News Update - May 5, 2008Immigration News and Procedures You Can Use1 On motions to reopen, the National Benefits Center will accept the filing when the receipt number says MSC (family based cases mostly). To the concern that a local office may not be aware of the filing and issue a notice for the individual to appear in the immigration court after a denial, U.S.C.I.S. said that the receipt information is updated into its systems which is then used by the local offices to update adjudicative actions. 2 For family based cases in removal proceedings in which the individuals are seeking employment authorization, the National Benefits Center wants the first page of the I-485 adjustment of status to permanent residence application with the stamp of the Executive Office for Immigration Review and the I-797 receipt notice from the Texas Service Center to show the I-485 payment. 3 In labor certification news, the Department of Labor (DOL) stated the obvious that since the backlog centers in Philadelphia and Dallas have closed, resources that been freed up for PERM processing. DOL will now have one certifying officer solely dedicated to reconsiderations and appeals, and has initiated a pilot sub-queue of government error cases by prescreening them. The new 9035 form for labor condition application and 9089 form for PERM application are to be effective in January 2009. For audits of filed PERM applications, the Atlanta processing center has cases which are 6-8 months old. Where a request to withdraw crosses the time that an audit is sent out, the employer can still withdraw with proof that the withdrawal request was sent before the audit request was issued by the DOL. Although it has ruled that a PERM case cannot be withdrawn where the DOL has issued an audit request, DOL stated that the employer can respond to the audit and also include a request to withdraw. And on wage range (employers many times do not wish to post the exact wage as part of the recruitment process of a PERM application and would rather post a range), DOL confirmed that range is still allowed even if the bottom of the range is below the alien's salary so long as the bottom meets the prevailing wage. 4 For seventh year H-1B extensions which are based upon an earlier
filed labor certification by another employer and where the I-140
immigrant visa petition was not filed, readers should be aware that
one service center of U.S.C.I.S. is issuing requests for further
evidence (RFEs) and denials on grounds that the labor certification
has expired under the DOL's July 16, 2007, rule that a labor certification
expires at the end of 180 days unless an I-140 petition has been
filed.
† The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2008 Alan Lee, Esq.
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Copyright © 2003-2012 Alan Lee,
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