Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for May, 2011

USCIS Proposes Major Changes to the EB-5 Investor Program

Last week, in a press release, USCIS announced a number of significant enhancements to the EB-5 Immigrant Investor program.  Note that these are proposed changes which are expected to be published on June 17th for public comment and possible implementation at a later date.

About the EB-5 Program

In 1990, the U.S. Congress created the fifth employment-based preference category (EB-5) for qualified foreign entrepreneurs seeking to invest in a business that will benefit the U.S. economy and create or save at least 10 full-time jobs. The basic amount required to invest is $1 million, although that amount is reduced to $500,000 if the investment is made in a rural or high unemployment area.  Of the approximately 10,000 EB-5 green cards available each year, 3,000 are reserved for foreign nationals who invest through a Regional Center.

A Regional Center is a private enterprise or corporation or a regional governmental agency with a targeted investment program within a specific region.   The Regional Center Investment Program allocates 3,000 green cards each year for people who invest in designated Regional Centers.  The program does not require that the foreign investor’s enterprise itself directly employ 10 U.S. workers.  Instead, it is enough if 10 or more jobs will be created directly or indirectly as a result of the investment. As a result, he Regional Center Investment Program aids foreign investors by directing and professionally managing their investment in the designated business and geographic focus of their Regional Center.

The Proposed EB-5 Changes

First, USCIS proposes to accelerate its processing of applications for job-creating projects that are fully developed and ready to be implemented.  USCIS will also give these EB-5 applicants and petitioners the option to request Premium Processing Service, which guarantees processing within 15 calendar days for an additional fee of  ($1,225).

Second, USCIS proposes the creation of new specialized intake teams with expertise in economic analysis and the EB-5 Program requirements. EB-5 Regional Center applicants will be able to communicate directly with the specialized intake teams via e-mail to streamline the resolution of issues and quickly address questions or needs related to their applications.

Third, USCIS proposes to convene an expert Decision Board to render decisions regarding EB-5 Regional Center applications. The Decision Board will be composed of an economist and adjudicators and will be supported by legal counsel.

Conclusion

We welcome these changes to the EB-5 program as they seek to make the program more investor-friendly and transparent.   However, especially in times when job-creation by foreign investors should be a priority, these changes are a good step forward which we expect to be followed by more proposed changes to make the program more transparent and investor friendly.   Please feel free to subscribe to our free weekly newsletter for additional updates on this and related topics.

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FY2012 H-1B Numbers Update – 12,300 Regular and 8,500 Masters Cap Visas Used (May 20, 2011)

USCIS released the weekly information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of May 20, 2011, USCIS has received approximately 12,300 H-1B petitions counting toward the 65,000 cap (an increase of 1,100 over the last week).  Similarly, as of May 20, there were 8,500 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 – Slow Rate of Filings; H-1B Caps Are Likely to Remain Open for Several Months

The numbers, as reported over the past week, show that the rate of H1B filings is fairly low.  We start to notice a weekly rate of filing of 1,000 to 1,500 in the regular H-1B cap and 600-800 in the US Masters H-1B cap.   It is still early in the H-1B filing season to draw any reliable conclusions on how long the cap would remain open; however, given the rate of filings for the past three weeks since the H-1B cap opened, it is likely that the H-1B cap would remain open well into the rest of the year, and perhaps even well into 2012.

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 FY2012 quota, please contact us as soon as possible.

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FY2012 H-1B Numbers Update – 11,200 Regular and 7,900 Masters Cap Visas Used (May 13, 2011)

USCIS released the weekly information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of May 13, 2011, USCIS has received approximately 11,200 H-1B petitions counting toward the 65,000 cap (an increase of 1,000 over the last week).  Similarly, as of May 13, there were 7,900 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 – Slow Rate of Filings; H-1B Caps Are Likely to Remain Open for Several Months

The numbers, as reported over the past week, show that the rate of H1B filings is fairly low.  We start to notice a weekly rate of filing of 1,000 to 1,500 in the regular H-1B cap and 600-800 in the US Masters H-1B cap.   It is still early in the H-1B filing season to draw any reliable conclusions on how long the cap would remain open; however, given the rate of filings for the past three weeks since the H-1B cap opened, it is likely that the H-1B cap would remain open well into the rest of the year, and perhaps even well into 2012.

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 FY2012 quota, please contact us as soon as possible.

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Expanded List of STEM-Designated Degree Programs

The Immigration and Customs Enforcement (ICE) has announced that they have expanded the list of Science, Technology, Engineering and Math (STEM) degree programs.  The expanded list includes fields such as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design, Mathematics and Computer Science.   See the updated list of all STEM degree programs.

New STEM-Designated Programs

The new STEM-designated programs come as a direct result of the current administration’s efforts to address shortages in certain high-tech sectors of the U.S. economy.   A number of agricultural degree programs have been added to the list (CIP codes 01.XXXX), in addition to Neuroscience (26.1501), certain Physical Sciences (30.XXXX), Psychology (42.XXXX), Forensic Science (43.0105), Geographic Information Systems (45.0702), certain Pharmaceutical degrees (51.20XX) and Management Science/Business Statistics (52.1301, 52.1302).

STEM-Designation Has Great Benefits

On April 8, 2008, the Department of Homeland Security published an Interim Final Rule (IFR) titled, Extending Period of Optional Practical Training (OPT) by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions.    As a result, a STEM degree allows for a total OPT time of 29 months, compared to only 12 months for non-STEM degrees.

Is My Degree in a STEM-Designated Degree Program?

The first step is to find the classification number of your degree.  The Classification of Educational Programs, a database provided by the Department of Education is helpful in looking up the CIP code for a specific degree.  Also, the degree and its CIP code are often listed on page 3 of a student’s SEVIS Form I-20.

Once the degree classification is determined, an F-1 or OPT holder should look at the updated list of STEM degrees which, according to DHS, entitled their holders to an additional term of 17 months.

Conclusion

We welcome ICE’s decision to add new degrees to the list of STEM-designated degree programs.   We hope that the newly released updated STEM list would benefit some of the recent graduates in these new STEM programs; or, would allow graduates of such programs who may be nearing their 12-month OPT expiration date to obtain a 17-month STEM OPT extension.   Please let us know if our office can be of any assistance.

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Diversity Visa (DV) 2012 Lottery Results Voided Due to Computer Glitch

The Department of State (DOS) announced yesterday, May 13th, 2011, that a computer glitch has caused all results of the DV 2012 lottery (also called the “green card lottery”) to be voided.   Accordingly, lottery results published earlier on the DV 2012 lottery website are void and those applicants who were “selected” would not be able to apply for a green card based on the earlier (and now void) results.   See the official statement.

What Was the Glitch?

According to DOS, the glitch discovered earlier this month prompted the computer program to unfairly select people who submitted applications in the first two days of the 30-day application process that ended Nov. 3.   Officials discovered the problem May 5 around the time that entrants were checking their status. An in-house software coding error has been fixed, according to officials who were not authorized to speak on the record.  DOS has assured that their systems have not been “hacked” or otherwise compromised and that no personal information has been affected or stolen.

What Happens to the Prior Results?

As mentioned above, the results so far are void effective immediately.  DOS will hold a new lottery with the existing pool of applicants and announce the winners by July 15.  Applicants do not need to re-enter to be eligible, and no new applications will be accepted.

About the Diversity Visa

More than 14 million applicants entered a lottery last fall for one of 50,000 visas distributed as part of the annual diversity visa lottery, designed for people who would otherwise have little chance of legally entering the country. The program doesn’t require applicants to have a family or employer as a sponsor.  Under the law, the entries must be drawn randomly from all applicants.

Conclusion

While we share the disappointment of those who were already selected under this year’s diversity lottery, and while we are disappointed by fact that this computer glitch has happened, we accept DOS’s decision to void the results due to the computer glitch and the lack of random winning entry assignment.   We hope DOS would continue to work hard to ensure the integrity of the lottery process.  As we continue to monitor and report on related developments, please feel free to subscribe to our free weekly newsletter to receive email updates on this and related topics.

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June 2011 Visa Bulletin – EB-2 India and China Advance; FB1 and FB2B Unchanged

The U.S. State Department just released the June 2011 Visa Bulletin which is the ninth Visa Bulletin for the FY2011 fiscal year.    The major headline in the upcoming month’s bulletin is the forward movement in EB-2 India and the continued (but slow) slow forward movement in FB2A (after few significant backward movements).

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

Below is a summary of the June 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 and a half  (2.5) months to October 15, 2006, while EB-2 India moves forward (again, after last month’s notable 7-week advancement) by three and a half (3.5) months to October 15, 2006.
  • EB-3 ROW and EB-3 Philippines move forward by three (3) weeks to September 15, 2005, EB-3 China  moves forward by one (1) month to May 15, 2004, while EB-3 India  moves forward by one (1) week to April 22, 2002.  EB-3 Mexico moves forward by three (3) months to December 22, 2004.
  • The “other worker” category remains unchanged at  April 22, 2003 for China.  It moves forward by two (2) months to November 8, 2003 for ROW, Mexico and Philippines.  It moves forward by one  (1) week to April 22, 2002 for India .

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

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

  • FB1 ROW, China and India remain unchanged at May 1, 2004.  FB1 Mexico also remains unchanged at March 1, 1993.  FB1 Philippines moves forward by seven (7) months to February 22, 1996.
  • FB2A moves forward by ten (10) weeks to August 22, 2007 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by six (6) months to July 22, 2007.
  • FB2B ROW, China and India remain (again) unchanged at April 15, 2003.  FB2B Mexico moves forward by three (3) weeks to August 22, 1992.  FB2B Philippines moves forward by three (3) months to June 8, 2000.

Slow Movement  for Employment-based Petitions, Except EB-2 India and EB-2 China; No (or Minor) Movement in Family-based Priority Dates

The slow forward movement across many employment categories continues, as expected, although we have started seeing notable movement in the EB-2 India and EB-2 China categories after many months of no activity (especially for EB-2 India).  The EB-2 India and EB-2 China movement is due to the carryover of visa numbers from the EB-1 category (also see note below).    Unfortunately, EB-3 India moved forward by only one  week (the same as during the previous visa bulletin).

We continue to see the FB2A category move forward (by two months and a half months), after the significant retrogression over the past several 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, FB1 category remains unchanged, for a second month in a row, after it retrogressed by 8 months during the April 2011 Visa Bulletin.  This is due to heavy demand in the FB1 category which is expected to continue and further lack of movement (or backward movement) in FB1 is possible.

Visa Bulletin Notes on EB-2 India and Family-based Cases

EB-2 India.  It is important to note that the movement in EB-2 India, while notable, is an attempt by the State Department to estimate the demand in this category because the number of applicants who may be “upgrading” or “porting” their priority date from EB-3 India to EB-3 India is unknown.  Accordingly, the State Department is trying to advance the dates faster than normal to evaluate the demand and, if the demand is high, the EB-2 movement may slow or even retrogress.
Family-based.  The extremely high level of demand during the first few months of FY-2011 resulted in the retrogression of most worldwide cut-off dates in January or February.  While most of these cut-offs have begun to advance slowly, heavy demand in the Family First preference has caused a further retrogression for May.  At this time it is not possible to predict the rate of forward movement, but some movement is anticipated in most categories for the remainder of the fiscal year.

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 June 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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FY2012 H-1B Numbers Update – 10,200 Regular and 7,300 Masters Cap Visas Used (May 6, 2011)

USCIS released the weekly information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of May 6, 2011, USCIS has received approximately 10,200 H-1B petitions counting toward the 65,000 cap (an increase of 1,000 over the last week).  Similarly, as of May 6, there were 7,300 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 700 over the last week).

H-1B Quota Trends – Slow Rate of Filings; H-1B Caps Are Likely to Remain Open for Several Months

The numbers, as reported over the past week, show that the rate of H1B filings is fairly low.  We start to notice a weekly rate of filing of 1,000 to 1,500 in the regular H-1B cap and 600-800 in the US Masters H-1B cap.   It is still early in the H-1B filing season to draw any reliable conclusions on how long the cap would remain open; however, given the rate of filings for the past three weeks since the H-1B cap opened, it is likely that the H-1B cap would remain open well into the rest of the year, and perhaps even well into 2012.  .

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 FY2012 quota, please contact us as soon as possible.

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FY2012 H-1B Numbers Update – 9,200 Regular and 6,600 Masters Cap Visas Used (April 29, 2011)

USCIS released the weekly information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of April 29, 2011, USCIS has received approximately 9,200 H-1B petitions counting toward the 65,000 cap (an increase of 1,200 over the last week).  Similarly, as of April 29, there were 6,600 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 700 over the last week).

H-1B Quota Trends – Slow Rate of Filings; H-1B Caps Are Likely to Remain Open for Several Months

The numbers, as reported over the past week, show that the rate of H1B filings is significantly slow.  We start to notice a weekly rate of filing of 1,000 to 1,500 in the regular H-1B cap and 600-800 in the US Masters H-1B cap.   It is still early in the H-1B filing season to draw any reliable conclusions on how long the cap would remain open; however, given the rate of filings for the past three weeks since the H-1B cap opened, it is likely that the H-1B cap would remain open well into the rest of the year, and perhaps even well into 2012.  .

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 FY2012 quota, please contact us as soon as possible.

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AAO Processing Times (May 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 May 1, 2011.

Among the most notable AAO processing times:

  • H-1B appeal takes 18 months (two months increase compared to our last report as of March 1, 2011);
  • I-140 EB1 Extraordinary Ability takes 13 months (increase of one month), Multinational Manager or Executive takes 17 months (increase of one month) while EB1 Outstanding Professor or Researcher category takes 6 months or less (no change);
  • I-140 EB2 (Advanced Degree) takes 30 months (increase by two months) while EB2 (NIW) takes 13 months (increase by one month); and
  • I-140 EB3 Skilled Worker takes 32 months (increase by one month) while EB3 Other Worker takes 3 months on appeal (increase by 1 month).

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

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Tri-Valley University Update: TVU President Indicted

We have written in the past about the Tri-Valley University and how it affected a high number of F-1 international students by engaging in alleged unlawful practices and immigration fraud.    The Tri-Valley University story is worth following because it highlights, from the perspective of the foreign students and nationals, the importance of maintaining good immigration compliance and records, not only with respect to F-1.

As a result, we continue to provide updates on the Tri-Valley University story.

Tri-Valley University President Indicted

A federal grand jury has indicted earlier this week the President of Tri-Valley University, Susan Xiao-Ping Su.     To be clear, an indictment is simply a charge by the government and until proven guilty, Ms. Su is presumed innocent.

She is accused of engaging in a two-year scheme to defraud the Department of Homeland Security (DHS) by submitting phony documents in support of Tri-Valley University’s applications to admit foreign nationals on student visas. The indictment further alleges that after obtaining such approvals, Su fraudulently issued visa-related documents to student aliens in exchange for “tuition and fees.”

The indictment alleges that in carrying out the scheme, Su is accused of making multiple false representations to DHS through Tri-Valley University’s use of the Student and Exchange Visitor Information System (SEVIS), which the U.S. government uses to monitor the “F-1″ student visa program. Through her false representations, Su was able to unlawfully obtain and issue F-1 visa-related documents without regard to the students’ academic qualifications or intent to pursue a course of study required to maintain a lawful immigration status.

According to the indictment, Su admitted and maintained foreign students in exchange for tuition and other payments. In furtherance of the F-1 visa scheme, Su also allegedly harbored multiple Tri-Valley University student-employees to assist her in making the false representations to SEVIS. The indictment further alleges the defendant engaged in multiple money laundering transactions totaling more than $3.2 million using proceeds she derived from the visa fraud scheme.

The 33 counts contained in the indictment carry maximum penalties ranging from one to 20 years imprisonment. The charges include wire fraud; mail fraud; visa fraud and conspiracy to commit visa fraud; use of a false document; making false statements to a government agency; alien harboring; unauthorized access to a government computer and money laundering.

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