Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for March, 2011

Update on EB-2 Visa Availability: Low EB-1 Demand to Cause EB-2 India to Advance

A recent update from USCIS and Charles Oppenheim at the Department of State (the person who is responsible for the Visa Bulletin and visa number allocations) should provide some hope to applicants in some categories, but most notably to the EB-2 India category.

Low EB-1 Demand to Cause Visa Number Spillover to EB-2

USCIS has reported that the demand for EB-1 visa numbers has dropped significantly since October 1, 2010.   As a result, the planned visa number demand in this category can be adjusted downwards.  By doing this, the unused EB-1 numbers can be allocated to other categories.  This is Mr. Oppenheim’s statement:

“[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

EB-2 India Expected to Move Forward (Substantially?) in the May 2011 Visa Bulletin

Based on Mr. Oppenheim’s comments, it is expected that the EB-2 India category will move forward in the May 2011 Visa Bulletin (please see our Visa Bulletin topic page where updates are posted immediately).  This should be a welcome development for the thousands of EB-2 India filers who have been waiting for 8 months now without any movement in this category.   While we cannot estimate by how much EB-2 India will advance, we hope that the move would be substantial, based on the 12,000 available visa numbers mentioned by Mr. Oppenheim.

Porting of EB-3 India to EB-2 India to Continue — Heavy Demand in EB-2 Expected

Our office has been advising over the past couple of years, and we continue to do so, that all EB-3 India filers who are now eligible to port their priority dates into EB-2 to do so.   In many cases porting is extremely helpful in advancing one’s green card application substantially, especially when the EB-3 priority date, as ported to EB-2 becomes current, and especially considering a possible significant forward movement in EB-2 India.   Please contact us if we can provide analysis of your ability to port your EB-3 priority date into EB-2.

EB-2 India Expected Forward Movement to Cause Increase in I-485 Filings and Interfilings

We also expect the EB-2 India forward priority date movement to cause an increase in I-485 adjustment of status filings for both primary beneficiaries or for family members who have not been able to file I-485 previously (most often during the summer of 2007).

Additionally, many I-485s remain pending and “connected” to I-140s which reflect an older EB-3 priority date which is not current.  If a subsequent EB-2 I-140 has been filed and if the earlier EB-3 priority date has been ported into the new I-140, an “interfiling” may be needed to notify USCIS and have them “connect” the pending I-485 with the new, and current, EB-2 I-140.

Please contact our office if we can help you prepare and file your I-485 application or if you need assistance with interfiling your pending I-485 to a new and (soon to be) current EB-2 I-140.   We also invite you to subscribe to our free weekly immigration newsletter to obtain alerts of related news and developments.

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Reminder: H-1B Work Visa Quota Opens for New Filings on April 1

One of the most popular U.S. work visas, the H-1B, will start accepting filings for new H-1B employment on April 1, in exactly one week.     Pursuant to each yearly H-1B quota, new H-1B filings can be filed on April 1, at the earliest, for a starting date of employment on or after October 1.

The H-1B Quota and Expectations for This Year

When the H-1B visa category was created in 1990, Congress imposed an annual cap on the number of new H-1B visas which can be issued.  Although the cap has varied through the years, it is set to 65,000 per year plus 20,000 for graduates of U.S. masters programs for the new fiscal year (FY2012) starting on October 1, 2011.

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.

Conclusion

As a result, and due to the slow economic recovery, while we expect a robust H-1B filing season this spring, we anticipate that H-1B visa demand would be similar to last year when the H-1B cap was open for eight months.   Throughout the H-1B season, and as early as mid-April, we will be providing updates on the number of H-1B cap filings and will be revising (hopefully by making them more accurate) our estimates of how long the H-1B cap would last.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us.

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E-Verify Self Check System Now Available to Residents of Five States and DC

As of yesterday, March 21, 2011, the E-Verify Self Check system has been launched and made available to users who maintain an address and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia or the District of Columbia.

About E-Verify Self Check

E-Verify Self Check is the first online E-Verify program offered directly to workers and job seekers. This voluntary, free, fast and secure service was developed through a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA).  The goal of the system is to allow individuals in the United States to check their employment eligibility status before formally seeking employment.   The system uses Equifax (a credit rating company) to provide identify verification and, through a combination of DHS/SSA records review, can provide evaluation on its users’ employment eligibility.

One of the drives behind E-Verify Self Check is to allow individuals who plan to seek employment to verify their employment eligibility and so that they have an advance opportunity to correct issues relating to their employment authorization records in DHS or SSA systems.

Although the E-Verify Self Check system was launched yesterday along with active PR, the system is essentially a test limited to only a few states plus the District of Columbia and would probably require congressional approval before it is widely deployed.

USCIS estimates that Self Check users will generate about 850,000 to 1 million queries in the first year, with approximately 8 million queries after/when the program is expanded nationwide.   The current plans for expansion are to include 16 states in fiscal year 2012 and roll out nationwide afterwards, if the USCIS budget permits.

Procedures

The E-Verify Self Check process consists of four steps.

  1. First, users would enter identifying information online (such as name, date of birth and address).
  2. Second, users would confirm their identity by answering demographic and/or financial questions generated by a third-party identity assurance service (Equifax, as of now).
  3. Third, the users would enter work eligibility information such as a Social Security number and, depending on citizenship status, an Alien Registration number.
  4. Finally, E-Verify Self Check checks users’ information against relevant SSA and DHS databases and returns information on users’ employment eligibility status.

Concerns

One of the main concerns with E-Verify Self Check is that the results of the program would be shared with employers or would otherwise affect or stay on a person’s credit or background record.  USCIS has assured that E-Verify Self Check query information or results are never shared with users’ employers or prospective employers.  However, using the E-Verify Self Check would result in a “soft hit” on a user’s credit score.  These soft hits are generally not shown to businesses and are not used to calculate credit scores.

Similarly, USCIS prohibits employers from requiring prospective employers submit to E-Verify Self Check as condition of their employment.

Conclusion

Although it is very early to gauge E-Verify Self Check’s success so early, our office has heard concerns that using E-Verify Self Check may impact a user negatively.  Although USCIS strives very hard to allay such concerns, the fact is that the perception that negative information provided by E-Verify Self Check may be used against an employee  still remains.

Workers who have had information consistency problems with DHS or SSA in the past, or have a reason to believe that their records may not be accurate in either of those agencies, would benefit from using the E-Verify Self Check system to ensure that their records are proper and that a subsequent E-Verify check by an employer would likely be a positive one.

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Immigration Relief Options for Japanese Nationals Impacted by the Recent Disaster

After the recent earthquakes and tsunami in Japan, our office is receiving a number of inquiries by Japanese nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for Japanese nationals who are impacted by the recent disaster.   Please note that other foreign nationals may also be able to claim relief under these options if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Japanese nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, Japanese students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Immediate Relatives Immigrant Petitions

USCIS would also permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are Japanese nationals impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain Japanese nationals who are impacted by the earthquake and the tsunami.   Our office stands ready to assist affected Japanese nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

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What Does the Kentucky Consular Center (KCC) Do?

The Kentucky Consular Center (KCC) is a centralized processing facility for petition-based nonimmigrant visa programs and for the Diversity Visa program (also known as “green card lottery”).  Located in Williamsburg, Kentucky, KCC serves a variety of important functions affecting many visa applicants and foreign nationals who are selected under the Diversity Visa lotttery.  There are 300 employees, of which 97% are under private contracts.

Processing Statistics

For the Diversity Visa program, KCC processes approximately 100,000 selectees every year to ensure that all of the 55,000 allocated immigrant visa numbers are properly allocated.  KCC also receives 12,000 I-129 nonimmigrant visa petitions each week from USCIS and processes them for U.S. consular posts around the world.

Fraud Prevention Unit (FPU)

As part of its processing tasks, KCC houses the Fraud Prevention Unit which creates base files for petitioners and researches petitioner information in connection with visa stamp applications.   The purpose of the FPU is to allow the government to research the petitioner in more depth from within the U.S.  Often a U.S. consular post is not able (logistically or otherwise) to do proper petitioner research; as a result, the FPU allows such petitioner research or verification tasks to be conducted from within the U.S.

As part of its duties, the FPU could contact the petitioner directly to ask questions, or if an end-client is involved in the employment arrangement (such as with many IT consulting companies), the FPU could contact the end-client directly. The FPU researchers will identify themselves – they do not make pretext calls to gain information.    The researcher creates a memo regarding the information obtained, which is entered into the FPU database. Normally there is no need to research the same petitioner multiple times, in the absence of some particular need to do so.

The trigger for FPU review is either random (reportedly about 1% of all records) or upon specific request by a consular post.   Normally, electronic records are created from I-129 records for all petitioners whose petitions are processed by KCC.   All petitioners are verified and minimum research is conducted to verify the petitioner’s existence.  A more in-depth petitioner existence review is conducted randomly or upon consular post request.

Training in the FPU is category-specific. Researchers are trained on industries, company size and other factors. Agents in the FPU receive an overiew of all petition-based NIV categories;  however, they normally specialize regionally. Currently, there are two teams-India and Global (all non-Indian posts).

Petition Information Management Service (PIMS)

The PIMS system allows consular posts to obtain petition information in connection with visa applications (most often by the beneficiary of the petition).   KCC acts as the central processing facility of petitions processed by USCIS.  Normally, USCIS sends petitions to KCC’s PIMS systemwhich are then scanned and made available to consulates around the world in the PIMS system.

In the normal course of processing, KCC receives boxes of files from USCIS and electronically tracks them based on the USCIS barcodes on the files as they are received. I-129 petitions are scanned, 55 fields are entered for data capture, a petitioner is assigned, a quality control check is conducted, and then the hard copy is shredded.

KCC reports that it has processed 65,000 consular PIMS inquiries in FY2009 and 48,000 in FY2010. For the vast majority of these inquiries, sufficient information is in CLAIMS for KCC to update PIMS within 24 hours.  KCC’s PIMS processing completion target times for entry into the system are: COB the next day for “expedited petitions” (which do not necessarily include premium processing), 3 working days for O, P, T and U petitions, 5 working days for other petitions and for revocation/CIS notices, and 10 working days for any other extension or change of status petitions.  The processing time for USCIS affirmations of petitions returned by the consulate with a revocation recommendation is within 5 days.

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April 2011 Visa Bulletin – Slow Movement in EB; No Movement (Again) for EB-2 India; FB1 Retrogresses; FB2A Moves Forward

The U.S. State Department just released the April 2011 Visa Bulletin which is the seventh Visa Bulletin for the FY2011 fiscal year.    The major headline in the upcoming month’s bulletin is the slow forward movement in FB2A (after few significant backward movements), the significant retrogression in the FB1 preference visa numbers, accompanied by the continued slow forward movement across the employment-based categories.

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

Below is a summary of the April 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 July 22, 2006, while EB-2 India remains (again, for eight consecutive months) unchanged at May 8, 2006.
  • EB-3 ROW and EB-3 Philippines move forward by three (3) weeks to July 22, 2005, EB-3 China  moves forward by five (5) weeks to March 1, 2004, while EB-3 India  moves forward by three (3) weeks to April 8, 2002.  EB-3 Mexico moves forward by four (4) months to May 8, 2004.
  • The “other worker” category remains unchanged at  April 22, 2003 for China.  It moves forward by five (5) weeks to July 22, 2003 for ROW, Mexico and Philippines.  It moves forward by three (3) weeks to April 8, 2002 for India .

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

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

  • FB1 ROW, China and India move backwards by eight (8) months to May 1, 2004.  FB1 Mexico moves forward by two (2) weeks to February 15, 1993.  FB1 Philippines moves forward by three and a half (3.5) months to April 1, 1995.
  • FB2A moves forward by four (4) months to April 1, 2007 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by six (6) months to July 1, 2006.
  • FB2B ROW, China and India remain unchanged at April 15, 2003.  FB2B Mexico also remains unchanged at July 15, 1992.  FB2B FB2B Philippines moves forward by four (2) months to December 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 8 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).

We have finally seen the FB2A category move forward by four months, after the significant retrogression over the past few months.  We wish to reiterate that the forward movement in FB2A is expected to be slow over the next  few months, according to indications from the State Department.   Unfortunately, due to strong demand, the FB1 category retrogresses by 8 months for many regions.   This is due to heavy demand in the FB1 category which is expected to continue and further backward movements in FB1 are possible.

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 April 2011 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions on when a particular priority date may become current.

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AAO Processing Times (March 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 March 1, 2011.

Among the most notable AAO processing times:

  • H-1B appeal takes 16 months (one month increase compared to our last report as of February 1, 2011);
  • I-140 EB1 Extraordinary Ability takes 12 months (no change), 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 28 months (increase by one month) while EB2 (NIW) takes 12 months (increase by one month); and
  • I-140 EB3 Skilled Worker takes 31 months (increase by one month) while EB3 Other Worker takes 2 months on appeal (decrease by 3 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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New Mailing Address for Form AR-11, Change of Address

About Forms AR-11 and AR-11 SR

The law requires that most non-U.S. citizens residing in the U.S. to report a change of address within 10 days of moving by completing a Form AR-11, Change of Address.  Similarly, AR-11 SR is a form which requires non-U.S. citizens who are subject to “Special Registration” to update their address within 10 days of moving.

Note that completing these legal requirements and submitting the necessary AR-11 forms does not update an address on any applications or petitions pending with USCIS.  A separate action is required to update the address on any pending applications.

New Filing Location Effective April 1, 2011

USCIS has announced that beginning April, 1, 2011, all Change of Address, (Form AR-11) and Alien’s Change of Address for Special Registrants, (Form AR-11 SR) will change filing location to this address.

DHS/USCIS
Harrisonburg File Storage Facility
Attn:  AR-11
1344 Pleasants Drive
Harrisonburg, VA 22801

Change of address forms mailed to the old location will be forwarded to the new filing location for 45 days beginning April 1, 2011 until May 16, 2011.  After May 16, 2011, AR-11 forms mailed to the old location will be returned as undeliverable.

AR-11 forms can also be submitted to USCIS electronically.

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U.S. Consulate in Mumbai to Stop Accepting New H and L Visa Stamp Applications

The Department of State announced yesterday that effective March 3, 2011, the U.S. consulate in Mumbai, India would limit the number of applicants it can process due to the building’s aging infrastructure.  While a new multi-million dollar facility is under construction (scheduled to open later this year), the current facility of the consulate seems incapable of handling the current number of visa interviews.

As a result, the consulate would not accept new H or L visa stamp application appointments.  H and L visa stamp applicants are urged to schedule appointments at the other U.S. consulates in India.  Appointments can be scheduled through VFS.  Note: H and L appointments which are already scheduled would be honored and processed.

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USCIS Publishes Proposed Rule on H-1B Cap Pre-Registration Requirement

In early January we wrote about a USCIS proposal to create a pre-registration system for new H-1B cap cases in order to make the H-1B cap application process more efficient and to eliminate waste associated with H-1B cap petitions which are filed on or shortly after April 1st (when the H-1B cap filing window opens) but are not ultimately selected because the demand of H-1B cap petitions exceeds the available 65,000 (plus 20,000 for U.S. Masters degree holders) H-1B visas.

Proposed Rule Published Today, March 3, With a 60-day Comment Period

Today USCIS published a proposed rule which describes the pre-registration process in more details and establishes the procedures for pre-registration, selection and actual H-1B petition filing.   The rule has a 60-day comment period during which the public can provide comments to USCIS with respect to the new regulations.  Our office plans to do so as there are some provisions which substantially alter the process to our clients’ disadvantage.

The Proposed H-1B Pre-Registration System

The proposed rule would require employers who wish to file for a cap-subject H-1B petition to submit a simple electronic registration for each H-1B case the employer wants to file.  The electronic submission would open in early March and for each H-1B petition would require (1) the employer’s name, employer identification number (FEIN), and employer’s mailing address; (2) the authorized representative’s name, job title, and contact information (telephone number and email address); and (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number.

Once USCIS receives a number of pre-registrations over a certain period of time, they would evaluate the H-1B visa demand and if the demand exceeds the available 65,000 plus 20,000 visa numbers, they would run a random lottery to determine which of the pre-registrations would be allowed to submit a full H-1B petition.  Those selected would be notified electronically and would be allowed to print a selection confirmation page which would then be included with the H-1B petition.

Upon selection in the H-1B cap, an employer would have 60 days from the date of notification to submit the actual full H-1B petition for the beneficiary named, including the applicable Labor Condition Application (LCA).  H-1B petitions which are selected but are filed after the 60-day filing deadline would be rejected.

If the demand is lower than the available H-1B visas, the pre-registration system would continue to accept new pre-registration submissions until the H-1B cap is reached.   USCIS contemplates creating a waitlist system to handle pre-registrations which are not selected initially, but may be selected at a later time should the number of allocated H-1B pre-registrations exceeds the actual H-1B petitions filed and accepted for processing.

USCIS’s Rationale of H-1B Cap Filing Pre-Registration

The new proposed Internet-based registration system allows employers to complete a much shorter and less expensive registration process for consideration of available H-1B cap numbers.  The new system will also relieve a significant administrative burden and expense from USCIS.   This proposed rule is estimated to reduce costs for H-1B employers, or at least eliminate waste associated with filing of H-1B petitions which may be subsequently rejected due to reaching of the H-1B cap.    USCIS is also estimated to realize cost-savings from this process.

Important Note: Published Rule is Not Final; This Year’s H-1B Cap Filing Season Is Not Affected

It is very important to stress that this is only a proposed rule which is subject to a 60-day comment period and further USCIS revisions.   This year’s H-1B cap season is not affected by this rule and it would continue under the current system where all H-1B cap filings are filed in their entirety on or after April 1st, without any pre-registration requirements.

This is an important development in the H-1B cap filing season and we will continue monitoring the proposed rule throughout and after the 60-day comment period.   Please feel free to subscribe to our weekly newsletter to obtain timely updates on this and related issues.  Also,  feel free to contact us with any questions, comments or if our office can be of help.

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