News Update - June 14, 2008

By Alan Lee, Esq.

U.S.C.I.S. Offers Limited I-140 Premium Processing and Two-year Employment Authorization Documents

On June 11, 2008, U.S.C.I.S. announced that I-140 premium processing would become available beginning June 16th for most employment based aliens who are reaching the end of their sixth year of H-1B nonimmigrant status and are not eligible to gain extensions by any other method. Under premium processing, U.S.C.I.S. guarantees it will reach the case within 15 days of filing in exchange for a $1000 fee. Premium processing is available for all I-140 employment based cases except intracompany transferee (EB-13) and national interest waiver (NIW) cases. This move may prove extremely beneficial for individuals who did not or will not be able to put in a labor certification application 365 days prior to the ending of their sixth year under H-1B status. Under current law, individuals in H-1B status who have reached the mandatory six year limit are only eligible for extension if they have had labor certification applications filed for 365 days or if their I-140 petitions have been approved. Because of the short period of time that PERM labor certification applications are taking to process, there may be many cases in which individuals who have already missed or will miss the 365 day limit will still be eligible for H-1B extension so long as the PERM labor certification and I-140 petition are approved. Even non-labor certification based employment beneficiaries such as EB-11 extraordinary aliens and EB-12 outstanding professors and researchers, or Schedule A pre-certified nurses, physicians, and exceptional aliens may be benefited as the current processing time charts of the Nebraska and Texas service centers shows petition adjudication backlogs stretching from 1/19/07-7/5/07 and 8/26/07 respectively in the employment based categories. (Nebraska and Texas are the major U.S.C.I.S. centers charged with adjudication of employment based immigrant petitions.) The service is available for aliens currently in H-1B nonimmigrant status whose sixth year will end within 60 days and can only extend H-1B status with approval of an I-140 petition. U.S.C.I.S. wishes petitioners to submit with their filings a copy of the alien's I-94 arrival/departure record showing current H-1B nonimmigrant status; copies of all I-94s and I-797 H-1B or L approval notices that have been issued to the alien; a copy of the relating I-140 petition receipt notice if the I-140 was previously filed; and a copy of the labor certification approval letter of the Department of Labor, if filing under the EB-2 or EB-3 classifications.

On June 12, 2008, U.S.C.I.S. announced that it will begin issuing two year employment authorization documents (EADs) starting on June 30, 2008, for aliens who have filed I-485 adjustment of status applications and whose priority dates have retrogressed. The agency will decide whether to renew an EAD for either a one-year or two-year validity period based upon the most recent Department of State visa bulletin. This is a good public-relations move by the U.S.C.I.S. which will not cause much impact upon the agency's revenue stream. The reason is that U.S.C.I.S. raised its fees enormously in July 2007 and such fee increase allowed for free filing of EADs when accompanied by an I-485 application to adjust status. The move thus also frees up valuable U.S.C.I.S. resources which would otherwise be spent working on fee-less EAD applications.

Although these are limited benefits, they are certainly better than those in the present immigration scheme even if the latter move might at least be partially motivated by agency self-interest.

 


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.

 

Copyright © 2003-2012 Alan Lee, Esq.
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