Immigration Newsletter
Winter 2010 - Vol 2, Issue 1
In This Issue
Recent Immigration News
In the News: What's Happening at RSL
Ross, Silverman & Levy LLP
59 Temple Place, Suite 605
Boston, MA  02111
Phone: (617) 542-5111
Fax: (617) 542-2331
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PERM Processing Times
Recently we are seeing PERM adjudications from:
April 2009 (Initial Filings)
December 2007 (Audited Cases)

We are quickly approaching that time of year when it is necessary to start thinking about the filing of H-1B cap cases.   CIS will begin accepting FY2011 H-1B cap cases on April 1, 2010.  We'd like to take this opportunity to remind you of some of the changes that occurred over the past year, which impact the timing of filing an H-1B petition, as well as go over H-1B cap gap issues. 


In years past, annual H-1B visa numbers ran out on the first day of filing and less than half of the petitions filed were ultimately accepted.  As you know, this was not the case in FY2010, when the H-1B cap was not reached until December 21, 2009.  We have no way of knowing what this means for this year's cap and when it will be met, so we recommend that you review your personnel records at this time to identify nonimmigrant workers who may need or want to change status to H-1B.  You should also identify any other potential employees or recruits who may require a new H-1B visa, and notify us of these employees or potential employees so that we can begin working on their cases as far in advance of April 1 as possible.


In addition to potential new employees, the primary employees who may request or require H-1B visas in the next fiscal year are those who currently hold F-1 Optional Practical Training (OPT), L-1, or TN status.  Individuals in L-1 status may wish to switch to H-1B because they would then be eligible for further extensions of status beyond the initial six years if pursuing permanent residence within a specified timeframe.  Those employees in TN status who wish to apply for permanent residence should switch to H-1B status because TN status does not allow for dual intent, which means that the individual could face fraud allegations and/or international travel restrictions if s/he applies for permanent residence while on a TN. 


Individuals who are currently on F-1 OPT are in a unique situation.  If the OPT expires during the summer of 2010, those individuals for whom a FY2011 H-1B petition is timely filed will be eligible for what is known as a "cap-gap" extension, meaning the individual's OPT status and work authorization will be automatically extended until the H-1B process is complete and the petition is approved, denied, or rejected.  If the petition is approved, OPT is extended until September 30.  If the petition is denied or rejected, the beneficiary has a 60-day grace period after the denial or rejection date (or the end of the original OPT authorization, if that is later) in which to depart the country or obtain a different status.  Note that, in reviewing your personnel records, you should earmark any individuals with OPT that expires before October 2011 as employees who should be considered for H-1B sponsorship during FY2011.  


In moving forward with FY2011 H-1B cap cases, please keep in mind that the Department of Labor's (DOL) revised Labor Condition Application (LCA) form and certification via the new iCert portal now takes up to seven (7) business days, or longer.  Further, the iCert portal continues to experience glitches, which may further delay the submission and/or certification of an LCA.


As always, if you have any questions, please do not hesitate to contact our office.

Ask RSL 
Many of our clients have I-485 applications for permanent residence which have been pending for many years and are likely to remain pending for some time to come.  We often receive questions regarding such employees' options as the process progresses.  Following are some general Q&As regarding the permanent residence process once the I-485 application is pending:


Q:  I have several employees with pending I-485 applications who have maintained their H-1B status but also wish to continue obtaining EAD and AP documents.  Is this necessary? 


A:   If your employees remain in H-1B status, they can work and travel on their H-1B visas throughout the pendency of the I-485 applications.  However, if they travel abroad and do not have valid H-1B visas in their passports, they will have to go to the appropriate U.S. Consulate to get an H-1B visa stamp.  If, on the other hand, they have AP documents, they can travel abroad without the need to obtain the H-1B visa in their passport.  With regard to the EAD, employees like to have an EAD to protect them in case there are layoffs at companies, in which case their H-1B would not enable them to immediately work for another employer since it is employer- and job-specific.  An EAD grants blanket work authorization, so would allow them to do so.



Q:  Many of my employees are in the EB-3 category, so I try to monitor the State Department's monthly Visa Bulletin.  How is it that sometimes the priority dates in the Visa Bulletin go backwards from one month to the next?  How are the dates for the Visa Bulletin determined?


A:  The allocation of visas is done by projecting the possible use of visas during a given period, based on information provided by Consulates around the world, as well as by USCIS, about the number of pending cases.  Sometimes, the usage outnumbers the projection, in which case the State Department has to retrogress the cutoff date i.e., the numbers go backwards.  Section D of the January 2010 Visa Bulletin contains a detailed explanation of the process for allocating visa numbers via the Visa Bulletin.



Q:  I have an employee who started the permanent residence process in 2005 when he was working as a Software Engineer.  His I-485 has been pending for a few years now, and we'd really like to promote him to manage the department.  Is this allowed?


A:  Under the law, after an I-485 has been pending for more than 180 days, an employee is allowed to change jobs as long as the new job is "the same or similar" occupational classification as the position listed on the underlying labor certification.  There have never been any regulations promulgated for this law, so there is no definitive definition of same or similar.  However, it is generally assumed that if someone is being promoted to a more senior position in the same general job field, it meets that definition.  It is always best to check with the attorney working on the case in advance of a promotion or other change to an individual's position to ensure that the new position will qualify as same or similar. 


On a related note, if the individual has an I-485 pending for a job that falls into the EB3 category, and the new position has requirements that would make it an EB2 case, you may want to consider filing a new PERM case for the employee so that he or she can be moved into the EB2 category.  Unfortunately, there is no way to "convert" an existing EB3 case to EB2, but you could file a new PERM case and, once approved, file a new I-140.  Although you would be starting the EB2 process from the beginning, the employee would be able to retain the priority date from the original EB3 petition.  In many cases, this will allow the employee to be granted permanent residence much more quickly, particularly if the individual is a native of India or China.



Q:  One of my employees who is working on EAD based on a pending I-485 elected to extend the EAD on his own.  I just discovered that his extension hasn't been approved yet and his current EAD expires this week.  Can he continue working after the current EAD expires since the extension is pending?


A:  No.  He must be removed from payroll when the current EAD expires and cannot resume working until he actually receives the new EAD and presents it for I-9 purposes.  Unfortunately, unlike an H-1B extension, the filing of an EAD renewal application does not extend the validity of the original EAD.



Q:  This same employee has filed for an Advance Parole (AP) extension which is still pending.  He intends to travel abroad next week and be gone for a month, and his current AP documents will be expiring in two weeks.  Can he take this trip if he arranges to have someone send him the new AP documents when they're approved?


A:   No, he cannot travel unless he has the valid AP when he leaves the country.  He must have the means to return to the U.S. at the time he leaves.  This can be in the form of AP or a valid visa.



Q:  We have an employee with a pending I-485 who we'd like to temporarily transfer to our office in India.  The assignment would last 2 years.  Is this a problem?


A:   This would not be a problem if the person's priority date is so far in the future that he or she could be out of the country for 2 years and still be able to return before the adjudication of the I-485.  The individual must either be in the position for which the labor certification has been filed, or available to start that position, at the time of the approval of the I-485.



If you have an immigration question which you would like to see included in a future newsletter, please send it to Sally Penney at

Recent Immigration News
New Prevailing Wage System as of January 1


On January 1, 2010, the Department of Labor (DOL) implemented a federalized process for obtaining prevailing wage determinations (PWD).  The processing of all PWD requests has been centralized in the Office of Foreign Labor Certification's National Prevailing Wage and Help Desk Center in Washington DC for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification (PERM) programs.  On January 21, DOL updated the iCert website to allow for electronic submissions of PWD requests.  Such requests must now be submitted using a new form, the Application for Prevailing Wage Determination, Form ETA-9141.  
It is expected that the new form and processing procedures will result in a significantly longer time to obtain a PWD (up to 30 days), so employers must plan accordingly as this may delay the processing of some cases.  Please note that, in the nonimmigrant context, this is the new method for obtaining official PWDs.  Employers may still choose to file H-1B petitions based on other prevailing wage sources, such as the OES database, so long as they are aware that this would not provide absolute protection in the event of a DOL audit. 


USCIS Announces FY2010 H-1B Cap Reached


On December 21, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that it had received sufficient petitions to reach the statutory cap for FY2010.  USCIS is now rejecting cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010.  USCIS applied a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.


If you have identified any employees or potential new hires whom you are considering for H-1B status before October 2010, please contact the attorney you work by phone or email to discuss other possible options or strategies for filing in FY2011. 


In the News: What's Happening at RSL

Wednesday, February 3, 2010:  Jason Levy gave a presentation to students at Lesley University about H-1B visas and other post-graduation options.


Thursday & Friday, February 18-19, 2010:  Sharryn Ross will be speaking at AILA's South Florida Immigration Conference on two topics: Department of Labor (DOL) Now and Enhanced Employer Enforcement Under Obama.


Friday, February 26, 2010:  Jason Levy is serving as the Co-Chair of the 7th Annual AILA New England Immigration Law Conference.  Howard Silverman will be speaking on a panel about Advanced Issues in Litigation.


Friday, March 26, 2010:  Howard Silverman will be speaking at the AILA National Spring Conference in Washington, D.C. on the Immigration & Customs Enforcement (ICE) Enforcement Panel. 

This newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.