Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for September, 2010

FY2011 H-1B Numbers Update – 39,600 Regular and 14,400 Masters Cap Visas Used (September 24, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of September 24, 2010, USCIS has received approximately 39,600 H-1B petitions counting toward the 65,000 cap (an increase of 1,300 over the past week).  Similarly, as of September 24, there were 14,400 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 400 over the past week).

H-1B Quota Trends – Slight Upward Trend in Regular Cap Filing

The numbers, as reported over the past week, show a notable increase over the past few weeks.  Last week’s increase of 1,300 regular cap cases marks a notable upward trend in the number of regular cap H-1B filings. The master’s cap filings have remained steady, of about 300-400 per week over the past few weeks.

H-1B Quota Expected to be Reached in March or April 2011

With the current pace of filings, or about 1,000-1,500 regular H-1B cap filings per week and 400 master’s cap per week, we estimate that the H-1B cap would be reached in 20-25 weeks, or sometime in early 2011.

We wish to reiterate our caution to 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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Increase in USCIS Filing Fees Goes Into Effect on November 23, 2010

We wrote earlier in the summer about USCIS’ plans and proposed rule to increase certain filing fees.   The final rule was published a few days ago in the Federal Register and the new increased filing fees are set to go into effect on November 23, 2010.

Increases (and a few decreases) in USCIS Filing Fees

A full schedule of the new fees is set forth in page 4 the final rule PDF document or in this table.  Among the most notable increases are:

  • Form I-90 (replacement of green card) filing fee increases from $290 to $365;
  • Form I-129 (used for H, L, P, O visas) filing fee increases from $320 to $325;
  • Form I-129F (used for fiancee visas) filing fee decreases from $455 to $340;
  • Form I-130 (family-based immigrant visas) filing fee increases from $355 to $420;
  • Form I-131 (reentry permits and advance parole documents) filing fee increases from $305 to $360;
  • Form I-140 (employment-based immigrant visas) filing fee increases from $475 to $580;
  • Form I-290B (motion to reopen/appeal) filing fee increases from $585 to $630;
  • Form I-485 (adjustment of status) filing fee increases from $930 to $985 (for children under 14 when filing with parent the fee increases from $600 to $635);
  • Form I-539 (change or extension of status) filing fee decreases from $300 to $290;
  • Form I-751 (removal of condition) filing fee increases from $465 to $505;
  • Form I-765 (work permit) filing fee increases from $340 to $380;
  • Form I-824 (action on approved petition, follow-to-join) increases from $340 to $405;
  • Form I-907 (premium processing) increases from $1,000 to $1,225;
  • Biometrics processing fee increases from $80 to $85.

Effective Date

All of these fee changes become effective on November 23, 2010.  All applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee.

Conclusion

We will not comment on the fairness and the justifications of the new fees.  We hope that the new fees will result in increased efficiency and accuracy in USCIS adjudications.

We urge our clients and readers, if possible, to prepare and file any upcoming petitions and applications for benefits before the new fees become effective in approximately two months on November 23rd.   As with previous fee increases, we expect increased workload of filings so please contact us as soon as possible so that we can ensure we can prepare and file your case on time before the filing fee increase becomes effective on November 23rd.  Please contact us now so that we can analyze and prepare your case for filing.

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Visa Bulletin Predictions and Updates from Charles Oppenheim

Yesterday our office attended a American Immigration Lawyers Association (AILA) discussion session here in Washington, DC with Charles Oppenheim.  Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State.  For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.  He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate the opportunity Mr. Oppenheim has afforded us to get some advance sense of the movement of the priority dates.

General Visa Number Trends

Mr. Oppenheim noted that in the employment-based context, each green card application case is larger than previously expected (because many primary beneficiaries have married and have children).  As a result, and in recognition of the fact that many EB-3 India and China candidates are now eligible for and applying under the EB-2 category, Mr. Oppenheim noted that the employment-based visa numbers are expected to remain oversubscribed and to move slowly forward.

With respect to family-based cases, Mr. Oppenheim noted that the demand, especially in the FB2 category has been much lower than anticipated and as a result the FB2 category has noted significant forward movement over the past few months and that this aggressive forward movement is expected to continue.   Mr. Oppenheim that the FB2A forward movement is unprecedented and provides a rare opportunity to file family-based green card applications

Visa Bulletin Predictions – Employment-Based

Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-3 Rest of World (ROW).  This category is expected to move very slightly forward or to remain unchanged in the November 2010 visa bulletin.  The reason is the high number of applications waiting for a visa number in this category.

EB-3 China and EB-2 China.  These two categories are expected to move slowly over the next few months – by one or two weeks at a time for the next few visa bulletins.

EB-3 India.  Similarly, this category is expected to move very slowly over the next few visa bulletins — perhaps by one or two weeks at a time.

EB-2 India. This category is expected to remain unchanged or to move very slowly forward (by a week or so) in the short-term.  This is mainly caused by the fact that many EB-3 India applicants (there are approximately 60,000 EB-3 India pending cases) are “porting” their priority dates into the EB-2 India category and are thus taking visa numbers.

Visa Bulletin Predictions – Family-Based

Mr. Oppenheim was also able to provide some predictions and expectations for movement of the family-based visa numbers over the next few months.  Unlike the employment-based visa numbers, which are expected to advance very slowly over the next few months, the family-based visa numbers, especially in the 2A category are expected to continue to advance consistently and relatively quickly.

FB 2A.  According to Mr. Oppenheim, this family-based category has shown a very low demand over the past months; accordingly, Mr. Oppenheim expects that the 2A category (spouses and children of permanent residents) will continue to move forward aggressively and by the February 2011 visa bulletin, this category may be current or close to being current.

FB 2B.  Similarly, movement in the 2B category has been faster than anticipated due to low demand; accordingly faster forward movement in this category is also expected.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Although our employment-based clients may be disappointed by the slow forward movement which is expected, our family-based clients should consider preparing and filing family-based applications, especially in the FB2A and FB2B categories which are expected to note significant forward movement in the near future.

Please do not hesitate to contact us if we can review your case or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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DV-2012 Diversity Visa (Green Card) Lottery Opens October 5, 2010

The Department of State will open the DV-2012 Diversity Visa (a.k.a. “green card”) lottery on Thursday, October 5, 2010.   The entries for this year’s lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Thursday, October 5, 2010, and noon, Eastern Standard Time (EST) (GMT-5), Wednesday, November 3, 2010.

Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on November 3, 2010.

About the DV Lottery

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 and provides for a class of immigrants known as “diversity immigrants.” Section 203(c) of the INA provides a maximum of 55,000 Diversity Visas (DVs) each fiscal year to be made available to persons from countries with low rates of immigration to the United States.

The annual DV program makes visas available to persons meeting simple, but strict, eligibility requirements. A computer-generated, random lottery drawing chooses selectees for DVs. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. Within each region, no single country may receive more than seven percent of the available DVs in any one year.

Countries Ineligible

For DV-2012, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Eligibility Requirements

There are two main requirements.  First, the applicant must be a national of a country which is eligible (see above for ineligible countries).  Nationality is generally defined by birth, although there are certain exceptions,  most notably if the applicant’s spouse is a national of a different country.  Second, the applicant must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

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FY2011 H-1B Numbers Update – 38,300 Regular and 14,000 Masters Cap Visas Used (September 17, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of September 17, 2010, USCIS has received approximately 38,300 H-1B petitions counting toward the 65,000 cap (an increase of 900 over the past week).  Similarly, as of September 17, there were 14,000 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 300 over the past week).

H-1B Quota Trends – Slight Upward Trend in Regular Cap Filing

The numbers, as reported over the past week, show a slight decrease over the substantial 4,000 increase in the number of regular filings over the week of August 20th and over the weeks of August 27th and September 3rd.  Last week’s increase of 900 regular cap cases marks a slight upward trend in the number of regular cap H-1B filings; however, this can be attributed to the Labor Day’s holiday which resulted in lower number of filings during the week of September 3rd (which had 800 regular H-1B cap filings).

H-1B Quota Expected to be Reached in March or April 2011

With the current pace of filings, or about 1,000-1,500 regular H-1B cap filings per week and 400 master’s cap per week, we estimate that the H-1B cap would be reached in 20-25 weeks, or sometime in early 2011.

We wish to reiterate our caution to 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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Citizenship and Naturalization Numbers for FY2009

Our office continues to handle an increasing number of naturalization and citizenship applications so it is interesting to share with our clients and readers some recent numbers on the citizenship statistics for Fiscal Year 2009 (FY2009).

During FY2009, U.S. Citizenship and Immigration Service (USCIS) received 743,715 applications for naturalization (in comparison to the 1,046,539 during FY2008 and 660,477 in FY2007).  Some of our readers would conclude that there is a sharp drop in the naturalization applications in FY2009 compared to the fiscal year prior; however, FY2008 was the year when USCIS instituted a substantial Form N-400 fee increase, which prompted a higher-than-normal filing numbers.  FY2009 is actually substantially higher than FY2007 and FY2006 (660,477 and 702,589, respectively).    Based on these statistics, it is important to show that the citizenship and naturalization applications are increasing.

Most of the applicants (74%) resided in 10 states: California, New York, Florida, Texas, New Jersey, Illinois, Virginia, Massachusetts, Washington and Maryland.   The largest metropolitan area of residence was New York-New Jersey (15%), Los Angeles (11%), Miami (7.3%).

The top countries of origin of naturalization applicants were Mexico, India, Philippines, China and Vietnam.

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ASC Biometrics Notice Codes

Our office often receives inquiries by clients about a piece of information displayed on the ASC Appointment Notices issued for the purpose of capturing biometrics.  Our clients are asking us what is the meaning of the “Code” field, found in the top right part of the ASC Appointment Notice.

The “Code” field is intended to indicate the type of biometrics processing to be performed.  The possible values are:

  • Code 1 – fingerprinting for 10 prints only.
  • Code 2 – photo, signature and index finger press-print;
  • Code 3 – photo, signature, index finger press-print and fingerprinting for 10 prints.
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FY2011 H-1B Numbers Update – 37,400 Regular and 13,700 Masters Cap Visas Used (September 10, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of September 10, 2010, USCIS has received approximately 37,400 H-1B petitions counting toward the 65,000 cap (an increase of 800 over the past week).  Similarly, as of September 10, there were 13,700 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 300 over the past week).

H-1B Quota Trends – Slight Downward Trend in Regular Cap Filing

The numbers, as reported over the past week, show a slight decrease over the substantial 4,000 increase in the number of regular filings over the week of August 20th and over the week of August 27th.  Last week’s increase of 800 regular cap cases marks a slight downward trend in the number of regular cap H-1B filings; however, this can be attributed to the Labor Day’s holiday.

H-1B Quota Expected to be Reached in March or April 2011

With the current pace of filings, or about 1,000-1,500 regular H-1B cap filings per week and 400 master’s cap per week, we estimate that the H-1B cap would be reached in 20-25 weeks, or sometime in early 2011.

We wish to reiterate our caution to 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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IT Consulting Firms Lose Neufeld Memo Lawsuit

We have previously written extensively about the January 2010 Neufeld Memorandum and the lawsuit filed earlier this year challenging its validity.   This lawsuit has been of great interest to most of our clients as the Neufeld memorandum created some new requirements applicable not only to IT consulting companies but to most, if not all, H-1B employers.

After an exchange of arguments about dismissal of the suit in July, the District Court for the District of Columbia sided with the government and dismissed the lawsuit.   The court ruled that the Neufeld Memo did not constitute “final agency action” that might be subject to judicial review.

Background of the Neufeld Memo Lawsuit

The complaint was filed earlier this year by a coalition of staffing companies and representative trade associations. USCIS was asked to stop temporarily and permanently from applying the Neufeld Memo in H-1B adjudications.

The complaint alleged 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 plaintiffs claimed 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.

Specifically, the complaint alleged 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).

The Federal District Court Dismissal of the Broadgate Case

Judge Kessler dismissed the case because the Neufeld Memo is not legislative rule.  The court ruled that the Memo merely provides “interpretive guidelines” for the implementation of the relevant regulations and does not providing binding instructions to USCIS adjudicators in their review of H-1B petitions.

Judge Kessler determined that “the evidence demonstrates that the Memorandum is intended to provide only guidance for application of the Regulation”, somewhat based on the fact that four petitions submitted by the plaintiffs had been approved while the lawsuit was pending.    By failing to show immediate harm, the plaintiffs could not show harm in an injunction case.

Additionally, Judge Kessler found that the Administrative Procedures Act does not apply in this case.

Additional Notes from the Dismissal of the Neufeld Memo Lawsuit

There is some silver lining for consulting companies.  In the proceedings, USCIS has acknowledged that that joint employment, or staffing, is permissible under the H-1B program and that the Neufeld Memo is not binding to adjudicators.  Judge Kessler agreed and wrote that adjudicators can consider a number of factors when weighing an H-1B application,

“The memorandum instructs USCIS adjudicators to look to the totality of the circumstances in each case to determine whether there is an employer-employee relationship,” Kessler wrote.

However, Kessler added, they have “considerable discretion”  in interpreting H-1B rules.

Conclusion

Seems like this may be the end of the Neufeld Memo lawsuit as the plaintiffs do not seem likely to appeal Judge Kessler’s decision.   The Neufeld Memo lawsuit failed to accomplish its mail goal — the repeal of the Neufeld Memo; however, as a result of the lawsuit, there may be a little bit more clarity that the adjudicators are not required to follow the Neufeld Memo regulations.  Consulting companies should continue to follow the guidelines set forth by the Neufeld Memo with respect to proving employer-employee relationship.

Our office has received a number of “Neufeld Memo” requests for evidence (RFEs) and we have been able to successfully respond and address USCIS’ concerns.   Our expectation is that such RFEs will continue (if not intensify now that the Neufeld Memo lawsuit has been dismissed).   We have also shifted our filing practice towards filing upfront more evidence showing the employer-employee relationship to try and avoid RFEs.  Please feel free to contact us if we can help you respond to a Neufeld Memo RFE (on existing case) or prepare a new filing.

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October 2010 Visa Bulletin – First Bulletin for the Fiscal Year: Minor Forward Movement

The U.S. State Department just released the October 2010 Visa Bulletin which is the first Visa Bulletin for the new FY2011 fiscal year.   As always, the first Visa Bulletin for the fiscal year is anticipated to suggest possible trends of movement of the visa numbers over the next months, especially following the past Visa Bulletins’ forward movement.

Summary of the October 2010 Visa Bulletin – Employment-Based (EB)

Below is a summary of the October 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 only two (2) weeks to May 22, 2006, while EB-2 India remains unchanged at May 8, 2006.
  • EB-3 ROW moves forward by three (3) weeks to January 8, 2005, EB-3 China  moves forward by three (3) weeks to November 8, 2003, while EB-3 India  moves forward by two (2) weeks to January 15, 2002.  EB-3 Mexico is now available at April 22, 2001 and EB-3 Philippines moves forward by three (3) weeks to January 8, 2005.
  • The “other worker” category remains unchanged at March 22, 2003 for ROW and China and moves forward by two weeks to January 15, 2002 for India.  Mexico is now available at April 22, 2001 and the Philippines remains unchanged at March 22, 2003.

Summary of the October 2010 Visa Bulletin – Family-Based (FB)

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

  • FB1 ROW, China and India move forward by six (6) weeks to February 15, 2006, while FB1 Mexico moves forward by two (2) weeks only to December 15, 1992.
  • FB2A ROW, China, India and Philippines move forward by four (4) months to April 1, 2010, while FB2A Mexico moves forward by one year to January 1, 2010.
  • FB2B ROW, China and India move forward four (4) months to April 1, 2005, while FB2B Mexico moves forward by only one (1) week to June 22, 1992.

Forward Movement Continues

The forward movement across many employment and family-based categories continues.  With respect to employment-based petitions, however, the forward movement is fairly small, often only by one or two weeks.  The forward movement in family-based petitions is notable in many cases – four months for many categories.   It is early to make predictions about the movement of the visa numbers over the next fiscal year solely on the basis of the first Visa Bulletin for FY2011.  A positive development, however, is the continued forward movement, albeit small for some categories.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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