Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for September, 2011

U.S. Consulate in Mumbai Resumes H and L Visa Processing

The Department of State has announced that as of August 26, 2011, the U.S. Consulate in Mumbai would resume processing of H and L visa stamp applications.   The earliest appointments available were for September 6, 2011 and as of today, the Consulate is in normal processing mode.

Earlier this year, in March, the Mumbai Consulate suspend all H and L visa stamp processing due to aging infrastructure.   We are delighted to see that the Mumbai Consulate is now able to process H and L visa stamp applications on a regular basis.

Please see the Mumbai Consulate page for more information and details on scheduling an appointment.   Also, please do not hesitate to contact us if we can be of any assistance in preparing and filing H or L visa stamp applications at the Mumbai or other Consular sections.

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DV-2013 Diversity Visa (Green Card) Lottery Opens October 4, 2011

The Department of State will open the DV-2013 Diversity Visa (a.k.a. “green card”) lottery on Tuesday, October 4, 2011.   The entries for this year’s lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2011, and noon, Eastern Standard Time (EST) (GMT-5), Saturday, November 5, 2011.

Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EDT on November 5, 2011.

About the DV Lottery

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 and provides for a class of immigrants known as “diversity immigrants.” Section 203(c) of the INA provides a maximum of 55,000 Diversity Visas (DVs) each fiscal year to be made available to persons from countries with low rates of immigration to the United States.

The annual DV program makes visas available to persons meeting simple, but strict, eligibility requirements. A computer-generated, random lottery drawing chooses selectees for DVs. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. Within each region, no single country may receive more than seven percent of the available DVs in any one year.

Countries Ineligible

For DV-2013, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

BANGLADESH, BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.   Also, nationals of Poland and Sudan are eligible under DV-2013.

Eligibility Requirements

There are two main requirements.  First, the applicant must be a national of a country which is eligible (see above for ineligible countries).  Nationality is generally defined by birth, although there are certain exceptions,  most notably if the applicant’s spouse is a national of a different country.  Second, the applicant must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

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H-1B SSN Audit Report: Substantial Percentage of H-1B SSN Cases May Involve Fraud

In a September 2011 audit report on the use of Social Security Numbers (SSNs) by H-1B temporary workers, the Office of Inspector General (OIC) claims that a substantial percentage of H-1B cases may involve some amount of irregularity or fraud.   OIG based its review on a random sample of 200 H-1B cases from the 38,546 H-1B workers to whom the Social Security Administration (SSA) had issued SSNs in 2007.   The review period includes SSA reports for the period between 2007 and 2009.

Report Results and Recommendations

According to the audit report, an estimated 18% of H-1B workers analyzed in the relevant sample may have used their SSN for a purpose other than to work for the H-1B sponsor employer.   This includes 11% of H-1B workers who had posted wages from another an employer other than their H-1B sponsor employer.   This also includes 7% H-1B workers who had no posted wages from 2007 through 2009.

While we think that the audit is based on a very small sample (of 200) and while we believe (and the report acknowledges) that there may be some absolutely legitimate explanation for what the reports counts as unlawful employment, the numbers of possible irregularities is very high.   For example, the report acknowledges that some H-1B employees may be paid their H-1B wages abroad, or that some employees may have transferred their H-1B petition to a new employer (for example, by porting H-1B under AC21 and working upon filing of the H-1B paperwork, and not upon approval) which may not have been reflected in the data used in the audit report.

Conclusion

Notwithstanding these possible explanations for the high number of irregularities, the OIG makes the recommendation that DHS and SSA establish a data-matching protocol for identifying H-1B workers who are working for employers other than the H-1B sponsor employer or who are not working at all.    It is possible that, after such protocol is established, DHS would take a more proactive role in identifying and revoking H-1B petitions for workers who are not employed by the respective H-1B employer or to seek to identify H-1B workers who are in violation of their H-1B status by working for another (and non-H-1B sponsor) employer.

The OIG report highlights the need of proper H-1B compliance for both H-1B employers and employees.   Our office routinely advises H-1B employers on proper H-1B and I-9 compliance and H-1B employees on proper steps to maintain valid status — please do not hesitate to contact us if we can be of any assistance or if you have any questions or comments.

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FY2011 Employment-Based Visas Limit Reached: No New Green Card Approvals Until October 1

The Department of State (“DOS”), in an “urgent” alert dated as of September 15, 2011, has advised that due to heavy demand in the employment-based immigrant visa categories, DOS has reached the Fiscal Year 2011 annual limit of employment-based green cards.

DOS/USCIS to Stop Approving EB Immigrant Visas Until October 1

As a result of reaching the annual EB visa number limit, DOS has stopped approving immigrant visas in all of the employment-based categories.   Employment-based immigrant visas at U.S. Consular Posts are being held or returned to applicants for resubmission on or after October 1.

Similarly, DOS has advised USCIS that due to reaching the quota, no new I-485 adjustment of status applications would be approved for the remainder of the fiscal year (which ends on September 30, 2011).    There may be a limited number of I-485 approvals between now and October 1 but such approvals are based not on changes in the availability of visa numbers, but due to the fact that some I-485 cases have had their visa number already requested, authorized and allocated under the FY2011 limit.

Conclusion

Some of our clients and readers have already experienced returned passports by US Consular section around the world with notations indicating that they should resubmit their application on or after October 1 once the numbers become available again.     As a result of this memo to USCIS, we expect that the number of I-485 approvals for EB cases for the remainder of the month of September to drop to close to zero.

The good news is that after October 1, and in accordance with the October 2011 Visa Bulletin, normal employment-based immigrant visa processing would resume.    Please do not hesitate to contact us if we can be of any assistance and please feel free to subscribe to our weekly immigration newsletter to obtain related news and developments.

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Current PERM Processing Times (as of August 22, 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 August 22, 2011.  Most notable is the slight increase (or delay) in the processing time for regular PERM applications — approximately four to five months.  The processing times, as reported by DOL, are as follows:

  • Regular processing: May 2011.  DOL is processing PERM applications with priority dates in May of 2011.  This suggests that there is a slight increase in the regular PERM processing times. Accordingly, regular PERM processing times should be between four and five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
  • Audited applications: December 2010.  DOL is processing PERM audits which have a priority date of December 2010.  Although this does not continue  the trend of substantial improvement in the audited PERM processing times we saw in June 2011, it is still an improvement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately 9 months after the initial PERM was filed and the priority date established.  We welcome this sign of improvement in PERM audit processing times.
  • Appealed applications: January 2009.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of January 2009.   There is generally no change in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 30 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

The August 2011 PERM processing times report shows a slight delay in the regular PERM processing times while the remainder of the PERM processing times remain stable.    It may be disappointing to some of our clients and readers to see PERM processing times increase from as little as a couple of weeks earlier this year to four to five months today.    We hope that DOL would be able to improve the PERM processing times over the next weeks and months.  We also hope the significant improvement in PERM audit processing times over the summer would continue in the fall and winter 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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FY2012 H-1B Numbers Update – 32,200 Regular and 16,700 Masters Cap Visas Used (September 9, 2011)

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of September 9, 2011, USCIS has received approximately 32,200 H-1B petitions counting toward the 65,000 cap (an increase of 3,200 over the previous two weeks).  Similarly, as of September 9, there were 16,700 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 900 over the previous two weeks).

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

The numbers, as just reported for the past two weeks, confirm that the rate of filing of new cap-subject H1B filings is fairly slow, and remaining steady.  We have been noticing a weekly rate of filing of 1,000 to 1,500 in the regular H-1B cap and 500-700 in the US Masters H-1B cap.   Almost six months into this H-1B cap filing season, we can draw some (fairly) reliable conclusions on how long the cap would remain open: 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.

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October 2011 Visa Bulletin – EB-2 India and China Advance by Three Months; Slow Movement in EB-3; FB1 Finally Advances; Moderate Movement in FB2A

The U.S. State Department just released the October 2011 Visa Bulletin which is the first Visa Bulletin for the FY2012 fiscal year.    The major headline in the upcoming month’s bulletin is the significant forward movement in EB-2 India and China and the forward movement in FB1.

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

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

  • EB-1 remains current across the board.
  • EB-2 remains current for EB-2 ROW, Mexico and Philippines.   EB-2 India and EB-2 China both move forward by three (3) months to July 15, 2007.
  • EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by two (2) weeks to December 8, 2005, EB-3 China  moves forward by three (3) weeks to August 8, 2004, while EB-3 India  moves forward by only one (1) week to July 15, 2002.
  • The “other worker” category remains unchanged at  April 22, 2003 for China.  It moves forward by six (6) weeks for ROW, Mexico and Philippines to September 15, 2005.  It also moves forward by one (1) week for India to June 8, 2002.

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

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

  • FB1 moves forward (finally!).  FB1 ROW, China and India all move forward by six (6) weeks to June 15, 2004.   FB1 Mexico moves forward by one (1) week to March 22, 1993 and FB1 Philippines moves forward by a little over two (2) months to January 8, 1997.
  • FB2A moves forward by five (5) weeks to January 8, 2009 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by three (3) weeks to October 15, 2008.
  • FB2B ROW, China and India move forward by two (2) weeks to July 15, 2003.  FB2B Mexico moves forward by three (3) weeks to November 22, 1992.  FB2B Philippines moves forward by five (5) weeks to May 1, 2001.

Substantial Movement in EB-2 India and China;  Slow Movement  for EB-3; Finally Forward Movement in FB1

One of the major headlines this month, in the first Visa Bulletin for the Fiscal Year 2012 is the substantial forward movement in EB-2 India and China.    The slow movement across EB-3 continues, unfortunately.

We finally see forward movement in the FB1 category which, for several months, had not changed.   Although the movement is only of five weeks, it is still a notable movement.   We continue to see the FB2A category move forward, although by not as much as we saw for the last few months and after the significant retrogression during the months before.

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 October 2011 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Immigration Live Chat Returns September 15, 2011 at 9 pm eastern

After a summer break, the immigration live chat returns next Thursday, September 15, 2011 at 9 pm eastern time. Please join us on Thursday to ask questions or discuss recent developments relating to immigration.

Thursday’s chat will be of general nature, meaning that we will be able to have a discussion on a number of immigration topics.   You can visit the chat page and request that a reminder email be sent to you before the event.    We are looking forward to chatting with you next Thursday at 9 pm!

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Overview of N-400 Naturalization Interview and Test

Our practice handles a number of N-400, Application for Naturalization, cases for U.S. lawful permanent residents seeking to obtain U.S. citizenship.    In addition to preparing and filing a complete Form N-400 application with USCIS and submitting to a biometrics appointment, the N-400 naturalization process includes a personal interview and a naturalization test.

While the information below should not be a substitute for the personal preparation by an immigration attorney for the naturalization interview and test, we are hoping to provide our clients and readers with an overview of the naturalization interview and test and to, hopefully, allay any anxieties an upcoming interview may cause.

The Naturalization Interview

During the naturalization interview, an N-400 applicant (who would be placed under oath) is asked to confirm the validity and correctness of key information submitted on the N-400 application.   The N-400 applicant is also asked to produce originals or copies of relevant supporting documents expressly requested in the interview notice or generally required for the N-400 process.   It is always a good idea to bring original documents of any copies submitted as part of the N-400 filing; in addition to bringing additional (and more updated) documents.     A good overview of the case (and any issues) should identify any additional items that may need to be brought.   It is difficult to over-prepare for an interview.

The Naturalization Test

In addition, the USCIS office would seek to test the applicant’s knowledge of civics and the applicant’s ability to speak, understand, read and write English.

Verbal English.  The applicant’s ability to speak and understand English is normally tested in the course of the interview by the USCIS officer who often asks questions and seeks input from the applicant.   It is often obvious, after a short conversation or after a few questions, whether an applicant has a sufficiently good command of the verbal English language.

Written English.  For the written portion of the English language test, the applicant is normally given a reading and a writing test.  The applicant must be able to read 1 out of 3 sentences correctly and must be able to write 1 out of 3 sentences correctly to pass the written English test.

Civics.  Finally, the civics portion of the test, the applicant may be asked up to 10 questions from a list of 100 civics questions.  Answering 6 out of 10 correctly is the passing rate.

Preparing for the Test, Retaking and Passing Rate

There are many websites providing study resources for the naturalization test.   USCIS provides good resources and free study materials for the English and the civics portions of the test.    USCIS also offers a number of free educational products and resources such as vocabulary flash cards, list of the 100 civics questions (in English and in other languages) and civics flash cards.  There are also commercial test preparation books and software, in addition to many websites providing free or paid naturalization test preparation assistance.

Before the naturalization interview, we recommend N-400 applicants to try the Naturalization Self Test (offered for free by USCIS).  While the format of this self-test is different than the format of the actual test (which may be verbal), the self-test helps an N-400 applicant assess his or her level of preparedness for the actual interview and test.

If an applicant does not pass the English and/or civics test, he or she is given another (but only one additional) appointment within 60 to 90 days to be retested on the section which was failed.   If the component is failed again, the N-400 application may be denied.    According to USCIS data, the passing rate as of June 2011 is 92 percent.

Video of the Interview Process

USCIS has also produced a video of the naturalization interview process.   Please see the embedded video window below or watch on YouTube.

Although there are variances in the procedures followed by different USCIS centers, the video is a very good (and helpful, we think) representation of what an applicant should expect to happen during an N-400 naturalization interview.   We recommend that every N-400 applicant watches the video in preparation of (or even before filing) the N-400 interview.

Conclusion

As mentioned above, these resources are very helpful to preparing for the N-400 interview and test but are not intended to replace a thorough N-400 review and preparation by an attorney.   Our office is happy and ready to help N-400 naturalization applicants with their process of applying to become a U.S. citizen.   Please do not hesitate to contact us if we can be of any help.

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Foreign F-1 Students and Program Statistics

As the new school year is underway at many colleges and universities across the U.S., it is interesting to share some statistics and profiles relating to the F-1 foreign student visa program.    The data has been released from the Student and Exchange Visitor Information System (SEVIS) as of June 30, 2011.    As of June 30, 2011, there were 10,364 SEVIS-approved schools and 784,481 active F-1 students.

Schools

Approximately 35% of all of the 10,364 SEVIS-approved schools were located within California, New York, Florida, Texas and Pennsylvania.   Only eight schools have more than 5,000 active students, and out of the 10,364 SEVIS-approved schools, approximately 6,700 have less than 10 students (approximately 3,700 schools have no foreign students).

Among the top schools were the City University of New York with 10,000 active students, University of Southern California with 7,600 students, Purdue University with 7,000 students, University of Illinois with 6,700 students and Columbia University with 6,500 foreign students.

Students

Country.   China is the country with the highest number of active foreign students – 150,899.  South Korea is second with 101,652 and India is third with 99,180.

Program of Study.   Business Management, Marketing and related is the most common major – over 160,000 active F-1 students pursue it.   Second is Engineering with 106,000 active students.

Degree.   Over 69% of all active students are enrolled in Bachelor’s  (234,465), Master’s (192,966) or Doctoral (116,372) degrees.   The number of foreign students in English-language programs is 93,603 and the active students pursuing Associate degree are 73,504.

State of Study.  More than half (55%)  of all active students go to schools within seven states – California, New York, Texas, Massachusetts, Illinois, Florida and Pennsylvania.

OSTROWSKA, Katarzyna – Form I-907Deg
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