Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for February, 2011

H-1B Cap for Fiscal Year 2012 Opens on April 1, 2011

The U.S. Citizenship and Immigration Service (USCIS) is set to begin accepting H-1B visa applications pursuant to its Fiscal Year 2012 (FY2012) quota.   The first day on which USCIS will accept new, cap-subject H-1B petitions, is April 1, 2011.

About the H-1B Program and the Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2012 starting on October 1, 2011.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H1B status and who are seeking to extend their visa or change employers.

Timing of the Cap-subject H-1B Petition Filing

The earliest date on which cap-subject H-1B petitions to be counted under the FY2012 H-1B cap is April 1, 2011.  By law, the earliest starting employment date for petitions approved under the FY2012 H-1B cap is October 1, 2011.  As a result of this up to 6-month window  between the time of filing and the time of employment, it becomes important to plan properly with respect to resources, valid status in the U.S. and work authorization.

Before an H-1B petition can be filed on or after April 1, there are a number of lead-time items.   Employers who have not submitted Labor Condition Applications (LCAs) with the Department of Labor’s iCERT system must have their Federal Employer Identification Number (FEIN) verified – a process which generally takes 2-4 business days.  Subsequently, an LCA must be filed for the offered position.  LCAS tend to be certified within 7 business days.   Only after the LCA is certified (with very minor exceptions) can an H-1B petition can be finalized and filed.  Accordingly, it becomes important to start the H-1B petition process as early as possible.  At a very minimum, an H-1B petition preparation can take at least two (2) and often at least three (3) weeks.

Cap-exempt Employers Can File H-1B at Any Time

Not all H-1B petitions must be filed under the H-1B annual cap.  Certain employers can file for H-1B workers at any time of the year and without being subject to the numerical H-1B visa limitations.  Such employers are generally qualified institutions of higher education (universities, colleges) and non-profit research organizations, or non-profits affiliated with institutions of higher education.   Note, not all non-profit organizations qualify; only those who are engaged in research may file for cap-exempt H-1B petitions.

Please see our helpful Guide to H-1B Cap Exempt Employers for more details.

Projections About This Year’s H-1B Cap

As discussed above, the H-1B cap “opens” on April 1, 2011 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached.  While it is impossible to predict exactly when the FY2012 H-1B cap will be reached, it is helpful to provide some context.  For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days.   For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009 and for last year, FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011.

Due to the recovering economy, we do not expect that this year’s H-1B cap will be reached in eight days.  However, we do not anticipate that the H-1B cap will remain open until January of 2012.  Accordingly, to eliminate uncertainty, we recommend to our clients to aim for an early April H-1B filing.

Throughout the H-1B filing season, we provide weekly (or more often, if necessary) updates about the status of the H-1B cap and any related developments.  Please check back often or subscribe to our Weekly Newsletter to receive news and updates related to the H-1B filing season.

Conclusion

Because USCIS received more applications than there were visas available for fiscal years 2009, 2008, 2007 and 2006 within a few days of the cap opening, and for the 2011 fiscal year the cap was hit in January 2011 , we recommend that clients consider their needs as soon as possible and be prepared to file on the first available date – April 1, 2011.    Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.

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USCIS Begins Validation Instrument for Business Enterprises (VIBE) Program Testing

In late January 2011, U.S. Citizenship and Immigration Services (USCIS) announced that they would begin testing their new Validation Instrument for Business Enterprises (VIBE) tool.

About VIBE

VIBE is a tool designed to enhance USCIS’s adjudications of certain employment-based immigrant and non-immigrant petitions such as I-140 and I-129.  VIBE uses commercially available data to validate basic information about companies or organizations petitioning to employ alien workers.

The need for VIBE (or a similar tool) is apparent.  Currently, when adjudicating employment-based petitions, USCIS primarily relies on paper documentation supplied by the petitioning company or organization to establish the petitioner’s eligibility for the requested classification. Petitioners often (rightly) submit large amounts of paperwork as evidence of their current level of business operations.  When petitioners’ paperwork does not sufficiently document the evidence required under the law, USCIS issues a Request for Evidence (RFE) for additional documentation, delaying final adjudication of the petition.

With VIBE, USCIS would be able to obtain electronically commercially-available information from an independent provider (Dun & Bradstreet) about a petitioning company or organization.  Among the pieces of information which would be available through VIBE are:

  • Business activities, such as type of business (North American Industry Classification System
    code), trade payment information and status (active or inactive).
  • Financial standing, including sales volume and credit standing.
  • Number of employees, including onsite and globally.
  • Relationships with other entities, including foreign affiliates.
  • Status, for example whether it is a single entity, branch, subsidiary or headquarters.
  • Ownership and legal status, such as LLC, partnership or corporation.
  • Company executives.
  • Date of establishment as a business entity.
  • Current physical address.

USCIS Would Use VIBE To Verify and Test Petitioner’s Information

As part of the adjudication process, VIBE would not only be used to verify the information submitted by the petitioning employer but also to obtain key pieces of information which may not be provided.  For example, if a petitioner is seeking L-1 status for a beneficiary, VIBE will help the adjudicating officer confirm that the petitioner has a foreign affiliate, which is a requirement for granting L-1 status.  In cases where petitioners must establish ability to pay (e.g. certain I-140 petitions), information from VIBE will assist in confirming the petitioners’ financial viability.

USCIS has indicated that they would not deny a petition based on information obtained from VIBE without first giving the petitioning employer the opportunity to explain or clarify the information via RFE or a Notice of Intent to Deny (NOID).

Petitions Included in VIBE

As of this time, the following petition types are subject to VIBE confirmation:

  • Immigrant: E12 (EB-1 OR), E13 (EB-1 MM), E21 (EB-2), E31 and E32 (EB-3), EW-3 (Other Workers) — all filed on I-140 and SD1 and SR1  — filed on I-360.
  • Non-immigrant: E-1, E-2, E-3, H-1B, H-2A, H-2B, H-3, L-1A/B, Blanket L, Q-1, R-1 and TN.

Petitions explicitly excluded from VIBE at this time are E11 (EB-1 EA), E21 (EB-2 NIW), EB-5, O and P.

Conclusion

While USCIS has always maintained the position that they are free to and do indeed check public records (which may include simple web searches or maps) to verify the information on a petition, the formal use of the VIBE tool would add another avenue for USCIS to test the information and, possibly, find more reasons to issue RFE or NOID notices.   Small companies, for which the Dun & Bradstreet data may not be of such high quality or accuracy are likely to suffer the most because the chance of discrepancy between information, as submitted at the time a petition is filed, and the information contained in the Dun & Bradstreet database is higher.

Employers may wish to register with Dun & Bradstreet which allows an opportunity to update key company information.  This is especially true for employers who suffer a disproportionate number of RFE or NOID notices.   Please feel free to contact us for further help or information.

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Announcing: Immigration Live Chat Starting March 3, 2011

Do you need to have a brief immigration question answered?  Are you confused by thousands of confusing (and conflicting) Internet forum and blog postings on a specific immigration subject?    Do you want to chat with an immigration attorney about specific immigration regulations or general immigration policy?

Immigration Live Chat Launches on March 3, 2011 at 9:00 pm EST

By popular demand by our clients and readers, we are launching a weekly immigration live chat.   The chat is initially scheduled to last 30 minutes and the inaugural Immigration Live Chat is scheduled for March 3, 2011 at 9:00 pm eastern time.

Immigration Live Chat Logo
The chat will have a moderated question-and-answer format.  Chat users will be able to submit questions to the moderator who, in turn, would present them to Attorney Dimo Michailov who would answer them for the entire chat room’s benefit.   The purpose of the moderation is to ensure that questions are presented and discussed in a logical way — and to make the chat experience for you, our clients and readers a more pleasant one.

Chat Schedule

We intend to have a weekly Immigration Live Chat every Thursday evening at 9:00 pm EST.  This time is likely to allow clients and readers from a variety of time zones to join.   We realize that no time will perfectly accommodate all of our clients and readers around the world, so we are happy to experiment and find the best time.  Each upcoming chat will be published and linked from the main Immigration Live Chat page.   If you wish the software to send you a reminder for the next chat, please go to the actual chat page and provide your email address and set when you wish the reminder to be sent to you.

Our Chat Software

We are very happy with our chat software.  It is provided by “Cover It Live,” a tool used by top media companies which provides simple, portable and pleasant chat experience.   We chose this chat software because it seems to be very quick and user-intuitive to use, unlike other chat programs.  Our chat software is based on Flash and it can run across many platforms, including mobile phones.  Archives for each chat will be provided at the conclusion of each event.

Chat Rules and Guidelines

There are a few important rules and guidelines for the Immigration Live Chat.   First of all, please understand that the information provided in the chat is not a legal advice and should not be substituted for a consultation with an attorney.  No attorney-client relationship is established by posting one or more questions questions, by having your questions answered or by otherwise participating in the immigration chat.

To make the chat experience pleasant for everyone, we have a few simple chat guidelines:

  1. Please keep your questions short, to the point and by including relevant (but not confidential or personally identifiable) information.
  2. The Moderator will pass questions to Attorney Dimo Michailov on a first-come, first-serve basis.  Some related questions may be grouped together for better context or chat efficiency.
  3. Our chats are busy and there are usually many incoming questions.  Please be patient if you do not see your question for a few minutes.  Please do not post duplicate questions.
  4. Chat users will not see other chat users’ messages unless the Moderator chooses to submit them to Attorney Michailov for discussion.
  5. If you are new to the chat, please take a moment to observe past archives or a few questions to get a sense of the “flow” of the chat and the kind of questions that are appropriate.
  6. Please treat the Moderator, the participating attorneys and the fellow chat participants with respect and collegiality.  We will not allow behavior or content related to illegal activities.  Defamatory, harassing, infringing, obscene, offensive or other unlawful material or discussion will not be tolerated and may be banned.

Please Mark Your Calendars and Join Us on March 3, 2011

We are excited to be able to communicate with so many of our clients and readers and are looking forward to a great inaugural chat on March 3, 2011 at 9 pm EST.    Please mark your calendars and prepare your questions for a great session.

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Passport Validity and Entry into U.S.: Six-Month Club List Updated

About the Six-Month Club

Under U.S. law, every passenger who wishes to be admitted into the  U.S. must have a valid passport while they are in the U.S.  Furthermore, passengers must not only have a valid passport for the time they wish to be in the U.S., but also for an additional six months on top of the requested period of stay.   For example, a B-2 visitor who wishes to stay for one month in the U.S. must show a passport with a validity of at least seven months.

Certain countries are granted an exception from this rule.  The countries on this “exempt” list are commonly called the “six-month club.”   Passengers holding passports from one of these countries do not need to have an additional six months passport validity period.  They, however, still need to have the amount of time they wish to be in the U.S. — essentially, being able to present a passport which is valid for at least until the desired departure date.

Implications of Passport Validity Dates and Entry into the U.S.

Passengers who attempt to enter the U.S. for a specific period (for example, H-1B worker attempting to be admitted for a period of 30 months) would need to show passport validity for the entire requested period of stay  (for six-month club member countries) or the required requested period of stay plus six months (for non six-month club member countries).  If a passenger does not have a passport with such validity, the authorized period of stay, noted in the passenger’s Form I-94 card would be the passport expiration date with a notation “limited stay per passport validity.”

In a recent article, we wrote more extensively about the importance of having a passport with a validity date beyond the requested period of stay in the U.S.   Travelers to the U.S. who are given shorter period of authorized stay due to their passport expiration date may be eligible to apply for an extension of status from within the U.S.   We are happy to help evaluate such cases.

Current Six-Month Club Member Countries

The current countries members to the “six-month” club are listed in this CBP update.

Please note that while some countries are added to the list periodically, some countries are removed.  For example, recently countries such as Bangladesh, Ecuador, Kuwait and Tanzania were removed from the six-months club.  As a result, passengers to the U.S. should always ensure that they have either sufficient passport validity to cover their entire period of stay in the U.S. (if members of the six-months club) or validity exceeding the requested period of stay plus six months.

Passport Validity Waivers May Be Available

For travelers who are not members of the six-month club and who do not have at least six months validity beyond the requested period of stay, a waiver may be available.

As an example, if a citizen of Indonesia (not a six-month club member) requests admission as a visitor for one week but his or her passport expires in 5 months, he or she would not be admitted at all because the passport does not have the minimum validity of six months.    This kind of passenger may be denied admission from the U.S. pursuant to 8 CFR 212(a)(7)(A)(i)(II).  In such cases, a waiver of the passport requirement may be available (Form I-193, filing fee of $545).

Conclusion

To avoid any complications when entering the U.S. based on passport validity, we recommend that all travelers check whether the country issuing their passport is a member of the six-month club, and if so, ensure that they have a passport valid for the entire period of travel to the U.S.  For non-six-month club member countries, travelers to the U.S. should plan on having at least six additional months of validity.

In the event a shorter duration of stay is given than the one requested, there may be options to extend status from within the U.S.  Please feel free to contact us for a free initial case consultation.

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Current PERM Processing Dates and Times (as of February 4, 2011)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of February 2, 2011.  Most notable is the decreased (or improved) processing time for regular PERM applications — down to less than one (1) month now.  The processing times, as reported by DOL, are as follows:

  • Regular processing: February 2011.  DOL is processing PERM applications with priority dates in February of 201.1  This suggests that there is substantial notable forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be less than one month .   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  We have had recent PERM applications approved in as little as 4 days.
  • Audited applications: January 2009.  DOL is processing PERM audits which have a priority date of January 2009.  There is no notable movement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately 24-26 months after the initial PERM was filed and the priority date established.  This PERM processing queue is moving very slowly and is, unfortunately, not getting any better.
  • Appealed applications: June 2008.  DOL is processing PERM appeals which have a priority date of June 2008.   There is some delay in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 30-32 months after the initial PERM was filed and its priority date established.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue (see above for processing times).

Conclusion

DOL has done a terrific job in eliminating the PERM backlog from 9-10 months an year ago to as little as a few weeks today.   At the same time, however, it is disappointing to see that the audited and appealed queues move very slowly forward or remain unchanged.  We hope that DOL, after being able to consistently review regular PERM cases on a 2-4 weeks timeline, would turn its attention to appeals and audits and decrease the processing times for those cases as well.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will 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 announcements.

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Update on Long-Pending I-130 Petitions

After the significant forward movement in many of the family-based preference categories in the fall, the government has received a significant number of I-130 family-based immigrant petitions in a number of preference categories.  In an effort to process these pending I-130 petition in a more efficient manner, in November 2010, USCIS transferred approximately 36,000 I-130 petitions from their California Service Center to their Texas Service Center.   USCIS hoped that this redistribution of work would result in more timely adjudication of these petitions.

However, according to USCIS, due to a number of unforeseen circumstances at their Texas Service Center, many of these cases have not been processed and are beyond the estimated processing times.   On Feb. 7, 2011, USCIS announced a rapid response plan to expedite the adjudication of these  petitions.   Ironically, the rapid response plan has been to transfer a “large number of these Immediate Relative petitions back to [their] California Service Center to take advantage of resources currently available”.     USCIS has indicated that petitioners will see an action such as an approval, denial or a Request for Evidence (RFE) on their case from the California or Texas Service Centers by the end of  February.

Also, as of February 14, 2011, USCIS provided an update on the processing status of these 36,000 cases:  10,264 have been approved; 55 have been denied; 4,137 have been issued a request for evidence or notice of intent to deny; and 408 have been referred to a local USCIS office for interview.   Based on these numbers, it seems that USCIS is less than halfway through reviewing these 36,000 I-130 petitions and, while we remain optimistic, we are not sure if they will be able to initially review every single one of the remaining approximately 20,000 by the end of February.

We will continue to monitor developments and updates from USCIS.  If you haven’t already, please feel free to subscribe to our free weekly newsletter or contact us with any questions or comments.

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USCIS Starts Issuing a Single Combined EAD/Advance Parole Card

There have been rumors and speculation on this topic (which we did not report until we had final confirmation), but now it is official.  USCIS has announced that they will start issuing a combined Employment Authorization Document (EAD) and Advance Parole (AP) card for some applicants for adjustment of status.

Sample Combined EAD/AP CardThe new combined EAD/AP card (I-766) looks like this sample image and has an annotation at the bottom reading “SERVES AS I-512 ADVANCE PAROLE.”    The new card would replace the paper-based (and often easy to damage) Form I-512 Advance Parole documents which one had to obtain under the previous guidance.

Who Would be Eligible to Obtain the New EAD/AP Card?

Not all I-485 adjustment of status applicants who also wish to obtain an advance parole would receive the new card.  According to USCIS, an applicant may be issued this card when he or she applies a I-765, Application for Employment Authorization and I-131, Application for Travel Travel Document concurrently with or after filing Form I-485, Application to Adjust Status.   Separate EAD and AP documents will still be issued for all other applicants.

Procedures for Using the New EAD/AP Card

The new EAD/AP card will continue to be an accepted employment authorization document as a List A document when completing Form I-9.  Holders of the new card can also use it to return to the U.S. as parolees after a short travel abroad without abandoning the pending I-485 adjustment application.  The holder of the EAD/AP card must present it at the port of entry to request that he or she be admitted as parolee.   As a result, it is important that holders of this card continue to follow closely its expiration and prepare timely renewal applications (at least 90 days in advance).

Our practice includes handling EAD and AP applications for I-485 adjustment of status applicants so please do not hesitate to contact us if our office can be of any help or if you have any questions.

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March 2011 Visa Bulletin – FB2A Retrogresses Additionally by One Year; Slow Movement in EB; No Movement (Again) for EB-2 India

The U.S. State Department just released the March 2011 Visa Bulletin which is the sixth Visa Bulletin for the FY2011 fiscal year.    The major headline in the upcoming month’s bulletin is the major (additional) retrogression in family-based second A preference 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 March 2011 Visa Bulletin – Employment-Based (EB)

Below is a summary of the March 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 only one (1) week to July 8, 2006, while EB-2 India remains (again, for a number of consecutive months) unchanged at May 8, 2006.
  • EB-3 ROW and EB-3 Philippines move forward by three (3) months to July 1, 2005, EB-3 China  moves forward by three (3) weeks to January 22, 2004, while EB-3 India  moves forward by three (3) weeks to March 15, 2002.  EB-3 Mexico moves forward by six (6) months to August 8, 2004.
  • The “other worker” category remains unchanged at  April 22, 2003 for China and at May 1, 2003 for Mexico.   It moves forward by six (6) weeks to June 15, 2003 for ROW and Philippines.  It moves forward by three (3) weeks to March 15, 2002 for India .

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

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

  • FB1 ROW, China and India remain unchanged at January 1, 2005.  FB1 Mexico moves forward by one (1) week to February 1, 1993.  FB1 Philippines moves forward by hour and a half (4.5) months to December 15, 1994.
  • FB2A retrogresses even further for ROW, China, India and Philippines.  It goes back by one (1) year to January 1, 2007.  FB2A Mexico moves forward by nine (9) months to January 1, 2006.
  • FB2B ROW, China and India remain unchanged at April 15, 2003.  FB2B Mexico moves forward by two (2) weeks to July 15, 1992 and FB2B Philippines moves forward by two (2) months to August 1, 1999.

Slow Movement  for Employment-based Petitions, Retrogression (for some) or Minor 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, for a number of consecutive months.  The slightly positive news is that EB-3 India moved forward by three weeks (in continuation of last month’s forward movement of three weeks).

What may come as an additional negative surprise is the retrogression in the FB2A categories for ROW, China and India.  After the surprising January 2011 Visa Bulletin, when the priority dates for FB2A retrogressed by more than two years back to 2008, the March Visa Bulletin moves them back even further by one more year — to January 1, 2007.

What Are the Reasons for the FB2A Category Additional Significant 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.   The January 2011 Visa Bulletin showed a significant retrogression in the FB2A category, following a number of months of forward movement.  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 and for March 2011 in an effort to hold number use within the various numerical limits.  Please see our analysis of the reasons behind the retrogression and the lack of movement in the FB2A category

According to the State Department, the effect of the last three months’ retrogression in this category will slow down the demand of filings in the FB2A category.  As a result, it is expected that this category will see a slow forward movement in the coming months.

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 March 2011 Visa Bulletin.

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AAO Processing Times (February 1, 2011)

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 February 1, 2011.

Among the most notable AAO processing times:

  • H-1B appeal takes 15 months (no change compared to our last report as of January 1, 2011);
  • I-140 EB1 Extraordinary Ability takes 12 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 27 months (increase by one month) while EB2 (NIW) takes 11 months (no change); and
  • I-140 EB3 Skilled Worker takes 30 months (increase by one month) while EB3 Other Worker takes 5 months on appeal (decrease by 11 months).

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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The Tri-Valley University Story and the Importance of Good F-1 School Practices (updated)

Updated: February 16, 2011

Many of our readers are aware of the story about Tri-Valley University (recent Google News) and how it was shut down by federal authorities for allegedly defrauding students and helping them obtain F-1 student visas in violation of immigration laws.

University Allegedly Committed Fraud and Violation of U.S. Immigration Laws

According to a recently released Notice of Intent to Withdraw, Tri-Valley University issued I-20 documents allowing foreign national students to come (or remain into) to the U.S. and authorized Curriculum Practical Training (CPT) to a number of its students.  While CPT is perfectly legitimate form of employment while on F-1 status, the government alleges that Tri-Valley did not meet a number of the requirements for participation on the F-1 program.

Specifically, Tri-Valley is alleged to have listed a few hundred of its 1,613 active F-1 students as residing at a two bedroom apartment in California, in violation of F-1 rules.  Additionally, Tri-Valley is alleged to have circumvented the requirement that F-1 students cannot take more than one course (or three credit hours) per semester online.  The rest of the enrolled courses must be taken at a brick-and-mortar location of the university.  According to the government, none of the F-1 students took courses at a physical location.

Additionally, Tri-Valley is alleged to have issued CPT work authorization for students in a program not directly related to his or her program of study.  Under F-1 regulations, CPT can be authorized only if it is related to a student’s course of study and the work must be in such field.

Tri-Valley University is also alleged to have allowed students to carry less than the minimum allowed course load under the F-1 regulations.

The list of alleged violations does not end here.  Tri-Valley University is alleged to have employed F-1 students as faculty, to have been sloppy with F-1-related paperwork and reporting requirements, among others.  As a result, the government seeks not only to revoke its ability to issue F-1 visas but also to shut it down permanently.

What Happens to the 1,600+ Students Enrolled in Tri-Valley University?

The initial reaction by USCIS and CBP was that these students are in violation of their F-1 status and should be subject to removal proceedings.  There are stories that some of these students were given tracking bracelets so that the government can track their movements, criminal defendant-style.    Since most of the F-1 students in Tri-Valley are Indian nationals, the Indian government issued a strong reaction to the heavy-handed treatment and, as a result, the U.S. immigration authorities seem to be backing down.

Recent communications from USCIS indicate that they may consider the possibility of reinstating the the F-1 student status by filing of Form I-539.  Initial indications, as of now, are that USCIS would consider reinstatement of F-1 status applications on a case-by-case basis, as opposed to reinstating F-1 status to the entire Tri-Valley student population.

Reinstatement of F-1 Status Requirements

Generally, the eligibility requirements for reinstatement of F-1 status are as follows:

  • The student must be currently enrolled or intend to enroll for a full-time course load;
  • Can establish that the violation of status resulted from circumstances beyond his/her control;
  • Has not engaged in unauthorized employment;
  • Has not been out of status for more than 5 months;
  • Can document sufficient financial resources to pursue a full-time course load;
  • Does not have a history of repeated violations; and
  • Is not deportable from the US on any other grounds.

In an extraordinary case such as Tri-Valley University, some of its students may run into difficulties meeting all of the eligibility requirements.  Specifically, the requirement of not being out of status for five months is likely to affect many of the students if the government considers the violation of status to have occurred earlier in their CPT employment.  We believe that this is one of the reasons that USCIS has indicated that they would accept and review F-1 reinstatement application on a case-by-case basis.

Importance of Good F-1 School Practices

The Tri-Valley University case illustrates how important it is for an F-1-authorized school and to an F-1 student to maintain proper F-1 practices.  While it is true that some students at Tri-Valley University were not aware of the school’s alleged misdeeds, it is plain to see how, according to the government’s allegations, some students were fully aware of the F-1 program violations committed by the school but continued nonetheless because Tri-Valley offered them an opportunity to work under CPT.

Unfortunately, there are other universities whose F-1 practices, based on anecdotal evidence, may be borderline improper.  A few of the red flags are: the school authorizes full load of online courses (only one per semester is permitted), the school authorized CPT in employment unrelated to the student’s degree, the school issued I-20 knowing that the student would not reside within driving distance of the school’s campus.

In light of this Tri-Valley University investigation, it is possible that other schools may be subject to increased scrutiny and investigation.  We are happy to have a phone consultation to help you evaluate your F-1 status terms and help you understand your options in case you have doubts.

Update:  Tri-Valley’s Response

Tri-Valley University, acting through its president, has responded to the SEVP notice.  A copy of the response and the university’s justifications can be accessed here.

How Our Office Can Help?

If you are a student affected by the Tri-Valley University shutdown, please contact us.  We would be happy to consult with you and analyze your options for filing for reinstatement of F-1 status, among other alternatives, if available.   Alternatively, we urge all F-1 students to keep in mind that it is also their responsibility to maintain F-1 status by following all relevant rules and regulations.

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