USCIS Announces Change to I-129 and I-140 Filing Procedures, Effective April 1, 2006

USCIS published a News Release on March 24, giving employers one week'snotice that they are initiating a new filing procedure for I-129 and I-140 petitions.Starting April 1, all I-129 petitions are to be filed with the Vermont ServiceCenter, and all I-140 petitions are to be filed at the Nebraska Service Center.

Applications that are concurrently filed (e.g. I-539 applications that are filed forthe family members of I-129 beneficiaries; and I-485 applications that can beconcurrently filed with I-140 petitions) will continue to be filed concurrently.

Once an I-129 petition is filed, the Vermont Service Center will either adjudicateit or forward it to the California Service Center for adjudication. Similarly, oncean I-140 petition is filed, the Nebraska Service Center will either adjudicate it orforward it to the Texas Service Center for adjudication. The Petitioner orApplicant will receive a Receipt Notice from the service center that is adjudicatingthe case.

This new filing system replaces the current system under which, with a fewexceptions, all employment-based petitions are filed at the service center withjurisdiction over the state in which the beneficiary will be employed. The mostnotable exception under the current system is that all I-129 Petitions filed tochange or extend the status of TN nonimmigrants are filed at the NebraskaService Center, regardless of the location of employment. Under the new system,there will be no special filing requirement for I-129's for TN Petitions. They are tobe filed at the Vermont Service Center along with all other I-129 petitions. It isnoteworthy that the Nebraska Service Center is the only service center with anyexperience adjudicating TN applications. Presumably, under the new system, TNPetitions will be adjudicated at either the Vermont or the California ServiceCenter. We are likely to see new interpretations of the TN regulations with theadvent of the new system.

It is also noteworthy that only I-129 and I-140 petitions will be affected by thenew filing procedure. I-360 Petitions filed for Religious Workers are the only typeof Employment-Based petitions that will continue to be filed based on thegeographical location of employment.

Finally, it is interesting that the change in filing procedures is set to take effect onApril 1, 2006, the first date on which new H-1B Petitions can be filed for the newfiscal year. Given that USCIS gave only one week's notice of this significantprocedural change, there is likely to be a flood of mis-filed H-1B petitions.However, USCIS claims that any petitions filed at the wrong Service Center afterApril 1 will be re-routed to the correct service center and USCIS will honor theinitial receipt date.

Fiscal Year 2007 H-1B Petitions Can Be Filed Starting April 1, 2006

There is an annual cap on the number of new H-1B petitions that can beapproved. The cap runs according to the government's fiscal year, which beginson October 1 and ends on September 30. The annual 65,000 new H-1B umbersbecome available every October 1. However, H-1B petitions can be filed up to sixmonths in advance of the employment start date. Therefore, April 1, 2006 is theearliest date on which H-1B petitions can be filed to request a start date ofOctober 1, 2006.

Unfortunately, April 1, 2006 is a Saturday. April 1 is also the earliest date onwhich Labor Condition Applications, which must be filed in support of every H-1B petition, can be filed with the Department of Labor. Even if attorneys come inon Saturday to file the LCA's, few employers will be available to sign the LCAprior to Monday, April 3. Therefore, April 3, 2006 is the de facto first filing datefor H-1B petitions.

Congress created the H-1B cap in 1990 and set the number of available H-1Bnumbers to decrease to 65,000 starting with Fiscal Year 2004. Three years ofexperience with this cap shows a trend toward H-1B numbers being used up moreand more quickly every year. For Fiscal Year 2004 (which ran October 1, 2003-September 30, 2004) the annual cap was reached mid-February 2004, beforehalf the fiscal year had passed. In FY 2005, the annual cap was reached onOctober 1, 2004, the same day the fiscal year started. Last year, FY 2006, the H-1B cap was reached in August 2005, over a month before the fiscal year started! Ifthis trend continues, H-1B numbers could be depleted as early as July 2006.

USCIS issued a Public Notice on March 24, 2006 regarding the filing of H-1Bpetitions. The Notice highlights two issues on which USCIS will focus inadjudicating H-1B petitions:

1.) H-1B beneficiaries who will perform their job duties at more than one locationmust provide in advance, "an itinerary with the dates and places where theworker will perform that work."

2.) H-1B beneficiaries who are changing employers must demonstrate that they"actually did perform meaningful work for the original petitioning employerunder circumstances not reflective of fraudulent intent in the original petition."If the institution of the Fraud Prevention & Detection Fee did not make itobvious, this Notice dispels all doubt that USCIS is concerned about thepossibility of fraud in the H-1B context.

Department of State Announces Change in Earliest Issuance & Admission Dates for F, M, and J Visas

The Department of State adopted a new policy that applicants for initial entry onF-1, F-2, M-1, and M-2 visas may be issued up to 120 days before the programstart date listed on their I-20's. Such students may not enter the U.S. until 30days prior to the beginning of studies. This change applies only to initial-entrystudents. Continuing students may apply for new F or M visas at any time, aslong as they have been maintaining student status and their records are current.Continuing students may also enter the U.S. at any time before their classes start.

Consular Officers may issue J-1 and J-2 visas to Exchange Visitors at any timebefore the beginning of their programs as long as the form DS-2019 remainsvalid. However, the Exchange Visitor may not enter the U.S. more than 30 daysbefore the initial program start date. Applicants continuing on an exchangevisitors program are not subject to this restriction.

Recent BIA Decision Brings Into Question the Extent to Which Immigrants Can Rely on AC21

The American Competitiveness in the Twenty First Century Act (AC21) amendedsection 204(j) of the Immigration and Nationality Act to state that if an I-140petition has been filed on the alien’s behalf and the alien’s adjustment of statusapplication has been pending over 180 days, he can go to work for a newemployer, so long as the job is in the same or a similar occupational category tothe job listed in the I-140 petition.

AC21 was passed over five years ago and the Department of Homeland Securityhas not yet implemented any new regulations to interpret AC21. USCIS hasissued interpretive memoranda on AC21, but these memoranda are intended forinternal use by USCIS personnel only; they cannot be relied upon in a court oflaw. Therefore, an alien has no assurance that the interpretation of AC21 uponwhich he has relied, even if articulated by USCIS, will be the interpretation of theDepartment of Justice if the alien is placed in Removal Proceedings.

The Board of Immigration Appeals recently decided the case of In re HumbertoPerez Vargas, 23 I & N Dec. 829 (BIA 2005), which involved the removal of acitizen of Guatemala from the United States. The alien applied for adjustment ofstatus before the Immigration Judge as a form of relief from removal. TheImmigration Judge denied his application for adjustment of status on the groundthat the alien was no longer employed by the employer that filed his I-140immigrant petition. The alien requested that the Immigration Judge approve hisadjustment of status application on the basis of INA 204(j), as amended by AC21,because he had complied with the law in changing jobs to the "same or similaroccupational classification." The BIA held that Immigration Judges lack theauthority to determine whether an alien's I-140 petition remains valid under INA204(j) after the alien changes jobs or employers. His rationale was that (1)"Immigration Judges have no jurisdiction to decide visa petitions, a matter whichis solely within the authority of the district director;" and (2) a determinationunder section 204(j) of the Act requires "some expertise in assessing thesimilarity in certain types of employment," expertise that Immigration Judgeslack.

Vargas is significant in that it points out the fact that an alien who complies withAC21 in changing employers may be able to rely on USCIS' interpretations ofAC21 so long as he does not find himself in removal proceedings. But if he isplaced in proceedings, reliance on AC21 may deprive him of discretionary relieffrom removal that would otherwise be available.

Submission of Phony Degrees to USCIS

Many immigration benefits hinge on whether or not the alien has a four-year,U.S. Bachelors degree, or its foreign equivalent, that is related to his proposedU.S. employment. H-1B status requires the beneficiary to possess the equivalentof a U.S. Bachelors degree in education and/or experience; most of the TNcategories require the attainment of a Bachelors Degree or its equivalent; andhaving a degree can result in being placed in a higher employment-basedpreference category, which can significantly decrease the amount of time it takesto obtain permanent residency. Thus there is a strong incentive for some aliens toemploy a false degree, often from a diploma mill that provides a diploma andtranscripts for a fee, in support of an employment-based immigrant ornonimmigrant petition. This is generally a fraud not only on U.S. governmentagencies, but also on the U.S. employers who hire the aliens.

It is more difficult for U.S. employers to tell if the degree is genuine if it is allegedto have come from a foreign college or university. However, if the degree appearsto have been issued by a U.S. institution, a simple internet search will often revealthat the institution is phony. In addition, there are regional accrediting agencies,all of which have web sites listing accredited institutions. If the school shown onthe degree is not listed as an accredited institution, then the degree is not validfor immigration purposes.

There are potentially very serious consequences if it is discovered that the degreeis phony. Not only will the alien be found ineligible for the benefit applied for; hecould also face criminal penalties which, if he is convicted, could result in time injail and could make the alien removable from the United States.