Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for July, 2010

AILA Sues USCIS Under FOIA For Release of H-1B Policy Documents

On Tuesday, July 20th, AILA filed a lawsuit against the Department of Homeland Security (DHS) and Citizenship and Immigration Service (USCIS) seeking the release of records concerning agency policies and procedures for the H-1B visa program.  AILA had attempted to obtain these documents under a Freedom of Information Act (FOIA) request which had been denied in full by USCIS.

This lawsuit focuses on the government’s H-1B visa review and processing procedures.  Since 2008, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced worksite inspections – expected to reach 25,000 visits in 2010 alone – in connection with H-1B cases.  At the same time, USCIS has kept under secret the rules and guidelines related to the review process.   The lack of publicly available information on the government’s heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.

The lawsuit seeks the release of policy and other agency memoranda regarding H-1B adjudication and enforcement.   Considering the full denial of AILA’s earlier FOIA request, it may be expected that the government will fight this lawsuit to prevent this disclosure.  We will continue providing updates and developments on this case.  Please stay tuned.

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Developments in Neufeld Memo Lawsuit

We have previously written extensively about the January 2010 Neufeld Memorandum and the recent lawsuit challenging its validity.   We wanted to provide some recent updates on the case as it is of great interest to many of our clients and readers.

On June 25, 2010, the government filed a Memorandum in Opposition to the complaint.    The opposition is mainly based on technical arguments.  However, the government makes also the arguments that its policy-making ability pursuant to memoranda is exempt from the Notice and Comment requirements for rulemaking and that the plaintiffs have failed to show irreparable harm if the preliminary injunction were to be granted and, most interestingly perhaps, that agency memoranda are do not have the force of regulations and are just a suggestion to adjudicators on review criteria.

Subsequently, on July 9, 2010, the plaintiffs filed a reply to the government’s Memorandum of Opposition.  In it, the plaintiffs directly address the government’s arguments, including the argument that the policy memoranda does not constitute a regulation.   Plaintiffs argue that the policy guidance may not explicitly state that it is binding; however, in spirit and practice, it actually is.

We will continue to monitor the developments in this case as it affects a large number of our readers and clients.  Furthermore, the impact of this lawsuit may be broader than just the Neufeld Memorandum as the scope of the case may expand to cover other USCIS memoranda.   If you haven’t already, please subscribe to our free weekly newsletter to receive news and updates on this and related topics.

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FY2011 H-1B Numbers Update – 25,300 Regular and 11,000 Masters Cap Visas Used (July 16, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of July 16, 2010, USCIS has received approximately 25,300 H-1B petitions counting toward the 65,000 cap (an increase of only 500 over the week).  Similarly, as of July 16, there were 11,000 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 400 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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AAO Processing Times Report (July 1, 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 July 1, 2010.  Overall, there is not much change in comparison to the April 1, 2010 report (the last we reported).

Among the most notable AAO processing times:

  • H-1B appeal takes 12 months (decrease by two months compared to April 1, 2010);
  • I-140 EB1 Extraordinary Ability takes less 7 months (one month increase), Multinational Manager or Executive takes 15 months (increase by three months) while EB1 Outstanding Professor or Researcher category takes 6 months (increase by one month);
  • I-140 EB2 (Advanced Degree) takes 24 months (no change) while EB2 (NIW) takes 6 months (increase by one month); and
  • I-140 EB3 Skilled Worker takes 25 months (increase by one month) while EB3 Other Worker takes 23 months on appeal (increase by one month).

Read the full AAO Processing Times report.

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FY2011 H-1B Numbers Update – 24,800 Regular and 10,600 Masters Cap Visas Used (July 9, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of July 9, 2010, USCIS has received approximately 24,800 H-1B petitions counting toward the 65,000 cap (an increase of only 600 over the week).  Similarly, as of July 9, there were 10,600 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 200 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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August 2010 Visa Bulletin – EB-2 and EB-3 Substantial Forward Movement

The August 2010 Visa Bulletin was just released by the State Department.  The eleventh 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 August 2010 Visa Bulletin – Employment-Based (EB)

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

  • EB-1 remains current across the board.
  • EB-2 ROW (Rest of World) remains current, EB-2 China moves forward by slightly over three (3) months to March 1, 2006, EB-2 India moves forward by five (5) months from October 1, 2005 to March 1, 2006.
  • EB-3 ROW moves forward by nine and a half months (9.5) months to June 1, 2004, EB-3 China  moves forward by slightly over one (1) month to September 22, 2003, while EB-3 India moves forward by slightly over one (1) month to January 1, 2002.  EB-3 Mexico remains unavailable.
  • The “other worker” category moves forward by a few months, to May 15, 2002 for ROW and China and to January 1, 2002 for India.

Substantial Forward Movement Continues

The notable forward movement in EB-2 and some EB-3 categories continues in this month’s visa bulletin as well.   This significant movement is due to the fact that there are some visa numbers available from other countries have not been reached yet and such countries’ per-country limit has not been reached.  As a result, as we are getting close to the end of the fiscal year, and after taking the worldwide demand into account, the State Department has determined only 8,100 of the total available EB-2 preference numbers would be used in that quarter.   In this case, the unused 3,500 numbers could then be made available to China-mainland born and India regardless of their per-country limits.

Forward Movement Is Temporary

Note that the substantial forward movement  does not indicate a trend; instead, the last two visa bulletins’ forward movement was to ensure that no available visa numbers remain unused due to poor allocation of the unused numbers.  We expect that there be some retrogression over the next 1-3 months.

Please do not hesitate to contact us if you have any questions or if we can help you prepare and file your I-485 adjustment application, should your priority date become current.

). Applicants from other countries that have not yet reached their per-country limit have reported a total demand of 6,500 numbers. After taking the worldwide demand into account, it is determined that as a result of the China-mainland born and India per-country limits only 8,100 of the total available Employment Second preference numbers would be used in that quarter. In this instance, the otherwise unused 3,500 numbers could then be made available to China-mainland born and India regardless of their per-country limits. Should that occur, the same cut-off date would be applied to each country, since numbers must be provided strictly in priority date order regardless of chargeability.
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US Consulates in China Relax Visa Interview Appointment Policy

The Department of State has announced that effective immediately, non-immigrant visa applicants may book interview appointments at any U.S. Consular Section in China, regardless of the province or city where they live.   Under the old policy, appointments had to be made only at a specific consulate, based on province of residence.

Consular Sections are located at the U.S. Embassy in Beijing and U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang.  The purpose of the rule is, according to the State Department, to “increasing mutual understanding between the United States and China through people-to-people exchange.”   According to Department of State numbers, in 2009, almost 500,000 people received U.S. non-immigrants visas in China and the new policy should serve to increase this number by eliminating barriers to application.

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Current PERM Processing Dates/Times (as of May 31, 2010)

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of May 31, 2010.  They are as follows:

  • Regular processing: August 2009.  DOL is processing PERM applications with priority dates in August 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: May 2008.  This is no movement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately 24 months after the initial PERM was filed and the priority date established.
  • Appealed applications: December 2007.  There is some delay in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 29 months after the initial PERM was filed and its priority date established.

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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USCIS Plans Increase in Filing Fees

In a recent announcement, USCIS, as part of their annual budget review and due to lower-than-estimated fee revenue collection, proposed a fee increase that will amount to an average increase of  10% across the board.

A formal proposal has been published in the Federal Register and there is a 45-day comment period.   Some of the increases are substantial, especially when considered in conjunction with the ~60% fee increase done in 2007.   For example, an I-130 petition for an alien relative will jump from $355 to $420.  An I-131 application for a travel document goes up by $55, and an application for an employment authorization document increases by $40.  Adjustment of status fees will increase by $55.  Businesses will also need to pay more – I-140 petitions for immigrant workers are increasing by over $100, premium processing fee is going up by $225 and a brand new fee of $6,230 is proposed to establish a Regional Center under the EB-5 program.

The USCIS justification is plain – our costs are high, our revenues are low, we need to either decrease service (by having less adjudicators and by increasing processing times) or to raise fees.   In a conference call to discuss the fee increase, USCIS Director Mayorkas explained that the fee increase is necessary to bridge the $160 million budget shortfall at the agency.

The 45-day comment period is due to expire in late July, so we encourage our readers and clients to comment on the proposed fee increase.  We will continue monitoring this proposal and will announce any developments with respect to any changes to the rule or to its effective date.   Please subscribe to our weekly newsletter to receive timely updates on this and related topics.

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FY2011 H-1B Numbers Update – 24,200 Regular and 10,400 Masters Cap Visas Used (July 2, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of July 2, 2010, USCIS has received approximately 24,200 H-1B petitions counting toward the 65,000 cap (an increase of only 700 over the week).  Similarly, as of July 2, there were 10,400 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 400 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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