Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for July, 2009

FY2010 H-1B Numbers Update (July 24, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Friday, July 24, USCIS has received approximately 44,900 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 July 24th, indicate that there was no change in the number of H-1B petitions, compared to July 10, 2009.    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 some months ahead.

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AAO Processing Times Report (July 28, 2009)

Our firm handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

As a short preliminary background matter, the AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of July 28, 2009.  Overall, we notice delays across all categories.

Among the most notable AAO processing times:

  • H-1B appeal takes 16 months (no change from when last reported as of July 1, 2009);
  • I-140 EB1 Extraordinary Ability takes 9 months (compared with 10 months as of July 1, 2009), Multinational Manager or Executive takes 10 months (no change) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
  • I-140 EB2 (Advanced Degree) takes 25 months (compared to 26 months as of July 1, 2009) while EB2 (NIW) is current (meaning less than 6 months); and
  • I-140 EB3 Skilled Worker takes 22 months (no change) while EB3 Other Worker takes 19 months on appeal (compared to 18 months as of July 1) on appeal.

Read the full AAO Processing Times report.

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AAO Processing Times Report (July 1, 2009)

Our firm handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

As a short preliminary background matter, the AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of July 1, 2009.  Overall, we notice delays across all categories.

Among the most notable AAO processing times:

  • H-1B appeal takes 16 months (compared to 15 months when last reported in May 2009);
  • I-140 EB1 Extraordinary Ability takes 10 months (no change), Multinational Manager or Executive takes 10 months (compared to 9 months) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
  • I-140 EB2 (Advanced Degree) takes 26 months (compared to 24 months in May 2009 and 21 months in March 2009) while EB2 (NIW) is current (meaning less than 6 months); and
  • I-140 EB3 Skilled Worker takes 22 months (compared to 21 months in May 2009) while EB3 Other Worker takes 18 months (compared to 16 months in May 2009) on appeal.

Read the full AAO Processing Times report.

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Guidance on Obtaining Driver’s Licenses for F, M and J Visa Holders

In many areas around the U.S. driving is as essential as being able to read.  In our practice we face constantly foreign nationals who have been denied (correctly or incorrectly) a driver’s license due to their inability to show a certain document.

The U.S. Immigration and Customs Enforcement (“ICE”) division has released a guide targeted to holders of F, M and J visas with respect to obtaining drivers licenses and answers to some of the most common questions.

Lead times.  It is important to note that some foreign nationals on F, M or J status who are recent arrivals into the U.S. must plan in advance their application for a drivers license as some states have requirements for social security numbers (which application can take a few days) or other documents which require some preparation time.

F-1 holders in cap-gap extension.  In addition, from our practice we have encountered some F-1 holders who are subject to the cap-gap automatic extension of status have run into difficulty extending their driver’s license beyond the expiration date of their employment authorization document (“EAD”).  The ICE guidance provides some specific instructions in such cases and instructs the Designated School Official (“DSO”) to issue an updated I-20 to the F-1 holder or to make certain notations on the I-20 form.

Problem resolution contact.  In cases where the DMV refuses or is unable to issue a driver’s license, ICE has encouraged the DSO to contact directly SEVP  for assistance at sevis.source@dhs.gov and provide certain information (please see the attached guidance sheet, p. 6).

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Guidance on Cap-Gap Exetension for F-1 Holders

The U.S. Customs and Immigration Enforcement (“ICE”) has released a supplemental guidance sheet with respect to gap-cap extensions available to holders of F-1 status who work pursuant to their optional practical training and who are beneficiaries of a cap-subject H-1B work visa petition.

The guidance sheet is helpful in not only describing in more detail what happens when an OPT F-1 holder is a beneficiary of an H-1B petition.  Normally, when USCIS receives an H-1B petition it enters the information into its mainframe called CLAIMS.  This update automatically updates the SEVIS system and which automatically should reflect the cap-gap extension for the F-1 holder.    If this process does not work (due to time constraints, mainly), SEVIS allows the Designated School Official (“DSO”) to enter manually that the student is in valid status pursuant to cap-gap into SEVIS.

This functionality also allows DSOs to enter gap-cap information in cases where the H-1B application has been filed but it has not yet been processed by USCIS.  The guidance notes, however, that the “manual” update of cap-gap status by the DSO should not be done unless in cases where the student’s OPT may expire before USCIS can receipt the H-1B petition (and therefore enter the H-1B petition in CLAIMS).

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E-Verify DOs and DON’Ts

As an E-Verify designated agent, we provide E-Verify verification services to many small and mid-size businesses and allow them to assure E-Verify participation without the hassle of running E-Verify inside their operations.

An E-Verify designated agent, we work with our E-Verify company clients to ensure that they follow the rules and procesures required by E-Verify.  This is a helpful chart showing some of the major DOs and DON’Ts when it comes to E-Verify.

DOs:

  • Use program to verify employment eligibility of new hires;
  • Use program for all new employees regardless of national origin or citizenship status;
  • Use program for new employees after they have completed the I-9 Form;
  • Promptly provide and review with the employee the notice of tentative nonconfirmation (of one is issued);
  • Promptly provide the referral notice from the Social Security Administration (SSA) or Department of Homeland Security (DHS) to the employee who chooses to contest a tentative nonconfirmation;
  • Allow an employee who is contesting a tentative nonconfirmation to continue to work during that period;
  • Contact E-Verify if you believe an employee has received a final nonconfirmation in error;
  • Post required notices of the employer’s participation in E-Verify and the antidiscrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC);
  • Accept any Form I-9 List B document with a photo from an employee who chooses to provide a List B document;
  • Secure the privacy of employees’ personal information and the password used for access to the program;
  • Delay running an E-Verify query for an employee who has not yet been issued a Social Security number until the Social Security number is issued;
  • Allow an employee who has not been issued a Social Security number to work throughout the period that the employee is waiting for his or her Social Security number to be issued.

DON’Ts

  • Use program to verify current employees;
  • Use program selectively based on a “suspicion” that a new employee or current employee may not be authorized to work in the U.S. or based on national origin;
  • Use program to pre-screen employment (applicants unless you are a State Workforce Agency);
  • Influence or coerce an employee’s decision whether to contest a tentative nonconfirmation
  • Terminate or take adverse action against an employee who is contesting a tentative nonconfirmation, including denying or reducing scheduled hours, delaying or preventing training, mistreating the employee, requiring the employee to work longer hours, requiring the employee to work in poorer conditions, or subjecting the employee to any assumption that s/he is unauthorized to work during this period, unless and until receiving a final nonconfirmation or no show response;
  • Ask an employee to obtain a printout or other written verification from SSA or DHS when referring that employee to either agency;
  • Ask an employee to provide additional documentation of his or her employment eligibility after obtaining a tentative nonconfirmation for that employee;
  • Request specific documents in order to activate E-Verify’s photo tool feature;
  • Run an E-Verify query for an employee who is waiting for his or her Social Security number to be issued until the employee is issued a Social Security number.

If you are an employer and are not already E-Verify participant, we would be happy to discuss the options and the needs of your organization to become part of E-Verify.  Please contact us to set up an E-Verify appointment and evaluation.

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Minors’ Signatures on USCIS Documents

It is often that minor children are included in immigration filings done by one or both of their parents.  In such cases, a separate application, often accompanied by a G-28 form, are prepared and properly filed.  In many of those instances, a question arises as to who can or must sign the paperwork on behalf of the child.

All applicants 14 years and older must sign their own applications, per 8 CFR 103.2(a)(2).  Parents or legal guardians may sign applications on behalf of children under the age of 14.

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USCIS Releases Updated List of EB-5 Regional Centers

USCIS has updated the list of regional centers which provide interested investors with an opportunity to put money in a specially-designated center and become eligible for EB-5 investor green card.

There are currently 49 approved and active regional centers in 21 states. By contrast, as of 6/30/08, there were only 23 approved regional centers.  According to USCIS, each time a new regional center is approved, their information is posted to the webpage, generally within 5 business days.

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FY2010 H-1B Numbers Update (July 10, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Friday, July 10, USCIS has received approximately 44,900 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 July 10th, indicate that there was a decrease of about 100 H-1B regular cap applications counted under the cap for the period between July 3rd and July 10th (the number, as of July 3rd was reported to be 45,000).   According to USCIS, this decrease is due to removal from the count of H-1B petitions which have either been withdrawn or have been rejected by USCIS.  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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August 2009 Visa Bulletin – EB-2 India and China Move Forward

The August 2009 Visa Bulletin was just released by the State Department.  The only change, in comparison to the July 2009 Visa Bulletin, is the forward movement in the EB-2 China and India categories which changed from January 1, 2000 to October 1, 2003 .  All other categories remain unchanged.  Here is a summary of the August 2009 Visa Bulletin:

  • EB-1 remains current across the board.
  • EB-2 remains unchanged for all categories except as noted above for EB-2 China and India:  EB-2 ROW (Rest of World) is current, EB-2 China and EB-2 India are October 1, 2003.
  • EB-3 is unavailable for all categories.
  • Other worker visa numbers are also unavailable.

In one of the comments to the August 2009 Visa Bulletin, the State Department notes that the retrogression of EB-2 China has been necessary to take into account the high demand of visa issuances so far this fiscal year.   As a result, visa availability during the final quarter of the fiscal year is likely to remain very limited as some employment-based categories approach or have already reached their annual numerical limits.

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