Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for June, 2009

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

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Friday, June 26, USCIS has received approximately 44,800 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 June 26th, indicate that there was an increase of about 400 H-1B regular cap applications counted under the cap for the period between June 12th and June 26th (the number, as of June 12th was reported to be 44,400).   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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Increase in RFES – Fact or Fiction?

As part of our regular USCIS-related filings, we receive requests for evidence (“RFES”) on a number of occasions.  Such RFES are standard practice and often are unrelated to the substance of the petition – for example, requesting clear copies of the lastest Form I-94 card.  It is our practice to ensure that each petition filed with USCIS does indeed have all of the documents, in proper format, so that we minimize the amount of RFES we receive on petitions we file on behalf of our clients.

However, there is a fair amount of anecdotal evidence that USCIS has increased the number of RFES it issues on pending cases.  There is some speculation that such increase in RFES is due to the economic slowdown.  Although our office’s direct experience does not confirm such increase in RFES, USCIS has acknowledged that in some specific categories of cases, there is an increase in RFES.

Increase in RFES Related to TARP H-1B Worker Restrictions

USCIS has confirmed that it issued an increased amount of RFES in connection with the cap-subject H-1B filings and in particular with the TARP prohibitions on H-1B employers.   Our clients and readers may remember that shortly before the  April 1, 2009 filing date for FY2010 H-1B applications, Congress imposed H-1B worker restrictions on all recipients of TARP funds (please see our April 15th article on the subject).  As a result, the H-1B forms underwent a last-minute change after many such forms had been prepared (and sometimes, submitted).  As a result, USCIS had to issue RFES on all H-1B applications which used the previous form which did not request information about TARP funds and compliance with the new H-1B worker restrictions.

Increase in RFES Related to Consulting Companies

Additionally, USCIS has  acknowledged that there has been an increase in the RFES issued in H-1B applications concerning 3rd party employers (or consulting companies).  It has been reported that consulting company RFES are generally of the “kitchen sink” type where the USCIS adjudicator would issue a multiple-page RFE and which makes it extremely burdensome for the employer to respond to.  USCIS is expected to release updated guidance on the subject and provide additional clarify as to what are the evidentiary standards in the 3rd party employer cases.  Hopefully such guidance would come soon.

Conclusion

While the increase in the RFES is a fact acknowledged by USCIS, it is important to underscore that the increase is not due to the economic slowdown, a political change in Washington or just unstated government policy to issue denials or somehow protect American worked by denying applications of foreign workers.  We believe that the increase in RFES in the two categories of cases described above is related to a natural operation of USCIS’ guidelines and does not indicate any policy or attitude shift.

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FBI Name Check Backlog Eliminated

USCIS has announced that, in conjunction with FBI, it has met its goal of eliminating the FBI National Name Check Program backlog.

The goal was to achieve a performance (which can actually be sustained going forward) of completing 98 percent of name checks requests submitted by USCIS within 30 days and the remaining 2 percent within 90 days.   USCIS has announced that this performance level will become the standard.

USCIS has noted, however, that any information provided by the FBI through these checks may require further evaluation and may need additional interaction with agencies outside USCIS to obtain updated or additional information. This could result in additional delays in processing and is not governed by the processing goals contained in the joint business plan.  There is no estimate on the percentage of such cases in which additional checks (and the corresponding delays) may be expected.

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Memorandum on Equivalency of Foreign Medical Degrees

Donald Neufeld, in a Memorandum dated June 17, 2009 provides some guidance on the equivalency of foreign medical degrees for the purpose of qualifying for the EB-2 category.

A U.S. medical degree is obtained after completing a bachelor’s degree and as a result, a U.S. medical doctor degree is considered to be an advanced degree. In many other countries a person may be admitted to medical school directly out of high school. In these instances the program of study for the foreign medical degree is longer in length (generally 5-7 years in duration) than is required for a less specialized foreign bachelor’s degree (generally 3-4 years in duration.) In some countries the name of the degree is “Bachelor of Medicine, Bachelor of Surgery”, and the program of study may involve ONLY medicine, to include some limited basic sciences. A foreign medical degree may qualify as the equivalent of a U.S. MD degree and thus an advanced degree for EB2 purposes if, at the time of the filing of the labor certification application, the following two conditions are met:

1.  The alien beneficiary:

A. Has been awarded a foreign medical degree from a medical school that requires applicants to obtain a bachelor’s degree equivalent to a U.S. bachelor’s degree as a requirement for admission, or;

B. Has been awarded a foreign medical degree and a foreign education credential evaluation is provided that credibly describes how the foreign medical degree is equivalent to a medical degree obtained from an accredited medical school in the United States, or;

C. Has been awarded a foreign medical degree and has passed the National Board of Medical Examiners Examination (NBMEE) examination or an equivalent examination, such as the U.S. Medical Licensing Examination (USMLE), Steps 1, 2 & 3,

2.  The alien beneficiary was fully eligible for the position described on the labor certification application, on the date that it was filed, by establishing that:

A. He or she had a full and unrestricted license to practice medicine in the state of intended employment and continues to hold such an unrestricted license, or;

B. His or her foreign medical degree is shown to meet the medical degree requirements to be eligible for full and unrestricted licensure specified by the medical board governing the place of intended employment.

The Neufeld memorandum further describes requirements for filing a petition for a foreign national holding a medical doctor degree.

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I-140 Premium Processing Service to Resume June 29, 2009

After USCIS suspended temporarily the I-140 premium processing service on July 2, 2007, we have been constantly fielding questions on when the temporary suspension would end.  Over the past few weeks there was increased speculation that premium processing for Form I-140 would resume.   Earlier this week, USCIS confirmed that in fact premium processing for I-140 resumes effective June 29, 2009.

The main reason for the temporary suspension of the I-140 premium processing was the increased volume of I-140 applications in the summer of 2007.  USCIS has now determined that due to its backlog  reduction efforts, it can continue processing I-140s on expedited basis.

Not All I-140s Would Qualify – EB-1(c)  and EB-2 NIW Are Excluded

USCIS  has indicated that not all Form I-140 filings would qualify for premium processing.   The government will accept premium processing requests for Form I-140s involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

Premium processing service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Conclusion

With the reinstatement of premium processing for most I-140s, USCIS provides an important strategic tool for many employment-based green card applicants.  While premium processing for I-140 was available for holders of H-1B status who were in danger of “H-ing out”, the expanded scope of premium processing now allows many petitioners (and their respective beneficiaries) to speed up the I-140 process in order to gain advantage of H-1B 3-year renewal provisions or to generally speed up the processing of one’s green card application.

While upgrading a pending I-140 case to premium processing makes sense in some cases, it is not cost-justified in all cases.  We are happy to consult and help in evaluating the best course of action.

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Various Updates from USCIS

The U.S. Citizenship and Immigration Service (“USCIS”) has provided some updates and insight into their operations and future plans during the annual AILA conference:

  • Premium Processing for I-140.  Some I-140s which were previously eligible for premium processing may be made again eligible.  Expected this summer.
  • H-1B Application Process to be Redesigned.  USCIS is working on reengineering the H-1B application process to go into effect for the FY2011 H-1B filings.  Under the planned H-1B application process, employers will file a petition online with limited information and if the limited-information petition is selected, then the remaining forms and full documentation will be requried to be submitted.
  • Case Resolution Problems.  USCIS has changed the case problem resolution process.  Under the new system, customers are required to call the National Customer Service Center (“NCSC”, at 1-800-375-5283) and make an inquiry.  If the inquiry is not resolved within 30 days, customers may contact the applicable service center by email and provide the date the initial inquiry was made, the referral NCSC number and the ID of the customer service rep.  Email inquiries should be directed as follows:  CSC – csc-ncsc-followup@dhs.gov;  NSC – ils.nebraska@dhs.gov; TSC – tsc.ncscfollowup@dhs.gov; and VSC – vsc.ncscfollowup@dhs.gov.
  • As we reported previously, the Nebraska and Texas Service Centers are pre-adjudicating I-485 adjustment cases.  USCIS reports that as of May 30, 2009, they have pre-adjudicated 110,000 EB adjustment cases and such cases are now awaiting a visa number to be approved.
  • USCIS is in the process of introducing a new I-551 card (the green card) and they are updating equipment for the enhanced features.  As a result, there is a delay in issuing I-551 cards. Field offices are being authorized to issue temporary I-551 stamps in family cases at the conclusion of interviews when the case is approved.   Employment-based I-551s are being issued first as these individuals are not generally interviewed. Employment-based immigrants may obtain a temporary stamp by making an InfoPass appointment.
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PERM Processing Statistics

The Department of Labor (“DOL”) has released some numbers about their pace of PERM processing.

There are about 58,000 applications currently pending of which 54% are under final review, 38% are in audits, 6% are on appeal and the remaining 2% are subject to  employment verification checks or othe.

DOL also reported that cases which are under supervised recruitment have a 25% withdrawal rate, 45% denial rate, 11% certification rate and about 20% remain pending.  Unfortunately, DOL did not report the total number of these cases as of the date of their report.

What Do These Numbers Mean?

Although the number of pending PERM cases is higher than the numbers as of December 31, 2008 (which was 53,200), we expect to see processing PERM times descrease slightly over the upcoming months.   We have written about the cause of the PERM processing delays in the past and it seems that although the overall number of pending cases has not decreased substantially, the processing times have gone done slightly.  We expect this trend to continue, although we do not expect major processing time improvements.

With respect to supervised recruitment, the numbers do not look encouraging with a 11% certification rate for each case which has been ordered for supervised recruitment.  This could be due to the fact that many employers decide to withdraw the case and refile (which explains, in part, the high withdrawal rate of supervised recruitment PERM cases of  25%).

We hope that with the introduction of the new iCert PERM portal  later this year and with the economy slowdown, the PERM processing times should improve.

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Updates from Department of Labor

The Department of Labor (“DOL”) has provided some updates on their operations and processing during the annual AILA conference.

DOL Priorities

DOL is working on (1) increasing the amount of supervised recruitment from the Atlanta National Processing Center by October 1, 2009; (2) centralizing the processing of all prevailing wage determinations; and (3) centralizing all help desk functions in the national Office of Foreign Labor certifications in Washington, DC by January 1, 2010.

PERM under iCERT Portal Delayed

The PERM section of the new iCert portal will take longer to complete than anticipated and will not be deployed until after September 2009.  Exact deployment date could not be provided.

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EB-5 Job Creation and Full-Time Employees

In a Memorandum dated June 17, 2009, Donald Neufeld, the Acting Associate Director for Domestic Operations, has provided some guidance on the employment-based fifth preference (EB-5) green card category reserved for entrepreneurs willing to invest a substantial capital into the U.S. and create at least 10 full-time jobs.

About EB-5

Section 203(b)(5) of the Immigration and Nationality Act creates a class of immigrant visas, EB-5, for individuals who invest a specified amount of capital in the U.S. economy and who will “create full-time employment for not fewer than 10″ qualified employees.   Initial EB-5 status has conditions which condition must be removed at the end of a two-year period by filing an application to remove conditional residency and by showing that the applicant has continued to meet section 203(b)(5) requirements.

The Neufeld Memorandum and Job Creation

The Neufeld Memorandum directs the adjudicators that a specific business plan be required as part of each EB-5 application which business plan must provide accounting of the required number of jobs created within the two-year period of conditional residency.  However, the adjudicators are given some flexibility as to  the timing of job creation.

For purposes of determining the period in which job creation is counted, USCIS has indicated that such period begins six (6) months after the adjudication of Form I-526 and the business plan filed in support of Form I-526 must make sure that job creation covers this 2-year period commencing 6 months following adjudication.

The Neufeld Memorandum specifically indicates that certain construction jobs can be included in the count of 10 full-time jobs required by EB-5.  Section 203(b)(5) requires that 10 full-time jobs be created by the proposed venture.  Full-time employment is defined as “employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position” (emphasis added).  USCIS has advised previously that intermittent, temporary or seasonal jobs do not qualify for “full-time jobs.” However, the Neufeld Memorandum specifically indicates that some construction-related jobs should qualify to be considered full-time jobs and should therefore be counted.  The focus on the inquiry, according to the Neufeld Memorandum, should be whether the position created is continuous full-time employment rather than intermittend, seasonal job.  This shift in focus allows some full-time construction jobs, generated from the foreign entrepreneur’s investment, to be counted towards the 10 jobs requirement.

An additional clarification by the Neufeld Memorandum — independent contractors and multiple part-time jobs cannot be used and be counted towards the jobs requirement.

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Rules for Rescheduling Biometrics Appointments for Reentry Permit Applications

Our firm has developed an unique expertise in processing expedited reentry permit and travel document applications.  Such applications are processed by the Nebraska Service Center (“NSC”) and in our experience, if the expedited processing request is granted, the biometric appointment may be scheduled in as little as 10-14 days.   However, even with these expedited processing timelines, sometimes the biometrics appointments may need to be rescheduled.

NSC has revised the rules for requesting rescheduling of biometrics.  NSC has indicated that they will deny all applications  where the applicant’s biometrics/fingerprinting have not been accomplished within the first 120 days of filing.  Applicants must appear for biometrics by their appointment date or request rescheduling prior to their appointment date.  The request for rescheduling must be accompanied by a reasonable excuse for failure to appear for the routinely scheduled biometrics appointment.

30-Days Permitted.  When making rescheduling requests, it is important to know that the application support centers (“ACS”) cannot reschedule the dates for more than 30 days and are instructed to provide applicants with a reschedule date within the 30-day time frame from the time of the reschedule request.   A rescheduling request seeking appointment for more than 30 days into the future will receive only up to 30 days.

Denials for Failure to Reschedule or Attend Within 120 Days.  Applicants who go overseas after filing the reentry permit/travel document application without completing the biometrics appointment and who do not timely file a request for their biometrics to be rescheduled will likely face a denial.  Also, NSC has advised that applicants should follow-up on their reschedule request to ensure that they are actually rescheduled.   Additionally, NSC has indicated that applicants who ask for rescheduling several times (which is ok) but never complete the biometrics within 120 days of the initial I-131 filing date will face a denial.

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