Leaf & Associates, LLC 
Immigration Update Newsletter, October 2006

House Passes Three Immigration Enforcement Bills
The House of Representatives recently passed three immigration enforcement bills. The Border Tunnel Prevention Act of 2006 (H.R. 4830), introduced by Rep. David Dreier (R-CA), provides that anyone building or financing the construction of an unauthorized cross-border tunnel between the United States and another country would be imprisoned for up to 20 years. It also imposes a minimum of 10 years for those who allow their land to be used for tunnels. The minimum terms are doubled for those discovered using the tunnels for smuggling of drugs, goods, contraband, aliens or terrorists.

The Community Protection Act of 2006 (H.R. 6094), introduced by Chairman James Sensenbrenner (R-WIS) of the House Judiciary Committee, would allow the Department of Homeland Security (DHS) to extend the detention of persons deemed to be “dangerous aliens” beyond the statutorily and judicially imposed limits. This bill would allow detention of an illegal alien tied to gang and terrorist activity for an indefinite time while awaiting removal rather than releasing them back into the population. This includes gang members entering the US and in the US who are planning on engaging in gang activity here.

The Immigration Law Enforcement Act of 2006 (H.R. 6095), also introduced by Rep. Sensenbrenner, would allow state and local law enforcement authorities to aid in enforcing Federal immigration laws. It calls for increases in immigration attorneys for prosecuting immigration cases. In addition this bill ends an old court injunction which gives El Salvadorians special immigration status and rights over other illegal aliens.

The House’s recent actions are consistent with the House majority leadership’s position to secure the country’s border before addressing any guest worker reform.

October 2006 Visa Bulletin: Employment-Based Priority Dates
The U.S. Department of State (DOS) recently released the October 2006 Visa Bulletin. Since the USCIS 2007 fiscal year begins on October 1, 2006, the Visa Bulletin reflects the allocation of a new quota of immigrant visa numbers.

EB1 
EB1 is current for all areas of chargeability. Thus, all EB1 cases have visa numbers available.

EB3 Skilled / Professional
 Limited forward movement occurred in EB3 for all areas of chargeability. All of the cutoff dates are still in the 2001 and 2002 range for nationals of all co untries, however. The worldwide category, mainland China, and the Philippines, all moved by two months, to May 1, 2002. India moved a few days to April 22, 2001. Mexico moved forward to May 1, 2001.

EB3 Schedule A Schedule A remains current. However, the DOS expects that the one-time allocation of 50,000 visa numbers will be almost fully depleted by the end of October 2006. Once these numbers have all been used, the Schedule A nurses and physical therapists will be included in the EB3 professional / skilled worker category and will face the same lengthy waiting times.

EB3 Other Workers The EB3 “other workers” category has an available annual allocation of 5,000 numbers. This category became unavailable in May 2006. The other workers category will be available again, with a cutoff date of January 1, 2001 during the month of October 2006.

USCIS Achieves a Significant Naturalization Backlog Elimination

On September 15, 2006, the United States Citizenship and Immigration Services (USCIS) announced that it had significantly reduced the N-400 Naturalization Application backlog. The USCIS has announced that N-400 Applications for Naturalization processing times will now take approximately five months.

In 2004, the number of backlogged Naturalization applications was 3.8 million. The USCIS significantly reduced this figure by July 2006 to just over 1.1 million cases. However, this includes only cases that are ready for processing and does not include cases that are pending but considered by USCIS to be outside of its control, which would include cases that are pending security checks, naturalization test retakes, naturalization candidates awaiting oath ceremony, and cases in which the applicant has failed to respond to a request for additional evidence.

Updates on H-2B Statistics for First Half of FY 2007
The USCIS recently announced that as of September 26, 2006, cases requesting classification for 29,028 H-2B beneficiaries had been received. Of these, 12,905 beneficiaries were subject to the 33,000 cap for the first half of FY 2007, while 1,814 beneficiaries were approved as returning workers, who are currently exempt from the cap. On the date of the last count, petitions for 14,309 new and returning workers were pending. USCIS has estimated that 53,000 H-2B petition beneficiaries—20,000 more than the 33,000 cap for the first six months of the fiscal year—are needed to reach the cap for the first half of FY 2007. This figure makes allowances for cases that are denied, withdrawn or revoked, as well as cases in which an employer ultimately employs fewer workers than reflected in the H-2B petition. The beneficiary target figure is subject to change as the fiscal year progresses.

The H-2B cap numbers for the first half of the 2006 fiscal year were met by mid-December 2005 and it appears that fiscal 2007 numbers are currently being used at approximately the same pace. Given that agency cap counting errors have occurred in the past, the USCIS is advising employers to file H-2B petitions for employment start dates in the first half of this fiscal year as soon as possible. H-2B petitions may be filed up to six months before the employment start date; for example, where employment is to begin on April 15, 2007, the H-2B petition may be filed as early as October 15, 2006.

DOL to Allow RIR Conversion
The Department of Labor (DOL) announced on October 6, 2006 that it will allow employers that filed applications for permanent certification under the Traditional Recruitment (TR) standard before March 28, 2005 (the date when the PERM program became effective) to convert said applications under the Reduction-in-Recruitment (RIR) processing. The DOL issued this notice to eliminate backlogs and extend the eligibility date it uses for determining whether RIR re-application requests are timely. Currently, only labor certification applications that were filed prior to August 3, 2001 are eligible for RIR conversion. Conversion cases must meet all RIR requirements, and only traditional cases for which a job order has not yet been placed are eligible.

Under the RIR standard, an employer may petition for an RIR if it has, during a period of at least six (6) months, attempted to fill the position with reasonable efforts and has failed to find qualified U.S. workers. The employer is effectively stating that the labor certification process is not necessary since the employer has already tested the labor market without success.

The RIR application processing time takes less time than the TR application processing time. The TR processing time delays the filing process for employers because they may be required to wait up for up to nine months or longer to receive a resolution (denial or certification) of their case. Accordingly, the DOL has encouraged employers to use the RIR process to expedite the labor certification filing process. Such conversions allow an employer to complete its recruitment prior to filing a permanent labor certification application, thus shortening the time potentially required to reach a determination in any given case.

USCIS Transfers Cases among Service Centers
The USCIS stated on September 29, 2006, that certain cases are being shifted between the service centers in order to balance workloads. The USCIS will issue transfer notices to those whose cases are affected.

H-1s Shifted from Vermont

The Vermont Service Center (VSC) has transferred approximately 20,000 cap-subject H1B petitions to the Texas Service Center (TSC) and 6,000 to the Nebraska Service Center (NSC).

I-360s and Some I-130s Moving to California

The service centers have moved their I-360 petitions for Amerasians, widow/ers, special immigrants and special immigrant religious workers to the CSC. All new I-360 filings for religious workers will be transferred to the CSC. The VSC has also transferred approximately 20,000 I-130 relative petitions to the CSC.

Note that the USCIS periodically shifts work to meet the six-months or less processing time for cases. If a case has not yet received a receipt notice and is transferred, it usually will receive a receipt notice from the service center that will be completing the processing. If a case already has a receipt notice, a transfer notice generally is issued on the case when it is moved. However, internal transfers such as these do not affect where petitioners and applicants should file their cases.

New G-325 Version Required from Nov 2006
The USCIS had indicated that, as of October 1, 2006, Forms G-325, G-325A, G-325B, and G-325C would have to be submitted using the July 14, 2006 versions of these forms. Note though that the USCIS has agreed to accept the old versions through the end of October 2006. Forms G-325, G-325A, G-325B and G-325C are Biographic Information forms that are usually filed with other immigration applications or petitions.