Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for September, 2008

H-1B Petitions Remain Unadjudicated Before October 1

October 1 is exactly one week away, and there are many H-1B applicants who have already had their petitions approved and are waiting eagerly the start of their H-1B period.  However, there are a number of applicants who have been picked in the lottery but have not yet received anything from USCIS regarding their H-1B application.

The USCIS has released some numbers showing the status of H-1B adjudications.   Under the regular cap, USCIS accepted 71,000 petitions and under the master’s cap, USCIS accepted 22,000 petitions.  As of September 17, 2008, 59,100 petitions under the regular cap have been approved and 9500 remain pending. 19,500 petitions under the master’s cap have been approved and 2100 remain pending. This accounts for 92% of the regular cap allotment being reached already and 97% of the master’s cap.

95% of the regular cap petitions have been touched and 94% of the master’s cap petitions have been touched. That leaves 3500 petitions untouched for the regular cap and 1400 untouched for the master’s cap. USCIS expects to get to all of them shortly, but it may not be by October 1.

These numbers should provide some comfort to those who have not yet received their H-1B approvals, but they should be aware that USCIS will most likely not be able to process all of these untouched 5,900 petitions  before October 1.

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Statistics on U.S. Nonimmigrant Admissions for 2007

The Department of Homeland Security has released a report with a number of statistical breakdowns of admissions into the U.S. of nonimmigrants for 2007.  According to the DHS, there were 171 million nonimmigrant admissions into the U.S. in 2007.  The numbers show entries in the U.S. broken down by visa type, port of entry, age and more.

Nonimmigrant Admissions in the United States: 2007

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EADs Pending for More than 90 Days

By statute (8 CFR § 274a.13), USCIS is required to adjudicate all EAD applications within 90 days from the date of USCIS receipt of the application.  However, the spike in employment-based green card applications during the summer of 2007 has brought a somewhat expected wave of backlogs – in the EAD processing.

USCIS allows an EAD application to be filed 120 days before expiration, unfortunately, given current EAD processing delays of 90-120 days, many green card applicants who have used their EADs to switch employers and have their EADs expire are now forced to either reapply for a new H-1B visas and incur a substantial expense or stay out of work until their EAD is renewed.

Here’s what a person whose EAD application has been pending for more than 90 days can do:

Step One.  Call USCIS National Customer Service Center (NCSC) at (800) 375-5283 and record the time/date of he call and the name/number of the customer service representative:

  • Explain to the customer service representative that your EAD has been pending more than 90 days and ask for a “service request.” You should receive a response to your service request within a week.
    OR
  • Ask the customer service representative to request an interim card for you. You should receive an EAD or response within a week.

Step 2.  If you choose to visit a local USCIS office, schedule an INFOPASS appointment to visit that office on www.infopass.uscis.gov. At the appointment, ask to apply for an interim EAD. Note that USCIS local offices no longer issue interim EADs. The local office can review your case and determine eligibility. The local office will forward your request to the USCIS service centers. You should receive an EAD or response within a week.

Step 3.  If you have tried both Step 1 and Step 2 and have still not received your EAD or an interim card, please email the USCIS ombudsman at cisombudsman.publicaffairs@dhs.gov with the details of your efforts.  Please include the date and time of your call to the NCSC and the name of the customer service representative. If you visited a USCIS office, please provide that information. The Ombudsman Office has committed to look into such cases and review how they may be of assistance.

Please do not hesitate to contact our office if you need assistance with EAD renewals or you need any additional information.

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2008 Green Card Lottery Dates Released

Mark your calendars – the DV-2010 lottery (green card lottery) dates have been announced – online applications for the lottery must be submitted between Noon EDT on October 2, 2008 and Noon EST on December 1, 2008.

Although information and instructions have not been posted yet, they should be posted shortly on the Department of State website.

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E-Verify and Students on Curricular Practical Training

Problem:  students on Curricular Practical Training (CPT) are always sent to secondary verification by E-Verify.

From our own practice and from statistics released by the government, it is clear that more and more employers are signing up for E-Verify, some in response to federal or state regulations, some on their own effort to maintain a compliant workforce.  However, as more and more foreign nationals are being screened through the system, we are starting to notice some of the less obvious quirks of the system.

One of those quirks is the fact that F-1 students who have are working under CPT, which is employment that is part of a student’s specified degree curriculum. The Designated School Official (DSO) authorizes CPT for students before they can begin wok by annotating their I-20 in accordance with the 8 CFR 214.2(f)(10)(i). Unlike Optional Practical Training (OPT), no employment authorization from USCIS is needed.

The problem has two parts.  First is the requirement that all E-Verify employers conduct checks on all of ther employees, including students on CPT. The second part is the fact that E-Verify is not connected to SEVIS, the system which maintains the foreign students’ records, including CPT authorizations.  As a result,  E-Verify always sends a CPT student to secondary verification.

The USCIS has responded that even though students on CPT are always sent to secondary verification, such secondary verification should occur within 24 hours, assuming the student’s record can be located in the SEVIS system.    Despite USCIS claims, we urge students on CPT and employers who employ such students to be aware of this quirk in E-Verify and allow extra time for E-Verify screening.

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Citizenship Applications Down 59%

USCIS has released the numbers of citizenship applications filed for the first six months of 2008.  For the period January-June 2008, on average, there were approximately 46,000 citizenship applications each month.  As a comparison, the monthly average for the same period in 2007 was approximately 115,000 citizenship applications.   This marks a decline in the average number of monthly applications of 59%.

The decline is attributed mainly to the higher filing fees.  The citizenship application fee rose from $400 to $675 on July 30, 2007, and prompted many who are eligibleand have been postponing their filing to do so before July 30, 2007.  In fact, July 2007 recorded a record-high 460,000 citizenship applications.  (See chart)

There is some concern that some foreign nationals who are eligible for citizenship are priced out due to the increased filing fee.  USCIS defended the increase on the ground that it is necessary to cover processing and security check costs.  USCIS has further stated that it allows citizenship applicants who are not able to afford the filing fee to apply for a waiver.  However, the reality is that there are very few such requests actually made, of which, some are denied.  In July of 2008, there were only 1,578 requests for fee waiver, of which only 1,052 were approved.

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GAO Analyzes the Visa Waiver Program

The Government Accountability Office has released its report on the Visa Waiver Program (VWP) and its implementation and operation by the Department of Homeland Security (DHS).

The report seeks to assess the operation of the program and to analyze DHS’s efforts to expand it.  The GAO report found, among other things that although the government is trying to expand the VWP aggressively by discussing it with a number of countries who are hopeful to join it, there are a number of deficiencies which have created confusion among U.S. government officials who negotiate with candidate countries and has set unreasonable expectations among the countries themselves.

Membership in VWP is granted to countries which have between 3 and 10 percent visa refusal rates and which have 97 percent return rate, meaning that 97 percent of the nationals of a particular country who enter the United States must return to the home country.  In order to allow a country to join VWP, DHS must be able to certify that a particular country has 97 percent return rate,.  However, DHS is unable to properly account for those who remain in the U.S. beyond their authorized period of stay.

In addition, for DHS to to maintain its authority to admit certain countries into the program, it must incorporate biometric indicators (such as fingerprints) into the air exit system by July 1, 2009. However, DHS is unlikely to meet this timeline due to several unresolved issues. In addition, DHS does not fully consider countries’ overstay rates when assessing illegal immigration risks in the Visa Waiver Program.

The GAO report goes into great detail in outlining DHS’s performance under the VWP.  It is a helpful read for anyone who is interested or affected by the Visa Waiver Program or the Electronic System for Travel Authorization (ESTA).

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October 2008 Visa Bulletin – EB-2 and EB-3 Retrogress

The October 2008 Visa Bulletin is out.  Unfortunately, it does not bring much, if any, good news.  The most important change in October 2008 is the retrogression of EB-2 India and EB-2 China.   Based on predictions of the demand of these categories, the cutoff dates have been moved, effective October 1, 2008, as follows: for EB-2 China – from August 2006 by more than two years, to April 2004; for EB-2 India – from August 2006 by more than three years, to April 2003.

This significant retrogression for EB-2 China  and EB-2 India means that employment-based petitions for these two countries face very significant backlogs.  More importantly, the unavailability of visa numbers for EB-2 India and China means that even fewer highly qualified applicants would be unable to file their adjustment of status (I-485) petitions and avail their families of work and travel authorizations.

As we have discussed throughout the summer, the new fiscal year start on October 1, 2008, “opens” EB-3 categories which were unavailable since June.  The EB-3 category also brings bad news.  EB-3  China retrogressed from March 2003 in June to October 2001 now.  EB-3 India retrogressed from November 2001 in June to January 2001 now.  Finally, EB-3 Worldwide retrogressed from March 2006 in June to January 2005 now.  This means that a large number of EB-3 petitioners would remain pending for at least a significant period of time.

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FBI Aims to Streamline Delays Due to Name Checks

This week brought some good news from USCIS and FBI regarding the significant decline in the number of pending FBI name checks for individuals seeking immigration benefits in the U.S.   We have a number of clients who are directly impacted of such FBI security delays and we have heard numerous stories about significant processing times.  For such applicants, this piece of news should provide some comfort.

According to the numbers released by USCIS:

  • There were 269,943 name checks pending on May 6, 2008. There are 95,449 pending as of August 12, 2008; and
  • There were 185,162 name checks pending for more than six months on May 6, 2008. There are 61,817 pending more than six months as of August 12, 2008.

One of the reasons for the delays and the improvement in processing is the surge in applications in the summer of 2007.  The USCIS and FBI are slowly progressing through this surge of applications and, as a result, should be able to adjudicate security checks and the corresponding applications slightly faster in the future.

We will continue to monitor the FBI-caused delays and update as we receive more information.  If you have stories related to FBI name check delays to share with us, please contact us.

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Political Conventions and Immigration

We at the Capitol Immigration Law Group have been following closely the Democratic and the Republican National Conventions, respectively last week and this week, and we were surprised to see that there was virtually zero attention paid to immigration in the speeches and debates on and off the convention floor.

The Republican party was more likely to discuss the issue of immigration, especially in light of some of its members’ proposals to strengthen the border enforcement, go after employers who harbor illegal immigrants and generally opposed to a path to citizenship to illegal immigrants or what they call “amnesty”.   It seems that Senator McCain, who along with Sen. Kennedy (D-MA) authored a bipartisan immigration bill and which bill died in the Senate last year, has become more conversative on this issue and does not, at least in recent public appearances, seem to support the kind of ideas he supported a year or two ago.

In addition to the issue of illegal immigration, there are numerous other immigration-related issues, some of which are supported by  one or the other parties, but again, there does not seem to be much discussion.  There have been a number of groups dedicated to defending the interests of legal foreign workers who follow the legal path to permanent residency but who have been stuck in the system for years without ability to visit their families abroad or to advance their careers.  While some may seem such immigrants as potentially causing some Americans to lose their jobs, studies have shown that many of these highly-qualified foreign employees actually help the economy grow by bringing excellent education and training to the U.S.  Microsoft’s Bill Gates has testified and lobbied Congress on numerous occasions on the need of increasing the work visa quotas and streamlining the processing backlogs which plague the immigration system.

We will continue to follow the discussion of immigration during this political campaign, but given the economy and the Iraq war, we are not optimistic that immigration will take center stage during this political season.  We hope that immigration, even though not politically active topic now, woud be part of the agenda of the next president in January of 2009.

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