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Update From The AILA 2006 Annual Conference On Immigration Law

by Elizabeth T. Reichard

Representatives from our firm participated in the AILA 2006 Annual Conference on Immigration Law in San Antonio, Texas from June 21 – 24, 2006. The following provides updates on some of the “hot topics” addressed on the morning of June 22.

The Latest in Comprehensive Immigration Reform

The House and the Senate immigration reform bills were sent to Conference Committee to negotiate a compromise and obtain consensus on a final bill. The Conference Committee is unlikely to meet about this any time soon. Earlier this week, House leadership announced that it will hold field hearings throughout the country to assess public opinion on immigration reform. This was a strategic move made by the House to build momentum against to the Senate bill. These hearings will likely lead to a legislative stalemate. Those supporting the Senate bill need to counter these hearings and reinvigorate the momentum that existed in March, April and May of this year.


On April 1, 2006, the USCIS instituted “bi-specialization” procedures for I-140 and I-129 filings. No longer are all four service centers processing both I-140 and I-129 filings. Henceforth, all I-129 petitions will be processed by the Vermont and California Service Centers, and all I-140 petitions along with concurrently filed application will be adjudicated by the Nebraska and Texas Service Centers.

Concerns have been raised about the I-140s being processed by the Nebraska Service Center (NSC). The NSC has a reputation for its higher (and to many, its erroneous) standard used to determine foreign educational equivalents in EB-2 and EB-3 cases. The NSC has taken the position that a degree must come from a single source. So, if an individual has a three year Bachelor’s from the University of Bombay and a one year advanced diploma from Aptech Institute, that combined education will not equate to a four year U.S. degree. AILA has heard these concerns and is working with the NSC to resolve this issue.

H-1B Cap

On May 25, 2006, USCIS announced that 12,000 H-1B visas were still available, leading practitioners, employers and employees to think there were a few more days to submit H-1B petitions. On June 2, 2006, however, USCIS announced that the H-1B cap was filled on May 26, 2006.

How could this happen? Did USCIS really receive 12,000 applications overnight?

According to the USCIS, this “mix-up” was the result of bi-specialization. Under bi-specialization, all I-129 petitions are filed with at the Vermont Service Center and are processed either there or in California. Because the VSC was the designated receipt center for all H-1B filings, its mailroom was overwhelmed with filings. This delayed the data entry process. As such, the May 25, 2006 announcement only included the applications that had already undergone data entry. It did not include applications received in the mailroom and awaiting data entry.

Many have asked if Congress is considering an increase to the H-1B cap. The Senate bill includes the “Skill Bill,” which will provide H-1B relief. Unfortunately, however, it appears as if there will be a stalemate on this bill, making it unlikely that the cap will be increased this year.

Final Rule about Affidavits of Support has been published

A final rule was published in the Federal Register regarding I-864, Affidavits of Support. The regulation will take effect on July 21, 2006. It provides that the household income to be considered will be that which was gained in the year that the application was filed. The Adjudicating Officer will not consider the income at the time of the decision unless the application has been pending for more than one year. In that instance, discretion can be used and later income can be considered. Please note, however, this discretion will typically be used when the sponsor’s income is in question.

Other noteworthy changes under this regulation include the creation of an I-864 EZ form, which considers only the income of the sponsor and not other assets, and the requirement that only one year and not three years of tax returns must be submitted.

Enforcement/Raids on Employers

The US Immigration and Customs Enforcement (ICE) asserts that it has no tolerance for corporations harboring undocumented aliens in its workforce. Employers should be on guard for raids.

Also, in light of the fact that the White House has commissioned the National Guard in the patrolling of US Borders, there will be an expansion of detention facilities near the border that will assist with expedited removal.

Proposed Rule on No-Match Letters

ICE proposed a rule to amend the regulation with respect to legal obligations of an employer upon receiving a no-match letter from the Social Security Administration (SSA) or the Department of Homeland Security (DHS). The rule adds two examples of situations that may lead to a finding that an employer had constructive knowledge to the current regulation’s definition of “knowing” hire of an unauthorized alien if the employer does not take reasonable steps to rectify the situation. These additional examples include: (1) the employer receives written notice from the SSA that the combination of name and social security account number submitted to the SSA for an employee does not match agency records; or (2) the employer receives written notice from the DHS that the immigration status documentation or employment authorization documentation presented or referenced by the employee in completing the I-9 form was not assigned.

Attorney General’s Study on Quality of Immigration Courts

AILA is cooperating with the Attorney General’s Office in its review of abuses made by Immigration Judges. The Attorney General’s Office is conducting a study in response to the many criticisms pertaining to the quality of decision making in these courts. AILA is making recommendations in the following areas: case completion, affirmance without opinions, lack of clerical support for judges, lack of a judicial code of ethics, and interpretation process.

Ombudsman Asylum Proposal

In March, the Ombudsman put out a proposal regarding asylum enforcement. In the name of efficiency, the proposal seeks to end the process for filing affirmative asylum cases by those who do not have valid non-immigrant status, and place their asylum cases in Immigration Court. The NGO community and AILA has vehemently opposed this proposal. Earlier in the conference, Dr. Emilio Gonzalez, the new Director of USCIS, also indicated that the USCIS opposes the Ombudsman’s proposal.

Missing 45-Day Letters

There has been a concern about labor certification cases closed by the Department of Labor for failure to receive responses to 45-day letters. After the American Immigration Law Foundation (AILF) wrote a demand letter threatening to sue, the DOL has indicated that it will reopen cases where the response was submitted, but has somehow been lost by the DOL. The DOL has also indicated that it reopen cases in instances where the employer and the attorney did not receive the 45-day letter.

What is happening with the K-1 Visas?

Approximately 1,100 K-1 Fiancé petitions have been recalled. These cases cannot be processed due to the new requirements established by the International Marriage Brokers Act. The cases are being sent back to the Department of Homeland Security until all of the requirements (both security and documentary) are fulfilled.

New Interpretations for the L-1B Blanket Petitions

The State Department has changed its position regarding whether an applicant for an L-1 visa under a blanket petition filed prior to June 6, 2005 is required to demonstrate six or twelve months of employment abroad. The DOS is now taking the position that only applicants who have already been granted L-1B visas based upon six months of experience with foreign entity will be grandfathered under the new law. All new applicants must show twelve months of experience, regardless of when the blanket was filed.

This article originally appeared on on June 23, 2006.

About The Author

Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C, where she practices primarily in the area of immigration law. She is a graduate of the College of the Holy Cross and Case Western Reserve School of Law, where she was the Editor-in-Chief of the Journal of International Law. Ms. Reichard is the Secretary of the Board of Trustees of International Partners in Mission, an international non-profit organization working to empower women, children, and youth. She is admitted to the bar of the State of New York. The views express in this article do not necessarily represent the views of International Partners in Mission.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.