News

I-140 Premium Processing to Start Again

Starting on June 29, Premium Processing once again became available for most Form I-140 immigrant petitions for employment-based categories in the 1st, 2nd and 3rd categories. USCIS guarantees 15-day processing time. The I-140 premium processing was largely suspended for the past 2 years, although for the last one year had been made available on a very limited basis for those beneficiaries who were about to reach their H-1B 6-year limit.

The employment based categories that are now permitted to file Form I-140 premium processing include:

•  EB-1 category for extraordinary ability.  (But does not include multinational managers and executives.)
•  EB-1 category for outstanding professors and researchers.
•  EB-2 category for advanced degree professionals and foreign nationals of exceptional ability.  (But does not include national interest waiver cases.)
•  EB-3 category for professionals, skilled workers, and other workers.

Premium processing requires the filing of Form I-907 plus a USCIS filing fee of $1,000, and can be submitted with the original Form I-140, or the Form I-140 can be filed first and converted to premium processing during the processing time.

Premium processing does not guarantee approval in 15 days, but only that they will review the I-140 petition within 15 days. If USCIS has questions they will issue a request for additional evidence (“RFE”). Once new evidence is submitted, USCIS will then provide a final result within a second 15 day period.

New iCert Portal

Starting July 1, 2009 the Department of Labor’s new iCERT portal will be required use for obtaining Labor Condition Applications (“LCA”s) for H-1B visa petitions.  The old online LCA system has been disabled and can no longer be used for obtaining new LCA’s, and information contained on the old system will not be transferred.  The iCERT system can be found at http://icert.doleta.gov/.

Users of the iCERT system may encounter technical difficulties in registering and problems in preparing LCAs.  DOL has indicated that they will upgrade the iCERT portal in mid-August.

DOL announced that LCAs submitted through iCERT may take for up to 7 days or more to be reviewed.  Employers should be aware that the longer review of the LCA can delay filing of H-1B petitions.  As such, the delays may affect the ability of existing H-1B workers to start new employment under the H-1B portability rules.  It can also affect the ability of F-1 students who are near the end of their OPT periods who are seeking change of status to H-1B to obtain the automatic extension of OPT under the “cap-gap” relief.

I-9 Enforcement

U.S. Immigration and Custom Enforcement (“ICE”) has announced a nationwide initiative to audit employer’s Form I-9 records for employment eligibility verification.  ICE intends to focus on criminal prosecution of employers who knowingly hire illegal workers.  However, employers who make inadvertent errors on their I-9 forms or in the employee verification process can still be liable for civil penalties or fines for paperwork violations if ICE audits the employer’s I-9 forms.  Therefore, employers should make sure that they fully comply with all I-9 regulatory requirements.

So far this year, ICE has issued I-9 Inspection Notices to 652 employers around the country.  In 2008, ICE issued 503 for the entire year.

Visa Bulletin Update for July 2009

Green card categories:  EB-1 remains current.  EB-2 remains current (except China and India). EB-3 remains unavailable.