Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for December, 2010

How to Request Return of Original Documents from USCIS

Our office is often approached and asked to assist in obtaining the return of original documents submitted to USCIS as part of a petition or an application.   Normally and for most types of documents, USCIS accepts a copy of the original document in lieu of the original.  Unless specifically instructed and required, only clear copies of the documents should be submitted as part of a USCIS application package.

Normally, USCIS does not return original documents submitted as part of a petition or an application (regardless of outcome).  There are a few exceptions, for example, when a change of status to F-1 is sought, the original Form I-20 is submitted and then, upon approval, is endorsed by USCIS and returned.

Options for Seeking Return of Original Documents

There are two ways to seek the return by USCIS of original documents.   The first one is, at the time of applying, to include one original document and a copy of the documents, with a specific request that the original document be returned to you.  Obviously, this option is available only to applications which have not been filed yet.

For applications which have been filed with original documents, USCIS requires the applicant to prepare a formal request for the return of original documents.  This is filed using Form G-884, Request for the Return of Original Documents.   It should be filed with the USCIS district office or Service Center where the case is pending, or that took the last action on the case if a final decision has been rendered.  There is no filing fee required for this form.

How Our Office Can Help You?

Our office has handled a number of requests for the return the originals of important support documents by USCIS and we are happy to assist you.   Please do not hesitate to contact us to describe your case and to obtain a quote.

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U.S. Immigration on the Rise Again

It is normal that during recession, western economies are not so attractive to any kind of immigration as they are during boom times.  The U.S. is no exception.  A recent report by the Brookings Institution has confirmed that the number of immigrants in the U.S. was estimated to have risen by about a half a million in the year that ended in 2009, a jump over the year prior when inbound immigration almost stopped during the recession.

According to the report,

The foreign-born population in the United States increased by 4.5 million in the decade ending in 1980. In the decade ending in 2000, it increased by 11.3 million, bringing the foreign-born population to about 13 percent of the total. In the early 20th century, after the last big wave of immigration to the United States, immigrants had reached 15 percent of the population.

In 2008, immigration came to a standstill, the first big slowdown in decades of surging numbers, according to the report, which was based on estimates by the Census Bureau. The foreign-born population increased by 7.4 million between 2000 and 2009.

Naturally, the geographic impact of the recession can explain the impact in terms of immigration.  The biggest immigration losses were in cities that had boomed in recent years, particularly in the housing industry, including Phoenix, Riverside and San Bernardino in California and Tampa, Fla.

Cities where the recession had less of an effect, including Austin, Tex., Houston, Raleigh, N.C., and Seattle, continued to gain immigrants.  The biggest increases came in smaller metropolitan areas that had little or no immigrant populations before.  Among them were Jackson, Miss., whose foreign-born population grew by half in the two years ending in 2009, Birmingham, Ala., where immigrants increased by a quarter, and Worcester, Mass., and Omaha, which both experienced growth of about 20 percent, according to the report.

While the report does not present any dramatic revelations, it confirms that the U.S. is not as desirable immigration destination during recessions as it is during boom times.  As the U.S. economy picks up steam again, a renewed interest and flow of immigrants is expected.

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USCIS Suspends Form I-129 Export Control Questions Temporarily

USCIS has just announced that petitioners will not be required to complete Part 6 of Form I-129 containing the export controls/ITAR questions until February 20, 2011.   In a response to stakeholder inquiries and concerns of proper implementation, USCIS has agreed to the delay in implementation in order to give petitioners time to establish the necessary internal processes to properly satisfy the attestation requirements.

About the Export Control/ITAR Requirement

As part of the November 23, 2010 Form I-129 revision, USCIS added a new Part 6 which states:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

◊  A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
◊ A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

What Are an Employer’s (Petitioner) Export Control Attestation Obligations?

U.S. law prohibits the “export” of controlled technology and technical data to certain foreign nationals located within the United States without a license to do so. An export is considered the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not engage in any other exporting
activities.  As a result, the export control obligations apply even if a company does absolutely no business abroad if it has employees who are foreign nationals.

Technology or source code is considered “released” for export when it is made available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.), when technology is exchanged orally, or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. Such exports of controlled technology or technical data must be authorized through an export license issued by the appropriate government agency before release to the nonimmigrant foreign national. Therefore, to properly complete the new I-129 form, an employer must first classify the technology or technical data that will be released to or be accessed by a prospective foreign national employee to determine whether an export license may be required to be obtained from the Department of Commerce Bureau of Industry and Security or the Department of State Directorate of Defense Trade Controls before releasing such technology or technical data to the foreign national.

What is Controlled Technology and Technology Data?

“Technology” and “technical data” that are controlled for release to foreign persons are identified on the Export Administration Regulations (EAR) Commerce Control List (CCL) and the International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML).   The EAR uses the term “technology” to refer to information for the development, production or use of “dual-use” products or software. “Technology” that is required for the development, production or use of items on the EAR’s CCL may be subject to export licensing and other restrictions, depending on the nature of the technology, the destination, the end-user and end-use.

An export of controlled technology or technical data can occur when it is disclosed to or transferred to a foreign person, whether in the United States or abroad. Specifically, section 734.2(b)(2)(ii) of the EAR (15 CFR §734.2(b)(2)(ii)) states that an export of technology to a foreign national in the United States is “deemed to be an export to the home country or countries of the foreign national.” This is commonly referred to as the “deemed export” rule.

While the ITAR does not use the phrase “deemed exports,” the ITAR contains a similar concept. Section 120.17(a)(3) of the ITAR (22 CFR §120.17(a)(3)) states that an export occurs when “technical data” is disclosed (including oral or visual disclosure) or transferred to a foreign person in the United States.

As a result, if an export license is required to export EAR controlled technology or ITAR controlled technical data to a certain country, an export license or other authorization will be required to disclose or transfer such technology to a foreign national of that country who is located in the United States.

Penalties for Misrepresentation Are Significant

The importance of providing correct attestations with respect to the export control requirements are underscored by the penalties for providing incorrect information.    Form I-129 requires the employer to certify under penalty of perjury under the laws of the United States that the petition and the evidence with it are true and correct to the best of the employer’s knowledge.   Penalties for perjury include fines and imprisonment up to five years.   Additionally,  certain violations under the H-1B regulations may result in civil and criminal penalties, including monetary penalties up to $35,000 per violation, payment of back wages to aggrieved workers, and bar the employer from filing employment-based immigrant petitions (“green card”) and H, L, O, or P nonimmigrant petitions for up to three years.  Additionally, criminal sanctions of $10,000 and imprisonment for up to five years, or both, may be imposed for the knowing submission of false statements to the Federal Government.

The Suspension of Export Control Attestations is Only Temporary

Please note that the export control attestations (or completing Part 6 of Form I-129) are suspended temporary for 60 days (until February 20, 2011) to allow employers to institute or modify the necessary internal processes to be able to provide accurate attestations with respect to the export control section.

Please do not hesitate to contact our office if we can be of any assistance in preparing Form I-129 petitions or if we can consult with respect to the applicability of the export control regulations to your organization.

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FY2011 H-1B Numbers Update – 53,900 Regular and 19,700 Masters Cap Visas Used (December 17, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of December 17, 2010, USCIS has received approximately 53,900 H-1B petitions counting toward the 65,000 cap (an increase of 1,500 over the last week).  Similarly, as of December 17, there were 19,700 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 600 over the last week).

H-1B Quota Trends – Final Stretch in H-1B Cap Season Results Increased Regular and Masters’ Cap Filings

The numbers, as reported over the past week, show increase over the past week compared to the weeks prior.  The regular cap H-1B filings have increased to about 1,500 per week and we expect the number of filings to continue to increase.  The U.S. masters cap H-1B filings was 600 over the past week and we expect that the Master’s cap be reached within the week.

H-1B Master’s Cap to be Reached This Week; Regular H-1B Cap Expected to be Reached in Early 2011

With the current pace of filings, or over 1,500 regular H-1B cap filings per week, we estimate that the regular H-1B cap to be reached by early 2011, most likely in January or early February 2011.  The Master’s H-1B cap is expected to be reached this week.

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, and as the end of the H-1B cap is in sight, it is very likely that the pace of H-1B filings will increase and the cap will be reached fast.  In prior years, the H-1B filings increase over the past weeks of the H-1B cap and we expect the same this year.

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.

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Happy Holidays!

We would like to express our gratitude for your support throughout this year and for making it a special one for us and to wish you the happiest of holidays!

We are looking forward to working with you during the new year and we wish you a prosperous, happy and joyous New Year 2011.

Holiday Greetings

Happy Holidays from the Capitol Immigration Law Group

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More on the January 2011 Visa Bulletin Family Categories Retrogression

We were among the first to report and send bulletin alerts last Thursday of the upcoming January 2011 Visa Bulletin major retrogression in most of the family-based preference categories.    Our office has been inundated with inquiries from existing and new clients not only on the steps that should be taken over the next couple of weeks but also on the reasons for the (surprising and) significant retrogression.  We are happy to address the reasons in a separate article to provide more clarity on what is to be expected.

Retrogression in Family-based Preference Categories

The January 2011 Visa Bulletin has the following developments with respect to family-based categories:

  • FB1 ROW, China and India retrogress and go back by more than thirteen (13) months to January 1, 2005.  FB1 Mexico moves forward by one (1) week to January 8, 1993.
  • FB2A ROW, China, India and Philippines retrogress and go back by 32 months from August 1, 2010 to January 1, 2008.  This is the most significant development this month.
  • FB2B ROW, China and India retrogress and go back by approximately twenty-two (22) months to April 15, 2003.  FB2B Mexico remains unchanged at June 22, 1992 and FB2B Philippines moves backwards by almost 9 months to May 15, 1999.

Explanation of the Retrogression for Family-based Preference Categories

The demand for visa numbers in the family-sponsored preference categories was very low from early 2009 through September 2010.   Accordingly, the cut-off dates for most family preference categories were advanced at a rapid pace, in an attempt to generate demand so the annual numerical limits could be fully utilized.  In fact, during our September 23, 2010 meeting with Charles Oppenheim,  all indications were that the family-based categories, especially FB2A, would continue moving forward.   The FB2A category was expected to be “close to current” in the February 2011 bulletin.

However, as a result of the accelerated level of demand over the last few months, the State Department has retrogressed most of the worldwide cut-off dates effective January 1, 2011.   Unfortunately, and more importantly, the State Department has indicated that  it is unlikely these categories will recover for some time since demand for family-sponsored preference categories does not appear to be subsiding.

Conclusion

Unfortunately, the sudden retrogression may alter the immigration plans for many applicants who were hoping to be able to file either for consular processing via NVC (to process abroad) or to adjust status I-485 (from within the U.S.).  Considering all indications of slow forward movement (and even further possible retrogressions), we encourage applicants to seek alternative immigration avenues, at least in the short-term.

We have a number of consultation options and are happy to assist our current and new clients in evaluating their options.  Also, if you already have not, we invite you to subscribe to our free weekly immigration bulletin so that you can receive news and updates on this and related topics.

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FY2011 H-1B Numbers Update – 52,400 Regular and 19,100 Masters Cap Visas Used (December 10, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of December 10, 2010, USCIS has received approximately 52,400 H-1B petitions counting toward the 65,000 cap (an increase of 1,200 over the last week).  Similarly, as of December 10, there were 19,100 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 400 over the last week).

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

The numbers, as reported over the past week, show a slight increase over the past week compared to the weeks prior.  However, it should be noted that the numbers for this and last weeks are likely affected by the Thanksgiving holiday.  The regular cap H-1B filings have remained between 1,000-1,500 per week and the trend continues.  The U.S. masters cap H-1B filings have been between 300-500 over the past few weeks.   As the end of the H-1B regular and masters cap quotas start to come close, we expect that the numbers of regular and master’s cap filings to increase over the next few weeks.

H-1B Master’s Cap to be Reached in 1-2 Weeks; Regular H-1B Cap 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 Master’s cap  H-1B cap would be reached by or shortly January 1, 2011.  The regular H-1B cap is expected to be reached in 7-10 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, and as the end of the H-1B cap is in sight, it is very likely that the pace of H-1B filings will increase and the cap will be reached fast.  In prior years, the H-1B filings increase over the past weeks of the H-1B cap and we expect the same this year.

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.

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January 2011 Visa Bulletin – Major Retrogression in FB; Minor Forward Movement in EB; No Movement for EB-2 India Again

The U.S. State Department just released the January 2011 Visa Bulletin which is the fourth Visa Bulletin for the FY2011 fiscal year and first for the calendar year.    The major headline in the upcoming month’s bulletin is the major retrogression in family-based visa numbers, accompanied by the continued slow forward movement across the employment-based categories.  The retrogression in family-based categories is a surprise following recent comments by the State Department that family-based categories (especially 2A) should continue to move forward.

Summary of the January 2011 Visa Bulletin – Employment-Based (EB)

Below is a summary of the January 2011 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 ROW (Rest of World), Mexico and Philippines remain current, EB-2 China moves forward by two (2) weeks to June  22, 2006, while EB-2 India remains (again, for a number of consecutive months) unchanged at May 8, 2006.
  • EB-3 ROW moves forward by one (1) month to March 22, 2005, EB-3 China  moves forward by one (1) week to December 15, 2003, while EB-3 India  moves forward by also one (1) week to February 1, 2002.  EB-3 Mexico moves forward by 9.5 months to April 15, 2003 and EB-3 Philippines moves forward by one (1) month to March 22, 2005.
  • The “other worker” category remains unchanged at  April 22, 2003 for ROW and China and Philippines.  It moves forward by one (1) week to February 1, 2002 for India.  Mexico moves forward by 9.5 months to April 15, 2003.

Summary of the January 2011 Visa Bulletin – Family-Based (FB)

Below is a summary of the January 2011 Visa Bulletin with respect to family-based petitions:

  • FB1 ROW, China and India retrogress and go back by more than thirteen (13) months to January 1, 2005.  FB1 Mexico moves forward by one (1) week to January 8, 1993.
  • FB2A ROW, China, India and Philippines retrogress and go back by 32 months from August 1, 2010 to January 1, 2008.  This is the most significant development this month.
  • FB2B ROW, China and India retrogress and go back by approximately twenty-two (22) months to April 15, 2003.  FB2B Mexico remains unchanged at June 22, 1992 and FB2B Philippines moves backwards by almost 9 months to May 15, 1999.

Slow Movement  for Employment-based Petitions and Significant Backwards Movement in Family-based Priority Dates

The slow forward movement across many employment categories continues, as expected, although the movement in the employment-based categories may be very disappointing to many, especially in the the EB-2 India category which did not move at all this month (EB-3 India moved forward by only a week).

However, the most notable and significant movement was across the family-based preference categories.  The FB-2A category, which was widely expected to continue to move forward, and to even  be current by the February 2011 Visa Bulletin (see our comments on Charles Oppenheim’s predictions from September 2010) has retrogressed significantly from August 2010 to January 2008.

What Are the Reasons for the FB Category Retrogression?

Simply stated, the reason for the retrogression is high demand, caused by the prompt forward movement of family-based categories over the past months.   Those past forward movements have resulted in a dramatic increase in the level of applicant demand received in recent months.   This, according to the State Department, has required the retrogression of many Family preference cut-off dates for January 2011 in an effort to hold number use within the various numerical limits.   Unfortunately, according to the State Department, further retrogressions cannot be ruled out should demand continue at the current levels.

Family-based Applicants with Current Priority Dates Should File Adjustment of Status (I-485) Applications by the End of December 2010

Given the retrogression in family-based preference categories, those who have approved (or pending) I-130 petitions, who are otherwise eligible to file adjustment of status (I-485) application and whose priority dates will be affected by the retrogression in the family-based categories should consider filing their I-485 adjustments before the end of December 2010.  Please contact us immediately if we can help you prepare your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the January 2011 Visa Bulletin.

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AAO Processing Times Report (December 1, 2010)

Our office has established a reputation as one of the premier practices for handling 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.    The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

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 November 1, 2010.

Among the most notable AAO processing times:

  • H-1B appeal takes 15 months (no change compared to our last report as of November 1);
  • I-140 EB1 Extraordinary Ability takes 10 months (increase by one month), Multinational Manager or Executive takes 16 months (no change) while EB1 Outstanding Professor or Researcher category takes 6 months or less (no change);
  • I-140 EB2 (Advanced Degree) takes 25 months (increase by one month) while EB2 (NIW) takes 10 months (no change); and
  • I-140 EB3 Skilled Worker takes 28 months (increase by one month) while EB3 Other Worker takes 16 months on appeal (decrease by four months).

In related developments, the USCIS Director Mayorkas has authorized the hiring of 15 new adjudicators to the AAO staff (which currently  has 88 employees) and the new adjudicators are expected to be on board by the summer of 2011.

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 – 51,200 Regular and 18,700 Masters Cap Visas Used (December 3, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of December 3, 2010, USCIS has received approximately 51,200 H-1B petitions counting toward the 65,000 cap (an increase of 800 over the last Thanksgiving week).  Similarly, as of December 3, there were 18,700 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 300 over the last Thanksgiving week).

H-1B Quota Trends – Last Week’s Numbers are Inconclusive Due to Thanksgiving

The numbers, as reported over the past week are inconclusive because of the fact that it the Thanksgiving holiday week.  However, based on review of the prior weeks’ numbers, the see a slight increase over the past two weeks compared to the weeks prior.  The regular cap H-1B filings have remained between 1,000-1,500 per week and the trend continues.  The U.S. masters cap H-1B filings have been between 300-500 over the past few weeks and as a result, the 1,000 increase over the past two weeks seems to suggest an increase in the rate of filings.   As the end of the H-1B regular and masters cap quotas start to come close, we expect that the numbers of regular and master’s cap filings to increase over the next few weeks.

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 5-10 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, and as the end of the H-1B cap is in sight, it is very likely that the pace of H-1B filings will increase and the cap will be reached fast.  In prior years, the H-1B filings increase over the past weeks of the H-1B cap and we expect the same this year.

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.

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