USCIS guidance on I-140 issues & labor certifications

US Citizenship and Immigration Services recently provided guidance on (1) determinations of whether a particular employer falls within the definition of INA § 203(b)(1)(B), thus allowing USCIS to grant, if otherwise approvable, a first preference (EB-1) green card petition filed by that employer on behalf of an outstanding professor or researcher in connection with an offer of employment; (2) procedures for determining whether a labor certification has been filed with a Form I-140 (Immigrant Petition for Alien Worker) during its validity period; and (3) various issues relating to labor certification applications approved by the Department of Labor and filed in support of I-140 petitions.

Among other things, the guidance clarifies that government agencies do not qualify as "private" employers for outstanding professors and researchers, and generally do not fit within the definition of § 203(b)(1)(B) unless the government agency is shown to be a US university or institution of higher learning. The guidance notes that government agencies that do not fit the definition under § 203(b) (1) (B) may have other available immigration avenues to offer permanent employment to professors or researchers.

For example, the guidance notes, assuming all of the eligibility requirements for that visa preference category have been met, a government agency may request an "alien of extraordinary ability" green card classification under INA § 203(b)(1)(A).

The guidance also discusses the 180-day validity period for approved labor certifications that have an ending validity date that falls on a Saturday, Sunday, or federal holiday. USCIS said that it will accept the filing of I-140 petitions on the next business day where the supporting labor certification validity period ends on a Saturday, Sunday, or federal holiday.

The guidance is available at http://www.uscis.gov/USCIS/New%20Structure/Laws%20and%20Regulations/Memoranda/*2009%20Me mos%20By%20Month/Sep%202009/AFM%20AD07-26%20Signed.pdf.

USCIS temporarily accepts incorrectly denied LCAs for certain H-1B cases

In August and September 2009, the US Citizenship and Immigration Services (USCIS) ombudsman received complaints about H-1B cases with incorrectly denied labor condition applications (LCA/ETA-9035) filed with the US Department of Labor (DOL).
The ombudsman said that LCA processing delays and errors at the DOL, when coupled with USCIS's current H-1B petition initial filing requirements, "are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions." Untimely H-1B petition filings lead to problems, the ombudsman noted, including: (1) the potential loss of employees' legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas because of the loss of status.

The ombudsman said that USCIS has the authority to mitigate these effects. The ombudsman recommended that USCIS: (1) reinstate its previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with the DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and (2) establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

On November 5, 2009, USCIS announced that it would temporarily accept H-1B petitions filed without LCAs that have been certified by the DOL for a 120-day period, through March 4, 2010. USCIS noted, however, that it will only accept such H-1B petitions if they are filed at least seven calendar days after the LCAs were filed with the DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of the DOL's e-mail giving notice of receipt of the LCA.

Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition, USCIS said. The agency will give petitioners 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs. See http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Nov%202009/Attachment% 20to%20Temporary%2 0Acceptance%20of%20H-1B%20Petitions.pdf.

The ombudsman's report, "Temporary Acceptance of Labor Condition Applications (LCAs) for Certain H-1B Filings," was released on October 23, 2009, and is available at http://www.dhs.gov/xlibrary/assets/cisomb_recomm endation_43_LCAs_October_2009.pdf.

USCIS releases fact sheet on 'public charge' determinations

US Citizenship and Immigration Services has released a fact sheet on public charge determinations. The agency noted that although an individual who is likely at any time to become a public charge is inadmissible to the US and ineligible to become a legal permanent resident, receiving public benefits does not automatically make an individual a public charge.

The fact sheet outlines benefits that could make a noncitizen inadmissible as a public charge if other criteria are met, and also lists benefits that are for special purposes rather than income maintenance and therefore not subject to public charge consideration, such as Medicaid, Food Stamps, the Children's Health Insurance Program, foster care and adoption assistance, job training programs, and emergency disaster relief.

The fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/public_char ge_fact_%20sheet_11_06_09.pdf.

December visa bulletin notes reinstatement of certain religious workers and investor pilot program categories

The Department of State's Visa Bulletin for December 2009 notes that legislation in October extended the employment fourth preference "Certain Religious Workers" and employment fifth preference "Investor Pilot Program" green card categories for three years, through September 30, 2012.

Other employment-based categories generally have not budged since November's Bulletin, with the exception of the India third preference and "Other Workers" categories, which both advanced one month, to May 1, 2001.

The December 2009 Visa Bulletin is available at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4587.html.

Cyrus D. Mehta