Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for May, 2009

DHS Begins Outbound Fingerprinting at Atlanta and Detroit Airports

Effective May 28, 2009, the Department of Homeland Security (“DHS”) began collecting biometric digital fingerprints from non-U.S. citizens departing the U.S.  We wrote last April about the possibility of exit fingerprinting and it seems that DHS is underway to test the system and to implement it throughout other points of departure from the U.S. within one year.

The outbound fingerprinting is part of a pilot to test program implemented at this point only at Hartsfield-Jackson Atlanta International and Detroit Metropolitan Wayne County Airports.  Non-U.S. citizens leaving the United States from Detroit and Atlanta airports should expect to have their biometrics collected before boarding their flights. U.S. Customs and Border Protection (CBP) officers will collect biometrics at the boarding ate from non-U.S. citizens departing from Detroit; U.S. transportation Security Administration (TSA) officers will collect biometrics at security checkpoints from non-U.S. citizens departing from Atlanta.

The rationale behind outbound fingerprinting is that it would allow DHS “to determine faster and more accurately whether non-U.S. citizens have departed the United States on time or remained in the country illegally,” according to DHS Secretary Janet Napolitano.  It is not clear what measures, if any, DHS would take if, upon outboung fingerprinting, it recognizes that a traveler has overstayed his or her visa or has otherwise engaged in an immigration violation.

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Guidance on H-1B Visas for Health Care Practitioners

A memorandum dated May 20, 2009 by Barbara Velarade provides some guidance to the USCIS Service Centers with respect to the standards for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health care specialty occupation.

Generally, the Velarde memorandum provides two kinds of guidance, one for beneficiaries with a license and one for beneficiaries who do not.  We will review each in turn.

Beneficiaries Who Have a License

According to the memorandum, when the USCIS adjudicator reviews H-1B application where the beneficiary has provided documentary evidence of his or her valid license to practice a health care occupation in the state in which the beneficiary will be employed, the adjudicator should not look beyond the license and should accept its validity on its face.

If the beneficiary has an unrestricted license the adjudicator should approve the petition for up to three years (or the maximum permissible depending on the LCA validity period and other circumstances).  The fact that a license has to be renewed periodically, for example, every year, should not prevent the adjudicator from issuing a 3-year H-1B visa.

On the other hand, if the beneficiary has restricted license, the adjudicator should approve the petition for one year only or the duration of the restricted license, whichever is longer.

Beneficiaries Who Do Not Have a License

Generally, in order to perform a health care occupation, the beneficiary must obtain a license from the state in which the beneficiary will be employed.  If the H-1B petition claims that the beneficiary cannot obtain a license due to the fact that the beneficiary needs to obtain a social security (SSN) card or a valid work authorization document, then the adjudicator is asked to determine the requirements for obtaining license and whether the beneficiary is qualified to perform the specialty occupation.  Additionally, the beneficiary will have to show that he or she (1) has filed an application for license and (2) cannot obtain a full unrestricted license due to the requriements of possessing a SSN card or valid immigration document in the form of a letter from the State Board.

Assuming the H-1B petition is approvable in accordance with the standards set forth in the memorandum, the validity period should be one year.   Subsequent requests for extension must include evidence that the beneficiary has been granted a valid unrestricted license to practice the health care occupation.  Failure to provide such evidence will result in the denial of the H-1B extension  petition.

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FY2010 H-1B Numbers Update (May 26, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Tuesday, May 26, USCIS has received approximately 45,700 H-1B petitions counting toward the 65,000 cap.   USCIS will continue to accept petitions subject to the general cap.   Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, it will continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable.

The numbers, as of May 26th, indicate that there were about 700 H-1B regular cap applications filed for the period between May 17th and May 26th.   As we have indicated in our past H-1B count updates, the rate of new H-1B filings has slowed down substantially over the past several weeks and if the current rate holds steady,  we expect the H-1B cap to remain open for at least few more months.

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General Updates from the Nebraska Service Center

We have received some general updates from the Nebraska Service Center (NSC) and we would like to share them with you as they provide some useful insight into NSC’s operations:

Backlog.  The net overall backlog at the end of first quarter of FY2009 was 250,000 cases; reduced to 87,500 cases by the end of the 2nd quarter of FY2009.  NSC expects that by June 2009 there would be no case backlog.  Additionally, the I-140 backlog was 40,000 in October 2008, as of May 2009 it is down to 10,000.

Receipts.  There has been a notable decrease in receipts in new cases.  There were 80,000 issued in October 2008 while there were less than 40,000 receipts issued in January 2009.  There has been a slight increase since January to about 50,000 receipts per month.  Since receipts have decreased, the adjudicators have been able to catch up and even review cases from other centers.  NSC has been reviewing I-130 from the California Service Center and some standalone I-140s from the Texas Service Center to help reduce the national backlog.

Preadjudicating I-485s.  The EB-485 at NSC has been “pre-adjudicating” cases to try and have them done but-for the priority date being current.  This means that it is possible to obtain RFEs or NOIDs on cases which do not have current priority dates.

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Admission to ESL Program or Community College Not a Reason for Denial of Student Visa

We have been receiving a number of inquiries from prospective clients who are interested in switching to F-1 student visa status using a Form I-20  issued by a English as Second Language (“ESL”) school or a community college.   In our experience, USCIS (if the change of status is requested from within the U.S.) or the Department of State (if the visa application is filed at a consulate abroad) have been very critical towards applicants admitted to attend ESL or a community college in the U.S.

We have seen USCIS deny change of status to F-1 applications on seemingly due to the lesser-known name of the college.  Similarly, U.S. consulates abroad have been denying F-1 visa applications where the foreign student wishes to study at a lesser-known college.  In a specific response to these situations, the Department of State has issued a note which is aimed to remind consular officers that “attendance at a lesser-known college, English language program, or a community college is not, in itself, a reason for refusing a student visa applicant. A student must establish that he/she has a plan for his/her education.”

What this means is that the F-1 visa or change of status applicant must show an educational plan which may include an ESL or a community college but which must, at some point, indicate that the student would transfer to a four-year college or another more advanced school.  According to the Department of State, “a plan that includes initial attendance at a community college or English language program, and then a transfer to a four-year college, certainly is acceptable. Which school a student chooses is not nearly as important as why he/she chose it.”

Considering this guidance, it becomes even more important for the F-1 applicant to be able to tell a story and present an educational plan as part of his or her F-1 visa application process.  This educational plan must be as detailed as possible and must present a clear picture of the applicant’s educational goals and where and how they would be achieved.  Please contact us if we can help you prepare your F-1 visa application.

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When Does Unlawful Presence Start?

USCIS has released a Memorandum, dated May 6, 2009, from Donald Neufeld which Memorandum consolidates prior guidance concerning unlawful presence in the Unitd States.  The Memorandum provides some clear and useful guidance on when does the period of unlawful presence start and what are implications of accruing 180 or 365 days or unlawful presence.

What is the Importance of Unlawful Presence?

Secton 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (the “Act”) renders inadmissible aliens who were unlawfully present for more than 180 days but less than one (1) year, who voluntarily departed the U.S. prior to the initiation of removal proceedings and who seek admission within three (3) years of the date of such depature from the U.S.  Similarly, Section 212(a)(9)(B)(i)(II) of the Act renders inadmissible aliens who were unlawfully present for one (1) year or more and who seek admission within ten (10) years of the date of the alien’s departure or removal.

These are significant bars to entry to the U.S. and it is important to understand what is unlawful presence and the circumstances under which unlawful  presence starts to accrue.  Under the Act, unlawful presence can accrue during any period in which the alien is present in the United States without having been admitted, paroled or after the expiration of the period of stay authorized by the Secretary of Homeland Security.

Important Distinction between Unlawful Status and Unlawful Presence

It is important to draw one very important distinction which, unfortunately, creates confusion (and often, unnecessary worry) among foreign nationals.   Unlawful status and unlawful presence are related, yet separate concept (one must be in present in an unlawful status in order to accrue unlawful presence, but being in unlawful status alone does not necessarily mean that the 3/10 year bans are triggered).

Unlawful presence is defined in Section 212(a)(9)(B)(ii) of the Act to mean that an alien is deemed to be unlawfully present in the U.S. if the alien is (1) present after the expiration of the period of stay authorized by the Secretary of Homeland Security or (2) present without  being admitted or paroled.   On the other hand, unlawful status may mean a violation of a previously valid status.  For example, a F-1 student  who drops out of school is said to be in unlawful status.  However, the alien will not start accruing unlawful presence until immigration judge or USCIS makes a determination that the alien was out of status.

Specific Guidance on When Unlawful Presence Starts

The Memorandum describes some specific situations and provides some guidance on when exactly does the period of unlawful presence in the U.S. start.

For Nonimmigrants Admitted until a Specific Date.  Generally the unlawful presence starts on the day following the date the authorized period of admission expires, as noted on the Form I-94, Arrival/Departure Record.  If USCIS finds, during the adjudication of a request for some immigration benefit, that the alien has violated his or her nonimmigrant status, unlawful presence will begin to accrue either the day after Form I-94 expires or the day after USCIS denies the request, whichever comes first.  Similarly, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or the day after the Form I-94 expired, whichever comes first.   Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated.

Nonimmigrants Admitted for Duration of Status (D/S).  If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied.   Similarly, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or the day after the Form I-94 expired, whichever comes first.  Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated.

Conclusion

Hopefully the Memorandum and our short summary of a few important points would provide some clarity and understanding on the confusion unlawful status and unlawful presence concepts.  It is important to underscore again that falling into unlawful status (as a result of layoff or dropping out of school, for example) does not necessarily mean that the period of unlawful presence starts which (after 180 days) can subject the person to the 3-year ban.

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Current PERM Processing Dates/Times (April 30, 2009)

The Department of Labor has provided an update on the current PERM processing dates as of April 30, 2009.  They are as follows:

  • No audit: November 2008 (a month ago, DOL was processing PERM applications filed in April 2008, this is a significant positive development);
  • Audit: September 2007 (no change from a month ago);
  • Appeal: June 2007 (no change from a month ago).

We have noticed that PERM system improvements and the emphasis on efficiency at the Atlanta PERM center have improved the PERM processing times from approximately 9 months in March 2009 to around 6-7 months as of end of April 2009.

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FY2010 H-1B Numbers Update (May 11, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Monday, May 11, USCIS has received approximately 45,000 H-1B petitions counting toward the 65,000 cap.   USCIS will continue to accept petitions subject to the general cap.   Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, it will continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable.

The numbers, as of May 11th, indicate that there were less than 1,000 H-1B regular cap applications filed for the period between May 4th and May 11th.   We have noticed that the rate of new H-1B filings has slowed down substantially over the past two to three weeks and if the current rate holds steady,  we expect the H-1B cap to remain open for at least few more months.

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H-1B Employer Transfer After I-94 Expiration and “Bridging” of Transfer Petitions

“Bridging” is when successive H-1B portability (transfer) petitions are filed for an alien while the previous H-1B petitions remain pending and while the period on the initial I-94 card has expired.   We have a number of clients who are currently “bridging” their H-1B petitions and in light of the increased number of inquiries, it may be helpful to outline the process.

Most often the questions of “bridging” arise when an employee files an H-1B transfer application from Employer A to Employer B.  While the A->B transfer application is still pending and the Employer A I-94 card has expired, the employee wishes to start work for Company C and as a result, a portability transfer application is filed (B->C).  Under the Aytes Memorandum of December 27, 2005, the employee can start work for Employer C upon filing of the Employer C transfer petition; however, under the “bridging” rule, for the Employer C petition to be approved, every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the employee’s nonimmigrant status (I-94 date) has expired while the A->B or B->C petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.

As a result, if I-94 has expired and if A->B H-1B transfer is denied, then this would cause the B->C H-1B transfer to be denied because the alien’s authorized presence would no longer be supported by the A->C H-1B transfer.

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June 2009 Visa Bulletin – EB-2 India Retrogresses Substantially

The June 2009 Visa Bulletin was released today.  Unfortunately, the only change is the EB-2 India category which changed from February 15, 2004 to January 1, 2000.  All other categories remain unchanged.  Here is a summary of the June 2009 Visa Bulletin:

  • EB-1 remains current across the board.
  • EB-2 remains unchanged for all categories except as noted above for EB-2 India:  EB-2 ROW (Rest of World) is current, EB-2 China remains February 15, 2005, and EB-2 India retrogressed to January 1, 2000.
  • EB-3 is unavailable for all categories.
  • Other worker visa numebers are also unavailable.

In one of the comments to the June 2009 Visa Bulletin, the State Department notes that “applicant demand for numbers, primarily for adjustment of status cases at Citizenship and Immigration Services offices, has been extremely heavy throughout the year.   As a result, visa availability during the final quarter could become limited as categories approach their annual numerical limits.”   At this point, it is not clear whether EB-2 will stay at January 1, 2000 for this month (June 2009) only or it will remain there for a few months due to the extremely heavy EB-2 India visa number demand.

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