[October 15, 2005]

Selective Service Registration

            At the time of adjustment interview, most officers continue to fail to inform males between 18 - 26 of the requirement to register for Selective Service.   At the time these LPR¡¯s file for naturalization and learn that they are supposed to register but didn¡¯t, they must include an affidavit with the application stating that they did not know and that had they known they would have registered. 

In the past, this affidavit was accepted at the interview to overcome moral character issues.  Recently we are seeing denials and the need to file N-336 to state the same issue over again, wasting time and money.

Update On Department of Labor Backlog Reduction

            Total number of cases forwarded to the Dallas and Philadelphia centers was approximately 345,000.  In addition, there are still cases in the San Francisco and New York regional office, which will be closed in early January 2006.

            Approximately 90% of the cases now at the centers have had at least partial data entry.  However, it is only with full data entry that the 45 day letters are sent out.  There are at least 100,000 pending cases on which only partial data entry has been done.  During the next few months, the Centers will be working to complete full data entry on these cases and issue the 45 day letters.

            The Centers have been working RIR and traditional cases where recruitment was completed previously and not further recruitment was required.  While the centers are not yet ready to process cases that will require recruitment, in the coming months, they will be preparing to work these cases and preparing to deal with all related issues such as prevailing wage and job orders.  To date the Centers have adjudicated tens of thousands of cases.

Department of Homeland Security Expands Removal

Authority Along Southwest Border

            Department of Homeland Security Secretary Michael Chertoff announced today the expansion of Expedited Removal authority from three to nine U.S. Customs and Border Protection, Border Patrol Sectors, implementing this policy across the entire southwest border.  The Expanded Removal administrative process is aimed at reducing the number of ¡°Other than Mexicans¡± who have spent less than 14 days in the United States and who are apprehended within 100 miles of the border.

            ¡°Expanding Expedited Removal gives Border Patrol agents the ability to break the cycle of illegal migration.  The use of this authority will allow DHS the ability to gain greater control of our borders and to protect our country against the terrorist threat,¡± stated Secretary Chertoff.  ¡°The Expedited Removal process will rapidly return illegal aliens in the United States to their country of origin while giving those seeking protection the judicial process to pursue their claim before an immigration judge.

How Is Perm Doing?

            Now that the Permanent Electronic Review Management (PERM) program is beginning to mature, we see movement in this new system that can immigrate alien workers into permanent, fulltime positions in the U.S.  When PERM was first announced by the U.S. Department of Labor (DOL), immigration counsel and aliens alike welcomed it ecstatically because of the wait at DOL of up to five years under the old system.  That system existed for more than 30 years before PERM started on March 28, 2005.

Labor certification processing tests the U.S. labor market.  When a U.S. employer is unsuccessful in locating a qualified, willing, and available U.S. worker in the area of intended employment, and hiring an alien will not adversely affect the wages and working conditions of U.S. workers, a labor certification is certified. 

PERM revolutionized the system because it is an online application in which the employer attests to a variety of questions consisting of twelve pages.  Before PERM, the application was four pages long.  However, even though the old application was shorter, it also required evidence such as copies of ads, rationale for job requirements, sometimes resumes, and the like.   Now, the attorney does not submit back up documentation with a PERM application on behalf of a client, unless it is audited.  In exchange for the lessened paper load at DOL, DOL promised faster adjudications.  The stated goal of DOL is to approve cases in 45 - 60 days. 

The euphoria engendered by this goal inspired some aliens and attorneys to take action and file PERM labor certifications quickly.  Other immigration attorneys have a wait and see approach.  Only 30 % of labor certification attorneys filed cases four months into the process.  Consistent legal advice has become difficult to find in the short term.  This is because PERM adjudications have yet to find equilibrium. 

At first, DOL denied every case nationwide.  Then, weeks later, DOL finally began sharing some institutional information with the immigration bar.  They denied many cases because of technical issues involved with the filings.  Like any new complex computer system, there are flaws in the government program¡¯s logic matrix.  There is also a learning curve for new attorney users.  Once these procedural glitches are resolved, substantive issues will reveal themselves.

            Some immigration legal scholars believe that labor certification is the most complex area of immigration law.  Will a computer be able to replace the ability of the human brain to make complex, reasoned decisions inherent in labor certification adjudication?  No, because the human brain is more complex than any computer.  Therefore, PERM may have some significant systemic flaws.  However, it is still too early to know well enough, but with time, they  might be revealed and corrected.  Humans are involved wit the decision making process at DOL to ¡°assure¡± that the program¡¯s logic has worked correctly.  Whether human logic is correct is a separate issue.

            The current approval rate is increasing and is approximately 50% as determined by a show of hands in a lecture hall of several hundred attendees during the annual American Immigration Lawyers Association meeting in June.

VISA RETROGRESSION

            There is no visa availability for Third Preference employment-based aliens.  Third preference aliens are those petitioned for positions requiring a Bachelor¡¯s degree, skilled and unskilled labor.  Predictions are that Second Preference (jobs requiring a Master¡¯s or higher degree, a Bachelor¡¯s plus five years experience or exceptional ability) employment will also become unavailable, but this has not yet occurred.  

Visa unavailability doesn't mean you cannot file a labor certification or an immigrant visa petition, but rather that you cannot finish the process and achieve permanent residence ("green card") status until quota controlled visa numbers become available based on your priority date (explained below.) Not all positions will be affected.  Aliens of extraordinary ability, outstanding professors and researchers, those whose work is in the U.S. national interest, and some international business executives and entrepreneurs are immune to this new important issue.  These individuals comprise the First Employment Based Priorities. Since it is expected that the Second Priority for Master's degreed individuals will become oversubscribed before year's end, for individuals with approved labor certifications and jobs that require a Master's Degree (or Bachelor's plus five years experience) immigrant petition and adjustment of status to permanent residence should be filed as soon as possible.

Those with positions requiring a Bachelor's degree or less cannot immediately qualify for the last stage of their immigration case:  adjustment of status to permanent residence (done in the U.S.) or immigrant visa (done abroad.)  They must wait until numbers become available again, based on the date of their own labor certification filing (known as "priority date.") When numbers are available for all in a category, it is called, "current" and the date filed doesn't matter. When a priority date is current, it means that all applicants qualify for adjustment of status or immigrant visa today.  When they retrogress, the date moves back in time, and the filing date of a labor certification controls. When visas become "unavailable," then no more visas for anyone are available for the rest of the fiscal year. Until visas again become available by either being current for all or those who filed prior to a particular date, adjustment of status or immigrant visa processing cannot be completed. This does not mean that the second stage, the immigrant petition cannot be filed. It is the third and final stage that must wait.  

In the interim, jockeying for H-1 extensions will frequently become necessary with likely mixed results based on a complex set of rules that have not been tested even though they went into effect nearly four years ago.  That's because visa availability was current for many years until July 1, 2005.