Join our FREE E-Newsletter today!

Backlog News-Breaking News
On August 25, 2006 CIS began the premium processing program for EB3 I-140 cases. Beginning September 25, 2006 the program has been expanded to include all employment categories except Extraordinary Ability, Multinational Executives and National I Interest Waiver cases.

For those of you who have been anxious to know (and you know who you are) the Department of Labor PERM website at www.plc.doleta.gov now indicates that the Backlog will be eliminated by September 30, 2007.

Volume I-8 September Newsletter

TPS LIBERIA

On September 18, 2006, the Department of Homeland Security announced the termination of Temporary Protected Status (TPS) for Liberia. The program will terminate October 1, 2007. Re-registration is required to secure benefits to this date. Although the announcement is a termination it provides for a final extension.

NATURALIZATION BACKLOG

The Department of Homeland Security announced the elimination of the backlog for the N-400, Naturalization application. Current processing times have been reduced to five months. Unfortunately, cases pending law enforcement security checks are not counted as part of the backlog. Many security clearance cases have been pending well over 18 months. Has there really been an elimination of the backlog if you don’t count these cases as part of the backlog?

LEGISLATIVE AGENDA

House Republican leaders announced their agenda of border security measures they intend to pass prior to the November elections. These narrow enforcement provisions do little to address the larger problems. Although border security must be a part of any comprehensive immigration reform effort, construction of 700 miles of fencing will not solve the looming system wide problems. Comprehensive immigration reform is the only way to address all of our current immigration problems.

VISA NUMBERS

The visa bulletin for October 2006 was published. EB-2 for India, previously unavailable has moved to June 15, 2002. The visa bulletin is available on our site or you may access it from the Department of State website.

DEPARTMENT OF LABOR BACKLOG CENTERS

The Department of Labor has updated its web site to provide basic case status information on specific cases. To access information go to: http://workforcesecurity.doleta.gov/foreign/times.asp

The Department of Labor has sent out all 45 Day Letters. A system has been established for cases in which a 45 Day Letter has not been received or a case was closed when the 45 Day Letter was timely returned to the Department of Labor. More information is available at the above web address.

NEBRASKA SERVICE CENTER NEWS

Suddenly, most of you are now interested in the Nebraska Service Center since the I-140s are being filed in this Service Center.

At a recent conference call the Service Center indicated that if an employer files two I-140 petitions for one labor certification, the employer will be asked which one it wants worked on first and the other will be held in abeyance. Although pressed for additional information, no further information was provided regarding what happens when the EB-2 petition is denied.

There was no news on the 3 year degree issue. We have been told that the American Immigration Lawyers Association has been pushing CIS to issue a guidance memo on this topic that would clarify the issues related to 3 year bachelor’s degrees. See below.

FOREIGN DEGREE EQUIVALENT

The Nebraska Service Center takes a hard line on the definition of “foreign equivalent degree”. In context of an H-1B you can establish the equivalent of a degree through a combination of education and experience. In the context of the I-140 you cannot establish degree equivalency by any method other than a single 4 year degree unless you expressly define equivalence to include something else. If equivalency is defined in terms other than “a foreign equivalent degree” that would allow alternative qualifications, the EB-3 petition may not be approvable as a “member of the professions” but it still can be approved as a skilled worker.

First and foremost if you have a degree equivalency based on anything other than a single source foreign degree, you have to be concerned about whether you even qualify for the position before you worry about whether the position is EB-2 or EB-3. The NSC may deny the I-140 on the grounds that you have failed to demonstrate that you have the equivalent of a Bachelor’s degree. If you can’t get the I-140 approved, it is of little consequence whether you are EB-2 or EB-3.

Recently an Oregon District Court in Grace Korean United Methodist Church v. Chertoff, CV. 04-1849-PK (November 3, 2005) issued a decision in a case in which the minimum requirement was a “Bachelor’s Degree or equivalent in Theology”. The alien had a combination of education and experience deemed equivalent to a Bachelor’s Degree.

The employer filed the I-140 requesting the alien be classified as EB-3 skilled worker or professional. The employer argued that the alien qualified as a skilled worker because the regulations state that education may be considered as training for purposes of qualifying as a skilled worker. The NSC interpreted the phrase “or equivalent” as stated on the labor certification to mean “foreign equivalent degree.” Ultimately, the District Court found that the NSC could not deny the I-140 on the basis that the alien did not have a foreign degree equivalent. The Court held that the statute or the implementing regulation require an actual degree for approval as a skilled worker.

The NSC has announced it will not follow this decision. The decisions we have received from the NSC have been very inconsistent. We have had several 3 year plus 1 post secondary diploma cases approved and several with virtually the same fact pattern denied.

TRANSFER OF PRIORITY DATES

Some of you have asked whether it is possible to transfer your priority date from an earlier approved I-140. The answer is “yes” even if it was filed by a different employer in a different employment based category as long as the earlier I-140 has not been revoked.

The hot topic issue is what happens if an employer withdraws an I-140 after portability occurs under AC-21. Stay tuned for more.

Newsletter Archive

The information contained in our newsletter is not meant as legal advice. The information is of a general nature and does not create an attorney client relationship. Please consult a qualified attorney and discuss the specific facts of your case before taking any action.