said:
Employment First:
It is unlikely that there will be any cut-off dates in the employment first preference categories, which are now Current.
Employment Second:
China: July through October 2005
India: February through early March 2005
(If Section 202(a)(5) were to apply:
China and India: October through December 2005)
Employment Third:
Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005
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3. USCIS Changes Address of Filing Location for Naturalization Applications
U.S. Citizenship and Immigration Services (USCIS) announced on December 17, 2009, revised addresses for applicants filing an Application for Naturalization (Form N-400) at USCIS Lockbox facilities in Phoenix and Dallas. The filing address change took effect immediately.
Applicants who previously filed their applications at the Lewisville Post Office (P.O.) Box will now file their applications at a P.O. Box in Dallas. In addition, USCIS noted a change to the USCIS Phoenix Lockbox address. Starting immediately, applicants filing an N-400 at the USCIS Dallas or Phoenix Lockbox must submit the application and all supporting documents and fees to the new addresses, based on where they live. The new addresses are available at the link below.
The U.S. Postal Service forwarded mail from the Lewisville Post Office to the new post office in Dallas until December 31, 2009. After that date, USCIS noted, the Postal Service will forward the mail through normal channels, “which will likely delay receipt at the Dallas Lockbox facility.”
Applicants filing an N-400 under military provisions (Section 328 or 329), should file their application at the Nebraska Service Center, P.O. Box 87426, Lincoln, NE 68501-7426, regardless of where the applicant lives. This includes current military spouses regardless of geographic location or jurisdiction.
Those filing an N-400 at a USCIS Lockbox facility may elect to receive an e-mail and/or text message notification that the application has been accepted. The applicant must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of the application.
The N-400 form instructions have been updated to reflect the new filing locations. The new addresses are available at http://www.uscis.gov/portal/site/uscis/menuitem .5af9bb95919f35e66f61417 6543f6d1a/?vgnextoid=91cc1c5944e95210VgnVCM100000082ca60 aRCRD&vgnextchannel= 68439c7755cb9010Vgn VCM10000045f3d6a1RCRD.
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4. Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment?
The U.S. Citizenship and Immigration Services (USCIS) ombudsman’s office reported that it has received reports of the agency not issuing Notices of Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications.
If a foreign national is (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has an I-485 pending for 180 days or more, the ombudsman notes, he or she is eligible to change to a same or similar position. If the underlying approved I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then USCIS must issue a Notice of Intent to Deny the pending I-485.
However, the ombudsman understands that USCIS may deny the I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances. These include, for example, where the beneficiary is ineligible for the benefits of the I-485 by statute, or the I-140 is withdrawn before the I-485 was pending for 180 days.
USCIS’s ombudsman asks that those who think their cases may have been denied erroneously to forward the ombudsman a case problem using Department of Homeland Security Form 7001 ( http://www.dhs.gov/files/programs/editorial_0497.shtm) with the subject line, “AC21 Evidence of Immediate Denial.” The complainant should include a copy of the denial notice, detailed information on the reasons for the immediate denial and, if appropriate, evidence that a Motion to Reopen or Reconsider was submitted. If the ombudsman’s office considers the case to be an erroneous denial, it will forward the case directly to USCIS for further review.
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5. USCIS Ombudsman Discusses Pending Derivative I-485s Due to File Separation
U.S. Citizenship and Immigration Services (USCIS) sometimes approves a Form I-485 (Application to Register Permanent Residence or Adjust Status) for a principal applicant, but the derivative family members’ (spouse or minor children) I-485 applications remain pending. While in some cases this may be due to missing evidence, security clearance difficulties, or some other legitimate reason, the file may just be separated from the principal’s, the USCIS ombudsman noted recently.
If a family member’s derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant’s I-485, the ombudsman asks that the following be e-mailed to :

• DHS Form 7001;
• A copy of the principal applicant’s I-485 approval notice;
• A copy of the I-485 receipt notice for the derivative;
• A copy of the approved immigrant visa petition notice (if employment-based); and
• Any other evidence that is pertinent to the case.

The subject line of the e-mail should include: “Unapproved Derivative I-485.”
The ombudsman said it will look into such cases “and review how we may be of assistance.”
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6. State Dept. To Deploy Web-Based Nonimmigrant Visa Application Worldwide
The Department of State’s Bureau of Consular Affairs recently announced that it plans to deploy a fully Web-based Form DS-160 (Nonimmigrant Visa Application) worldwide. The Visa Office said that the DS-160, the first component or module of the Consular Electronic Application Center (CEAC), “has been used with great success at 24 posts so far” and will be expanded in phases, with the goal of worldwide usage for all nonimmigrant visa applications, except K visas, by April 30, 2010. TheDS-160 will replace the Electronic Visa Application Form (EVAF).
The Visa Office noted that although the target completion date is still five months away, it faces a technical challenge in meeting this deployment goal, involving development and testing of new foreign language translations. Sixty-four hours of development time are required to deploy a new translation of the DS-160 at a cost of $8,000 per language, which the Visa Office noted limits how quickly the DS-160 can be deployed to posts where English is not widely spoken. On October 29, Consular Affairs approved translation of 22 languages. The Visa Office said it will monitor this process carefully and will request additional funding and resources if necessary to avoid implementation delays.
The Visa Office strongly encouraged consular posts to consider developing an outreach plan to advise applicants and other stakeholders of the CEAC implementation. Posts listed in the Visa Office’s cable have been identified as priority posts to implement the DS-160 by March 1, 2010. The cable is available at https://travel.state.gov/.
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7. Labor Dept. Announces Centralization of Prevailing Wage Determinations
As of January 1, 2010, the Department of Labor’s Office of Foreign Labor Certification’s National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, DC, will receive and process prevailing wage determination requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs. The notice also includes information about processing CNMI prevailing wage determinations. The NPWHC will only process prevailing wage determination requests received by mail in hard copy. The Department said it is developing an electronic means for the submission of such requests.
The notice is available at http://www.foreignlaborcert.doleta.gov/pdf/E928963_120409.pdf.
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8. State Dept. Proposes Increase in Nonimmigrant Visa Application, BCC Fees
The Department of State published a proposed rule on December 14, 2009, to increase nonimmigrant visa application processing and Border Crossing Card (BCC) fees. Under the proposed rule:

• Applicants for all visas that are not petition-based, including B-1/B-2 tourist and business visitor visas and student/exchange visitor visas, would pay $140
• Applicants for petition-based visas (H, L, O, P, Q, R) would pay $150
• Applicants for treaty traders and investors (E) would pay $390
• Applicants for K visas would pay $350
• Applicants for nonpetition-based machine-readable visas (except E category) and BCC applications, with the exception of certain Mexican citizen minors’ BCCs, would pay $140

The press release is available at https://travel.state.gov/. The proposed rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-29722.pdf.
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9. CBP Launches H-2 Temporary Worker Exit Program in Arizona
U.S. Customs and Border Protection (CBP) launched a pilot program on December 8, 2009, for exiting H-2A and B temporary workers. The program will be tested at San Luis and Douglas land ports of entry in Arizona and the pilot phase is expected to last about a year. H-2A (agricultural) and H-2B (nonagricultural) visas are issued to temporary seasonal workers.
CBP’s goal is to ensure that temporary workers comply with the requirement to leave the U.S. when their work authorization expires. To verify their final departure, H-2A and B workers will be required to scan their visas and their fingerprints and return their I-94 Arrival-Departure Record at an exit kiosk located at the port of departure. The kiosk will provide instructions in English and Spanish. Under the pilot program, travelers admitted under the H-2A and B classifications at San Luis or Douglas ports of entry must depart through one of the two designated ports.
CBP noted that frequent border crossers or commuters do not need to register every departure, but only their final departure from the U.S. Only H-2A and B temporary workers who enter the U.S. on a new work authorization will be required to register their final departure from the U.S. when their authorized period of stay expires.
More than 205,000 H-2 temporary workers entered the U.S. in fiscal year 2009, CBP said. Of those, more than 147,000 were H-2A workers and more than 58,000 were H-2B workers.
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10. CBP Announces ‘FAST’ Commercial Frequent Traveler Program Change
U.S. Customs and Border Protection announced on December 4, 2009, that members of its Free and Secure Trade (FAST) program will not be able to use their old FAST cards in passenger lanes, effective January 5, 2010. CBP has been issuing new cards with enhanced security features for current FAST members since March 16. All members are asked to activate their new cards using a global online enrollment system and to destroy their old ones. Anyone who has not received their new card should go immediately to their local enrollment center to pick up a new card or have one issued. CBP says it will take about two weeks to receive a new card. All old FAST cards will be deactivated on January 5, 2010. CBP said that officers “will allow a one-time entry into the U.S. to travelers with old FAST cards, but will seize the card from the traveler and refer the member to the Enrollment Center.”
The FAST program has more than 92,000 members, and is available to commercial drivers crossing both the northern and southern borders.
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11. ETA Announces Change in Address for Certain Temporary Labor Certification Filings
The Chicago National Processing Center (NPC) is responsible for adjudicating all employer applications for temporary labor certification under the H-1B, H-1B1, E-3, H-2A, H-2B, H-1C, and D-1 programs. The NPC address has changed as of December 4, 2009. For three weeks after that date, the Chicago NPC will receive via courier all written correspondence submitted to its former address. “This is to ensure a smooth transition and allow all interested parties to commence using the new address,” the Department of Labor’s Employment and Training Administration (ETA) said in a notice announcing the change. On January 6, 2010, the courier will cease to operate and all submissions to the former address of the Chicago NPC will be returned to the sender.
The new address is:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
536 South Clark Street
Chicago, IL 60605-1509
telephone: (312) 886-8000; facsimile: (312) 353-3352.
The following address is to be used for all invoices/fees submitted in connection with the H-2A and H-1C programs:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
P.O. Box A3804
Chicago, IL 60690-A3804.
The ETA’s notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-28954.pdf.
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12. CNMI Update: Advance Parole, Biometrics/Interviews, Transitional Workers, P.O. Box Recommendation
U.S. Citizenship and Immigration Services (USCIS) reminds noncitizens living in the Commonwealth of the Northern Mariana Islands (CNMI) to apply for advance parole before traveling abroad if they do not otherwise have U.S. lawful permanent resident status or an “appropriate” U.S. visa (not a visa for “B” visitor admission or under the Visa Waiver Program only). Advance parole allows people lawfully living and working in the CNMI to continue to do so when they return from foreign travel. It will also allow processing of a pending application for adjustment of status to that of lawful permanent resident to continue.
USCIS also notes that those living and/or working or studying in the CNMI under CNMI permits should request parole before seeking to travel to Guam and other parts of the U.S. People who entered before November 28, 2009, are present without admission or parole. Although they are entitled to lawfully remain and work in the CNMI to the extent they were authorized to do so under former CNMI law as of November 28, 2009, for up to two years after that date, they will need a grant of parole to continue to live, work, and/or study in the CNMI during this period after travel to another U.S. destination.
USCIS advises applicants for immigration benefits in the CNMI who live in Rota or Tinian that appointments for biometrics and interviews have been combined into one. USCIS did this to minimize the expense people face in traveling to Saipan twice for separate biometrics appointment and interview. If an applicant in Rota or Tinian who is awaiting an interview receives a notice of a biometrics appointment, he or she can ignore that notice and have the fingerprints and photograph taken the day of the interview.
Meanwhile, in response to a preliminary injunction by the U.S. District Court for the District of Columbia, USCIS is not accepting any petitions for a Commonwealth of the Northern Mariana Islands (CNMI) transitional worker (CW-1) until further notice. The agency said that the injunction does not affect any aspect of the application of federal immigration laws to the CNMI other than the transitional worker nonimmigrant category. USCIS said it has decided to provide an additional opportunity for the public to comment on its proposed transitional worker classification provisions as set forth in an interim rule. USCIS reopened the public comment period for an additional 30 days, extended the original comment period until January 8, 2010, and said it will consider comments received throughout the entirety of the public comment period in development of its final transitional worker classification rule.
USCIS also announced that it will grant parole status to eligible foreign nationals from certain groups in the CNMI affected by the transition. The groups include CNMI permanent residents, their immediate relatives, and the immediate relatives of citizens of the Compacts of Freely Associated States (the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands).
USCIS also advised anyone living in the CNMI who submits an immigration application to list their P.O. Box where the form asks for a street or physical address. If an applicant has already filed an application using a street name, USCIS advises completing a change of address. The agency noted that applications that do not use post office boxes are being returned to the USCIS office.
The interim rule update is available at http://edocket.access.gpo.gov/2009/pdf/E9-29331.pdf. The USCIS announcement about the injunction is available at http://www.uscis.gov/portal/site/uscis/menuitem.5 af9bb95919f35e66f614176543f6d1a/?vgnextoid=b139f8b9f8555210Vgn VCM100000082ca60aRCRD&vgnextchannel= 68439c7755cb9010VgnVCM1000 0045f3d6a1RCRD. The USCIS announcement about post office boxes is available at http://www.uscis.gov/portal/site/uscis/menuitem.5 af9bb95919f35e66f614176543f6d1a/? vgnextoid=5a3cbd3241b65210VgnVCM100000082ca60aRCRD&; vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
Details on advance parole for CNMI workers are available at http://www.uscis.gov/portal/site/uscis/menuitem.5 af9bb95919f35e66f614176543f6d1a/? vg nextoid=44c2f4668d895210VgnVCM100000082ca60aRCRD& vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD and http://www.uscis.gov/portal/site/uscis/menuitem.5 af9bb95919f35e66f614176543f6d1a/?vgnextoid=6a71f4668d895210Vgn
VCM100000082ca60aRCRD& vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A technical correction to the CNMI interim rule (adding the edition date and OMB Control Number for the new Form I-9 CNMI, “CNMI Employment Eligibility Verification”) is available at http://edocket.access.gpo.gov/2009/pdf/E9-30287.pdf.
Information about the issuance of prevailing wage determinations for use in the CNMI is available at http://www.foreignlaborcert.doleta.gov/pdf/E928963_120409.pdf.
For more information about immigration benefits or to check the status of an application, USCIS suggests visiting http://www.uscis.gov/cnmi; calling USCIS Customer Service at 1-800-375-5283; or making an appointment via the Web site to visit the USCIS office at TSL Plaza in Saipan.
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New Publications and Items of Interest
PERM appeals best practices. The Department of Labor released a “Frequently Asked Questions” document on December 1, 2009, discussing best practices for filing PERM appeals. See http://www.foreignlaborcert.doleta.gov/pdf/FAQ_PERM_Appeals _Filing_Final_12012009.pdf.
Global Workforce Impact Survey. Western Union and The Economist have published the “Western Union Global Workforce Impact Survey.” The report notes that nearly one out of six people worldwide has migrated, representing a vast mobile workforce. This includes 740 million who are traveling within their own country, and 200 million who are moving across international borders.1 With more people on the move, the report says, international migration is increasingly recognized as central to economic vitality and global competitiveness. Varying immigration laws among countries often limit a company’s ability to hire the necessary talent, the report notes: “With an eye fixed on the future, businesses increasingly see open immigration policies as enabling them to expand quickly when the economy turns around.” The report calls for policymakers to address these business needs by developing flexible immigration policies that minimize the barriers to mobility and address concerns about the impact of foreign workers on domestic wages, working conditions, and opportunities. The survey of 501 senior executives was designed to provide new insight into business attitudes and practices toward cross-border workforce supplies. More than three out of four (76 percent) respondents believe that foreign workers have a positive impact on the economy.
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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:
USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplayInit.do
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/
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Litwinlaw 1.1.2010 Newsletter (PDF version)