Labor Immigration Law

The December 2009 Visa Bulletin was released today by the State Department.  The third visa bulletin for the fiscal year 2010 does not bring much movement.  In fact, the only movement in the EB categories is a one week only forward movement in EB-3 India.  All other categories, including EB-3 Rest of World (ROW) remain unchanged.  Here is a summary of the December 2009 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 remain unchanged – EB-2 ROW remains current, EB-2 China remains unchanged at April 1, 2005 and EB-2 India remains at January 22, 2005.
• EB-3 ROW remains unchanged at June 1, 2002, EB-3 China remains unchanged at June 1, 2002, while EB-3 India moves forward by one week to May 1, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one week to May 1, 2001.

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

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 November 1, 2009  Overall, we notice delays across all categories.

Among the most notable AAO processing times:

• H-1B appeal takes 13 months (no change from the last report as of October 1, 2009);
• I-140 EB1 Extraordinary Ability takes 5 months (no change), 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 27 months (no change) while EB2 (NIW) takes 6 months (or current, meaning less than 6 months); and
• I-140 EB3 Skilled Worker takes 23 months (compared to 22 months as of September 1, 2009) while EB3 Other Worker takes 23 months on appeal (compared to 21 months as of October 1, 2009) on appeal.

Read the full AAO Processing Times report.

In a Memorandum, dated September 14, 2009, Donald Neufeld, the Acting Associate Director for Domestic Operations as USCIS, provides some clarifications and amendments to the Adjudicator’s Field Manual relating to Form I-140, Immigrant Petition for Alien Worker.

1.  Definition of Employer for Outstanding Researchers or Professors under Section 203(b)(1)(B).

Each EB-1B petition  for outstanding researcher or professor must include, as part of the initial evidence, an offer of employment by a prospective U.S. employer which offers the candidate a tenure or tenure-track teaching position or a permanent research position.    The employer must be a university, institution of higher education or a department, division or institute of a private employer if such department, division or institute employs at least 3 persons full-time in research activities.  8 C.F.R.  204.5(i)(3).

The Neufeld Memorandum clarifies that government agencies do not fit into this definition of employer for EB-1B petitions unless the government agency is actually a U.S. university or an institution of higher learning.   Accordingly, government agencies which do not fit into this definition of employer may not pursue EB-1B petitions.  However, they may be able to apply under a different section assuming the beneficiary qualifies, for example Section 203(b)(1)(A).

2.  Approved Labor Certifications’ 180-day Validity Period

The Department of Labor (“DOL”) has established a validity period of 180 days for approved labor certifications.  As a result, an approved labor certification must be filed in support of a Form I-140 petition during the labor certification’s validity period.    DOL has not, however, established any rule regarding the approved labor certification’s validity when its expiration falls on a Saturday, Sunday or a federal holiday.

In the Neufeld  Memorandum, USCIS takes the position that it would accept I-140 filings where the supporting labor certification validity period ends on a Saturday, Sunday or a federal holiday on the next business day.    This is consistent with other USCIS policies which allow for the filing of petitions and applications that fall on a Saturday, Sunday or a federal holiday to be extended until the next business day.

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of October 30, 2009, USCIS has received approximately 53,800 H-1B petitions counting toward the 65,000 cap (an increase of 1,000 in a week).   USCIS will continue to accept petitions subject to the general cap.

U.S. Masters Degrees Quota Reached

As we mentioned in our last H-1B visa numbers report, USCIS has received sufficient number of petitions for aliens with advanced degrees and as a result, USCIS has announced that the master’s cap for FY2010 has been met.  As of October 25, 2009, all FY2010 H-1B petitions for holders of U.S. advanced degrees will be counted towards the general cap of 65,000.

H-1B Quota Trends

The numbers, as reported over the past two weeks – as of October 25th and as of October 30th, indicate that there was a notable increase.  As we previously reported, there was an increase of about 6,100 in the number of H-1B petitions, between September 25, 2009 and October 25, 2009 (or for the past one month).    Similarly, there was an increase of 1,000 between October 25, 2009 and October 30, 2009.  Based on our tracking of the H-1B numbers, this increase shows a notable monthly increase in the numbers of H-1B filings.  As a result, if the current trend remains, we estimate that the H-1B quota will  be reached within 10 weeks.

If you are considering filing a cap-subject H-1B petition as part of the FY2010 quota, please contact us as soon as possible.

In a final rule published in the Federal Register on November 2, 2009, the Centers for Disease Control and Prevention (CDC), within the U.S. Department of Health and Human Services (HHS), is amending its regulations to remove “Human Immunodeficiency Virus (HIV) infection” from the definition of communicable disease of public health significance and remove references to “HIV” from the scope of examinations for aliens. Prior to this final rule, aliens with HIV infection were considered to have a communicable disease of public health significance and were thus inadmissible to the United States per the Immigration and Nationality Act (INA).  While HIV infection is a serious health condition, it is not a communicable disease that is a significant public health risk for introduction, transmission, and spread to the U.S. population through casual contact. As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

This rule becomes effective on January 4, 2010.

This question arises often in the context of Visa Waiver Program (VWP) travelers who seek to enter the U.S. under VWP while their visa application (for H-1B, for example) has been “delayed” by the U.S. consulate.

Under VWP,  a nonimmigrant alien applicant for admission to the U.S. under VWP must indicate on Form I-94W and on the ESTA application whether he has ever been refused a visa.   Consequently, the question arises at to whether a prior visa application’s “administrative processing” constitutes a denial which should be disclosed.  Administrative processing may take several months before completing the process and issuing a  visa.   Additionally, the U.S. Consulates consistently do not inform visa applicants that their visa has been denied; instead, the Consulate informs the visa applicant the visa application is under “administrative processing.” Some Consulates indicate that the “case has been suspended under Section 221(g).”

U.S. Customs and Border Protection (“CBP”) has provided some guidance after consulting with the Department of State.  Accordingly, 22 C.F.R. 42.81, 22 C.F.R. 40.6, and 221(g) processing do constitute visa refusal by the Department of State.
As a result, VWP applicants who  have had their visa application subject to “administrative processing” must  answer that they  have had their visa refused.  This does not necessarily mean that the VWP is not available to such applicants.  However, CBP will have to manually review these applications.  Under such manual review processing CBP has 72 hours to respond to a manual review, but according to CBP, the current average time is 1 hour for a manual review.   If after 72 hours, there is no response, the applicant should make a new ESTA application or go into the system and check on the application.

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of October 25, 2009, USCIS has received approximately 52,800 H-1B petitions counting toward the 65,000 cap.   USCIS will continue to accept petitions subject to the general cap.

Additionally, USCIS has received sufficient number of petitions for aliens with advanced degrees and as a result, USCIS has announced that the master’s cap for FY2010 has been met.  As of October 25, 2009, all FY2010 H-1B petitions for holders of U.S. advanced degrees will be counted towards the general cap of 65,000.

The numbers, as of October 25th, indicate that there was a notable increase (of about 6,100) in the number of H-1B petitions, compared to September 25, 2009 (or for the past one month).    Based on our tracking of the H-1B numbers, this increase shows a notable monthly increase in the numbers of H-1B filings.

With recent news about the improving health of the U.S. economy and the substantial monthly H-1B visas increase of 6,100, we expect that the H-1B cap will remain open for at least a month or so.  However, if you are considering filing a cap-subject H-1B petition as part of the FY2010 quota, please contact us as soon as possible.