Effective June 1, 2007, Cowan Miller and Lederman moved one block west to:

1000 Second Avenue, Suite 1620, Seattle, WA 98104

Our phone and fax numbers will remain the same.

Every month the Department of State issues a visa bulletin to illustrate the availability of immigrant visas for the next month. The bulletin is based upon "priority dates," which are determined by either the filing of a Labor Certification or the filing of an I-140 Immigrant Visa Petition (for cases where a Labor Certification is not required). The waits are particularly long and broad for Indian and Chinese nationals but affect all nationalities in the widely-used Employment Based 3rd Preference (EB3) category. The EB3 category includes petitions based upon Labor Certifications for professional positions not requiring a Master's Degree. Please visit the Department of State website for the Current Visa Bulletin.

USCIS filing fee increases went into effect July 30, 2007. Visit the www.uscis.gov website for current fees.

Change of Address

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You can now file your AR-11 Change of Address electronically! Form AR-11 is the Alien’s Change of Address Card. It must be submitted to an INS address in Kentucky and requires no filing fee. All noncitizens are required by federal law to report ANY change of address during their stay in the United States to the United States Citizenship and Immigration Services within ten days, until such time as they become U.S. citizens. A recent memorandum clearly makes the failure to report an address change a criminal offense. The receipt numbers for any applications pending with USCIS at the time you submit your AR-11 must be noted. If you are waiting on a receipt notice, you should file AR-11 within ten days of moving and then re-file AR-11 once you receive your receipt number. You should keep copies of the AR-11 after submission to document your fulfillment of this requirement.

Form AR-11 can also be mailed to USCIS. The address is:

United States Citizenship and Immigration Services
Change of Address
PO Box 7134
London, KY 40742-7134.

1. U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated H-1B cap for fiscal year 2009. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “U.S. advanced degree” exemption.

USCIS will complete initial data entry for all filings before conducting the computer generated selection process. This may take several weeks due to the high volume of petitions received, and therefore USCIS is not yet able to announce the precise day on which it will conduct the random selection process. Early indications are that the numbers of petitions received are much higher than last year when USCIS received over 120,000 petitions for fewer than 65,000 regular H-1B slots available.

2. On Friday, USCIS issued an interim final rule on Optional Practical Training (OPT). It will allow students with jobs and degrees in Science, Technology, Engineering and Math [STEM] fields to file for a 17 month extension of OPT authorization if a number of conditions are met. The most important condition is that the employer is enrolled in the E-Verify program. This is a complex issue and we will need to talk directly with each company about this development. At the moment, we are reviewing in some depth the rule and the issues it presents to be able to give better advice.

A second part of the new OPT rule is that students on OPT who are selected for the H-1B lottery will be eligible for a bridge until October 1, 2008, without leaving the country. This is the so-called “cap gap.” However, the rule appears to apply only to those who requested a change of the status in the country on the I-129 H-1B petition. As is not unusual for this agency, this requirement ironically appears to disqualify everyone who would benefit from the new rule since those who need the bridge were not eligible to request a change of status in the country to meet the April 1st filing deadline. We will wait to see how the agency wants to sort this out, but we expect there will be some practical solution.

(March 12, 2008) H-1B Visa Lottery

As has been reflected in my last several e-mails the "deadline" for filing for this year's new H-1B visa numbers is April 1, 2008. We are working at full speed to get these cases prepared, to be certain that they are sent out by Federal Express on March 31, 2008. These H-1B visa filings are for employment commencing on October 1, 2008, and depending on the status of each foreign national, are being filed either as a "change of status" into H-1B effective October 1, 2008, or for pick-up at the border or a foreign consular post on or after October 1, 2008. We just need to remind you once again that it is almost CERTAIN that there will be an electronic lottery for these visa numbers. Last year, over 119,000 visa applications were received for less than 65,000 visas available. This year we would expect an even higher number of applications. There are an additional 20,000 visa numbers available for those individuals who possess a Master's degree or higher from a U.S. university, so these applicants are more certain to get a visa number, but there is no guarantee that there won't be a lottery for this category as well. For those of you who are working with us to file some of these new cases, thank you so much for making your responses to our requests for documentation a HIGH priority! Please remember that in the event your case is NOT selected for inclusion, the fees for professional services will not be refundable, as the work will already have been done.

(February 1, 2008) FY 2009 H-1B applications

We sent this message to you a month ago, but it is time to read it again! As many of you know, H-1B is the visa category for temporary professional workers who have Bachelor's degrees or higher (or the equivalent) in specialty fields. There are fewer than 65,000 new H-1Bs available each visa year (October 1-September 30). There used to be over 150,000 H-1B visas available each year, but efforts to raise the number have been stymied in Congress. The limited number of visas is referred to as the "cap." Employers who are nonprofit research organizations, governmental research organizations, or institutions of higher education or related/affiliated nonprofit entities are NOT subject to the cap and need not worry about the numerical limitation. For all other employers, the cap is significant. Please note that the cap does not apply to individuals who are currently in the US working for FOR-PROFIT companies pursuant to H-1B authorization. They have already been counted towards the cap and can be transferred to new employers at any time.

In 2007, for most applicants the cap was reached on the first day new visa applications could be accepted (April 1, 2007), so there was an electronic lottery to determine which applications would be accepted for processing and which would be rejected. The acceptance rate was somewhat higher than 50%. A lottery will very likely be necessary again in 2008 for regular new H-1B applicants. Note that an additional 20,000 H-1Bs are set aside for individuals with advanced degrees [typically Master's Degrees or higher from US academic institutions]. As a result, these individuals were able to apply for approximately three weeks past the April 1st acceptance date in 2007. The application window for these candidates will likely be shorter this year.
Due to the H-1B cap limitations, we must apply for your new H-1B employees on April 1, 2008, and will need to prepare your applications in February and March. At this time, please determine if you have any employees who will need to be transferred to H-1B status and notify us at your earliest convenience. Typically, these include new foreign hires; individuals who are currently employed pursuant to F-1 OPT status whose cards will expire before October 1, 2009; employees who have held TN authorization for a couple of years; and individuals that you would like to hire from non-profit research organizations or universities. If your case is not accepted in the event of a lottery, the government filing fees will be returned. Since all our legal work will have been finished however, the legal fees will not be reimbursed. If you are still interested in hiring the candidate on an H-1B visa the following year, we will consider reducing our legal fees for this service at that time.

(December 11, 2007) New I-9, Proof of citizenship for travel

1. Employment Eligibility Verification: As you are aware, ever since 1986, employers are required to verify the employment eligibility and identity of all new employees (including U.S. citizens) hired to work in the United States. This is done by the completion of the Employment Eligibility Verification form (Form I-9). On November 7, 2007, the Immigration Service issued an updated Form I-9, as well as an updated Employer Handbook containing instruction for the completion of the I-9. Transition to the use of this new form is required no later than December 26, 2007. You do NOT have to redo your I-9s for existing employees, but must use the new form for any new hires and for any required reverifications that occur from December 26, 2007, forward. The new form and employer handbook are available on the Immigration Service website at www.uscis.gov.

2. The Department of Homeland Security recently issued a regulation regarding Social Security "No Match" letters (informing employers when there are mismatches between employees' names and their reported social security numbers) and formalizing what constitutes "constructive knowledge" regarding the "knowing" hire of an unauthorized worker. The implementation of this regulation is currently tied up in Federal Court litigation. However, it is expected that the flaws in this regulation will be fixed by DHS shortly, and that the mass "No Match" letters will be mailed out some time in the spring.

3. With the failure of Comprehensive Immigration Reform earlier this year in Congress, different states are taking matters into their own hands and passing state laws in an attempt to penalize the unlawful employment of those not authorized to work in the U.S. For those of you doing business in multiple states, this represents a growing headache as you attempt to comply with sometimes conflicting state laws - e.g., Arizona's mandate that you use E-verify as of the beginning of next year, and Illinois' prohibition of its use.

The above three points highlight the need for renewed vigilance on the part of employers with respect to their I-9 compliance. Regular and thorough internal I-9 self-audits will go a long way in limiting your company's exposure in this regard. The consistent and uniform implementation of I-9 compliance policies is more critical than ever, as worksite enforcement is clearly something we expect to see more of from the government. Please call one of our attorneys if you have any questions with respect to the new I-9 form or your existing I-9 compliance.

4. Finally, please remember that the next phase of the Western Hemisphere Travel Initiative goes into effect on January 31, 2008. From that date forward, all adult travelers wishing to enter the United States through land and sea ports of entry will be required to present proof of citizenship (such as a birth certificate) and proof of identity (such as a driver's license). Oral declarations of citizenship will no longer be accepted. This supplements the earlier WHTI requirement of passports for air travel.

(November 21, 2007) Holiday Travel and USCIS Processing Times

Many of your foreign national staff utilize the U.S. Consulate in Vancouver to obtain new or renewal visa stamps in the H, L and O categories. In the past, the U.S. Consulate has attempted to return approved H, L, and O visas in two workdays. We have been advised that effective immediately, all consular posts must electronically confirm all NIV petitions prior to visa issuance. This process may take an additional 2 to 3 workdays, creating a minimum 4 workday turnaround for such applicants. We are told that this confirmation is beyond the control of the U.S. Consulates and cannot be waived. Any petition based, otherwise qualified NIV applicant should be prepared to wait 4 workdays in Canada to receive his or her visa in the passport. The same will be true at the U.S. Consulate in the home country of the applicant. There are efforts to speed this up, but in the meantime applicants must expect a 4 work day period, so plan accordingly!

The USCIS has published a final rule indicating that H and L nonimmigrants who are maintaining their H or L status and have any requisite H or L visa, and who are returning from travel abroad who have also applied for permanent residency do NOT need to be in possession of an I-485 receipt notice when they enter the U.S. Previously, without being in possession of this receipt notice, their adjustment application could be deemed abandoned.

Please be aware that USCIS has been swamped with applications this summer. Even getting receipt notices and checks cashed for naturalization applications are backed up over four months. While interviews for naturalization have typically been scheduled in the Pacific Northwest within approximately six months, it is likely that the interview times will be similarly impacted. Backlogs in other visa application categories are likely and make processing times more difficult to predict in the future. Additional advance planning to avoid potential problems with visa issuance is an excellent idea!

TRAVEL DOCUMENTS: Please note that, with the exception of Canadian citizens, your foreign employees must have valid visas or valid Advance Parole travel authorization documents in order to travel internationally. Given that Christmas, Hannukah, and Hajj occur during the month of December, the Consulates and USCIS offices will be unusually busy at the end of the year and consulates may be unable to accommodate travel schedules. Please have your employees apply for visa appointments in the very near future if necessary. Please contact us if you need assistance with visa applications.

NO-MATCH LETTERS: In August, the Department of Homeland Security issued a rule regarding social security "no-match" letters. A "no-match" letter is issued by the Social Security Administration ("SSA") to employers when the SSA is not able to match the name and social security number provided for a specific employee on the employer-issued W-2 Form. The no-match letter can be generated due to factors such as clerical errors or legal name changes. The August rule indicated that such letters can lead to "constructive knowledge" that an employee lacks authorization to work in the United States and enumerated a safe harbor procedure for employers. In early October, a judge granted an injunction against implementation of this rule, but please be aware of the issue and call our office if you receive such a letter. On a similar note, you should periodically check your I-9 forms and ensure that they are being consistently completed.

RECEIPT NOTICES: Hundreds of thousands of permanent residency applications were filed with USCIS during the brief filing window of July - August 2007. Also, filings for all other types of applications exploded prior to the fee increase. Due to this huge volume, the USCIS has been extremely slow and inconsistent in issuing receipt notices. The USCIS has indicated that it will complete receipt notices from adjustment applications filed in early July within the next two weeks. The USCIS has issued an on-line statement at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=82b06a9fec745110VgnVCM1000004718190aRCRD. Please note that we have found that the "update" listed on the website is not terribly accurate. It also means that delays in processing all types of cases are likely. The filing volume is unprecedented, and the USCIS is overwhelmed.

DIVERSITY LOTTERY: Please notify your employees that the Fiscal Year 2009 Diversity Lottery application period has begun. Applications may be submitted electronically between Noon EDT on October 3, 2007, and Noon EST on December 2, 2007. Chances of winning are not terribly high as the process is based on random selection, but it is a relatively simple process which could save considerable time and money. Complete information can be found online at: www.dvlottery.state.gov. Individuals from the following countries are NOT eligible to apply:
Brazil, Canada, China (Hong Kong SAR, Taiwan, and Macao ARE eligible), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, United Kingdom (Except Northern Ireland), and Vietnam.

NATURALIZATION TEST: The USCIS has issued the questions for a revised naturalization test, http://www.aila.org/content/default.aspx?docid=23421, to be administered beginning October 2008.

H-1B CAP: Please note that the filing window for cap-subject H-1Bs will be very brief for the visa year beginning October 1, 2008. Unless there is a change, we must file all applications on March 31, 2008. If you have employees who are currently working for you pursuant to another form of authorization (such as J, TN, or OPT authorization) who require an H-1B next Autumn, please let us know at your earliest convenience. We are keeping a running list. Please note that most employees currently working in the U.S. pursuant to H-1B authorization are not subject to the cap, with the exception of those working for non-profit research organizations who wish to transfer to for-profit companies.