Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for December, 2009

Happy Holidays

IN THE SPIRIT OF THIS FESTIVE SEASON WE JOIN TOGETHER IN WISHING YOU A WONDERFUL 2010.  BEST WISHES FROM THE CAPITOL IMMIGRATION LAW GROUP.

Thank you for your support throughout 2009. We owe our success to you, our clients, readers and friends and we wish to express our gratitude and continued support.

We are looking forward to working with you during the new year and we wish you a prosperous, happy and joyous New Year 2010.

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Visa Refusals Under Section 221(g)

Our office receives a fair number of Section 221(g) inquiries from visa applicants at a U.S. Consulate abroad.   This article aims to explain Section 221(g) and to provide some tips for dealing with a 221(g) visa refusal.

About Section 221(g)

Section 221(g) of the Immigration and Nationality Act (INA)  provides for temporary refusal of visa when an otherwise qualified visa applicant is found to be lacking a specific document, or when a consular officer determines that additional “security clearance” is appropriate and needed.  Consular officers mainly use 221(g) as a way of giving the visa applicant another opportunity to supplement their applications in order to address concerns or deficiencies in the initial application.   Once the deficiency is addressed, the 221(g) refusal is “overcome” and the visa may be issued.

Reasons for 221(g) Refusals

There are several reasons for issuing a 221(g) refusal.  Among the most common are:

  • The applicant is asked to provide additional supporting documents, such as proof of employment.
  • The applicant is employed in a field listed on the Technology Alert List (TAL) and the consular officer requests a Visas Mantis Security Advisory Opinion.   This is one of the most common reasons for issuing 221(g) to applicants in India, China and elsewhere where the applicants are told that their application requires “administrative processing.”
  • The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the grounds of inadmissibility.
  • There are no empty visa pages in the applicant’s passport, or the application photo does not meet the requirements.
  • The applicant’s petition approval is not yet listed in PIMS.

Section 221(g) Refusals Are Very Common

The Department of State has acknowledged that 221(g) refusals happen too often and may be subject to overuse.  According to the Visa Office, in fiscal year 2008,  there were 589,418 nonimmigrant visa refusals under 221(g).  Of those, 510,549 were successfully overcome and visas issued – a success rate of 87%.

Section 221(g) Impact on Future Applications

Since Section 221(g) is technically a refusal, our office often is asked whether a 221(g) should be disclosed on future visa applications, or, in the case of Visa Waiver Program travelers, on their electronic registration forms.

The answer is that 221(g) is a refusal and the applicant, in a subsequent visa application, must answer “YES” to the question “Have you ever been refused a U.S. visa?” on Form DS-156 or DS-160.   This applies even if the 221(g) refusal is based on something as innocent as lack of information in the PIMS database.   Of course, after disclosing YES, on this question in a subsequent visa application, the applicant should be prepared to explain the circumstances of the 221(g) refusal.

Similarly, Visa Waiver Program travelers,  must disclose any 221(g) refusals in their ESTA forms.  We wrote about this topic earlier in November 2009.

Help With 221(g) Refusals

Despite the reason of the 221(g) refusal, we urge applicants who are issued a 221(g) to contact an immigration attorney to better understand the reasons for the 221(g) refusal and to evaluate their case for options and alternatives.  Often, we are in a position to explain the deficiency and help an applicant take steps to address it, either by preparing additional documents or by explaining the circumstances directly to the consular officer who issued the 221(g).  Please contact us if you received a 221(g) and need assistance with your application.

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Visa Bulletin Predictions

In a November 2009 AILA meeting, Mr. Charlie Oppenheim, who is Chief of the Immigrant Visa Control and Reporting Division at the Department of State (or also known as the person who determines the visa bulletin dates), has indicated some ways in which the visa bulletin numbers will move over the next few months.

Mr. Oppenheim’s Comments

Although there is no guarantee that Mr. Oppenheim’s comments to AILA would turn into reality, he has been very accurate and careful in his comments in the past.

EB-3 Worldwide (ROW).  Visa numbers are expected to progress to April-August 2005.  Such movement will be gradual and is expected to start in January or February of 2010.

EB-2 China and India.  Annual limits are expected to be reached no later than May.  It is possible that otherwise unused second preference numbers to be made available.  This makes the cut-off date for both EB-2 India and China to progress to October-December 2005.

EB-3 China.  It is expected to move along with EB-3 ROW over the next few months.  The fiscal year is expected to end with a June-September 2003 cut-off.

EB-3 India.  Very slow movement expected.  There are 58,000 pending applications and it is expected to move only  up to five (5) weeks over the entire fiscal year.

Our Conclusion

While there are some good news in this announcement, it becomes clear that some categories, especially EB-3 India, become very undesirable and we strongly recommend clients and readers who are in EB-3 India to consider either filing in EB-2, if possible, given education and experience.  Many EB-3 India applicants who have been waiting for 4-5 years already find themselves facing another 4-5 year wait.  As a result, we often see second EB-2 applications using the recently gained experience filed (often by switching employers) by retaining the earlier EB-3 priority date.  Please contact us if we can help you understand whether your case may qualify.

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Breaking News – FY2010 H-1B Cap Reached (December 22, 2009)

A few minutes ago USCIS announced that as of December 21, 2009, it has received sufficient petitions to reach the statutory cap for FY2010.  USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.

No New FY2010 Cap-Subject H-1B Filings Accepted

USCIS will reject all cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009.  For those petitions received on December 21, 2009, USCIS will apply a computer-generated random selection process.

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FY2010 H-1B Numbers Update – 800 H-1B Visas Left (December 17, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of December 17, 2009, USCIS has received approximately 64,200 H-1B petitions counting toward the 65,000 cap.  The updated count means that as of December 17, 2009, there were 800 H-1B visas left under this year’s H-1B quota and USCIS will continue to accept petitions subject to the general cap.

H-1B Quota – Last Day(s)

The numbers, as reported indicate that the H-1B cap will close within one or two days.  As a result, we are not be able to take any new FY2010 H-1B cases.  Please contact us if you would like us to help you obtain an H-1B under the FY2011 quota which is set to open on April 1, 2010.

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Form DS-160 Worldwide Deployment

The Department of State has announced that it will deploy the DS-160 fully web-based nonimmigrant visa application form worldwide.  DS-160 has been used so far successfully in 24 consular posts and will be expanded to cover all consular posts by April 30, 2010.

About DS-160

The DS-160 application form combines all information previously collected on the DS-156, 157, and 158 for appropriate applicants, and the DS-3052. Applicants for “E” class treaty trader NIVs will complete the DS-160 and have to fill out a hard copy DS-156E until the DS-160E electronic form is fielded in the near future. Until further notice, K visa applicants should continue to use the DS-156 and DS-156K instead of the DS-160.

Timeline of Worldwide Rollout

The rollout will be in two main phases.  First phase posts must adopt the DS-160 prior to March 1, 2010, for all applicants, with the exception of K’s.   Those posts are Algiers, Algeria; Vienna, Austria; Manama, Bahrain; Minsk, Belarus; Beijing, China; Chengdu, China; Guangzhou, China; Shanghai, China; Shenyang, China; Havana, Cuba; Djibouti, Djibouti; Cairo, Egypt; Addis Ababa, Ethiopia; Paris, France; Frankfurt, Germany; Chennai, India; Hyderabad, India; Kolkata, India; Mumbai, India; Delhi, India; Jakarta, Indonesia; Surabaya, Indonesia; Tel Aviv, Israel; Jerusalem; Amman, Jordan; Nairobi, Kenya; Kuwait City, Kuwait; Kuala Lumpur, Malaysia.

All remaining posts not listed above should implement the DS-160 between March 1, and April 30, 2010 for all applicants, with the exception of Ks.

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January 2010 Visa Bulletin – Slow Forward Movement

The January 2010 Visa Bulletin was just released by the State Department.  The fourth visa bulletin for the fiscal year 2010 and the first for the calendar 2010 does not bring much movement.  For many categories, the only forward movement is in the 1-2 months range.  Here is a summary of the January 2010 Visa Bulletin:

  • EB-1 remains current across the board.
  • EB-2 ROW remains current, EB-2 China moves forward by one (1) month to May 1, 2005, and EB-2 India remains unchanged at January 22, 2005.
  • EB-3 ROW moves forward by two (2) months to August 1, 2002, EB-3 China moves forward by two (2) months to August 1, 2002, while EB-3 India moves forward by almost two (2) months to June 22, 2001.
  • Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one month to June 1, 2001.
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FY2010 H-1B Numbers Update – 2,500 H-1B Visas Left (December 10, 2009)

 

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of December 10, 2009, USCIS has received approximately 62,500 H-1B petitions counting toward the 65,000 cap (an increase of 1,000 in the past three days).   The updated count means that as of December 10, 2009, there were 2,500 H-1B visas left under this year’s H-1B quota and USCIS will continue to accept petitions subject to the general cap.

U.S. Masters Degrees Quota Reached

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 – One Week Remaining?

The numbers, as reported over the past few weeks and days indicate that there was a notable increase in the H-1B filings.  As a result, if the current trend remains, we estimate that the H-1B quota will be reached in approximately one week.

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FY2010 H-1B Numbers Update – 3,500 H-1B Visas Left (December 8, 2009)

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of December 8, 2009, USCIS has received approximately 61,500 H-1B petitions counting toward the 65,000 cap (an increase of 3,000 in the past week).   The updated count means that as of December 8, 2009, there were 3,500 H-1B visas left under this year’s H-1B quota and USCIS will continue to accept petitions subject to the general cap.

U.S. Masters Degrees Quota Reached

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 – Last Call for Filing

The numbers, as reported over the past few weeks indicate that there was a notable increase in the H-1B filings.  As a result, if the current trend remains, we estimate that the H-1B quota will be reached one or two 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.

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Nebraska Service Center – Processing Statistics

In a recent AILA-Nebraska Service Center (“NSC”) teleconference, the NSC Director provided some helpful statistics about the Nebraska Service Center operations in 2009:

  • The NSC processed over 950,000 applications and petitions in 2009, including 250,000 cases for EADs and more than 200,000 travel documents, including Travel Documents for refugees, asylees and permanent residents.
  • 252,000 cases were pending at the end of the fiscal year (September 30, 2009) just completed compared to 390,000 at the end of prior fiscal year.
  • Many of the 252,000 cases now pending are I-485s that are pre-adjudicated, but are pending because of visa availability or background checks.
  • All of the 140,000 immigrant visas allocated for the fiscal year just completed were used.
  • The National Benefits Center (“NBC”) will be transferring I-90s to the NSC for adjudication, so attorneys can expect to see fee receipts for I-90’s with a LIN receipt number.  The volume of I-90s is expected to be around 500,000 a year.
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