Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for June, 2010

FY2011 H-1B Numbers Update – 23,500 Regular and 10,000 Masters Cap Visas Used (Jun 25, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of June 25, 2010, USCIS has received approximately 23,500 H-1B petitions counting toward the 65,000 cap (an increase of only 600 over the week).  Similarly, as of June 25, there were 10,000 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 300 over the week).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that 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 weeks prior.  The overall trend shows that the H-1B filings (for both regular and U.S. master’s caps) 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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FY2011 H-1B Numbers Update – 22,900 Regular and 9,700 Masters Cap Visas Used (June 18, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of June 18, 2010, USCIS has received approximately 22,900 H-1B petitions counting toward the 65,000 cap (an increase of only 700 over the week).  Similarly, as of June 18, there were 9,700 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 300 over the week).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that 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 weeks prior.  The overall trend shows that the H-1B filings (for both regular and U.S. master’s caps) 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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H-1B Statistics for Fiscal Year 2009

Each year, the Department of Homeland Security is required by law to provide to Congress a report on the characteristics of the H-1B specialty occupation workers.   The report for fiscal year 2009 (FY2009) which covers October 1, 2008 to September 30, 2009 was released recently.

The report is interesting because it covers partially the period when the economic crisis began.  Also, there are some interesting numbers.

Number of H-1B Petitions.  The number of H-1B petitions filed decreased 15 percent from 288,764 in FY2008 to 246,647 in FY2009.  This number includes all H-1B filings — new employment, amendment and transfers.   Although the report does not attribute the decrease in numbers, it is most likely due to the economic slowdown which started in 2008 and continued through 2009.

Number of H-1B Approvals.  The H-1B petitions approved decreased 22 percent from 276,252 in FY2008 to 214,271 in FY2009.  This does not mean that the rate of approval has changed by 22 percent – instead, the decrease of approvals is due to the decrease in filings.   In comparison, in FY2008, the rate of approval was 95 percent (based on calculating the number of FY2008 approvals out of number of FY2008 filings) and the FY2009 rate of approval was  87 percent, or 8 percentage points decrease.

Change of Status v. Consular Processing.  The breakdown of initial employment H-1B cases changed notably.  During FY2009, the number of aliens outside of the U.S. who applied for initial H-1B dropped by 40 percent from 56,000 in FY2008 to 33,000 in FY2009.   Initial H-1B applicants who were in the U.S. and applied for change of status from the U.S. remained steady at 53,000.

Country of Nationality.  Most H-1Bs were issued to Indian nationals – 48 percent, followed by China (10 percent), Canada (5 percent) and the Philippines (4 percent).

Age.  The report indicates that two-thirds of the H-1B petitions approved in FY2009 were for workers between the ages of 25 and 34.

Education.  Forty-one percent of the approved H-1B petitions were for workers with a bachelor’s degree, 40 percent had a master’s degree, 13 percent had a doctorate and 6 percent were for workers with a professional degree.

Salary.  The median salary of  beneficiaries of approved H-1B petitions increased from $60,000 in FY2008 to $64,000 in FY2009.

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Guide to Infopass

About InfoPass

In addition to being able to obtain basic case status information or obtain services related to immigration through the USCIS customer service phone line, InfoPass is a free service which allows scheduling an appointment with a USCIS immigration officer by using the Internet.  InfoPass is helpful for resolving immigration issues that are best handled by a trained USCIS immigration officer or where certain information or documents need to be presented for review or processing.

Scheduling an InfoPass Appointment

InfoPass is free – it costs nothing to schedule an appointment via the USCIS website at http://infopass.uscis.gov/.  When scheduling an appointment, the InfoPass website allows selection of the closest USCIS center to a given address.  After completing the registration form, the system allows the selection of a time and date with available InfoPass appointments.  Generally, as InfoPass appointments are often cancelled or added, the selection will vary by area and time of the day and time of the year.

Appointments can be canceled or rescheduled through the InfoPass website.  Since USCIS centers can be very busy in many areas of the country, we always encourage our clients and readers to cancel their InfoPass appointments if they cannot make them as early as possible to allow somebody who may need urgent help to be able to take the appointment.    Lost InfoPass notices can be reprinted online as well.

What Should I Bring to My InfoPass Appointment?

In order for the USCIS immigration officer to be able to resolve a particular issue, there may be a need to bring good information and documents to the InfoPass appointment.  In addition to the InfoPass appointment (printed when scheduling the appointment) and a government-issued ID, the government asks that any relevant documents be taken along.  Such documents can be immigration forms, receipt notices, approval or denial letters, translations and original documents that relate to a particular inquiry or problem.

Suitability of InfoPass Appointments for General Inquiries

InfoPass is a great tool for solving issues on immigration cases.  However, it is not suitable for a number of other inquiries.  Routine inquiries can be handled quickly and easily over the phone or Internet.   It is generally best to try to resolve an inquiry or a problem by calling the National Customer Service Center at 1-800-375-5283 and speaking with immigration officer (see our guide to NCSC).

* InfoPass allows you to cancel or reschedule appointments by using the identification numbers at the bottom of your printed out appointment confirmation notice.
* To allow us to serve the most customers possible, please cancel your appointment if you cannot make it at the appointed time. There is no penalty for rescheduling or canceling an appointment.
* If you lose your appointment notice, you can print a replacement by accessing InfoPass and entering the information requested.

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Federal Lawsuit Challenges the January 2010 Neufeld Memo on Employer-Employee Relationship

We have written extensively in the past regarding the January 8, 2010 Neufeld Memo which introduced guidance requiring H-1B applications to show proof of employer-employee relationship between the H-1B petitioner and beneficiary.  The Neufeld Memo has affected mostly staffing and consulting companies where the H-1B beneficiaries are employed at third-party worksites.

USCIS Sued to Prevent Enforcement of the Neufeld Memo Guidelines

In a five-count complaint filed by a coalition of staffing companies and representative trade associations, the USCIS is asked to stop temporarily and permanently from applying the Neufeld Memo in H-1B adjudications.  The case is Broadgate v. USCIS and is assigned to Judge Kessler at the U.S. District Court for the District of Columbia.

The complaint alleges that the Neufeld Memo abruptly altered long-standing agency policy which has permitted companies from placing H-1B workers at third-party job sites.  The complaint further alleges that existing USCIS guidelines specify that an employer-employee relationship does exists when the petitioner company may “hire, pay, fire, supervise, or otherwise control the work of any such employee.”  The plaintiffs in this case claim that the Neufeld Memo constitutes a legislative regulation because it sets forth new binding standards that prevent employers that place employees at third-party worksites, but which otherwise meet the regulatory definition, from sponsoring H-1B nonimmigrants.

The complaint alleges that the new policy (i) is contrary to existing law and regulations, (ii) is arbitrary and capricious because the government failed to articulate a policy justification, (iii) violates the Administrative Procedure Act notice-and-comment requirements, and (iv) should have been issued following a certification under the Regulatory Flexibility Act (which requires regulators to consider the potential impact of regulations on small business).

Conclusion: More to Follow

Our office has been very involved in this issue from the publication of the Neufeld Memo and we have seen the impact of the memo on H-1B adjudications and RFEs.   USCIS has been under some pressure to amend the Neufeld Memo, at least in some respects, and this lawsuit is certain to put more pressure on resolving this controversy.  We will continue monitoring this case and the Neufeld Memo developments coming out of USCIS and will provide updates.  In the meantime, please do not hesitate to contact us or subscribe to our free weekly newsletter.

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FY2011 H-1B Numbers Update – 22,200 Regular and 9,400 Masters Cap Visas Used (June 11, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of June 11, 2010, USCIS has received approximately 22,200 H-1B petitions counting toward the 65,000 cap (an increase of only 1,400 over a two-week period).  Similarly, as of June 11, there were 9,400 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 700 over a two-week period).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that 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 weeks prior.  The overall trend shows that the H-1B filings (for both regular and U.S. master’s caps) 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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July 2010 Visa Bulletin – EB-2 India Jumps Ahead by Ten Months; Gradual Movement in EB-3

The July 2010 Visa Bulletin was released earlier this afternoon by the State Department.  The tenth visa bulletin for the fiscal year 2010 brings some substantial forward movement in the EB-2 India category which had not moved for the past few months.  Also, there is some gradual forward across all EB-3 employment-based categories.

Summary of the July 2010 Visa Bulletin

Below is a summary of the July 2010 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 ROW remains current, EB-2 China remains unchanged at November 22, 2005, and, most notably, EB-2 India moves forward by ten (10) months from February 1, 2005 to October 1, 2005.
  • EB-3 ROW moves forward by almost two (2) months to August 15, 2003, EB-3 China also moves forward by almost two (2) months to August 15, 2003, while EB-3 India moves forward by one (1) month to November 22, 2001.  EB-3 Mexico remains unavailable.
  • Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is  unavailable.

Finally Movement in EB-2 India

Previously we wrote about the lack of movement in the EB-2 India category for the past four months.  Finally, there is a substantial forward movement in EB-2 India which should benefit at least some of our clients and readers.  Please do not hesitate us if you have any questions or if we can help you prepare and file your I-485 adjustment application.

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USCIS to Launch a Redesigned E-Verify Site

USCIS has unveiled a substantial redesign of the E-Verify system website.  The changes are both in terms of design and functionality.   The new E-Verify site will go live on June 13th, and USCIS has advised us that all user accounts will remain valid and active.

Graphic Design

E-Verify’s design has seem to be somewhat of an afterthought for the initial designers.  Not anymore.  E-Verify’s design now features cleaner page elements, better visual clues for case status and other important pieces of information.

Functionality

Some interesting functionality has been added.  Among the most interesting, and most disappointing, is the case alerts feature.  E-Verity can keep track of a work authorization document’s expiration date and provide an alert when such document is about to expire.  However, the disappointment comes after realizing that a user must log into E-Verify to obtain such alerts.  According to USCIS, their “current system doesn’t support automatic “blast” e-mails other than for enrollment-related actions. We’re looking into solutions that would allow us to use e-mail more, but in the meantime, the new case alerts feature represents a big improvement in case management.”

Transition Resources

USCIS has made available some transition resources:

Conclusion

E-Verify’s redesign is a step in the right direction.  Not only visually pleasing, the system starts to add requested functionality.  We encourage USCIS to continue to listen to its constituents and add and improve features as more and more businesses decide (or are required) to adopt E-Verify.

The Capitol Immigration Law Group PLLC is E-Verify Designated Agent, please contact us if we can help your organization with its E-Verify and compliance matters.

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Texas Service Center Launches I-485 Notification Pilot Program

The Texas Service Center (TSC) recently launched a pilot program pursuant to which employment-based I-485 applicants can facilitate TSC processes relating to specific stages of the employment-based adjustment of status.  A special email address has been designated for this purpose: ebupdate.tsc@dhs.gov.

Procedure and Process

After sending an email pursuant to this pilot program, applicants will receive an automatic reply from TSC stating that the email was received.  After submitting information through this pilot email initiative, one follow-up inquiry may be sent if no communication has been received from TSC, such as a decision notice, a request for evidence, or other notice, within 90 days.  The automatic email reply will provide further information on how to submit the follow-up inquiry.

Notification of AC21 Change of Employer
I-485 applicants who wish to change employer and retain their adjustment process pursuant to AC21 are advised to follow the following steps:

  1. Identify only one applicant in a single e-mail. E -mails must pertain to applicants whose I-485s have been pending for 180 or more days and who are eligible for AC21 porting.
  2. Send an email to: EBUPDATE.Tsc@dhs.gov.
  3. On the subject line,  write “EB I-485/AC21.” (Example: EB I-485/AC21)
  4. In the text of the email, provide: A-number, old employer’s name and new employer’s name.  Attach a copy of the new employer’s letter of employment. The letter must identify the following information: the new employer, the letter’s author and his/her job title, the applicant’s new job title, start date of new employment, hours per week, salary, and specific description of the duties to be performed.
  5. If the applicant has more than one A-number, they should be typed on the same line separated by a “/”. (Example: All 1222333 I A444555666). If there are multiple family members, they should be typed  all on the same line separated by commas. (Example: AIII222333, A222333444, A444555666). You should also indicate which of the A-numbers is that of the principal I-485 applicant / I I-140 beneficiary.

Notification When an Applicant Has Multiple I-140s With Available Priority Dates

Adjustment applicants who have two or more I-140s and when the priority date of one or more of these I-140s is current, the procedure to notify TSC is as follows:
  1. Identify only one applicant in a single e-mail. E-mails must pertain to applicants whose I-485s are eligible for processing because the priority date of another approved I-140 is visa available.
  2. Send an email to: EBUPDATE.Tsc@dhs.gov.
  3. On the subject line,  write “I-485 Multiple I-140s.”
  4. In the text of the email  provide the A-number and the receipt number of the I-140 that has the priority date that is visa available. If the applicant has more than one A-number, or if there are multiple family members, please follow the instructions described above under the e-mail instructions regarding AC 21 portability.

Notification When Applicant is Eligible for Cross-Country Chargeability

Applicants who are eligible to obtain chargeability under a different country should follow the following procedure:

  1. As with the categories described above,  identify only one applicant in a single e-mail. E-mails should pertain to applicants whose I-485s are currently eligible for processing because the applicant is entitled to receive a cross-charged priority date from a qualifying family member under Section 202 of the Immigration and Nationality Act.
  2. Send an email to: EBUPDATE.Tsc@dhs.gov
  3. On the subject line, write “I-485/ CC”
  4. In the text of the email,  provide A-numbers, including the A-number of the I-485 applicant who will acquire the current priority date from the qualifying family member, and the country of cross chargeability. Also include the A-number of the family member who will confer the current priority date.  If the applicant who is to receive the cross-charged priority date has more than one A-number, or if there are multiple family members,  the instructions described above under AC 21 portability apply.

Notification of Case in Need of Transfer

Applicants can also notify TSC of cases which are in need of transfer.  The procedure is as follows:

  1. Identify only one applicant in a single e-mail. E-mails must pertain to applicants whose I-485s are eligible for processing because the priority date of another petition relating to the I-485 applicant (such as an I-130) has a visa available.
  2. Send an email to: EBUPDATE.Tsc@dhs.gov
  3. On the subject line,  write “Transfer”.
  4. In the text of the email, provide A-numbers or receipt numbers and the office to which the I-485 should be transferred. If the applicant has more than one A-number, or if there are multiple family members please follow the instructions described above under the AC 21 portability instructions.

Conclusion
TSC’s pilot notification program is a great idea; however, its success will depend on how well TSC will respond to legitimate notifications send to them via the new email address and how well TSC will advise applicants who use the notification tool of the status and progress of their request.  We will continue monitoring this pilot program and using it with selected clients who can benefit from it and will provide further updates on the pilot program’s usefulness.

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FY2011 H-1B Numbers Update – 20,800 Regular and 8,700 Masters Cap Visas Used (May 28, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of May 28, 2010, USCIS has received approximately 20,800 H-1B petitions counting toward the 65,000 cap (a weekly increase of only 1,200). Similarly, as of May 28, there were 8,700 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of only 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.  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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