DOL to Create Safety Window on RIR Conversions

As previously reported in Immigration Newswire, the Department of Labor hasextended the deadline for RIR conversions and has provided additional guidanceon these conversion requests.

The American Immigration Lawyers Association has reported that theDepartment of Labor will soon be announcing a "window of safety" for empl0yerswho wish to convert pending traditional labor certifications to RIR. This willallow employers to notify DOL that they plan to submit a conversion request, andthen have a specified time period during which they can submit that requestwithout being in danger of receiving recruitment instructions and thus wastingthe RIR recruitment. AILA states that the window will not be a long period oftime.

The announcement from DOL could come as early as this week.

District Court Upholds Nebraska Service Center's "Single Foreign Degree" Requirement for EB-2 and EB-3 I-140 Petitions

In a recent District Court decision, the court upheld in part and overturned inpart an I-140 decision made by the Nebraska Service Center (NSC) and theAdministrative Appeals Office (AAO). The decision, Snapnames.com, Inc. v.Chertoff, 2006 U.S. Dist. LEXIS 87199 (2006), is not binding precedent on theNSC but provides a good argument for use in future I-140 Employment BasedThird Preference “Skilled Worker” petitions.

The case came to the District Court on appeal from an AAO decision upholdingthe NSC’s denial of two I-140 petitions filed by the employer. The first I-140 wasan EB3 Skilled Worker or Professional petition and the second petition was anEB2 Advanced Degree Professional petition. The alien had a three-year Indiandegree plus additional Chartered Accountant coursework. The labor certificationrequired 4 years of high school, 4 years of college, and a “B.S. or foreignequivalent.” The NSC denied both I-140 petitions filed on the basis of theapproved labor certification, because they determined that the alien did not meetthe educational requirements specified in the labor certification.

The issues on appeal to the District Court were (1) whether the NSC and AAOproperly concluded that work experience is not properly considered indetermining whether the alien has a “B.S. or foreign equivalent;” and (2) whethera “B.S. or equivalent” requires a single degree. As to the first issue, the DistrictCourt held that the NSC did properly conclude that experience should not beconsidered because the employer had said that a “B.S. or foreign equivalent” wasrequired in the box on Form ETA 750 that says “College Degree Required.” Theplain language of the labor certification requirements as written by the employerindicated that a specific educational background was required; thereforeexperience should not have been considered.

As to the second issue, whether a single degree is required, the District Court saidthat the word “equivalent” in the employer’s requirements was ambiguous andthat in the context of EB3 Skilled Worker petitions, where there is no statutoryeducational requirement (2 years of experience are the minimum statutoryrequirement), deference must be given to the employer’s intent. Therefore,where, as in this case, the employer stated in the EB-3 Skilled Worker I-140petition that by “B.S. or equivalent” it meant any education determined by anevaluation agency to be equivalent to a U.S. Bachelors Degree would suffice, thepetition should be approved if such an evaluation is provided. However, in thecontext of an EB3 Professional petition or an EB2 Advanced Degree Professionalpetition, in which the beneficiary is statutorily required to hold a baccalaureatedegree, the court stated that USCIS has authority to interpret the statutorylanguage and to fill in the gaps. Therefore, NSC properly exercised its authority inconcluding that a single foreign degree or its equivalent is required for EB3Professionals or EB2 petitions.

The EB3 category includes both Skilled Workers and Professionals. There is noapparent advantage to filing an I-140 petition as a Professional rather than aSkilled Worker. The petition will have the same priority date either way. In caseswhere a LC/ I-140 beneficiary has multiple foreign degrees, then under the logicof Snapnames.com, an employer can require a Bachelors Degree “or foreignequivalent” on the labor certification and then submit the I-140 requesting EB3Skilled Worker classification. USCIS should give deference to the employer’sunderstanding of its degree requirement.

There is no guarantee that the Nebraska Service Center will accept this argumentsince Snapnames.com is not binding on it. However, it is a very persuasiveargument.

DHS Publishes Notice On Background Check Modifications

USCIS conducts background record checks or security clearances on allapplicants for immigration benefits. While the checks are usually conducted in atimely manner, many of our readers are unfortunately aware that in many cases,record checks severely delay the adjudication of benefits applications. In theworst cases, record checks can be delayed for a matter of years.

On December 4, 2006, the Department of Homeland Security published a Noticein the Federal Register stating that effective January 3, 2007, a new system ofrecord checks will be implemented. The Notice explains that USCIS conductsthree different background checks on applicants: an FBI fingerprint check, anFBI name check, and a CBP Treasury Enforcement Communication System/Interagency Border Inspection System Name Check.

Under the soon-to-be implemented new record check system, called the"Background Check Service," is a centralized repository that contains theconsolidated data on all background check requests and results. The new systemwill purportedly allow USCIS representatives to request backgroudnd checks andaccess the stored data during the adjudication process to facilitate informeddecision-making. The goal is to speed the adjudication process by preventing thelengthy delays currently associated with background checks.

Supreme Court Issues Favorable Ruling on Immigration Consequences of Drug Possession Convictions

On December 5, the Supreme Court ruled in Lopez v. Gonzales, 549 U.S. ___(2006) the "aggravated felony" ground of removability does not apply toindividuals who are convicted of state drug possession felonies unless those sameconvictions would qualify as felonies if tried under federal law.

While this ruling is very helpful for people who are currently in the United Statesand would face removal, it does not remove the drug-related grounds ofinadmissibility, which apply whenever an alien applies for admission to the U.S.or adjustment of status. INA 212(a)(2)(A)(i)(II) makes inadmissible to the U.S.anyone who is convicted of, or admits having committed, "a violation of (or aconspiracy or attempt to violate) any law or regulation of a State, the UnitedStates, or a foreign country relating to a controlled substance." This covers a widearray of drug offenses including such relatively minor offenses as possession ofdrug parephenalia.

DHS To Change Premium Processing Rules

According to the Department of Homeland Security Regulatory Agendapublished in the Federal Register, USCIS plans to change the rules related to thePremium Processing service, allegedly in order to adjust for inflation.

Currently, Premium Processing guarantees adjudication of a case within 15calendar days in exchange for a filing fee of $1000. Under the proposed changes,Premium Processing would be changed to 15 business days. In addition, the rulewill add additional circumstances that will stop the Premium Processing clock. Itis unknown at this point what those additional circumstances are and whetherthey will result in a refund of the Premium Processing fee. We will provideadditional information on these proposed changes as it becomes available.