Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for January, 2010

AAO Processing Times Report (January 4, 2010)

Our office 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 January 4, 2010.  Overall, there is not much change in comparison to the December 2, 2009 report.

Among the most notable AAO processing times:

  • H-1B appeal takes 13 months (increase by one compared to December 2, 2009);
  • I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 11 months (no change) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
  • I-140 EB2 (Advanced Degree) takes 24 months (two months improvement) while EB2 (NIW) takes 6 months (or current, meaning less than 6 months); and
  • I-140 EB3 Skilled Worker takes 23 months (no change) while EB3 Other Worker takes 23 months on appeal (no change).

Read the full AAO Processing Times report.

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AILA Seeks Rescission of the January 8, 2010 Neufeld Memorandum

The Neufeld Memorandum of January 8, 2010, has generated a substantial amount of discussion with its newly-proposed standard for “employer-employee” relationship applied to third-party H-1B employee placements, which are very common for consulting companies.  Our office has handled many consultations and inquiries relating to the Neufeld Memorandum and what it means for the thousands of H-1B employees currently on H-1B visa and for their employers.

AILA Seeks Rescission of the Neufeld Memorandum

Our office has revised its standard H-1B preparation guidelines for third-party worksite H-1B petitions to comply, to the extent possible, with the new requirements imposed by the Neufeld Memorandum.  In the meantime, the American Immigration Lawyers Association (AILA), in a January 26, 2010, Memorandum addressed to the Chief Counsel of USCIS, calls for the rescission of the Neufeld Memorandum effective immediately and for the issuance of a new memorandum to redefine the employer-employee relationship differently, considering legal precedent.

The AILA Memo is quite lengthy (24 pages) and goes into a great detail to substantiate its main claims that (1) the Neufeld Memorandum improperly creates substantive new rule outside the proper channel for making such rules and (2) that the employer-employee relationship definition in the Neufeld Memorandum is improper and is against congressional intent.

The Neufeld Memorandum is Improper Rulemaking

As an initial matter, AILA argues that the Neufeld Memorandum is issued improperly  because it seeks to change substantive rules without the necessary process.  Change in substantive rules must be done by following the required notice and comment procedures.  AILA argues that the “guidance” in the Neufeld Memorandum is a substantive rule change which cannot be imposed by a memorandum;  instead it should follow the normal rulemaking process.  As a result, AILA argues that the Neufeld Memorandum should be set aside as a violation of the Administrative Procedures Act (APA).

The Neufeld Memorandum Definition of Employer-Employee Relationship is Incorrect

As its main argument for seeking the rescission of the Neufeld Memorandum, AILA argues that the sweeping definition of “employer” is inconsistent with the law, impedes its intent and purpose and is inconsistent with decades of precedent.  The AILA Memo then goes into great detail and legal analysis of its claim to conclude that the Neufeld Memorandum, in addition to certain recent AAO’s non-precedent decisions and the accompanying adjudications at the Service Centers that are applying these decisions to current filings seek to overturn over fifty years of consistent precedent and regulatory interpretation to categorically deny eligibility for benefits to an entire class.

Conclusion

The AILA Memorandum is a well researched and substantiated request for the rescission of the Neufeld Memorandum.  However, we do not know yet what USCIS’ position would be in response and whether USCIS will take any steps in response to this memorandum.  We will continue to provide updates on this topic as it is of great interest of our clients, readers and a large portion of the employment-based immigration community.

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USCIS Begins ESTA Enforcement

About the Electronic System for Travel Authorization

ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the Visa Waiver Program (WVP). ESTA has been mandatory since Jan. 12, 2009 for all nationals of VWP countries traveling to the U.S under the VWP. The requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.

ESTA applications may be submitted at any time prior to travel, and once approved, generally will be valid for up to two years or until the applicant’s passport expires, whichever comes first. Authorizations are valid for multiple entries into the U.S. The Department of Homeland Security recommends that ESTA applications be submitted as soon as an applicant begins making travel plans.

VWP travelers are required to log onto the ESTA Web site and complete an online application. The web-based system prompts applicants to answer basic biographic and eligibility questions typically requested on a paper I-94W form; ESTA is expected to completely replace the paper I-94W in the coming months. A third party, such as a relative, a friend, or a travel agent, may submit an application on behalf of a VWP traveler.

ESTA Registration Mandatory – New Enforcement Campaign

We have written in the past about the Electronic System for Travel Authorization (ESTA) which became mandatory more than one year ago, on January 12, 2009, for all Visa Waiver Program (VWP) travelers into the U.S.

The Department of Homeland Security (DHS) has recently announced a 60-day campaign to enforce ESTA registration.  Pursuant to this campaign, DHS will use its authority to deny entry to all VWP travelers to U.S. who have not registered with ESTA.   Beginning January 20, CBP will initiate a 60-day transition to enforce ESTA compliance for air carriers; VWP travelers without an approved ESTA may not be allowed to board a U.S.-bound plane.

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H-1B Filing Fees – Who Can Pay What?

Our office received many inquiries by both H-1B sponsor companies and employees about what kind of fee payment arrangement is permissible under the H-1B regulations.

Background of H-1B Filing Fees

There are several H-1B filing fees, which are applied differently depending on the employer (private employer v. university or non-profit research entity) and on the type of petition (new H-1B, first extension or second/subsequent extension).  We are happy to guide on the applicability of these fees.

Regardless of their applicability, the H-1B filing fees are:

  1. H-1B filing fee – $320;
  2. Fraud prevention fee – $500;
  3. ACWIA fee – $750 (for employer with 25 or less employees) or $1,500 (for employers with 26 or more employees); and
  4. Premium processing fee (optional) – $1,000.

Fraud Prevention Fee Must be Paid by Employer

The only requirement with respect to who pays a specific H-1B fee is that the $500.00 fraud prevention fee be paid only by the employer.  The rest of the H-1B filing fees can be paid by either the employer or the employee.

What Happens if the Employee Pays the $500 Fraud Prevention Fee?

In cases where the $500.00 fraud prevention fee is paid by the employee, this cost will be deducted from the total wage paid to the H-1B beneficiary when determining whether s/he has received the required wage.   Pursuant to H-1B regulations, the “required” wage is the higher of the actual or prevailing wage.  The “actual” wage is defined as the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question.

As a result, if the employee is paid an amount which is $500.00 or less more than the required wage (as defined above), then the employer may be deemed to be in violation of the H-1B regulations requiring payment of the so called required wage.

Conclusion

To avoid uncertainties associated with whether the employer has paid the required wage, we urge our H-1B clients to structure the fee payment in a way that the $500 fraud prevention fee is paid by the employer.   The rest of the fees may be paid by either the employee or employer, as the parties negotiate or as the employer’s policies dictate.

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USCIS Guidance on H-1B for Contractors and Third-party Worksites

In a January 8, 2010, Memorandum, Donald Neufeld, the Associate Director for Service Center Operations, provides some guidance on the standards for H-1B petitions filed by independent contractors, self-employed beneficiaries, and beneficiaries working at third-party worksites.

Focus on Employer-Employee Relationship

The guidance is primarily concerned with the employer-employee relationship.  Pursuant to the H-1B regulations, an employer who seeks to sponsor a temporary worker in an H-1B specialty occupation is required to establish such employer-employee relationship.  USCIS deems that such relationship is established when the employer has the right to control the means and manner in which the work is performed.

Some of the factors which are helpful in determining whether such employer-employee relationship exists are the employer’s ability to pay, hire, fire, supervise or otherwise control the work of the employee.

Who Is Most Affected by the New Guidance?

While the employer-employee relationship must be established in all H-1B cases, in practice, the right to control and the employee-employer relationship issues arise in self-employment, contractor (or consultant) companies or with beneficiaries placed at third-party worksites.  The right to control issue should be addressed also with in-house H-1B petitions, although in many cases it would be easy to establish such right to control when the employee is working on the employer’s premises.

Establish the Employer’s Right to Control

Under the Neufeld Memorandum guidance, with each H-1B petition, USCIS must determine if the employer  has a sufficient level of control over the employee.

The right to control can be established when considering the following factors:

  1. Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
  2. If the supervision is off-site, how does the petitioner maintain such supervision (weekly calls, progress reports, site visits, etc.)?
  3. Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
  4. Does the petitioner provide tools or instrumentalities needed by the beneficiary?
  5. Does the petitioner hire, pay and  have the ability to fire the beneficiary?
  6. Does the petitioner evaluate the work-product of the  beneficiary?
  7. Does the petitioner claim the beneficiary for tax purposes?
  8. Does the petitioner provide the beneficiary any type of employee benefits?
  9. Does the beneficiary use proprietary information of the petitioner in order to perform the duties?
  10. Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
  11. Does the petitioner have the ability to control the manner and the means in which the work product of the beneficiary is accomplished?

The Neufeld Memorandum provides that these factors should be weighed in the “totality of the circumstances” which allows some flexibility to focus on some, but not all, factors.

Additional Evidence Required in H-1B Filings by Consulting Companies and Third-party Worksite Employers

As a result of the Neufeld Memorandum, USCIS establishes a new level of evidence to be submitted as part of all new, transfer and even extension H-1B petitions filed by employers which intend to place the beneficiary at a third-party worksite.

Currently, such third-party worksite H-1B applications require evidence to establish the exact position and duties in which the beneficiary will be engaged at the third-party worksite.  In addition, as a result of the new guidance, H-1B petitioners will have to now include information to satisfy all or many of the right to control factors described above.

Pursuant to the field guidance, such right of control test is applied to all new, transfer and even H-1B extensions with the same employer.

Conclusion

The Neufeld Memorandum creates another set of information and documents which will have to be prepared and provided as part of each H-1B filing by a consulting, self-employment and third-party worksite petitioner.

While the guidance is intended to apply for all H-1B beneficiaries, regardless of where they are employed, the guidance is most likely to be more rigorously enforced against employers who file H-1B petitions on behalf of employees placed at a third-party site or off-site.

Petitioners who regularly place employees off-site should become familiar with the 11 factors described above  and be prepared to answer and document the petitioner’s right to control the intended H-1B beneficiary.

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EB-5 Regional Centers

About EB-5 and the Regional Center Program

In 1990, the U.S. Congress created the fifth employment-based preference category (EB-5) for qualified foreign entrepreneurs seeking to invest in a business that will benefit the U.S. economy and create or save at least 10 full-time jobs. The basic amount required to invest is $1 million, although that amount is reduced to $500,000 if the investment is made in a rural or high unemployment area.  Of the approximately 10,000 EB-5 green cards available each year, 3,000 are reserved for foreign nationals who invest through a Regional Center.

A Regional Center is a private enterprise or corporation or a regional governmental agency with a targeted investment program within a specific region.   The Regional Center Investment Program allocates 3,000 green cards each year for people who invest in designated Regional Centers.  The program does not require that the foreign investor’s enterprise itself directly employ 10 U.S. workers.  Instead, it is enough if 10 or more jobs will be created directly or indirectly as a result of the investment. As a result, he Regional Center Investment Program aids foreign investors by directing and professionally managing their investment in the designated business and geographic focus of their Regional Center.

Current Regional Centers

An updated list of approved EB-5 Regional Centers can be found at USCIS’ website below:

Immigrant Investor Regional Centers (external link)

As of the date of this article, there are 75 approved Regional Centers and there are approximately 50 Regional Center applications pending for review at USCIS California Service Center.

Contact Us for Information and Help

Please contact us if we can help you  understand the EB-5 Regional Center program, help you establish eligibility and guide you through the process.

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EB-5 Updates and Statistics

In a December 14, 2009, meeting, USCIS has provided some helpful information about the current state of the EB-5 program.

I-526 Premium Processing Possible Later in the Year

A review of the question of reinstating premium processing for I-526 petitions will be done during the second quarter of 2010.  USCIS will reinstate premium processing if it determines that it has sufficient resources at the California Service Center to adjudicate I-526 within the 15-calendar day window.

EB-5 Statistics

As of December 14, 2009, USCIS was able to provide only statistics for fiscal year 2009 (FY 2009).  Accordingly, in FY 2009, where were 1,028 I-526 petitions (EB-5 immigrant petition) filed, of which 966 were approved and 163 denied.   Also, in FY 2009, where were 437 I-829 (removal of condition) petitions filed of which 335 were approved and 55 denied.

Note that these numbers do not add up because not all petitions filed during FY 2009 are adjudicated during FY 2009.  Additionally, some petitions filed during FY 2008 are adjudicated during FY 2009 and are included in the numbers above.

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Current PERM Processing Dates/Times (as of December 31, 2009)

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of December 31, 2009.  They are as follows:

  • Regular processing: March 2009.  DOL is processing PERM applications with priority dates in March of 2009.  This suggests that there is certain forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately nine (9) months.
  • Audited applications: December 2007.  This is movement forward of two (2) months in comparison to the November 31, 2009 report, resulting a net additional gain of one (1) month for audited PERM applications.  Accordingly, audited PERM processing times should be approximately 24 months.
  • Appealed applications: August 2007.  There is no movement this month in this category in comparison to November 31, 2009, resulting a net additional delay of one (1) month for appealed PERM applications.  Accordingly, PERM appeals take approximately 28 months.

We continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcement.

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February 2010 Visa Bulletin – Slow Progress for Some, No Movement for India

The February 2010 Visa Bulletin was just released by the State Department.  The fifth visa bulletin for the fiscal year 2010 and the second for the calendar 2010 does not bring much movement.  There is no movement for India across all employment-based categories.   For many other categories, the only forward movement is in the 1-2 months range.  Here is a summary of the February 2010 Visa Bulletin:

  • EB-1 remains current across the board.
  • EB-2 ROW remains current, EB-2 China moves forward by three (3) weeks to May 22, 2005, and EB-2 India, again, remains unchanged at January 22, 2005.
  • EB-3 ROW moves forward by almost two (2) months to September 22, 2002, EB-3 China moves forward by almost two (2) months also to September 22, 2002, while EB-3 India remains unchanged.
  • Other worker visa numbers remains unchanged at June 1, 2001.
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USCIS Website – Request for Comments and Feedback

Almost four months after USCIS launched its redesigned website, the USCIS Ombudsman office is setting up a conference call to discuss the good, the bad and the ugly of USCIS’ website, in general, and of the redesign, in particular.  Our office will sit on this conference call to share our thoughts and comments with the USCIS Ombudsman.

From our daily interactions with clients, we have a number of USCIS website topics which are in need of improvement, or at the very least, discussion.  However, we wish to solicit some feedback and comments from our clients and readers.  If you have a story, comment, a complaint or a suggestion, please use our contact form to submit your comment, story or a question no later than Monday, January 25, 2010.  We will try to raise as many of those questions as we can and post the responses on our website.  Thank you!

Submit USCIS website comments and feedback.

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