I-130 Petitions Can No Longer Be Filed at Consulates

Until a few days ago,U.S. citizens residing abroad could file I-130 immigrantpetitions for their immediate relative spouse,parent,or child at the U.S.Consulate nearest his or her foreign residence,resulting in decreased processingtimes for their immediate relatives' immigrant visas.Pursuant to the AdamWalsh Child Protection and Safety Act of 2006,PL 109-248,however, effectiveJanuary 23,2007,U.S.Consulates are no longer accepting I-130 petitions from U.S.citizens residing abroad.All I-130 petitions must now be filed at the USCISoffice having jurisdiction over the U.S.citizen petitioner's place of residence or, ifthe U.S. citizen has no U.S. residence,at the Vermont Service Center,75 LowerWelden St.,St.Albans,VT 05479.(As of yet,it is unclear whether USCIS officesoutside the U.S. will be adjudicating I-130 petitions).

Under bispecialization,all I-130 petitions filed in the U.S. are now adjudicated byeither the Vermont Service Center or the California Service Center.

The Adam Walsh Child Protection and Safety Act of 2006 ("Walsh Act") modifiedsection 204(a)(1)(A)(vii) of the Immigration and Nationality Act to provide that aU.S. citizen who has been convicted of specified offenses against a minor may notfile an I-130 petition unless the Secretary of Homeland Security determines thatthe petitioner does not pose a risk to the I-130 beneficiary.

Pursuant to the Walsh Act, USCIS has issued guidance to its adjudicators tosearch its databases for criminal history information regarding I-130 petitioners.If the I-130 petitioner has previously been convicted of a specified offense againsta minor,the USCIS must issue a Request for Evidence for all police arrest recordsand court disposition documents,and must schedule the petitioner forfingerprinting. Because Consular officers do not have access to this criminalhistory record information,they are unable to determine whether a petitioner hasa conviction for a specified offense against a minor that renders the petitionerineligible to file an I-130 petition.The Department of State has now decided (6months after implementation of the Walsh Act in July 2006) that it mustimmediately suspend I-130 processing in order to be in compliance with the newlaw (see DOS cable).

Passports Required for Air Travel

Also starting January 23,all U.S.citizens and nonimmigrants returning to theU.S. via air after traveling abroad are required to present passports.An additionalrule addressing passport requirements for arrivals by land and sea will bepublished at a later date,pursuant to recommendations made by the 9/11Commission and the Intelligence Reform and Terrorism Prevention Act of 2004.

Department of Labor May Do Away With Labor Certification Substitutions

On 1/26/07,the Department of Labor submitted a rule to the Office ofManagement and Budget (OMB) which,if cleared by OMB,would eliminatesubstitution of beneficiaries into labor certifications previously approved forcompanies.It is uncertain how long it will take OMB to clear this rule forpublication in the Federal Register, but the maximum is generally 90 days unlessOMB suggests that the Department of Labor revise the rule before publication.

DOL has historically permitted a company with an approved labor certification touse it on behalf of an alien employee other than the one for whom the laborcertification was initially approved,provided that the new,“substituted”beneficiary met all the requirements of the labor certification application at thetime it was filed.

It is important to note that the DOL no longer releases copies of proposedregulations prior to submitting them to OMB,so it is unclear how any change inthe regulations would affect any I-140 and I-485 applications that are pending,based on substitutions,when these changes go into effect.However,historically,when the DOL has changed its regulations,any applications pending when thechanges went into effect were grandfathered under the old regulations.Therefore,any of our employer clients who have unused,approved laborcertifications which could be used by new alien beneficiaries should contact ouroffice immediately to discuss using those substitutions as soon as possible.

H-1B Season Is Fast Approaching

As most of our readers are aware,there is an annual cap on the number of new H-1Bs that USCIS can approve.The cap opens up each year on October 1,the startof the government's fiscal year.However,because H-1B petitions can be filed 6months in advance of the employment start date,H-1B petitions for those subjectto the cap can be filed as early as April 1,2007.

Every year,since the cap was reduced to 65,000 H-1Bs per year,the cap has beenfilling up sooner and sooner.Last year,the cap was reached on May 26,creating awindow of less than 2 months during which any new H-1B petitions could be filedfor that year.

Any of our clients who wish to change status to H-1B or otherwise to obtain theirfirst H-1B should contact us immediately so that we can begin preparing thepetition in February for filing on April 1.

Address Change Now Available Online

USCIS has implemented an address change function online through which non-citizens can update their address on pending cases before USCIS as well asfulfilling their AR-11 filing requirements.All noncitizens are required to submitform AR-11 within 10 days of each move.Consequences for failure to file the AR-11 include removal from the United States.USCIS published a news releasedescribing the new online system.

USCIS Proposes Enormous Fee Increases

USCIS placed a Proposed Rule in the Federal Register on February 1,2007 whichproposes to significantly raise filing fees on all immigration applications andpetitions,with the following justification:

The new fee schedule will improve service levels and ensure the security andintegrity of the immigration system without causing backlogs to return.This feereview is based for the first time on an enhanced staffing model that is designedto align resources with the need to prevent future backlogs,providing for anefficient and effective workforce balance.

A copy of the Proposed Rule is available on the Federal Register web site.Pages24 and 25 of the file provide a list of current fees vs. proposed fees.A fewhighlights:

•The current I-129 fee of $190 is proposed to increase to $320 •The current I-130 fee of $190 is proposed to increase to $355 • The current I-140 fee of $195 is proposed to increase to $475 • The current I-485 fee of $325 is proposed to increase to $905.This is the largest increase of any of the filing fees. USCIS proposes to eliminate filing fees for I-765 applications for employment authorization and I-131 applications for travel authorization filed with the I-485.The huge fee increase is purportedly to compensate for elimination of those filing fees,even though many adjustment of status applicants choose not to apply for work and/or travel authorization.

•The current N-400 fee of $330 is proposed to increase to $ 595.

The Proposed Rule creates a public comment period.Any comments submitted inresponse to the rule must be taken into consideration and responded to beforethe rule is finalized.