Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for October, 2013

Infosys In $34 Million Settlement for U.S. Immigration Violations

The large Indian technology company Infosys has agreed to pay $34 million in a civil settlement after federal prosecutors in Texas alleged it had committed “systemic visa fraud and abuse” when bringing temporary workers to the U.S. on H-1B and B-1 visas. This kind of settlement is the largest ever in a visa case and while the details are scarce at this point, it shows that the U.S. government is starting to crack down on large scale abuse of some of the most common visa programs.

The Allegations and the Settlement

After an investigation of more than two years, prosecutors are expected to unveil today the settlement after accusations that Infosys knowingly and unlawfully brought Indian workers into the U.S.  on business visitor visa (B-1) dating back to 2008.    Additionally, Infosys is accused of having conducted improper I-9 compliance.   The company has agreed to pay $5,000,000  for civil or administrative forfeiture. It will pay $5,000,000 to the Department of State for Civil or Administrative forfeiture, and $24,000,000 to the U.S. Attorney’s Office for the Eastern District of Texas.

One of the reasons Infosys used the B-1 visa so extensively is that unlike the H-1B work visa (a common alternative), the B-1 has no annual quota and the costs are many times lower than for H-1B.   According to the allegations, Infosys systematically submitted misleading information to U.S. immigration authorities (at the Consulates and at the port of entry)  in order to secure admission to its B-1 business travelers.

For example, the settlement alleges that an invitation letter submitted by Infosys in 2008 stated that the purpose of the B-1 visa trip was for “customer discussions and related business development activities”, when, in fact, as known by Infosys, the purpose of the trip was to engage in activities not authorized under a B-1 visa such as coding, programming, testing, implementing, etc.

The settlement also alleges irregularities with the H-1B/LCA program compliance.   Prosecutors cite instances where Infosys H-1B workers who applied for an H-1B visa stamp were directed by Infosys to inform the U.S. immigration authorities that their actual workplace destination in the U.S. was the same as the workplace described in the Labor Condition Application (LCA) supporting the H-1B petition; however, Infosys and the foreign workers both knew that the foreign nationals have been assigned to work at a different U.S. worksite (not mentioned in the LCA or H-1B documents).

The settlement also alleges I-9 compliance irregularities.   After an investigation, federal authorities are alleged to have discovered significant I-9 compliance irregularities which could have allowed thousands of foreign nationals to continue working in the U.S. even after their visas or authorized status had expired.

Three Lessons from the Infosys Case

Our office is not familiar with the details of this case other than what is being reported in the media.   Over the next few days, more details are certain to come out.   But we would like to focus on the allegations and draw some important lessons for the benefit of our readers and clients.

B-1 Visa and Status Do Not Authorize Work.   The B-1 business visa program is designed to allow foreign nationals to come to the U.S. for a short period of time (less than six months) for the purpose of conducting business — conduct meetings with vendors or partners, visit a production facility, negotiate a contract or financing, training customers or partners, giving a speech or a presentation or similar business-related activity.    The B-1 visa does not allow work in the traditional sense of the word — engaging in a productive work, paid or unpaid.

H-1B and LCA Documents Should be Correct and in Compliance.    When submitting an H-1B visa stamp application or then traveling to the U.S. on H-1B status, both companies and H-1B workers should ensure that their H-1B and LCA documents reflect accurately the terms of the H-1B employment, including the actual H-1B worksite (for third-party placements).     When necessary, a new LCA and, possibly, an H-1B amendment should be processed as quickly as needed and as possible, even if this is after the fact (in other words, late compliance is better than no compliance).

I-9 Compliance Matters.   For employers of all sizes, it is easy to dismiss I-9 compliance activities, especially once an initial I-9 is completed.   But the Infosys settlement proves that the government will do I-9 investigation often in conjunction with another immigration violation, take seriously a number of irregularities and assess significant fines.    For all companies, but especially those who employ at least one foreign national, I-9 compliance and re-verification are becoming very important.

Conclusion

We will continue to monitor and report on additional important details and developments stemming from the Infosys settlement.    At the same time, we hope that the Infosys case will serve as a reminder that it is important to have adequate internal policies to ensure B-1, H-1B/LCA and I-9 compliance.

In addition to handling a number of visa matters, such as B-1 and H-1B, our office has developed a leading practice of I-9 compliance and we are able and happy to provide compliance advice on these issues.  Please feel free to contact us if our office can be of any assistance.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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Visa Bulletin Predictions and Updates from Charles Oppenheim – Major Retrogression in EB-2 India (October 23, 2013)

Our office just came back from a discussion session here in Washington, DC with Charles Oppenheim.  Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State.  For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.  He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.   Our access and proximity to Mr. Oppenheim allows us to provide immediate updates on expected Visa Bulletin movements and we are proud to be among the first to report.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate the opportunity Mr. Oppenheim has afforded us to get some sense of the movement of the priority dates and also on short- and long-term immigrant visa number trends.

Summary of Mr. Oppenheim’s Key Points

EB-2 India will retrogress significantly in the December 2013 Visa Bulletin — going back to late 2004 or early 2005.   EB-3 India will remain unchanged or retrogress slightly over the near term.    EB-3 ROW will move forward significantly (by a year) in the near term (few months), with possible slowdown towards the middle of the fiscal year.   

General Visa Number Trends

Mr. Oppenheim spent a few minutes to describe the visa number allocation process and reiterated the fact that in the employment-based context, especially, the demand for visa numbers is greater because of dependents being added — each green card application case is, therefore, “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children).  For example, approximately 45% of the visa numbers are used by the primary beneficiaries with the balance of 55% taken up by derivative beneficiaries (spouses and children).   As a result, and in recognition of the fact that many EB-3 India and China candidates are now eligible for porting and are now applying under the EB-2 category, Mr. Oppenheim noted that the EB-3, in addition to EB-2 visa numbers, are expected to remain oversubscribed.

He also explained that the number of EB-3 to EB-2 porting cases is very significant and because the mechanics of the EB-3 to EB-2 porting system does not allow advance notification to the Department of State’s Visa Office.   This causes a significant number of EB-3 to EB-2 porting cases to “appear” without advance warning to the Visa Office and, as a result, the Visa Office has to hold cutoff dates back to accommodate such porting case.   As an example, Mr. Oppenheim cited that between October 1 and October 22nd his office noted that there were approximately 800 Indian nationals who ported from EB-3 to EB-3.   Additionally, Mr. Oppenheim shared that in addition to EB-3 to EB-2 porting cases for Indian nationals, who are the majority of such cases, he sees an increasing number of EB-3 to EB-2 porting cases from nationals of other countries under the “Rest of World” (ROW) category.

Unfortunately, today’s comments by Mr. Oppenheim do not bring much good news, especially for EB-2 India.   Because of the significant number of EB-2 India filings early this year and because of the very high number of EB-3 to EB-2 porting cases, Mr. Oppenheim indicated that EB-2 India will retrogress significantly (to late 2004 or early 2005) in the upcoming Visa Bulletin and would be held back for a significant period of time, very likely until the summer of 2014.

Mr. Oppenheim suggested that the EB-1 and EB-5 categories are relatively “popular” this year and expects more numbers to be used in these categories, compared to the past years.   He cited EB-5 China category where the demand has been growing steadily (approximately 15% over the year before) and that a cutoff date for EB-5 China is possible later this fiscal year (possibly around June 2014).   This high demand also means that there will be less “leftover” visa numbers available to allocate to other categories, such as EB-2 India and China which would further contribute to the slow EB-2 India and China forward movement.

On a more general level, Mr. Oppenheim shared that his goal is to advance the cutoff dates more at the beginning of the fiscal year (October, November and December, and January visa bulletins) and then, as he is able to gauge demand for a particular preference category, adjust accordingly by either slowing down or retrogressing (if demand is high) or advancing even more (is demand turns out to be low).

Visa Bulletin Predictions – Employment-Based

Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-1.   This category is expected to remain current throughout the fiscal year.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, Mr. Oppenheim suggested that depending on demand he may introduce a cutoff date towards the end of the fiscal year.

EB-2 China.  This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.

EB-2 India.  This is the major headline from our meeting with Mr. Oppenheim –  EB-2 India is expected to retrogress significantly – by several years back to late 2005 or early 2005 as early as the next Visa Bulletin.     It is expected that EB-2 India will remain at that level (late 2004 or early 2005) until the summer of 2014.    The rationale behind this severe retrogression in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to stop the rate of new filings until USCIS and DOS are able to approve the pending cases and “clear the demand.”

EB-3 Rest of World (ROW).  This category is expected to move forward significantly (up to one year) over the next one or two months to stimulate “demand” for the next several months.

EB-3 China/Philippines.  Each of these two categories is expected to keep moving forward by 2 weeks per month.

EB-3 India.  Unfortunately, this category continues to be oversubscribed and there is no forward movement expected in the next (December 2013) Visa Bulletin.     In addition, Mr. Oppenheim indicated that a retrogression is very possible in the near future.   This would be caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available.   However, as a positive sign, as many EB-3 India applicants are porting into EB-2, there is some possibility that some EB-3 visa numbers may be “freed” simply because some EB-3 candidates will drop out of the EB-3 demand line after receiving a green card under a newly ported EB-2 category.

EB-5.   Mr. Oppenheim suggested that the demand for EB-5 is on an upward trajectory and he indicated that the most recent fiscal year noted a 15% increase in EB-5 China cases.   This makes it likely that there would be a cutoff date introduced towards the summer for EB-5 China (only).

Visa Bulletin Predictions – Family-Based

Additionally, Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months for the family-based categories as well.

FB-1 ROW.   This category is expected to advance by 3-5 weeks per month.

FB-2A.   This category is expected to be held at its current level for the foreseeable future.  Mexico is likely to retrogress.

FB-2B.  This category is expected to advance by 3-5 weeks per month.

FB-3.  This category is expected to advance by 3-5 weeks per month.

FB-4.  This category is expected to advance by 2-3 weeks per month.

On Predicting the Visa Bulletin Cutoff Dates

Mr. Oppenheim shared his thoughts on the ability  of others outside of his office to predict reliably the cutoff date movements.   He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim.   There are many variables that affect the demand.  For example, the retrogression of EB-2 India in the future is due to the number of I-485 filings but also due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases.   Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down or retrogress EB-2 India to be able to accommodate EB-2 India applicants with early  priority dates.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  We understand, as Mr. Oppenheim does, that his comments and predictions are going to cause significant disappointment in EB-2 and EB-2 India applicants, specifically.     Our EB-2 India clients would find Mr. Oppenheim’s predictions disappointing, especially since many EB-2 India applicants were able to get very close to being current earlier this year.    Fortunately, those EB-2 India and China applicants who became current earlier this year and were able to file I-485 applications would  be able to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

Also, many EB-3 India candidates who now qualify for EB-2 would be able to improve their waiting times dramatically by upgrading to EB-2.   We are happy to help analyze and assist in such EB-3 to EB-2 India or China porting cases.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  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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E-Verify System Available Again – Important Post-Shutdown Notes and Guidance

As an E-Verify designated agent, the Capitol Immigration Law Group handles the E-Verify processing for many employers and we would like to pass on some important post-government shutdown E-Verify information to our clients and to all companies who are working with E-Verify.     Most importantly, USCIS has confirmed that the E-Verify system is now back online and operational.  As a reminder, even though USCIS was largely not affected by the shutdown, the E-Verify system had to be shut down on October 1 as part of the partial government shutdown.   But as the government is not open again, E-Verify is now back online.

Form I-9 Requirements Not Affected By Shutdown

The Form I-9 requirements were not affected during the federal government shutdown. All employers must complete and retain a Form I-9 for every person hired to work for pay in the United States during the shutdown.

E-Verify 3-Day Requirement Extended to November 5, 2013 for Shutdown-Affected Cases

E-Verify requires that an employer create and submit an E-Verify case check within 3 days of hire.   However, due to the shutdown, this was not possible and now USCIS is providing some guidance to those E-Verify cases which were delayed due to the shutdown.

According to USCIS, each employer (or their designated agent) must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013.   If the employer is prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.

Employees who received a Tentative Nonconfirmation (TNC).   If an employee had a TNC referred between September 17, 2013 and September 30, 2013 and was not able to resolve the TNC due to the federal government shutdown, USCIS instructs the employer to add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If there is an employee who decided to contest his or her TNC while E-Verify was unavailable, the employer should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.

Employees who received a SSA Final Nonconfirmation (FNC) or DHS No Show Result.   If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, USCIS instructs the employer to close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.

E-Verify and Federal Contractors

During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, USCIS advises the organization to notify their contracting officer.

Employees Afforded Additional Time to Contest Tentative Nonconfirmation (TNC)

If the federal government shutdown prevented an employee from contesting a Tentative Nonconfirmation (TNC), USCIS advises that the employee will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS).  If the TNC was referred between September 17, 2013 and September 30, 2013, and the employee was not able to resolve the mismatch due to the federal government shutdown, the employee should add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’ that the employer provided after the employee contested the TNC. Federal business days are Monday through Friday and do not include federal holidays.   The employee should then contact SSA or DHS by the new date to resolve the TNC.

On the other hand, if an employee received a Final Non-Confirmation (FNC) because the employee could not contact DHS or SSA during the federal government shutdown, or because the employee could not contact DHS or SSA in the first ten days after the government reopened, the employee should contact the employer and request that the employer re-enter the employee’s query.

Conclusion

We hope that these notes and guidance from USCIS on what E-Verify employers and affected employees should do if their case is affected by the shutdown is helpful to our clients and readers.    We should caution that the E-Verify system may experience delays and glitches as a result of the shutdown and the increased usage of the system.

As a designated E-Verify agent, we are able and happy to handle this (and related E-Verify) processes on behalf of our corporate clients.    Please feel free to contact us if our office can be of any assistance or if we can provide an E-Verify services proposal.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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U.S. Federal Government Reopens Today, October 17th – DOL Backlogs Expected

The 16-day long partial U.S. federal government shutdown has ended last night after both chambers of the U.S. Congress passed a (temporary) budget measure (more on this below) and, after the President signed it, reopened the U.S. federal government.  As of today, October 17, 2013, federal workers are expected to be on the job.   However, due to the 16-day shutdown and the late night order to reopen, it is expected that it would take some time (days or weeks in some cases) for federal agencies and operations to resume normal operations.     We have written over the past 2-3 week on the impact on immigration caused by the partial government shutdown and while we are happy to see the government resume operations, we expect that immigration-related services to be, at the very least, heavily backlogged for some time.

Department of Labor Likely to be the Major Cause of Immigration-related Delays

Many U.S. employment-related visas (immigrant and non-immigrant) rely extensively, at least during some portion of the process, on the Department of Labor (DOL) – for example, H-1B work visas require a Labor Condition Application (LCA) to be certified by DOL.   An initial stage of the employment-based green card is the filing and the approval of a prevailing wage determination by DOL, followed by the filing and approval of a PERM Labor Certification.    As we had commented over the past few weeks, DOL was severely affected by the shutdown with the majority of DOL’s workers being furloughed and many DOL electronic systems being shutdown over the past 16 days.

As of the time of publication of this article,  DOL’s electronic systems for LCA and PERM Labor Certification processing were still not operational.  We hope that as DOL IT workers trickle into work this morning, these systems will become operational.   Unfortunately, we also expect that these systems may be overwhelmed with traffic as many employers and their law firms (ours included) will rush to file all of the LCA and PERM Labor Certification applications which were put on hold over the last 16 or so days.   We hope that DOL’s systems will be able to accommodate the traffic and the demand — our general estimates are that there may be many thousands of LCA applications waiting to be filed.    With this in mind, we caution our clients and readers to exercise caution and patience in the first few days after DOL reopens.

In addition to the new rush of filings, DOL is already sitting on a number of applications which were filed and pending as of October 1st when the government closed.   This will only add to the backlog of applications.   All of this is likely to result to dramatic increase (at least and hopefully only short-term) in the processing times for LCA and PERM applications.    Even before the shutdown, PERM applications were experiencing some of the longest processing times for the past few years; the shutdown would not help.

USCIS’s E-Verify System Should be Back Online

The major impact on immigration caused by the government shutdown has been via the shutdown of DOL’s operations, as discussed above.    However, other immigration-related functions were also affected.   Most importantly, the E-Verify system should be back online soon (it was not as of the time of this article) and would allow employers to complete a number of pending (and delayed) employment verification checks.   During the shutdown, USCIS advised E-Verify employers that the ‘three-day rule’ for E-Verify cases will be suspended for cases affected by the shutdown.    Now that E-Verify is expected to go back online at any time,  employers must rush to complete these E-Verify checks.     An important note is that the fact that an employer did not have to do an E-Verify check during the shutdown period, does NOT affect the Form I-9 requirement — employers must still (and should have) completed the Form I-9 no later than the third business day after an employee started work for pay.

Careful Planning and Preparation for Delays and Backlogs Important

In light of what we expect to be delays and backlogs, especially at DOL due to the significant volume of new applications to be filed, we caution employers and applicants to anticipate and plan for delays.   We understand that many H-1B applications (especially extensions for H-1B petitions which are expiring) are held by DOL and it may cause H-1B petitions to expire without an ability to extend.   There are ways to handle a late-filed H-1B petition with USCIS and request a retroactive H-1B approval date due to these extraordinary circumstances.    But there are also cases where H-1B workers desperately rely on the filing (or approval) of a PERM application to be able to continue extending their H-1B beyond the six-year H-1B limit and in those cases, there may not be many options to “fix” the possible damage caused by the delay.

Another Shutdown on the Horizon?

The deal which the U.S. Congress reached last night to fund and reopen the government and raise the U.S. debt ceiling is, unfortunately, a short-term deal.   Under the current agreement, the government is funded through January 15, 2014 and the debt ceiling is lifted until February 2014 or shortly thereafter.    What this all means is that if Congress does not make a budge agreement over the next 2-3 months, it is entirely possible that there will be a similar government funding fight and a possible government shutdown on January 15, 2014, or only three months from now.     We hope this is not the case, but we still would like to caution our clients and readers to this possibility.

Conclusion

Over the past few weeks we have consulted with anxious employers and applicants whose immigration status and processes have been severely impacted by the shutdown.    With this in mind, while we are hopeful that the reopening of the government and DOL, specifically, would be smooth, we caution employers to consider alternatives if they or their employees rely on a time-sensitive action by DOL.    Our office is certainly happy to consult and provide suggestions.    Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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Unpaid Volunteer Work on H-1B, H-4, F-1 or Similar Visas

A very common question by the holders of visas which have employment restrictions is, “Can I engage in unpaid volunteer work under my visa?”   We deal with this question on a daily basis when we are asked by clients whether someone who is in the U.S. (on a status which does not allow employment) can be a volunteer.

Obviously, the answer to this question depends on a number of factors including,  most importantly, the visa type and the status of the person who is seeking to engage in a volunteer work.   For example, an H-1B holder is authorized to work for the H-1B sponsor employer (or employers — if there are more than one) but the H-1B worker is not allowed to do any work for any other employer.  Similarly, students on F-1 (who do not have a valid work permit – OPT, CPT) are not allowed to work for any employer (with certain very limited exceptions for work on campus).

Volunteer Work is Not License to Do Any Work

The answer to the question whether volunteer work is permitted depends on the type of unpaid volunteer work one is seeking to perform.   The regulations state in broad terms that unauthorized work is prohibited.   But to distinguish whether volunteer work is unauthorized, it is helpful to understand the government’s motives in setting up this regime.  The USCIS’s goal is to prevent foreign nationals who have employment restrictions in engaging in work which could give them an advantage over U.S. citizens or which could drive down Americans’ wages or benefits. Therefore, it is not permitted to volunteer for a productive position which is usually paid. The rationale is that if you are offering to work without a pay in a job which would otherwise be filled by an American who would be paid, then you are subverting the employment authorization system’s goals and undercutting Americans’ job prospects and wages.

However, if the volunteer work you are seeking is for a true volunteer position then volunteering and working without pay would be legal.  For example, volunteering at a non-for-profit organization such as a museum, a fire-station, a school or a church where there is no general expectation of compensation,  or employment may be okay.

Conclusion

As a general rule of thumb, one should look at whether Americans would perform the same job without pay and under similar circumstances and if the answer is “yes,” then a foreign national in an employment-restricted status can volunteer and work without pay.

We should point out that any time there is any doubt as to whether a specific engagement as a volunteer may or may not be considered “work” we suggest consultation with us or another attorney who can go into the particular visa circumstances and the details of the proposed volunteer assignment.      We also 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.

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November 2013 Visa Bulletin – No Movement for EB-2 and EB-3 India; No Movement for FB-2A

The U.S. State Department has just released the November 2013 Visa Bulletin which is the second Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is that there is no movement for any EB India categories and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

Summary of the November 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the November 2013 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged, again, at June 15, 2008.  EB-2 China moves forward by three (3) weeks to October 8, 2008.
  • EB-3 ROW, China and Mexico move forward by three (3) months to October 1, 2010.  EB-3 Philippines remains unchanged at December 15, 2006, while EB-3 India  remains unchanged, again, at September 22, 2003.
  • The “other worker” moves forward by three (3) months to October 1, 2010 for ROW and Mexico.  It moves forward by one (1) week to October 1, 2010 for China.   It remains unchanged at December 15, 2006 for Philippines; there is also no movement for India which remains at September 22, 2003.

Summary of the November 2013 Visa Bulletin – Family-Based (FB)

Below is a summary of the November 2013 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward, although slowly.  FB-1 ROW, China and India all move forward by three (3) weeks to October 22, 2006.   FB-1 Mexico remains unchanged at September 22, 1993 and FB-1 Philippines moves forward by one (1) month to July 1, 2001.
  • FB-2A remains unchanged for all nationalities.  All categories (FB-2A ROW, China, India, Mexico and Philippines) continue to have a cutoff date of September 8, 2013.
  • FB-2B ROW, China and India all move forward by three (3) weeks to March 22, 2006.  FB-2B Mexico moves forward by three (3) weeks to April 1, 1994 while FB-2B Philippines moves forward by three (3) weeks to March 1, 2003.

Slow or No Movement for Many

The November 2013 Visa Bulletin does not bring much good news.   Many categories remain unchanged – specifically EB-2 and EB-3 India remain unchanged and FB-2A for all categories also remain the same.   It should be noted, however, that the cutoff dates have been advancing rapidly over the past few months for many categories and the fact that there is not much movement this month should be taken together with the recent significant forward movement for many.

The last two Visa Bulletins for the last fiscal year (August and September 2013) brought significant advancement which was done in order to utilize all of the available visa numbers for the fiscal year (which ended on September 30th).   The Department of State and USCIS are expecting (and our office already has seen) increased activity in this category — National Visa Center (NVC) case processing and I-485 adjustment of status activity at USCIS.    During our analysis on the September 2013 Visa Bulletin, we predicted that “with the increased activity over the next few months in EB-2 India, slowdown and even retrogression are possible. “

EB India and FB-2A Remain  Unchanged

Many of our readers or clients who are under the employment-based (EB) category for India would be disappointed by the lack of any movement in any of the EB categories for India (EB-2, EB-3 and Skilled Workers).   This is due to the high demand and the number of filings caused by the significant forward movement over the summer of 2013 in many of the India EB cutoff dates.

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the previous, October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the November 2013 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

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 November 2013 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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AAO Processing Times (October 1, 2013)

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only  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 processing 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 October 1, 2013.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

  • H-1B appeal is “current” (6  months or less) (no change from our last report as of March 1, 2013);
  • L-1 is current (no change);
  • I-140 EB-1 Extraordinary Ability is current (no change), Multinational Manager or Executive is also current (no change) and EB-1 Outstanding Professor or Researcher category is current (no change);
  • I-140 EB-2 (Advanced Degree) is current (no change) and EB-2 (NIW) is current (no change); and
  • I-140 EB-3 Skilled Worker is now current (improvement of over six months) while EB-3 Other Worker is current on appeal (no change).
Conclusion

The AAO processing times for many of the (H-1B, EB-2, for example) have been improving notably over the past few months and our office has witnesses these greatly improved processing times.   We are very pleased to see that the AAO is now processing as “current” all of its case types, as reported as of October 1.    Now that all times are “current” we hope that AAO would continue to maintain them at this level – many of our readers may remember that several months ago some of the AAO processing times were close to three years.

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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Federal Government Shutdown and Immigration – Update (October 3, 2013)

Our clients and readers are aware that today is the third day the U.S. federal Government is partially closed due to the lack of congressionally-authorized funding.    A week ago, on the eve of the (possible, at the time) shutdown, we shared our expectations on what kind of immigration-related government services will be affected and how.    While our predictions were correct, our office continues to receive numerous calls and emails seeking clarification on how the shutdown may affect certain immigration services.    As a result, we would like to provide an update as to how the partial Government shutdown affects immigration-related services and cases.

USCIS Continues to Operate (Almost) Normally; E-Verify Closed

Because it is a fee-funded agency (applicants pay a fee when they submit an application),  USCIS is not affected by the shutdown and remains open.  Pending or newly filed applications with USCIS are reviewed within the normal processing times – including premium processing cases.    USCIS service centers and field offices continue to adjudicate cases normally; additionally, Infopass and ASC biometrics appointments should not be affected.

It should be noted that many USCIS cases are related to other agencies.  For example, H-1B petitions require a Labor Condition Application (LCA) be certified by the Department of Labor.  As a result, when the Department of Labor is closed (see below), at least some H-1B cases which are due to be filed will be delayed.

USCIS has indicated that the E-Verify system will be closed for the duration of the shutdown.    This means that E-Verify employers will not be able to process new hires’ E-Verify checks; in addition to any E-Verify system-related activities.   USCIS has advised E-Verify employers that the ‘three-day rule’ for E-Verify cases will be suspended for cases affected by the shutdown.   Please note that the fact that an employer does not have to do an E-Verify check during the shutdown period, does NOT affect the Form I-9 requirement — employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.

Department of State/Visa Processing Normal

The Department of State has indicated that many Consulates’ visa processing functions would continue as scheduled and visa interviews and processing will not be affected.   We hear confirmations from clients and readers from different consular posts that visa processing is normal.    We still caution visa applicants to double-check with the Consulate whether there may be any changes in the interview scheduling or processing.

Cases processed at the National Visa Center (NVC) should not be affected as well by the shutdown as they are mainly processed by contractors under existing funding agreement.

Generally, the State Department has been designated to be a “national security agency” which means that it would continue working throughout the shutdown.   However, in the cases where State Department operations are in other federal buildings which are affected by the closure,  such State Department operations may be disrupted because of lack of access to the facility.

CBP Border Processing Continues Without Disruption

Customs and Border Protection (CBP) operations should continue normally – most of CBP’s staff is to remain on the job.    While delays at the border processing are possible, they should not be significant and should not be primarily caused by CBP staffing issues.

Department of Labor – Most Operations Closed; LCA/PERM Applications On Hold

Unlike USCIS and the State Department, the Department of Labor (DOL) is significantly affected by the shutdown and its LCA/PERM operations (and websites) are suspended for the duration of the shutdown.

As a result, no new LCAs can be filed and pending LCAs are not subject to the seven business day review requirement and will not be reviewed and certified until DOL reopens.  This is a significant problem for employers and employees who need to have a new LCA filed and approved in connection with an expiring H-1B petition or in connection with an H-1B amendment.    Without a certified LCA,  an H-1B petition with USCIS cannot be filed.    This creates significant challenge to many employers and individuals whose H-1B petitions must be filed or amended and especially for those individuals whose status may be expiring.    In the past and in exceptional circumstances, USCIS has agreed to accept H-1B petitions without a certified LCA; however, USCIS has not yet confirmed (as of the time of this article) that they would do so this time around.

Similarly, no new PERM cases can be filed and pending PERM cases will be put on hold.   This also can be a significant problem to many because the PERM process has very strict deadlines and a PERM case (and its entire recruitment) may have to be redone if a PERM application cannot be filed within the applicable filing window.   Additionally, filing a PERM by a certain date is critical for many H-1B workers who are seeking to be able to continue extending their H-1B petitions beyond their six-year H-1B limit.     A delay in filing a PERM may cause certain H-1B workers to run out of H-1B time without an ability to continue extending H-1B on the basis of a PERM pending for more than 365 days.

On a related note, prevailing wage determination requests are also shutdown so no new requests can be filed while pending requests are on hold.    A delay in the issuance of a prevailing wage determination may affect a number of PERM cases where there is a timing concern – such as six-year H-1B limit or expiring PERM recruitment.

Shutdown in DOL means that processing times and backlogs would be significant once the Government and DOL reopen.    Once DOL reopens we expect that there will be a rush of LCA, prevailing wage and PERM filings.   Similarly, the cases already pending will have to be prioritized and reviewed.    This is likely to contribute to a delay in getting LCAs, prevailing wage requests and PERMs certified (especially since the PERM processing times are substantial already).

Conclusion

While many immigration-related government operations remain open, there are many essential functions (at DOL, primarily) which are closed and will create substantial difficulty and anxiety to a  number of applicants – mainly those who  need to file a new H-1B or a PERM Labor Certification.     The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.

We urge clients who have time-sensitive cases which may be affected by the government shutdown to plan accordingly.   We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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