Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for August, 2012

September 2012 Visa Bulletin – Last Visa Bulletin for Fiscal Year: EB-2 India and China Remain Unavailable; EB-2 ROW Cutoff Date Unchanged at January 1, 2009

The U.S. State Department has just released the September 2012 Visa Bulletin which is the last Visa Bulletin for the FY2012 fiscal year.    The major headline in the upcoming month’s bulletin is the continued unavailability in the EB-2 India and China categories (which is expected to become available in next month’s visa bulletin), the unchanged cutoff date for EB-2 ROW and the fact that this is the last Visa Bulletin for the fiscal year.

Summary of the September 2012 Visa Bulletin – Employment-Based (EB)

Below is a summary of the September 2012 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines continues (until October 1, 2012) to have a cutoff date of January 1, 2009.    EB-2 India and EB-2 China remain unavailable.
  • EB-3 ROW and EB-3 Mexico move forward by three (3) weeks to October 1, 2006.  EB-3 Philippines moves forward by six (6) weeks to August 1, 2006, EB-3 China  moves forward by five (5) weeks to December 15, 2005, while EB-3 India  moves forward by only one (1) week to October 8, 2002.
  • The “other worker” category moves forward by three (3) weeks for ROW and Mexico to October 1, 2006.  It moves forward by seven (7) weeks for Philippines to August 1, 2006, by one (1) week for China to June 22, 2003 and by one (1) week for India to October 8, 2002.

Summary of the September 2012 Visa Bulletin – Family-Based (FB)

Below is a summary of the September 2012 Visa Bulletin with respect to family-based petitions:

  • FB-1 moves forward (again, for eleventh consecutive month).  FB-1 ROW, China and India all move forward by two (2) months to October 1, 2005.   FB-1 Mexico remains unchanged at June 8, 1993 and FB-1 Philippines moves forward (after a 32-month retrogression last month) by eight (8) months to November 8, 1994.
  • FB-2A moves forward by seven (7) weeks to May 8, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by six (6) weeks to May 8, 2010.
  • FB-2B ROW, China and India move forward by almost three (3) months to September 15, 2004.  FB-2B Mexico remains unchanged at August 22, 1992 while FB-2B Philippines also remains unchanged at January 1, 2002.

Continued Cutoff Date for EB-2 ROW Caused by High Demand In Filings

The introduction of a cutoff date for the EB-2 Rest of the World (ROW) category in the July Visa Bulletin came as a surprise to many, despite earlier indications by the Department of State has and our warnings of the possibility of cutoff dates in the EB-2 ROW category.   The cutoff date of January 1, 2009 for EB-2 ROW remains in this month’s Visa Bulletin.    This aggressive retrogression and the lack of movement this month suggest that the demand of EB-2 visas has been greater.  As expected, there was no movement in this category in this (last for the fiscal year) Visa Bulletin.   Fortunately, the EB-2 ROW category was not made “Unavailable” as EB-2 India and China — there was a possibility of this happening.

EB-2 India and China Remains Unavailable;  Availability Expected in October 2012 Visa Bulletin

The EB-2 India and China categories remain unavailable for second consecutive Visa Bulletin.   We expect the next Visa Bulletin for October 2012 (released in early September) to show availability for EB-2 India and China (although we do not know the exact cutoff date just yet).
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 September 2012 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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USCIS Expands Phone Customer Service to Saturday

Many of our clients and readers who have had to call USCIS, including us in our office, know that sometimes it is difficult to speak to a customer service representative, especially during certain peak hours during the day.     Partly as a result of customer feedback, USCIS has announced that its National Customer Service Center (NCSC) is expanding its hours to include Saturdays from 9 a.m. to 5 p.m.

With the newly expanded hours, live customer service agents will now be available  Monday – Friday between 8 a.m. – 8 p.m. and Saturdays from 9 a.m. to 5 p.m. in each time zone.

For more information on the USCIS National Customer Service Center, please read our guide.

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Bill Seeking to Require School Accreditation for F-1 Visa Passes the House

The U.S. House of Representatives passed yesterday (August 1, 2012) by a voice vote a proposed bill which seeks to restrict the ability of certain schools, colleges and universities to sponsor students’ F-1 visas.    H.R. 3012 (bill tracker, text of bill) was introduced by Rep. Zoe Lofgren (D-CA) and seeks to amend the F-1 student visa program by restricting access to it by schools which are not accredited.

Details of the Proposed Bill

The bill is fairly simple — it amends the relevant section of the Immigration and Nationality Act (INA) by adding a requirement that only institutions which are accredited by an accrediting agency recognized by the Secretary of Education.   As a result, institutions which are not accredited would not be able to continue to be part of the F-1 program and their students will not be able to obtain and retain F-1 status.    There is a 3-year grace period after the (possible) passage of the bill.

Significance of H.R. 3120

Many F-1 students would not be affected by this bill as a vast majority of the F-1 sponsor institutions are already accredited (check your institution).   However, a limited number of F-1 students may be affected negatively if their institutions is not accredited and if their institutions is unable to pass the accreditation process which can often be fairly rigorous.

Conclusion

Please note that H.R. 3012 is not law yet — it was passed by the U.S. House of Representatives but it must be passed in an identical form by the U.S. Senate and then signed by the President.   Considering the limited Senate calendar and the upcoming election, it is possible that the Senate may not take up the bill for consideration for some time.  It is also possible that the bill will not be taken by the Senate by the end of this Congress and may have to be reintroduced (and passed again) in the next Congress after the election.

Our office will continue to monitor developments surrounding H.R. 3120 and provide updates to our clients and readers.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

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DOL Proposes Revisions to Form 9035 – Labor Condition Application (LCA)

The Department of Labor (DOL) has proposed substantial revisions to Form 9035 (and its instructions), Labor Condition Application, which is used to support a number of employment-based visas, including H-1B, H-1B1 and E-3.    The proposed changes to the form are significant in many respects — the government now requires all LCA beneficiaries (up to 10 per form) to be named on the form, together with information about any PERM filings and immigration status.  The form also starts collecting additional information about each job site, about the employer’s workforce and with respect to a possible H-1B dependent employer status.

Background of Form 9035

Form 9035 is most commonly used in conjunction with the H-1B work visa program, although it applies to H-1B1 and E-3 visas.  Before an H-1B visa petition can be filed with U.S. Citizenship and Immigration Service, the prospective employer has to submit the Form 9035 electronically to the Department of Labor (DOL), to provide certain information about the proposed employment, to attest to the conditions of employment and to request certification by DOL that these terms of employment meet certain requirements (with respect to prevailing wages, etc.).

DOL is tasked with enforcing violations of the H-1B/LCA program and DOL relies on the attestations provided by the employer on the LCA form when conducting audits, investigations for possible violations or penalty proceedings against employers.  As a result,  even though the LCA form is often seen as a procedural “rubberstamp” step in the H-1B application process, it has considerable significance for the overall H-1B program.

What are the Proposed Changes?

The proposed changes on the Form 9035 LCA are significant in many respects.

Up to 10 Workers per LCA; Each Worker Must be Named.  First, DOL now limits the number of workers who may be using the same LCA to 10.   In addition, DOL requires that each worker who would be covered by the LCA to be identified by name, date of birth, country of birth, visa status, PERM case number (if applicable), and a new “H” number which is presumably going to be assigned by DOL to each H-1B worker and which number must be reused during subsequent LCA filings.

More Information about the Employer.   The employer now must provide additional information during each LCA:  year business established, number of employees, gross and net annual incomes, country of headquarters.

Specifics about the Job Site.   Previously, the LCA requested information about the address of the job site.  The revised version of the LCA form seeks more detail to establish whether the job site is the employer’s office, the employee’s home office (for telecommuting), or a third-party client site.   For third-party client worksites, the LCA asks for the end client’s business name.

Prevailing Wage.   The proposed LCA form asks for more information about the prevailing wage determination — to distinguish whether the prevailing wage was obtained via the National Prevailing Wage Center or via the OES database.

Dependent H-1B Employer.   The proposed LCA also asks more questions about the sponsoring employer’s H-1B reliance and whether the employer is “dependent employer” or willful violator.    Additional questions are added to determine whether a dependent or willful violator employer is exempt from the additional requirements.

Attestations.   The proposed LCA also makes certain attestations more prominent by making the employer specifically attest to certain requirements as part of the form.  Previously, these requirements were included in the Form 9035 instructions, but they were rarely paid considered given the lengthy instructions.   Now these attestations are made as part of the actual form.

Why is DOL Revising the LCA Form?

According to DOL, the changes are required in order for DOL to be able to provide better compliance and integrity review of the H-1B/LCA program.   In the past, there were some reports which identified poor ability of DOL to monitor compliance and now DOL seeks to revise the form to have more data which would (presumably) allow it to assure better compliance with the program and prevent abuse.   DOL’s rationale for the revisions (from DOL’s Supporting Statement):

As a result of recommendations from both the Government Accountability Office (GAO) and the Department’s Office of the Inspector General (OIG), the Department seeks to revise the scope of information collected in the context of H-1B, H-1B1 and E-3 applications in order to enhance its integrity review for obvious errors, omissions and inaccuracies under 20 CFR 655.730(b). The revised collection will allow the Department to improve its integrity review and ensure the accuracy and completeness of the information.

..

DOL has amended the form to include more specific information about the workers that will be employed pursuant to a particular LCA. Linking a particular LCA to a set of foreign workers may create more burden hours; however, the collection of this information appears to be necessary to prevent the abuse of that LCA.

We expect that DOL would start using the information which employers will have to start providing to identify and target certain cases (employers) where there is fraud or abuse.   For example, by asking for the names of LCA beneficiaries, DOL seeks the ability, in case of violation with respect to one worker, to identify and investigate other similarly-located workers who may be part of the same LCA.

When Would the Changes Become Effective?

It is important to note that these changes to Form 9035 as of today are only a proposal.   The proposed revisions to Form 9035 are under review process.   The Federal Register notice was published on July 9, 2012 and there is a comment period until September 7, 2012.    Our office will participate in this comment period and we urge all affected parties to submit comments, as described in the Federal Register notice.    We will certainly provide news and updates on this topic as soon as the public comment period closes and DOL provides further guidance on the revisions of Form 9035.

Conclusion

The proposed revisions for Form 9035 are likely to impact all H-1B employers, although in different ways.   At the very least, employers will need to provide additional (and sometimes, sensitive) information on the Form 9035.    For example, some employers do not wish to provide gross or net income figures and while USCIS asks for this field on Form I-129 filings, USCIS often allows employers to omit or justify omitting this information.    We do not know what would be DOL’s approach to LCA filings omitting the employer’s gross and/or net income figures.

On the other hand, higher volume employers or employers who routinely place H-1B workers at third-party client sites will face greater burdens in gathering and providing the newly requested information for each of its employees.   The requirement to name all LCA beneficiaries will also create a disadvantage (a delay of 7+ days) to H-1B employers who seek to hire and place employees on a quick basis.

Our office will continue to monitor developments surrounding the Form 9035 LCA revisions and provide updates to our clients and readers.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

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