Copland and Brenner

Table of Contents

1. USCIS Amends Name Check Policy
2. 2008 Poverty Guidelines Updated for Form I-864
3. Biometrics (and $80) required for Certain I-131 Applications
4. DOL Amends Non-Electronic Filing Instructions

1. USCIS Amends Name Check Policy

   By an Interoffice Memorandum dated February 4, 2008, U.S. Citizenship and Immigration Services (“USCIS”) revised its policy regarding the name check required of applicants for certain immigration benefits, including adjustment of status. Some applicants have been subjected to delays of several years in otherwise approvable cases, and the change in policy is long overdue.

   First, a little background. As explained in a USCIS Interoffice Memorandum dated December 21, 2006, definitive name checks are required of applicants in several contexts, to ensure that immigration benefits are provided only to eligible applicants (AILA InfoNet Doc. 07022660). Name checks are required in connection with the filing of Forms I-485 (adjustment of status), I-589 (asylum), I-601 (waiver of grounds of inadmissibility), I-687 (temporary resident), I-698 (adjust from temporary to permanent resident), and N-400 (naturalization). A name check is required of all applicants using the above forms who are 14 years of age or older at the time of adjudication; for Form I-485 there is also an upper age limit of 80 years of age. A name check is also required for Form I-192 (advance permission to enter as a nonimmigrant) if filed with USCIS.

   Name checks involve a search of FBI administrative and investigative files, and are performed using an applicant’s name and date of birth as listed on the application. According to the December 2006 Memorandum, “[n]ames are searched in a multitude of combinations, switching the order of the first, middle, and last names, as well as combinations of just the first and last names, first and middle names, etc. (this is referred to as an ‘around the clock’ search). Through this process, the FBI automatically repositions the names submitted and the check will match against the primary name on record as well as any aliases.” In addition, a “name check automatically includes a phonetic search and retrieves records with similar spelling variations (e.g. Rodriguez = Rodrigues),” as well as “an automatic variation on the [date of birth] that is submitted.”

   As described in the DHS Office of Inspector General’s report in November 2005 ( A Review of U.S. Citizenship and Immigration Services’ Alien Security Checks ), one problem with the process is that “name-based checks are only as accurate as the supporting biographic information used to conduct them” (AILA InfoNet Doc. 05121361). The other problem is that some name checks are not performed to conclusion for a period of years : “[f]or one percent [of the USCIS submissions], the FBI takes more than six months to compile the hit information and verify that the initial hit matches the identity of the applicant.” Since one goal of the name check requirement is to protect the national security by identifying evildoers, delays that extend for years in some cases are ironic to say the least.

   USCIS discussed name check delays in the context of naturalization applications in another Interoffice Memorandum, dated April 25, 2006 (AILA InfoNet Doc. 06051164). In a tortured description of court decisions in class action lawsuits involving naturalization delays, the Memorandum states that, “[n]ot surprisingly, even when such lawsuits are brought, courts have not been approving the naturalization applications of applicants whose background checks have not been resolved. A few courts facing four-year old cases have given USCIS and FBI a deadline within which to complete the check, but the government has been able to complete the process within the court ordered deadline .” (emphasis added) In other words, when a judge establishes a deadline, the government agencies will finally act.

   Under the February 4, 2008 Interoffice Memorandum, protracted delays will be a thing of the past for many applicants (other than naturalization). In accordance with the Memorandum, for cases involving Forms I-485, I-601, I-687 and I-698, "USCIS will continue to initiate FBI name checks when those applications are received. Where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687 or I-698 and proceed with card issuance. The FBI has committed to providing FBI name check results within this timeframe." (emphasis added)
   

2. 2008 Poverty Guidelines Updated for Form I-864

   Last month, we reported that the U.S. Department of Health and Human Services (“HHS”) had updated its annual “poverty guidelines” on January 23, 2008. As of last month’s edition, however, USCIS had not yet updated its online Form I-864P regarding the 125 percent multiple that applies to immigration matters where Form I-864 (the contractual affidavit of support) is required. As of March 1, 2008, however, the new guidelines went into effect for immigration purposes.

   As we predicted, under the updated Form I-864P the annual income for a household of two within the 48 contiguous states is now $17,500 (an increase of $388 over last year). A household of three will require $22,000 (an increase of $538). For each additional household member, the annual income amount increases by $4,500. Higher figures apply to residents of Alaska and Hawaii. Generally stated, the new figures apply to most family-based immigration matters and certain employment-based cases. The updated Form I-864P is found online at http://www.uscis.gov/files/form/I-864P.pdf.

3. Biometrics (and $80) required for Certain I-131 Applications

   On March 5, 2008, USCIS issued revised instructions for its Form I-131, to require that any applicant seeking a reentry permit or refugee travel document be fingerprinted - effective immediately. The I-131 form is also used by applicants seeking advance parole; however, they are not subject to the fingerprint requirement. This is presumably because advance parole is based upon a pending adjustment of status application, for which biometrics must already be captured.

   The new I-131 instructions bear the annotation “(Rev. 02/26/08)Y” in the lower right hand corner. The updated form bears the same notation, although previous editions are currently accepted for filing. In the USCIS update that announced the change, the agency noted that “if applicants require expedited processing, the instructions provide specific information for submitting pre-paid express mailers with the I-131 for USCIS to send the applicant his or her receipt and ASC appointment notice, as well as the completed Re-entry Permit or Refugee Travel Document, if approved. A request for expedited processing should contain the applicant’s reasons for such processing.”

   The amended instructions provide that “[1]f you are between age 14 through 79 and you are applying for a Refugee Travel Document or Re-entry Permit, you must be fingerprinted as part of USCIS biometric services requirements. After you have filed this application, USCIS will notify you in writing of the time and location where you must go to be fingerprinted. If necessary, USCIS may also take your photograph and signature. Failure to appear to be fingerprinted or for other biometric services may result in a denial of your application. All applicants for Re-entry Permit and/or Refugee Travel Documents between the ages of 14 through 79 are required to pay the additional $80 biometric fee. ” (emphasis added)

   The complete instructions may be found on the USCIS web site (www.uscis.gov) by clicking on “Immigration Forms,” or by pointing your browser to the instructions page at http://www.uscis.gov/files/form/I-131instr.pdf.

4. DOL Amends Non-Electronic Filing Instructions

   By notice in the Federal Register on March 5, 2008, the Department of Labor announced “administrative changes” regarding filing locations for non-electronic applications under its permanent and temporary labor certification programs. The new rule will be effective on June 1, 2008, and beginning June 16, 2008 applications and attestations filed non-electronically with the incorrect DOL office “will be returned to the filer for proper submission. ”

   As of June 1, 2008, employers filing non-electronic applications for permanent foreign labor certification under the so-called PERM program (including those for immigrant professional athletes) must mail their applications directly to the National Processing Center (“NPC”) located in Atlanta, Georgia. Employers filing under the temporary program for D-1 crewmembers performing longshore activities must file with the Chicago, Illinois NPC.

   Generally, employers filing Labor Condition Applications (“LCA”) for H-1B , H-1B1 and E-3 temporary workers must continue to file electronically using the online system at http://www.lca.doleta.gov. However, effective June 1, 2008, employers with physical disabilities must file their LCA’s directly with the Chicago NPC, but only if authorized by the Office of Foreign Labor Certification. Employers filing under the program for H-1C nonimmigrant nurses must likewise file directly with the Chicago NPC.

   For employers filing labor certification applications for temporary H-2A workers , the applications must be filed concurrently with the Chicago NPC and the State Workforce Agency (“SWA”) serving the area of intended employment. When a fixed-site employer has one or more worksites in the same area of intended employment, and that area lies in the jurisdiction of more than one SWA, the application must be filed concurrently with the Chicago NPC and the SWA in the state where the work will begin.

   In the H-2B program, only applications for emergency boilermakers and professional athletes must be filed directly with the Chicago NPC effective June 1, 2008. However:
   - most other employers must continue to file applications with the SWA serving the area of intended employment – unless the employer has one or more worksites in the same area of intended employment and that area lies in the jurisdiction of more than one SWA. In those cases, the employer may file a single application with the SWA in the state where work will begin.
   - for H-2B loggers , employers must file applications for temporary H-2B employment with the appropriate SWA in Maine, New Hampshire, New York or Vermont.
   - H-2B entertainers , employers must send applications to the SWA Offices Specializing in Entertainment in Austin, New York or Sacramento.
   - for all applications filed on or after June 1, 2008 in each of the foregoing H-2B categories, the SWA must send the completed applications to the Chicago NPC.

   As of June 1, 2008, requests to withdrawal applications under PERM must be filed with the Atlanta NPC, and all requests for withdrawals of LCA’s, labor certifications for H-2A or H-2B, or H-1C attestations that cannot be made electronically must be submitted to the Chicago NPC.

   The Supplementary Information to the notice states that its purpose “is to update the filing instructions for labor certification applications in the permanent and temporary labor certification programs, in light of the Department’s continuing efforts to make its processing of applications as efficient and effective as is appropriate ” (emphasis added). The notice also states that it will “improve customer service that reduces confusion with respect to where permanent and temporary labor certification applications should be filed.” Based upon the changes that will take effect June 1, it appears that reduction in confusion, as well as “appropriate” efficiency and effectiveness, mean something entirely different to the DOL than they are likely to mean to most U.S. employers.

   In the real world, and particularly for the many employers who are not regular readers of the Federal Register , the changes are more likely to be characterized as random, onerous and burdensome, with punitive consequences. Whatever one's view, the DOL has spoken and its notice can be accessed at the Federal Register online, at http://www.access.gpo.gov/su_docs/fedreg/a080305c.html.