Leaf & Associates, LLC 
Immigration Update Newsletter, September 2006

USCIS Accepts Premium Processing for I-40 Petitions
USCIS announced that, beginning August 28, it will begin accepting premium processing requests for I-140 petitions involving EB-3 Professionals (immigrant workers with bachelor’s degrees who are members of the professions) and EB-3 Skilled Workers (immigrant workers capable of performing skilled labor requiring at least two years of education, training or experience). Premium processing will not be available to "other workers" in the EB-3 category.

The USCIS has issued a revised I-907 premium processing form which does not request any additional information but includes the newly designated classifications and a revision date of August 28, 2006. The USCIS will not accept any premium processing requests for Form I-140 before August 28. Any premium processing requests for Form I-129 received before August 28 must use the current Form I-907 with the revision date of April 1, 2006. All premium processing requests received on or after August 28, 2006 must be on the I-907 form bearing the August 28, 2006 revision date or will be rejected.

H-2B Filing Procedures for the Remainder of Fiscal Years 2006 and 2007
The USCIS has issued a reminder to employers who petition workers under the H-2B nonimmigrant program that the "returning worker" provision of the Save Our Small and Seasonal Businesses Act (SOS) Act of 2005 is set to expire October 1, 2006. The “returning worker” provision exempts from the annual H-2B fiscal year cap, aliens who were counted toward the H-2B numerical limit during any one of the three fiscal years preceding the year of the requested start date. USCIS urges employers to continue to identify and certify workers who qualify as "returning workers" under current law when filing petitions for employment with start dates in fiscal year 2006 and 2007. This will enable USCIS to maintain an accurate H-2B cap counting for fiscal year 2007, regardless of whether the provisions expire or are reauthorized.

ICE Create New Employer Compliance Program
The U.S. Immigration and Customs Enforcement (ICE) has launched the ICE Mutual Agreement between Government and Employers (IMAGE). The IMAGE program will train employers in proper hiring procedures, fraudulent documentation detection, antidiscrimination laws, and give information on illegal schemes being used to circumvent legal hiring practices. ICE will work with IMAGE employers to help them correct isolated and minor compliance issues.

Employers who want to participate in the program mist agree to an I-9 audit, and must use the Basic Pilot Employment Verification Program conducted by the Department of Homeland Security and the Social Security Administration. The Basic Pilot Program is currently being used by more than 10,000 employers. Additionally, employers who undergo the training and audit, and use the Basic Pilot Programs may become IMAGE certified if they use “best business practices” such as training programs for those who complete I-9 forms, audits by neutral parties, and protocols for responding to no-match letters issued y the Social Security Administration.

If a company is considering joining the program, consultation with immigration and employment counsel is recommended to address potential issues relating to company liabilities as well as employment issues.

Filing Changes for Employment Authorization Documents
The USCIS recently announced that it is discontinuing local production of the Form I-688B Employment Authorization Card (EAC) in favor of the Form I-766 Employment Authorization Document (EAD) produced at one central location using national systems. The locally produced I-688B lacks security features and is not well suited to employment verification by employers.

The USCIS further explains that offices that have continued to accept applications locally may, in their discretion, continue to accept certain employment authorization applications until October 1, 2006. After September 1, 2006, however, such local offices will no longer process those cases and will only forward them for Service Centers processing. In addition, customers seeking the fastest service should send their applications directly to the appropriate Service Center or Chicago Lockbox as indicated on the Form I-765 instructions.

The discontinuation of locally produced EACs will not prohibit customers from using the InfoPass to schedule an appointment for an interim employment document when USCIS hasn’t adjudicated the original Form I-765 within 90 days. Customers are advised to attend all appointments, including biometrics appointments, and respond promptly to all requests for evidence sent from USCIS. Failure to attend a biometrics appointment, or failure all required documents or information requested by USCIS will delay entitlement to an interim card and may re-start or stop the 90 day period.

DHS Proposes Rule on Expanded Coverage of US-VISIT Program
The Department of Homeland Security (DHS) recently announced a rule proposing to expand processing in the US-VISIT program to an additional number of non-U.S. citizens. The US-VISIT program records biometric and biographic information to verify the identities of foreign visitors to the United States. Most visitors experience US-VISIT biometric collection procedures – digital, inkless finger scans and digital photograph – upon entry to the United States and at visa-issuing posts around the world.

Among those specifically included would be: (1) lawful permanent residents of the United States (LPRs); (2) individuals entering the United States who seek admission on immigrant visas; and (3) individuals entering the United States who seek admission as refugees and asylees; and (4) individuals paroled into the United States. The proposed rule is expected to further improve public safety and national security, as well as ensure the integrity of the immigration process. The new regulations are not yet effective, and a final rule will establish an effective date.

USCIS Updates Fiscal Year 2007 H-2B Count
The USCIS has recently updated the figures for H-2B petitions counted towards the fiscal year 2007 cap. As of August 25, the USCIS has approved 3,626 new beneficiaries and 612 returning beneficiaries with an additional 4,764 new and returning applications pending, for a total of 9,002 applications either granted or pending.

Please note that the USCIS is maintaining separate counts for new and returning workers despite the fact that the "returning worker" provision of the Save Our Small and Seasonal Businesses Act (SOS) Act of 2005 (which exempts those aliens counted toward the H-2B numerical limit during any one of the three fiscal years preceding the year of the requested start date) is set to expire October 1, 2006. As set out in the above article, since it is uncertain whether this provision will be reauthorized by Congress, the USCIS urges employers to continue to identify and certify workers who qualify as "returning workers" under current law when filing petitions for employment start dates in fiscal year 2007 and 2006.