Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for June, 2011

USCIS Ombudsman Office Releases 2011 Report to Congress

The USCIS Ombudsman office  has released their 2011 report to U.S. Congress, as required by law.

About the USCIS Ombudsman Office

The USCIS Ombudsman office was created by the Homeland Security Act of 2002 and was tasked to assist individuals and employers in resolving problems with USCIS.   The Ombudsman’s office addresses individual case inquiries and recommends ways to fix systemic issues to improve immigration services.  For the year between April 1, 2010 and March 31, 2011, the USCIS Ombudsman office handled 3,247 case inquiries.

The Ombudsman’s office is an independent office within the Department of Homeland Security and is not a part of USCIS.   This, in theory at least, allows it some independence and impartiality when dealing with USCIS.  The report, required by law, provides an overview of the Ombudsman’s office’s activities and significant developments reflecting on the Ombudsman and USCIS.

The 2011 Report

This  year’s report details pervasive and serious problems and best practices related to humanitarian, family, employment, customer service and transformation.

Humanitarian.  With respect to humanitarian issues, the report focuses on enhancing trafficking protections, processing of deferred action requests and asylum cases.

Family.  With respect to family issues, the report discusses the family-based visa retrogression (which we have discussed extensively), survivor benefits under section 204(l) under INA, military immigration issues and juvenile immigrant issues.

Employment.  With respect to employment immigration, the report focuses on USCIS’s VIBE tool, the immigrant investor visa program (EB-5), ongoing issues relating to improper or overly burdensome requests for evidence (RFE), E-Verify issues, and EAD processing delays.

Customer Service.   With respect to customer service, the report discusses problems with posted USCIS processing times, call center and customer service interactions, and interagency cooperation.

Conclusion

The 2011 report is an useful (yet, lengthy, at 84 pages) read as it provides a somewhat independent insight into USCIS’ operations.   We applaud the Ombudsman’s office efforts to create transparency, to improve USCIS’s processes and to assist with cases on an individual basis.

Our office would be happy to provide case assistance which may include enlisting the Ombudsman’s help.  Please feel free to contact us.

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FY2012 H-1B Numbers Update – 17,400 Regular and 11,300 Masters Cap Visas Used (June 24, 2011)

USCIS released the weekly information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of June 24, 2011, USCIS has received approximately 17,400 H-1B petitions counting toward the 65,000 cap (an increase of 2,200 over previous 10 days).  Similarly, as of June 24, there were 11,300 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 1,100 over the previous 10 days).

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, although it may be trending slightly upwards.   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 several weeks and 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 – 15,200 Regular and 10,20 Masters Cap Visas Used (June 13, 2011)

USCIS released the weekly information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of June 13, 2011, USCIS has received approximately 15,200 H-1B petitions counting toward the 65,000 cap (an increase of 1,600 over previous 10 days).  Similarly, as of June 13, there were 10,200 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 900 over the previous 10 days).

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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July 2011 Visa Bulletin – Significant Forward Movement in EB-2 India/China, Other Workers and FB2A; FB1 Remains Unchanged

The U.S. State Department just released the July 2011 Visa Bulletin which is the tenth Visa Bulletin for the FY2011 fiscal year.    The major headline in the upcoming month’s bulletin is the substantial forward movement in EB-2 China, EB-2 India,  Other Workers and FB2A categories.

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

Below is a summary of the July 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 while EB-2 China and EB-2 India both move forward by almost five (5) months to March 8, 2007.
  • EB-3 ROW and EB-3 Philippines move forward by three (3) weeks to October 8, 2005, EB-3 China  moves forward by one and a half (1.5) months to July 1, 2004, while EB-3 India  moves forward by only one (1) week to May 1, 2002.  EB-3 Mexico moves forward by over six (6) months to July 1, 2005.
  • The “other worker” category remains unchanged (again) at  April 22, 2003 for China.  It moves forward by over one (1) year to November 22, 2004 for ROW, Mexico and Philippines.  It moves forward by only one  (1) week to May 1, 2002 for India .

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

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

  • FB1 ROW, China and India remain unchanged (again) at May 1, 2004.  FB1 Mexico moves forward by only one (1) week to March 8, 1993.  FB1 Philippines moves forward by seven (7) weeks to April 15, 1996.
  • FB2A moves forward by seven (7) months to March 22, 2008 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by six (6) months to February 15, 2008.
  • FB2B ROW, China and India move forward by two and a half (2.5) months to July 1, 2003.  FB2B Mexico moves forward by one (1) month to September 22, 1992.  FB2B Philippines moves forward by three and a half (3.5) months to September 22, 2000.

Slow Movement  for Employment-based Petitions, Except EB-2 India, EB-2 China and Other Workers; Substantial Forward Movement for FB2A and No (or Minor) Movement in FB1

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 again (the same as during the previous few visa bulletins).

We continue to see the FB2A category move forward (byseven 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 third 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.

Further Updates and NewsWe 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 July 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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Report: Immigrant Workforce Now Predominantly High-Skilled

A Brookings Institution report, and a Washington Post article provide an updated overview of the composition of the immigrant labor force.   According to the Brookings report, for the first time the proportion of highly skilled immigrants exceeds that of low skilled immigrants in the United States.

The report cites that 30 percent of the country’s working-age immigrants, without taking into account legal status, have at least a bachelor’s degree (definition of highly skilled), while 28 percent lack a high school diploma (definition of low-skilled).   Although the foreign-born population in the United States has increased dramatically in the past 30 years, until 2007 or so, the number of low skilled labor exceeded that of high skilled immigrants.   Only after 2007, due to increased numbers of F-1 students and H-1B skilled work visas, has the proportion of skilled immigrants increased.

The report also looks as geographic areas and the highly skilled/low skilled composition for those areas.  Generally, coastal cities and established “gateway” metropolitan areas attract more highly skilled workers, while areas near the U.S.-Mexico border attract a higher percentage of low skilled immigrants.

The report will certainly fuel the debate over immigration reform in the U.S.   However, even without its political implications, the report provides an interesting analysis of the composition of highly/low skilled immigrants in the United States.

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FY2012 H-1B Numbers Update – 13,600 Regular and 9,300 Masters Cap Visas Used (June 1, 2011)

USCIS released the weekly information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of June 1, 2011, USCIS has received approximately 13,600 H-1B petitions counting toward the 65,000 cap (an increase of 1,300 over previous 10 days).  Similarly, as of June 1, there were 9,300 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 800 over the previous 10 days).

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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Can I Travel to U.S. with Valid H-1B Visa and Pending (or Approved) H-1B Transfer When Prior H-1B Petition Has Been Revoked?

Our office receives a number of inquiries from current and prospective clients, employers and individuals, as to whether an H-1B worker who is beneficiary of a pending H-1B transfer petition can be readmitted into the U.S. based on the valid H-1B visa stamp and the pending H-1B transfer petition.

Reported Incidents of Refused H-1B Admissions

There is a lot of confusion on this subject, especially after reported incidents where Customs and Border Protection (CBP) agents have refused to admit H-1B workers attempting to enter the U.S. with a valid H-1B stamp (from a prior employer) and evidence of pending H-1B transfer petition.   Unfortunately, there are confirmed reports of CBP agents refusing to admit such H-1B workers in cases where the prior employer has withdrawn the H-1B petition (as the employer is required to do).

The Legal Framework

Pursuant to the relevant section of AC21 (§105) and as further discussed in the January 29, 2001 Pearson Memorandum, an H-1B beneficiary may be re-admitted to the United States in H-1B status to work for a different employer than the original petitioner if the alien possesses a valid, unexpired H-1B visa (unless exempt from the visa requirement), and if the alien can prove he or she was previously admitted in H-1B status and the alien’s current employer timely filed a new H-1B petition before the alien began work.

CBP Expected to Take Action to Ensure Uniform Application of the Legal Framework

During a recent AILA/CBP exchange, CBP has agreed that a former employer’s H-1B petition withdrawal should not impact a foreign national’s eligibility for AC21 H-1B portability based on a timely-filed H-1B petition by a new employer when the foreign national is seeking admission based on an H-1B visa issued pursuant to the prior employment.   CBP has further indicated that if the foreign national has an otherwise valid H-1B visa from the prior employment, and has evidence of a timely filed H-1B petition by a new employer (Form I-797 receipt or approval notice), the individual should be admitted on the basis of the old visa.

To ensure consistent application of these rules, CBP has agreed to send a reminder to their field offices that no new visa is required even though the prior petition has been withdrawn and revoked.

Conclusion

We are encouraged by CBP’s willingness to inform their field offices of the applicability of these regulations.   Despite this, it is possible that an H-1B worker may be denied admission by a CBP agent after misapplication of these regulations.    To complicate matters further, not all H-1B workers who have pending (or approved) H-1B transfer petition by a new employer and who seek to be admitted into the U.S. know whether their prior employer has withdrawn their H-1B petition.

As a result, a safer approach would be to for a H-1B worker seeking admission to the U.S. on H-1B status based on pending (or approved) H-1B transfer petition to be prepared to point to the relevant regulations discussed here and/or to ask to speak to a CBP supervisor at the point of entry and to explain that H-1B admission not be denied due to the fact that the prior employer’s H-1B petition has been revoked.

Our office also is happy to provide individual case consultations, which may include preparing a document package addressed to the CBP agents to explain the legal framework and to facilitate an H-1B worker’s admission into the U.S.   Please contact us if our office can be of any assistance.

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