Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for October, 2010

FY2011 H-1B Numbers Update – 44,300 Regular and 16,200 Masters Cap Visas Used (October 22, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of October 22, 2010, USCIS has received approximately 44,300 H-1B petitions counting toward the 65,000 cap (an increase of 1,500 over the past week).  Similarly, as of October 22, there were 16,200 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 500 over the past week).

H-1B Quota Trends – Slight Upward Trend in Regular and Masters’ Cap Filings

The numbers, as reported over the past week, show a slight increase over the past week.  Last week’s increase of 1,500 regular cap cases marks a notable increase compared to the numbers reported on October 15th (900).   The master’s cap filings have also picked up slightly to approximately 500 per week.

H-1B Quota Expected to be Reached in Early 2011

With the current pace of filings, or about 1,000-1,500 regular H-1B cap filings per week and 400-500 master’s cap per week, we estimate that the H-1B cap would be reached in 10-15 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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E-Verify Nonconfirmations Issued for Some H-1B Portability Employees

Our office has received confirmation from AILA and from E-Verify that in certain cases, E-Verify would not verify employment authorization for an employee who is working for an employer under H-1B portability and where the employee previously held H-1B status but has since held an intervening status.

For example, an employee holds H-1B status but decides to switch to H-4 or F-1.  Then, while holding H-4 or F-1 status, for example, the foreign national is sponsored by  a new employer for an H-1B change of status.

Previously, E-Verify has issued employment authorization confirmation under the H-1B portability provisions for employees in similar situations where the new H-1B petition has been filed and pending but has not been approved yet.   However, recently, E-Verity has started issuing final nonconfirmations for employees working pursuant to H-1B portability who currently hold another status, such as H-4 or F-1.

The Law

The relevant statutory provision is INA §214(n):

(1) A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant as provided under subsection (a).   Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.

(2) A nonimmigrant alien described in this paragraph is a nonimmigrant alien–  (A) who has been lawfully admitted into the United States; (B) on whose behalf an employer has filed nonfrivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and (C) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.

E-Verify’s Justification

The justification for E-Verify’s denial to issue such employment authorization confirmation is based on interpretation of the statute and USCIS guidance.   E-Verify’s justification has been that, upon advice from the Office of Chief Counsel at USCIS, such employees should be issued a nonconfirmation because “the H-1B Portability Rule does not apply to a nonimmigrant who was in H-1B status at one time, but who is currently in another valid status and for whom a non-frivolous I-129 Petition to obtain H-1B status has been filed.”

Specifically, E-Verify states that:

USCIS guidance dated December 27, 2005, states that “porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a ‘period of stay authorized by the Attorney General.’” That statement serves to clarify the earlier section specifically referring to an “H-1B alien” and should be read in the context of the particular example given: an alien who was in H-1B status and is now in an authorized period of stay based on a timely filed extension of H-1B status petition on the alien’s behalf, and who then seeks to start working for a different H-1B employer upon that employer’s filing of a petition. This interpretation is consistent with USCIS guidance to the public on its website (Nonimmigrant Services, H-1B FAQs, page 61) which states:

Changing employers – An H-1B worker can change employers, but first the new employer must file a labor condition application and then file a new H-1B petition. If the worker is already an H-1B, he or she can then begin the employment as described in the petition without waiting for USCIS to approve the petition. This is called a “portability provision,” and it only applies to someone already in valid H-1B status.

Difference of Interpretation?

AILA has indicated that they would seek to argue the USCIS interpretation, as applied to E-Verify.  AILA’s argument is that the E-Verify protocol is inconsistent with the clear language of the statute.

Conclusion

This E-Verify position and the issuance of nonconfirmations to H-1B portability employees affects a relatively small portion of H-1B employees.   Again, only those who have had H-1B status, have changed to another status (such as H-4 or F-1) and subsequently seek to start working upon the filing of an H-1B change of status application are affected.   Normally, and well before the current E-Verify guidance was issued, we advise employers and employees in similar situation to first secure the H1-B approval (perhaps by filing under premium processing) before starting employment.  This USCIS position and E-Verify guidance validates our practice.

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USCIS Revises Naturalization Certificate

Effective Monday, October 25, 2010, USCIS started issuing a redesigned U.S. naturalization certificate (Form N-550).  The new certificate includes enhanced security features and, important for some, it is designed to be “a higher-quality certificate, which will now be easier to showcase in a standard 8 ½ by 11 inch frame.”  See a sample.

New Features

The naturalization candidate’s digitized photo and signature are embedded in the security-enhanced certificate. Its background features a color-shifting ink pattern that is difficult to recreate. Additionally, USCIS will use a more secure printing process, making it more tamper-proof.

Production Begins October 25

The USCIS offices in Atlanta, Denver and Baltimore will begin to utilize the automated production process this week, including digitizing photos and signatures on all certificates.  USCIS will deploy the automated production system agency-wide by the end of the calendar year when all new N-550 naturalization certificates will feature the new design.

Older-Design Naturalization Certificates Remain Valid

It is important to note that naturalization certificates issued and printed using the older design remain valid and unaffected.   Only new naturalization applications (upon approval) and replacement applications would be issued with the new design.

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FY2011 H-1B Numbers Update – 42,800 Regular and 15,700 Masters Cap Visas Used (October 15, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of October 15, 2010, USCIS has received approximately 42,800 H-1B petitions counting toward the 65,000 cap (an increase of 900 over the past week).  Similarly, as of October 15, there were 15,700 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 Decrease in the Trend of Regular Cap Filings due to Columbus Day Holiday

The numbers, as reported over the past week, show a slight decrease over the past week.  Last week’s increase of 900 regular cap cases marks a notable decrease compared to the numbers reported on October 8th (1,300).   However, the decrease over last week’s H-1B filings can be attributed to the Columbus Day holiday when USCIS is closed (it is a Federal holiday).  The master’s cap filings have remained steady, of about 300-500 per week over the past few weeks.

H-1B Quota Expected to be Reached in February or March of 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 15-20 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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USCIS Uses Social Networks to Detect Fraud

Social networks such as Facebook, MySpace and LinkedIn are great and very popluar tools for sharing information with friends, relatives and colleagues.  Their popularity is, partially, due to the fact that people are free to disclose personal information to their groups of friends, family or colleagues.

Many privacy advocates are urging a more careful use of such social networking sites because of the danger of identity theft and unintended consequences of “oversharing.”   One such unintended consequence may be that it seems to be USCIS’ official policy to check such social networking sites for information which may indicate fraud.  A recently obtained memorandum from USCIS suggests that its FDNS (Office of Fraud Detection and National Security) is encouraged to seek information about a target of their investigation on social networking sites.  FDNS may run searches on various social networks and obtain information on their subject which they deem “public.”

From the memo,

“Narcissistic tendencies in many people fuels a need to have a large group of “friends” link to their pages and many of these people accept cyber-friends that they don’t even know. This provides an excellent vantage point for FDNS to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities.”

It should also be noted that often adjudicators of USCIS petitions resort to using “public records” to adjudicate or to seek relevant information to a petition.   It is not clear whether adjudicators are allowed or encouraged to seek information on social networking sites; however, if USCIS, in its FDNS memo deems social networking information as “public record,” then it is possible that such information may be also used by adjudicators (and not only by FDNS) when reviewing benefit petitions and applications.

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FY2011 H-1B Numbers Update – 41,900 Regular and 15,400 Masters Cap Visas Used (October 8, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of October 8, 2010, USCIS has received approximately 41,900 H-1B petitions counting toward the 65,000 cap (an increase of 1,300 over the past week).  Similarly, as of October 8, there were 15,400 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 500 over the past week).

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

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 steady trend of approximately 1,000-1,400 weekly regular cap H-1B filings. The master’s cap filings have also remained steady, of about 300-500 per week over the past few weeks.

H-1B Quota Expected to be Reached in February or March of 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 15-20 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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November 2010 Visa Bulletin – Minor Forward Movement in EB, Notable Forward Movement in FB

The U.S. State Department just released the November 2010 Visa Bulletin which is the second Visa Bulletin for the new FY2011 fiscal year.   As anticipated and as we wrote recently, following our meeting with Charles Oppenheim, there is not much movement across the employment-based categories, while some family-based categories have notable forward movement.

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

Below is a summary of the November 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 one (1) week to June 1, 2006, while EB-2 India remains (again) unchanged at May 8, 2006.
  • EB-3 ROW moves forward by two (2) weeks to January 22, 2005, EB-3 China  moves forward by two (2) weeks to November 22, 2003, while EB-3 India  moves forward by only one (1) week to January 22, 2002.  EB-3 Mexico is now available at May 1, 2001 and EB-3 Philippines moves forward by two  (2) weeks to January 22, 2005.
  • The “other worker” category moves forward by one (1) months to April 1, 2003 for ROW and China and moves forward by one (1) week to January 22, 2002 for India.  Mexico moves forward by one (1) week to May 1, 2001 and the Philippines moves forward by one (1) week to April 1, 2003.

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

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

  • FB1 ROW, China and India remain unchanged at February 15, 2006.
  • FB2A ROW, China, India and Philippines move forward by two (2) months to June 1, 2010, while FB2A Mexico moves forward by two (2) months to March 1, 2010.
  • FB2B ROW, China and India move forward by two (2) months to June 1, 2005, while FB2B Mexico remains unchanged at June 22, 1992.

Slow Movement  for Employment-based Petitions and Notable Forward Movement in Family-based Petitions

The forward movement across many employment and family-based categories continues, although the movement in the employment-based categories may be very disappointing to many, especially in the India and China categories.   The November 2010 movement confirms the observations and the predictions which we published on September 23 after our meeting with Charles Oppenheim.  According to Mr. Oppenheim, the employment-based categories are expected to inch forward slowly — often by one or two weeks per month — while the family-based categories, especially FB2A is expected to make significant forward movement.

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

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Delays in EAD/AP Processing – What To Do?

It is not a secret that USCIS’ processing times of I-765 work permit documents (“EAD”) and I-131 advance parole travel documents (“AP”)  have increased over the past few months.  Our office has experienced some of these delays and our office is increasingly approached by EAD/AP applicants who have either expiring EADs or need to travel urgently abroad and whose EAD/AP applications have been pending for substantial period of time.

As a preliminary matter, we always recommend that EAD/AP renewal applications be filed 90-120 days between the expiration of the document to be renewed.  Unfortunately, often this is not possible and the government has provided some options.  Also, it is important to note that unlike renewal of nonimmigrant work visas (such as H-1B), the filing of an EAD application does not permit employment until the EAD is actually approved.

Expediting I-765 EADs Pending for Extended Period of Time

By regulation, USCIS is required to produce the EAD cards within 90 days; however, current processing times are starting to approach that deadline (75 to 80 days is now frequent).  This can be especially difficult for foreign nationals who do not have an underlying nonimmigrant work status (such as H-1B) and who need to continue their employment pursuant to an expiring EAD.  The Nebraska Service Center (“NSC”)  recognizes that the processing times have increased substantially and that this is creating a hardship for many individuals who whose employment authorization is expiring.  NSC is working on improving the processing times of I-765 EAD applications; in the meantime, there are circumstances under which EAD processing can be expedited.

If the I-765 application has been pending more than seventy-five (75) days, applicants (or their attorney) can notify NSC through NCSCFollowup.Nsc@dhs.gov.   It is important to note that normally USCIS requires the applicant (or the attorney) to call the 1-800 number and make a case inquiry.  In this case (and only for this issue), however, the requirement to first call the 1-800 number for the National Customer Service Center (NCSC) is waived.   The email inquiry must include the following details: the name of the applicant, the receipt number, the date filed, and the date of the prior EAD expiration.

If the I-765 application has been pending for more than sixty (60) days, the current EAD will expire within the next two weeks, AND the individual will lose their job (a leave of absence is not considered a loss of the job), an inquiry can be made directly to NSC though NCSCFollowup.Nsc@dhs.gov, after sixty days.   In addition to including the information mentioned above, applicants (or their attorneys)  should provide appropriate evidence to demonstrate that the applicant meets these criteria.

Expediting I-131 APs Pending for Extended Period of Time

USCIS currently follows its regular expedited processing procedures with respect to APs.   Additionally, it should be noted that foreign nationals who depart the U.S. without an approved AP, or valid H-1B, H-4, L-1, L-2, K-3, K-4, or V status, may be subject to an abandonment of their I-485 Adjustment application under 8 C.F.R. 245.2(a)(4).

How Our Office Can Help You?

Initially, by strongly urging you to file your EAD/AP application as early as possible, and in the best case, at least 90 but not more than 120 days before the expiration of the underlying document.  If this is not an option, our office can help you expedite an already filed document or we can file the application and then, at a later time, help you seek expedited processing.  Please do not hesitate to contact us if our office can be of any help.

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AAO Processing Times Report (October 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 October 1, 2010.

Among the most notable AAO processing times:

  • H-1B appeal takes 14 months (increase by one month compared to our last report as of August 1);
  • I-140 EB1 Extraordinary Ability takes 8 months (increase by one month), Multinational Manager or Executive takes 15 months (no change) while EB1 Outstanding Professor or Researcher category takes 6 months (no change);
  • I-140 EB2 (Advanced Degree) takes 23 months (decrease by one month) while EB2 (NIW) takes 9 months (increase by two months); and
  • I-140 EB3 Skilled Worker takes 26 months (increase by one month) while EB3 Other Worker takes 21 months on appeal (increase by one month).

Read the full AAO Processing Times report.   If our office can be of any assistance regarding AAO representation or consultation, please contact us.  Also, please feel free to subscribe to our free weekly newsletter to receive updates and immigration news.

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FY2011 H-1B Numbers Update – 40,600 Regular and 14,900 Masters Cap Visas Used (October 1, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of October 1, 2010, USCIS has received approximately 40,600 H-1B petitions counting toward the 65,000 cap (an increase of 1,000 over the past week).  Similarly, as of October 1, there were 14,900 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 500 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 1,000 regular cap cases marks a steady trend of approximately 1,000-1,400 weekly regular cap H-1B filings. The master’s cap filings have also 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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