USCIS Fee Hike to Take Effect April 30, 2004
The Department of Homeland Security published a notice in the Federal Register statingthat USCIS fees will be raised, effective April 30, 2004. The new fees will be $55 to $60higher than the fees currently in place. The fee schedule is attached as Appendix A.
Social Security Administration Provides Guidance Regarding Issuance of Social Security Numbers to Aliens
Since 2003, the Social Security Administration has required that before it can issue aSocial Security Number (SSN) to an alien, it must first verify the alien’s immigrationstatus with the Department of Homeland Security. This requirement, of course, slowsissuance of SSNs and makes more cumbersome the employer’s process of placing thealien on payroll.
Dealing With Delays in SSN Issuance
The Social Security Administration recently advised that aliens should wait 10 days afterentering the US to apply for a Social Security card. If the alien applies for an SSN before10 days have passed, Social Security will have to launch an inquiry into the alien’simmigration status that will delay SSN issuance even further. However, if the alienapplies after 10 days have passed, his or her immigrant status information should bereadily available on the electronic database that the Social Security Administration shareswith the Department of Homeland Security.If more than 30 days pass from the date of the alien’s application for an SSN and no SSNhas been issued yet, the Social Security Administration has agreed to work withrepresentatives from the American Immigration Lawyers Association to resolve thedelay.
Guidance to Employers When SSN Issuance is Delayed
IRS requires aliens to apply for an SSN within 7 days of starting employment, but doesnot require that aliens actually obtain the SSN within those 7 days. When an alien applies for an SSN, he should be issued an acknowledgement letterverifying that the alien has made a valid SSN application. As long as an alien has anacknowledgement letter from Social Security, an employer may place the alien onpayroll, showing 000 00 0000 (all zeroes) for the SSN until the alien obtains an SSN.
PERM Update: Final Draft of Regulation Sent to the OMB
The Department of Labor has been working on revising Labor Certification rules for acouple of years under a new regulation called Program Electronic Review Management,or PERM. PERM would create a new, more automated Labor Ceritification processwhich, according to the Department of Labor, would reduce Labor Certificationadjudication time to 21 days. This is much faster than the current adjudication time forLabor Certifications, which even under the current streamlined “Reduction inRecruitment” procedure, can take anywhere from 6 months to 3 or 4 years, depending onthe state in which the Labor Certification is filed.
On February 23, 2004, the Department of Labor sent the PERM regulation to the Officeof Management and Budget (OMB). The OMB has up to 90 days to consider theregulation and can seek an extension. OMB may comment on the regulation, after whichthe Department of Labor would need to resolve any issues before the final rule could bepublished.
The Department of Labor anticipates that PERM will be implemented no more than 120days after publication. At this time, there is no timetable for publication of PERM, sinceit is unknown how long OMB will take to review it; or how substantial their commentson the regulation will be.
USCIS Issues Memo Instructing Officers on Concurrent Adjudications of I-140 Petitions and I-485 Applications
On March 31, 2004, USCIS issued a memo to officers instructing them to adjudicateconcurrently filed I-140 and I-485 forms at the same time.
Both the I-140 and the I-485are to be tracked according to the I-140 processing time, rather than separately trackingthe concurrently filed I-485 application. The memo also instructs officers that if they aregoing to issue a Request for Evidence (RFE) on the I-140 petition, they should review theI-485 to determine whether it also requires an RFE. If so, the RFEs will be sent at thesame time.The new guidance differs significantly from the processing procedures initially adoptedby USCIS for dealing with concurrent filings. Under the old procedures, officers wouldconduct an initial review of the I-140 petition to determine whether an RFE was required.If so, the officer would send an RFE. If the RFE requested evidence specifically requiredby regulation but omitted from the petition, then issuance of the RFE would put a freezeon issuance of any Employment Authorization Documents or Advance Parole documentsapplied for with the attached I-485 Adjustment of Status application. If no RFE was required on the I-140, or if the RFE did not request information required by theregulations, then there would be no freeze on Employment Authorization or AdvanceParole.
Department of Homeland Security May Discontinue Processing of L-1 Petitions at the Border
The Department of Homeland Security is reviewing the process of L-1 adjudicationsmade at ports of entry along the northern border. DHS has not yet indicated whether theL-1 border adjudications program will be discontinued. Discontinuation of the borderfiling option would end a 15- year old practice and would complicate matters forCanadian citizens.
Since the Free Trade Agreement went into effect in 1989, and continuing under the NorthAmerican Free Trade Agreement of 1993, Canadian citizens have been able to apply forL-1 nonimmigrant status at the border. L-1 petitions submitted at a port of entry can beapproved on the spot, and the port will issue an I-94 card showing lawful admission inthe L category. The port then sends a copy of the petition to the service center havingjurisdiction over the area in which the port is located, for review. The service center thenissues an original receipt notice and approval notice. It would be extremely unusual for aservice center to issue an RFE or a denial on an L-1 that was approved at a port of entry.
A port-of-entry filing for an L-1 petition is a lucrative option for Canadian citizens, as thedecision is made immediately. The alien does not have to wait several months for aresponse from a service center, and does not have to submit a $1000.00 check to enticeUSCIS to process the application quickly under its Premium Processing program.
E-Filing May Expand in Near Future
In 2003, the Department of Homeland Security initiated an pilot program allowingelectronic filing of I-765 applications for employment authorization; and form I-90applications to replace permanent resident cards. USCIS has reported that it may expande-filing shortly to include the following forms:
I-129- Petition for nonimmigrant worker
I-131- Application for travel document
I-140- Immigrant petition for alien worker
I-539- Application to extend/change nonimmigrant status
I-821- Application for temporary protected status
I-907- Request for premium processing.
Aliens who are inadmissible to the US as nonimmigrants must apply for and obtain awaiver of their inadmissibility from Customs & Border Protection (CBP) prior toapplying for nonimmigrant status in the US. There has been a backlog in waiverapplication processing, and it is currently taking anywhere from 3 months to a year toreceive a response on a waiver application. The delay is caused by the fact that CBPmust run security checks on all waiver applicants. The checks take 60 days and are notconducted by the same office that actually adjudicates the waivers.
Department of State May Discontinue Mail-In Visa Revalidation System
All nonimmigrants, other than Canadian citizens or people entering the US on the VisaWaiver Program, are required to obtain a visa prior to entering the United States. Thealien must obtain the visa from a US consulate abroad after his petition for nonimmigrantstatus has been approved by USCIS.
Once an alien is in the US, he need not maintain a valid visa. He need only maintain avalid nonimmigrant status with USCIS. The visa is only required to gain admission backinto the US after travel abroad.
An alien who obtained a nonimmigrant visa abroad, remains in the US and obtains anextension of his E, H, I, L, O, or P status with USCIS may currently apply for a new visaby mail in the US, a process that takes 10-12 weeks but allows the alien to remain in theUS rather than attending an interview with a consular officer abroad.
The State Department is carefully reviewing visa revalidation procedures and consideringwhether it should be discontinued because it fails to comply with the new StateDepartment requirement that aliens must attend in-person interviews in order to obtainnonimmigrant visas.
