Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for May, 2010

FY2011 H-1B Numbers Update – 19,600 Regular and 8,200 Masters Cap Visas Used (May 21, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of May 21, 2010, USCIS has received approximately 19,600 H-1B petitions counting toward the 65,000 cap (a weekly increase of only 600). Similarly, as of May 21, there were 8,200 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of only 100).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that after there was a very small weekly decrease in the number of H-1B filings for both the regular and Masters’s caps compared to the week prior.  The overall trend is that the H-1B filings have been decreasing over the past few days.   As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time.  We wish to caution potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

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Paper Form I-94W Eliminated for Visa Waiver Travelers

DHS Secretary Napolitano announced earlier this week that as of late this summer, the paper Form I-94W (arrival/departure record) for authorized travelers from nations participating in the Visa Waiver Program (VWP) will be eliminated.  Instead, the arrival/departure information will be stored electronically.

After a successful 7-month trial conducted with VWP travelers from New Zealand on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (ESTA) arriving in the United States at all airports by the end of this summer.  CBP will activate automated processing for U.S. airports on a rolling basis over the next several months.

Applying for an ESTA VWP travel authorization became mandatory on January 12, 2009, for all nationals of VWP countries prior to boarding a carrier to travel by air or sea to the United States. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa, and allows DHS to determine whether a VWP traveler presents a threat long before the individual boards a U.S.-bound aircraft.  By eliminating the paper Form I-94W, travelers will be able to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States.

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DOS Announces Increased Visa Stamp Application Fees

The Department of State (DOS) issued an advance copy of the interim final rule on the Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates.  The notice was published today at the Federal Register.

According to the notice, the new rule will become effective on June 4, 2010 (15 days after publication).  The increase in fees is mainly due to increase in processing costs for a number of non-immigrant visas processed at the U.S. consulates abroad.  For most of these visa types, the current fee is $131.00.  As a result, while some categories see a minor increase of $10-20, some categories see the fees more than double (for example, K visa applications).

The New Non-immigrant Consulate Visa Fees

    (a) Non-petition-based nonimmigrant visa (except E              $140
     category)..........................................
    (b) H, L, O, P, Q and R category nonimmigrant visa..            $150
    (c) E category nonimmigrant visa....................            $390
    (d) K category nonimmigrant visa....................            $350
    (e) Border crossing card--age 15 and over (valid 10             $140
     years).............................................
    (f) Border crossing card--under age 15; for Mexican              $14
     citizens if parent or guardian has or is applying
     for a border crossing card (valid 10 years or until
     the applicant reaches age 15, whichever is sooner).

It should be noted that these fee increases apply to consular visa applications only.  The USCIS petition processing fees remain unaffected by this rule.

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Analysis of “REPAIR” Immigration Reform Proposal

The political climate here in Washington, DC changes very quickly.  We wrote recently about some broad conceptual proposals for comprehensive immigration reform, followed by our reports of President Obama’s remarks that he does feel that the time is ripe for immigration reform.

However, some congressmen are pushing an immigration reform proposals forward.  A recent proposal for a bill, introduced by Senators Reid, Durbin, Schumer, Leahy, Feinstein, and Menendez aims to put more concrete plan out for discussion, despite what some may consider a poor timing for reform.  The Real Enforcement with Practical Answers for Immigration Reform (REPAIR) proposal sets the framework for a comprehensive immigration reform.  We hope to outline selected parts of the proposal.

Better Enforcement and Ending Illegal Employment

The REPAIR proposal calls for better immigration law enforcement, at the borders and inside the country, in addition to establishing a new biometric identification and employment verification system to prevent the employment of unauthorized workers.  New tamper-resistant Social Security cards will be issued which would contain photo and biometric information.  The proposal calls for sophisticated technology that will protect information about the cardholder and will not store any of the biometric data contained in the card on any government database. The proposal does not state where the data will be stored. The proposal will make it unlawful for anyone or any private or government entity to use the card for any other purpose than employment verification.

All employers will be required to verify a new hire’s employment eligibility status through an electronic system.  Failure to do so would carry penalties.  The system would, in effect, be a build-up of the currently-existing E-Verify employment eligibility verification system.

High-Skilled Immigrants Will See Substantial Benefit

Permanent Residency.  The proposal provides for an immediate green card to foreign students with an advanced degree from a U.S. institution of higher education in the field of science, technology, engineering or mathematics (STEM), and who have an offer of employment in the field related to their degree, from a U.S. employer.  The proposal would also eliminate per country employment caps which have resulted in substantial delays under the current system for nationals of many countries, but particularly for India and China.

H-1B Visas.  The proposal creates new requirements on H‐1B visas including: 1) revising how wages are determined; 2) requiring web posting of job openings; 3) lengthening U.S. worker displacement protection; 4) applying certain dependent employer rules to all H‐1B employers; 5) prohibiting “for H‐1B only” job ads; and 6) limiting the number of H‐1B and L‐1 employees that an employer of over 50 workers in the U.S. may hire. The proposal also authorizes the Department of Labor (DOL) to investigate application fraud and conduct H‐1B compliance audits.

L-1 Visas.  The proposal also creates new requirements on the L‐1 visa prohibiting the hiring of an L‐1 for more than one (1) year who will: serve in a role involving specialized knowledge and be located at a worksite other than that of the petitioning employer.  The proposal specifies L‐1 visa employer petition requirements for a new office; wage rates and working conditions; and employer penalties.

Family Immigration Proposals

The proposal will clear the family immigration backlog over an eight (8) year period.  After the eight year period, family caps will return to the current levels. Spouses and children of lawful permanent residents (LPR) will be classified as “immediate relatives”.   Per country caps in the family immigration system will be raised from 7 percent to 10 percent.  The proposal will also allow permanent partners of U.S. citizens and LPRs to obtain LPR status; provide protection for children and people with special humanitarian considerations; and address technical issues related to stepchildren and adoptive children.

Unauthorized Aliens Must Register and Wait For Permanent Residency

With respect to those ~11 million unauthorized aliens, the proposal has a two-phase approach.

Phase I.  All undocumented persons will be required to come forward and register their presence through a rigorous process that includes identity, criminal background and security screening, fingerprinting, and the payment of fees, civil penalties and taxes. Upon completing registration, they will be considered for eligibility for a new interim status: “Lawful Prospective Immigrant” (LPI). In addition to the above requirements, undocumented persons must remain in the country continuously from the date of enactment to be eligible for LPI status.  Spouses and minor children living abroad will be eligible for legalization once their relative receives LPI status. Those found ineligible in Phase I will be placed in removal proceedings. Those who fail to register will remain undocumented and be subject to arrest and deportation.

Those convicted of three or more misdemeanors or any felony punishable with a prison term of more than one year; those who engaged in persecution of others; those “inadmissible” pursuant to INA 212(a) for national security and criminal grounds; those in the country in an “authorized immigrant or nonimmigrant status”; and those who entered illegally after the bill’s introduction date will not be eligible for LPI status.

Phase II.  It will begin eight years after enactment when current family visa backlogs are cleared at which time LPIs will be permitted to petition for adjustment to Lawful Permanent Resident (LPR) status. Requirements for eligibility include demonstrating basic citizenship skills, English language skills, and continuous residence in the United States; submitting to additional background and security checks; payment of all taxes, fees and civil penalties; and registration for Selective Service. The proposal allows for some administration and judicial review of denials.

Conclusion

The REPAIR proposals set forth a very interesting framework for comprehensive immigration reform.  It remains to be seen how the initial proposal will be taken by both parties here on Capitol Hill during an election year and during a political climate some political experts describe as “difficult.”  Also, it is important to note that REPAIR is just a proposal for law — it is not an introduced bill and it may (and will most certainly) will undergo substantial changes as it makes its way through the political system here in Washington.

If you have not already, please consider subscribing to our weekly free immigration newsletter to receive weekly updates on immigration reform, news and developments.

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FY2011 H-1B Numbers Update – 19,000 Regular and 8,100 Masters Cap Visas Used (May 14, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.  As of May 14, 2010, USCIS has received approximately 19,000 H-1B petitions counting toward the 65,000 cap (a weekly increase of 1,000). Similarly, as of May 14, there were 8,100 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of 500).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that after there was a very small weekly decrease in the number of H-1B filings for both the regular and Masters’s caps compared to the week prior.  As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time.  We wish to caution potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

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USCIS Lockbox Procedure Adds to Expedited Reentry Permit Processing Time

Starting December 2009, USCIS started implementing changes on the way I-131 reentry permit applications are receipted and processed.   Previously, I-131 reentry permit applications were filed directly at the Nebraska Service Center (NSC) which issued receipts and, where appropriate, issued expedited processing biometrics notices.

The NSC processing of expedited processing reentry permit biometrics allowed us to have the required biometrics scheduled often within 7-10 days after filing of the I-131 reentry permit application.  This way we were able to accommodate clients who had a very limited period of stay in the U.S.

The New I-131 Reentry Permit Acceptance Procedure Delays Biometrics

Under the new procedure, all I-131 reentry permit applications are now filed at a USCIS lockbox.  The purpose of the lockbox is to accept the application and do initial processing such as issuing a receipt.  Following the initial processing, the case is transferred to the service center tasked with processing the reentry permits – NSC.

Only after the lockbox center forwards the I-131 reentry application to NSC the expedited processing biometrics appointment can be issed.  This adds an additional week or so of processing and scheduling a biometrics notice.

In light of these changes, we have had to advise our I-131 reentry permit expedited processing clients to adjust their travel accordingly and to plan on being in the U.S. 3-4 weeks (up from 2-3 weeks) to be able to accommodate their required biometrics appointment while in the U.S.

Unfortunately, USCIS has indicated that they intend to use the lockbox for the future and we do not foresee any improvement in the processing times or the efficiency of the expedited reentry permit application procedure.  USCIS has indicated that they are exploring ways to be able to process biometrics abroad; however, as of today, the biometrics can be done only in the U.S.

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Filing a New I-140 When Another I-140 Is Pending on Appeal

In addition to the numerous inquiries on filing a new I-140 when a previous I-140 is pending on appeal, our office handles a number of such new I-140 filings.   Pursuant to USCIS guidance, a previously approved labor certification which was timely used to file an I-140 can, in many circumstances, be subsequently used to file a new I-140 if the initial I-140 was denied.   Many initial I-140 denials are appealed with the Administrative Appeals Office (AAO); in such cases, the issue becomes whether the petitioner can file a new I-140 while the initial I-140 is pending on appeal.

Background

USCIS current policy is that when a denied I-140 is appealed and is sent by a service center to the AAO for adjudication (which can take up to two years months), the service center will hold in abeyance a newly refiled I-140 the same Beneficiary in the same EB classification.  The question becomes whether a new I-140 for the same beneficiary but for a different classification would be also held in abeyance?

Recent Texas Service Center Guidance

A recent guidance from the Texas Service Center (TSC) has indicated that whether or not an I-140 filed for a Beneficiary in a different classification will be held in abeyance while an appeal is pending is determined on a case-by-case basis and depends on the reason for the initial denial.   As an example, if an I-140 is denied for lack of ability to pay, and the ability to pay issue is appealed, a subsequent identical I-140 filing, even in a different classification, would typically be held in abeyance pending the outcome of the appeal.

Considering the long AAO processing times (20-24 months for I-140 appeals), before an I-140 appeal is filed, it is important to evaluate the alternatives and the options of filing a new I-140 without appealing the previously-denied I-140.  Many beneficiaries need to file an appeal in order to be able to obtain H-1B extension benefits; however, if this is not a factor, appealing I-140 may not provide much of a strategic benefit, in fact, it may only delay the I-140 process.

How We Can Help

Our office handles a number of I-290B I-140 AAO appeals and we would be happy to review your case and advise you on the best options.  Please do not hesitate to contact us for a free initial consultation.  Also, please feel free to subscribe to our weekly newsletter to receive free immigration law updates.

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FY2011 H-1B Numbers Update – 18,000 Regular and 7,600 Masters Cap Visas Used (May 6, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.  As of May 6, 2010, USCIS has received approximately 18,000 H-1B petitions counting toward the 65,000 cap (a weekly increase of 1,500). Similarly, as of May 6, there were 7,600 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of 700).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that after there was a very small weekly increase in the number of H-1B filings for both the regular and Masters’s caps.  As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time.  We wish to caution potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

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AC21 Green Card Process Porting: How Similar Should the Jobs Be?

In connection with the 2007 adjustment of status (I-485) filing “blizzard” and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases.   One of the most frequent questions we receive is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

Computer Systems Analysts – 15-1051.00

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USCIS to Issue Redesigned U.S. Green Cards

USCIS has announced that effective Tuesday, May 11, 2010, it would issue redesigned U.S. Permanent Resident Cards (also known as “green cards.”)   The redesign is mainly driven to incorporate new security features to deter counterfeiting, tempering and document fraud, generally.

Features of the Redesigned Green Card

Among the main features of the redesign: secure optical media will store biometrics for rapid and reliable identification of the card holder. There will be a holographic images, laser engraved fingerprints, and high resolution micro-images which will make the card nearly impossible to reproduce.  There will be a tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen.   Also, a Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data.   Finally, a preprinted return address will enable the easy return of a lost card to USCIS.

Design

The “green card” is now actually “green”  in color and design patterns.   Samples of the front and back are shown below:

Frequently Asked Questions

Who can obtain the new green card?  All requests for initial or replacement (renewal) green cards, once approved, will be issued the green card, as newly redesigned.  USCIS has not announced a campaign to replace the existing green cards which are currently valid and in circulation.

What is the cost of replacing a green card?  The application filing fee for an application to replace a green card is $370.00.

How to apply to obtain a damaged or lost green card?  A lawful permanent resident may seek a replacement card by filing a Form I-90, Application to Replace Permanent Resident Card.  If abroad, the permanent resident should contact the nearest consulate, USCIS office or port of entry before filing Form I-90.  Our office can help you with the green card renewal or replacement application – please contact us.

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