Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for October, 2008

Pending H-1B Applications Update from VCS

We have received a number of inquiries about H-1B applications which are still pending.  For those with such pending applications at the Vermont Service Center, our information, which is as of October 20th, is that there were 4,345 petitions that were part of this fiscal year’s cap and which were not completely adjudicated.  Of these, 1646 awaited a first look and 1,533 were pending security clearance.

For comparison, as of mid-September, the numbers were 6,344 petitions pending, of which 2,245 untouched and 2,079 were under security review.  According to these numbers, it seems that the Vermont Service Center has adjudicated approximately 2,000 petitions in a month.  This means that if the current rate of adjudication remains stable, there will be some H-1Bs pending until Christmas.

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PERM Fiscal Year 2008 Statistics

The Department of Labor’s (DOL) Office of Foreign Labor Certification has released its October 1, 2007 to September 30, 2008 (FY’08) statistics on PERM processing.  Although these are statistical estimates and not official results, the numbers are expected to be very close to the final official numbers.  We wrote about PERM’s FY’08 mid-year statistics in April.

There were approximately 90,039 PERM applications received throughout FY’08.  Of them, the vast majority, 84,876, were electronic submissions and only 5,163 were mailed in.   DOL completed a total of 61,997 case, of them 49,205 (79%) were certified; 10,729 (17%) were denied; and 2,063 (3%) were withdrawn.

The fact that  therewere more PERM cases filed throughout FY’08 than there were cases reviewed indicates that overall the backlog of PERM cases has increased.  The backlog increased by 28,042 cases during FY’08.  According to DOL, as of September 30, 2008, there are 40,200 active PERM cases, of which 57% are pending final review, 32% are being audited, 8% are subject to reconsideration/appeal.

Unfortunately, the PERM statistics do not seem to indicate relief from the increased PERM processing times.  When originally implemented, the PERM system was intended to have a standard turnaround time of between 30 and 60 days.  Unfortunately, this has grown to 180 days in many regular, non-audited PERM cases.

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Visa Waiver Passport Requirements

With the Visa Waiver Program’s (VWP) recent expansion and the upcoming mandatory use of the Electronic System for Travel Authorization (ESTA) after January 12, 2009, we wanted to review the passport requirements for visa-free travel to the U.S. under VWP.

Passports Issued on or After October 26, 2006.  Any passport issued by a VWP country on or after October 26, 2006, must be an e-Passport which has an integrated computer chip capable of storing biographic information from the passport’s information page as well as certain biometric information.

Passports Issued between October 26, 2005 and October 25, 2006.  Older passports, issued between October 26, 2005, and October 25, 2006, can still travel to the U.S. without a visa, providing your passport has a digital photograph printed on the data page.

Passports Issued before October 26, 2005.  Passports issued before October 26, 2005, can still travel to the U.S. without a visa under VWP if the passport has a machine-readable zone.

Visa Required for All Other Passports.  If the VWP passport does not have any of the requirements described above, the VWP country national would have to obtain a U.S. visa in order to enter the U.S.

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Visa Waiver Program Admits Seven New Countries

President Bush just announced that the Department of Homeland Security has notified Congress that the administration intends to admit seven new countries into the Visa Waiver Program.  The new countries are Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia and South Korea. The exact date of the visa waiver program eligibility for these countries is expected to be announced shortly.

About the Visa Waiver Program

The Visa Waiver Program (VWP) is a program of the United States of America which allows citizens of specific countries to travel to the US for tourism or business for up to 90 days without having to obtain a visa.

To be eligible for a visa waiver under the VWP, the traveller seeking admission to the U.S. must be a citizen of a country that has been designated by the Attorney General, in consultation with the Secretary of State, as a “program country”. Permanent residents of designated countries do not qualify unless they hold a citizenship of another designated country. The criteria for designation as program countries are specified in Section 217 (c) of the Immigration and Nationality Act (Title 8 U.S.C. §1187). The criteria stress passport security and a very low nonimmigrant visa refusal rate: not more than 3% as specified in Section 217 (c)(2)(A) of the Immigration and Nationality Act, as well as ongoing compliance with the immigration law of the United States.

The full list of VWP countries, taking into effect the new seven countries is as follows:

  • Europe: Andorra, Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France (including French overseas territories), Germany, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, the Netherlands, Norway, Portugal, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom;
  • Asia: Brunei, Japan, Singapore and South Korea; and
  • Oceania: Australia and New Zealand.

As a reminder, citizens of all VWP countries traveling must register using the new Electronic System for Travel Authorization (ESTA). Registration is optional until January 12, 2009, when it becomes mandatory and a VWP traveler may be denied entry in the U.S. under the VWP if he/she has not registered using ESTA.

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TN Visa Period Extended to Three (3) Years

USCIS has announced that the maximum period of time a TN visa holder can remain in the U.S. from one (1) year to three (3) years.  The TN initial period is now equal to the three (3) year initial period of admission granted to H-1B holders.

About the TN Visa

The TN nonimmigrant classification is visa category available to eligible Mexicans and Canadians ith at least a bachelor’s degree or appropriate professional credentials who work in certain qualified fields pursuant to the North American Free Trade Agreement (NAFTA). Qualified professions identified within NAFTA include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.  There is no annual cap for the TN visa and during fiscal year 2006, there were a total of 74,098 TN admissions into the U.S.

About the Three-year Extension

This improvement to the TN nonimmigrant category was initially announced by Homeland Security Secretary Michael Chertoff and Department of Commerce Secretary Carlos Gutierrez on Aug. 10, 2007 and we wrote about the proposed rule in May.

One of the biggest criticisms of the TN visa’s one (1) year period was the continuing need to travel in and out of the U.S. to obtain extensions.  This has caused a great deal of lost productivity and inconvenience for employers and employees alike.  This final rule will ease administrative burdens and costs on TN workers. It will also benefit U.S. employers by increasing the amount of time TN nonimmigrants will be able to work for them before having to seek an extension of status. Spouses and unmarried minor children of TN nonimmigrants in their corresponding nonimmigrant classifications will also benefit from the new regulation.

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November 2008 Visa Bulletin – Slow Forward Movement

The November 2008 Visa Bulletin is out.  There are no surprises, although for many foreign nationals, who have an employment-based petition filed and pending, the update would not bring much joy.

If we could sum the results of the November 2008 Visa Bulletin, it would be “slow forward movement.”  According to the State Department (which is responsible for issuing the Visa Bulletin),  the high demand being received from USCIS for employment-based immigrant visas indicates that they have a significant amount of cases with priority dates that are earlier than the established cut-offs.   This is likely to result in slow forward movement of the cut-off dates for most employment-based categories during the next few months.

The Results

EB-1.  Employment-based first category (EB-1) is current for all countries.

EB-2 is current for all countries except China and India.  EB-2 China moved by two (2) months, from April to June 2004.  EB-2 India moved by two (2) months, from April to June 2003.

EB-3 China moved forward by four (4) months from October 2001 to February 2002.  EB-3 India moved forward by three (3) months, from July 2001 to October 2001.  EB-3 for the rest of the world (except Mexico and Philippines) moved forward  by four (4) months, from January to May 2005.

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H-1B Fraud Analysis

The USCIS has produced a fraud audit and compliance assessment report which aims to analyze the level of potential fraud, misrepresentation or lack of compliance in H-1B visa filings.

The Sample

To conduct the analysis, USCIS took a random sample of 246 H-1B petitions (out of a total of 96,827) which were filed, approved, or pending between October 1, 2005 and March 31, 2006. Although the sample is fairly small, according to the USCIS, the sample should be sufficient to provide a 95 percent confidence level, a margin of error 5 percent and rate of occurrence of 20 percent.

Factors

The USCIS then reviewed each one of the 246 H-1B petitions for certain factors such as ability to pay the posted salary, existence of the employer, relationship between employer and beneficiary, adequate experience or beneficiary, existence of duplicate filings, discrepancies in filings and supporting paperwork and others.  Immigration officers reviewed each of the 246 H-1B petitions, visited the employment site and interviewed the employer.

The Results

In our opinion, the results are fairly striking.  USCIS reports that there were 51 cases (21%) that were confirmed as representing fraud, a technical violation, and/or multiple technical violations.  USCIS has stressed, however, that not all of these 51 violations would rise to the level sufficient for criminal prosecution.  The 51 cases are broken down as follows: fraud – 33 cases, or 13.4% and technical violations – 18 cases, or 7.3%.

Upon further review, it appeared that 19% of the H-1Bs which were already reviewed and approved by USCIS turned out to involve fraud.   Out of the premium processing cases pending or approved, 17% involved fraud.

Most Common Problems

The most common problems, either in terms of fraud or technical problems, are listed below.  This should serve as a helpful checklist for anybody who files H-1B petitions.

  • job location not listed on the I-129 petition and on the LCA (55% of all violations);
  • beneficiary not receiving the prevailing wage or being “benched” (27% of all violations);
  • fraudulent or forged documents (20% of all violations);
  • shell business/no bona fide offer of employment (14% of all violations);
  • job duties significantly different from position description on LCA and I-129 petition (12% of all violations);
  • misrepresentation of H-1B status by beneficiary (6% of all violations); and
  • beneficiary paid the ACWIA fraud prevention fee (6% of all violations).

Our Thoughts

While we were somewhat surprised by some of the numbers in the USCIS report, it seems that USCIS will start focusing on those areas identified in the report.  Any legal practitioner who routinely files H-1B petitions should be aware of the problem areas identified in the report, but we are also somewhat surprised by the level of violations deemed to be fraud – 14% of all H-1B petitions reviewed in this study.  While 80% of the fraud or technical violations were uncovered during a site visit, it is important to understand that H-1B adjudicators will certainly focus on the problem areas identified in the report.

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EB-5 Investor Visa Regional Center Pilot Program Extended

About the EB-5 Visa and Regional Centers

Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise (generally of at least $1 million).  Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving an CIS-designated “Regional Center.”

The Regional Center program was established by Congress as a pilot program to determine the interest of foreign investors, in exchange of a green card, in specific investment areas, determined by the U.S. government, which are in need of investment capital and development.  The general requirement of $1 million investment is lowered by half, to $500,000, for such Regional Centers.

A Regional Center is generally set up and run by a third party, that allows the prospective foreign national to invest $500,000 (in an economically depressed area in the US), but not have to be involved in the oversight of the investment nor the job creation. The Regional Center personnel are set up to create 10 new jobs on behalf of the investor and are involved in the day to day operations of the whatever investment vehicle that they are overseeing.  The Regional Center program thus allows foreign investors to obtain the benefit of their investment, receive a green card, and not have to be involved in the day-to-day operations of their U.S.-based business.

Extension of the Regional Center Program

The Regional Program is a temporary program, which was scheduled to expire on September 30, 2008.  However, Congress has extended its expiration through March 6, 2009.    This is only a short extension to allow Congress time to debate and discuss the future of the program.

The U.S. House of Representatives has passed the bill authorizing the extension of the Regional Center program, but the Senate has yet to review it as of the time of this writing.  It then has to be signed by the President into law.   However, in the meantime, the EB-5 program has been authorized by a stop-gap resolution signed by the President.

Fiscal Year 2008 Regional Center Statistics

To support the popularity of the Regional Center program, USCIS recently releases statistics on EB-5 and the Regional Center EB-5 visas.  During Fiscal Year 2008, there were:

  • 12 new EB-5 regional centers were approved;
  • 1017 Forms I-526, Immigrant Petitions for Alien Entrepreneur filed; and
  • 350 Forms I-829, Petitions by Entrepreneurs to Remove Conditions filed.

These numbers suggest some very good news for foreign EB-5 investors who seek to obtain a green card – while Congress is designating more and more new Regional Centers, there are still plenty of investor visas available to fill the annual cap of 10,000.

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DV-2010 Green Card Lottery Opens

The annual green card lottery, DV-2010, opens today at noon eastern time.  The deadline for submission is noon, eastern time, on Monday, December 1, 2008.   Although early application does not increase the chances of being selected, we have seen in the past years the lottery site overloaded with web traffic in the last days or hours of the period so we urge early application.

The annual Diversity Visa program makes visas available to persons meeting the simple, but strict, eligibility requirements. A computer-generated, random lottery drawing chooses selectees for Diversity Visas. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the U.S. over the past five years. Within each region, no single country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2010, natives of the following countries are not eligible to apply:  BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, PERU, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM.

Full instructions and application form can be found on the DV-2010 website.

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