Labor Immigration Law

New Appointment Service for All U.S. Visa Applicants in Canada

admin — Thu, 02 Sep 2010 20:00:48 +0000

We have clients and our office handles a number of U.S. visa applications submitted in Canada. Accordingly, we wish to report on a new appointment service for all U.S. visa applicants in Canada, which becomes effective on September 1, 2010.

As of September 1, 2010, all services — including calling for information and scheduling an appointment — will be provided for no additional cost, with no requirement that applicants pay phone charges or PIN numbers to access such services. Starting September 1, 2010, applicants will visit CSC Visa Information Services to either obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada.

For those U.S. visa applicants who have already scheduled an appointment or paid their MRV fee, the U.S. Embassy in Canada has some specific instructions.

Numbers of Unauthorized Immigrants Decline

admin — Thu, 02 Sep 2010 19:54:09 +0000

In a report released yesterday, the non-partisan Pew Hispanic Center provides a revised estimate of the unauthorized immigrants in the U.S. According to the report, the annual inflow of unauthorized immigrants to the United States was nearly two-thirds smaller in the March 2007 to March 2009 period than it had been from March 2000 to March 2005.

This significant decline has contributed to an overall reduction of 8% in the number of unauthorized immigrants currently living in the U.S.-to 11.1 million in March 2009 from a peak of 12 million in March 2007, according to the report.

The data is obtained mainly through U.S. Census data. It is interesting that the most significant decrease in the population of unauthorized immigrants has been among those who come from Latin American countries other than Mexico. From 2007 to 2009, the size of this group from the Caribbean, Central America and South America decreased 22%. The numbers of unauthorized immigrants from Mexico (which accounts for about 60% of all unauthorized immigrants) peaked in 2007 at 7 million and has since remained mainly unchanged. The study notes that the inflow of unauthorized immigrants from Mexico has decreased, which seems to suggest that unauthorized immigrants from Mexico have settled in the U.S. and are not going back even in an economic crisis.

The recent decrease in the unauthorized population has been especially notable along the nation’s Southeast coast and in its Mountain West, according to the new estimates. The number of unauthorized immigrants in Florida, Nevada and Virginia shrank from 2008 to 2009. Other states may have had declines, but they fell within the margin of error for these estimates. These states have been severely affected by the housing crisis which resulted in a significant decrease in construction jobs.

The report estimates that over the past two years, the annual inflow of unauthorized immigrants is 300,000 per year, down from about 550,000 per year between 2005 and 2007.

FY2011 H-1B Numbers Update – 34,900 Regular and 13,000 Masters Cap Visas Used (August 27, 2010)

admin — Wed, 01 Sep 2010 03:12:45 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of August 27, 2010, USCIS has received approximately 34,900 H-1B petitions counting toward the 65,000 cap (an increase of 1,000 over the past week). Similarly, as of August 27, there were 13,000 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 400 over the past week).

H-1B Quota Trends – Slight Upward Trend in Regular Cap Filing

The numbers, as reported over the past week, show a decrease over the substantial 4,000 increase in the number of regular filings over the week of August 20th. However, last week’s increase of 1,000 still marks a slight upward trend in the number of regular cap H-1B filings.

H-1B Quota Expected to be Reached in March or April 2011

With the current pace of filings, or about 1,000 regular H-1B cap filings per week and 400 master’s cap per week, we estimate that the H-1B cap would be reached in 28-30 weeks, or somewhere in March or April of 2011.

We wish to reiterate our caution to potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

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 FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

FY2011 H-1B Numbers Update – 33,900 Regular and 12,600 Masters Cap Visas Used (August 20, 2010)

admin — Thu, 26 Aug 2010 14:47:41 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of August 20, 2010, USCIS has received approximately 33,900 H-1B petitions counting toward the 65,000 cap (a substantial increase of 4,200 over the past week). Similarly, as of August 20, there were 12,600 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 300 over the past week).

H-1B Quota Trends – Is the Substantial Regular Cap Filings Increase a One-Time Event?

The numbers, as reported over the past week, show a reversal of the recent trends of minor weekly increases. During the past week there was a substantial increase in the number of regular cap H-1B filings — over 4,000 in a week which is drastically bigger than any the filings over the previous weeks.

It is difficult to estimate the reason for this increase but it is most likely due to the fee increase imposed on certain H-1B filings. We suspect that a number of companies wanted to file before they were subjected to the new significant H-1B filing fee. We will monitor next 1-2 weeks’ H-1B numbers to understand whether this increase was indeed a one-time opportunity to file before the fees were raised or there is a longer-term trend of increased regular-cap H-1B filings.

We wish to reiterate our caution to potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

AAO Processing Times Report (August 1, 2010)

admin — Tue, 24 Aug 2010 12:51:43 +0000

Our office handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers. The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public. As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices. Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of August 1, 2010. Overall, there is not much change in comparison to the July 1, 2010 report.

Among the most notable AAO processing times:

H-1B appeal takes 13 months (increase by one month compared to July 1, 2010);
I-140 EB1 Extraordinary Ability takes 7 months (no change), Multinational Manager or Executive takes 15 months (no change) while EB1 Outstanding Professor or Researcher category takes 6 months (no change);
I-140 EB2 (Advanced Degree) takes 24 months (no change) while EB2 (NIW) takes 7 months (increase by one month); and
I-140 EB3 Skilled Worker takes 25 months (increase by one month) while EB3 Other Worker takes 20 months on appeal (decrease by three months).

Read the full AAO Processing Times report.

New ESTA Fee Goes Into Effect September 8, 2010 for Visa Waiver Program Travelers

admin — Tue, 24 Aug 2010 12:35:58 +0000

We wish to remind our readers and clients that a new fee goes into effect starting on September 8, 2010 for Electronic System for Travel Authorization (ESTA) registration. ESTA is a required pre-travel registration for Visa Waiver Program (VWP) travelers to the U.S.

About the Fee

The fee will be in the amount of $14.00 and will be required to be paid via credit card (MasterCard, Visa, American Express and Discover) at the time of completion of the ESTA pre-travel registration. An ESTA registration is valid for up to two years so the fee will not need to be paid for subsequent VWP travels within this two-year period before a new ESTA registration (and fee) will be required.

The fee was mandated by the Travel Promotion Act of 2009 which mandates that the ESTA funds will be partnered with private funds for the purpose of U.S. travel promotion.

Fee Becomes Effective September 8, 2010

All ESTA registrations submitted on or after September 8, 2010 will require the payment of the new fee. VWP travelers who plan to visit the U.S. in the near future may want to submit their ESTA registration in advance of this date.

The mandatory nature of the fee and the fact that it can only be paid via certain credit cards through the ESTA website has caused some concerns. Although many Visa Waiver Countries travelers have access to credit cards at their disposal, the credit card payment requirement may deter or inconvenience some VWP travelers during their ESTA registration process. As of now, there are no other alternative methods for paying the fee.

Visa Waiver Countries

As a reminder, the Visa Waiver Countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

H-1B and L-1 Fee Increase for Certain Filings Becomes Effective

admin — Fri, 20 Aug 2010 16:12:27 +0000

Many of our readers and clients are aware of the recent developments with respect to the “border security bill” passed by Congress and recently signed by President Obama into law (Public Law 111-230).

What Are the New H-1B and L-1 Filing Fees?

Effective immediately, Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.

Note that not all H-1B or L-1 cases are subject to these new fees. These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) (H-1B or L-1 cases), or
To obtain authorization for an alien having such status to change employers.

It should also be noted that this additional fee, where applicable, is in addition to any applicable filing, fraud prevention, ACWIA or premium processing fees.

Revisions of Form I-129 is Underway

Because Public Law 111-230 is effective immediately but USCIS has not released a revised Form I-129 to reflect the new requirements and fees, USCIS advises all H or L filings to clearly describe whether the new fee applies:

USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Where USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the public law. An RFE may be required even if such evidence is submitted, if questions remain.

Source: USCIS Update: USCIS Implements H-1B and L-1 Fee Increase According to Public Law 111-230 (August 19, 2010)

Conclusion

The H-1B and L visa fee increase is likely to impact a number of companies relying heavily on foreign workers. The law has sparked some controversy and is subject to a number of diplomatic, political and even international trade disputes. However, as it stands now, all H-1B and L filings should undergo an additional level of analysis whether Public Law 111-230 applies.

FY2011 H-1B Numbers Update – 29,700 Regular and 12,300 Masters Cap Visas Used (August 13, 2010)

admin — Thu, 19 Aug 2010 18:49:34 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of August 13, 2010, USCIS has received approximately 29,700 H-1B petitions counting toward the 65,000 cap (an increase of 1,200 over the past week). Similarly, as of August 13, there were 12,300 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 400 over the past week).

H-1B Quota Trends

The numbers, as reported over the past few weeks – confirm the trend that there was a very small weekly increase in the number of H-1B filings for the regular and Masters’s caps filings compared to the weeks prior. The overall trend shows that the H-1B filings for the regular cap may be increasing slightly while the U.S. master’s cap filings remain slow. As a result and if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time. We wish to caution potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

FY2011 H-1B Numbers Update – 28,500 Regular and 11,900 Masters Cap Visas Used (August 6, 2010)

admin — Wed, 11 Aug 2010 13:27:47 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of August 6, 2010, USCIS has received approximately 28,500 H-1B petitions counting toward the 65,000 cap (an increase of only 3,200 over the past three weeks). Similarly, as of August 6, there were 11,900 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 900 over the past three weeks).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that there was a very small weekly increase in the number of H-1B filings for the regular cap while there was a slight decrease in the Masters’s caps filings compared to the weeks prior. The overall trend shows that the H-1B filings for the regular cap may be increasing slightly while the U.S. master’s cap filings remain slow. As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time. We wish to caution potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

September 2010 Visa Bulletin – Last Bulletin for the Fiscal Year: EB-2 and EB-3 Forward Movement

admin — Wed, 11 Aug 2010 13:19:16 +0000

The September 2010 Visa Bulletin was just released by the State Department. The last visa bulletin for the fiscal year 2010 brings some forward movement across all categories, with the exception of EB-3 India.

Summary of the September 2010 Visa Bulletin – Employment-Based (EB)

Below is a summary of the September 2010 Visa Bulletin with respect to employment-based petitions:

EB-1 remains current across the board.
EB-2 ROW (Rest of World) remains current, EB-2 China moves forward by slightly over two (2) months to May 8, 2006, EB-2 India also moves forward by two (2) months from March 1, 2006 to May 8, 2006.
EB-3 ROW moves forward by six and a half (6.5) months to December 15, 2004, EB-3 China moves forward by one (1) month to October 22, 2003, while EB-3 India remains unchanged. EB-3 Mexico remains unavailable.
The “other worker” category moves forward by a few months, to March 22, 2003 for ROW and China remains unchanged at January 1, 2002 for India.

Substantial Forward Movement Continues

The notable forward movement in EB-2 and some EB-3 categories continues in this month’s visa bulletin as well. This significant movement is due to the fact that there are some visa numbers available from other countries have not been reached yet and such countries’ per-country limit has not been reached. As a result, as we are getting close to the end of the fiscal year, and after taking the worldwide demand into account, the State Department is attempting to allocate all of the available visa numbers which, if not allocated, may remain unused during the fiscal year.

Forward Movement Is Temporary

We wish to reiterate that the substantial forward movement over the past three visa bulletins does not indicate a trend; instead, the last three visa bulletins’ forward movement was to ensure that no available visa numbers remain unused due to poor allocation of the unused numbers. We expect that there be some retrogression over the next 1-3 months.

Please do not hesitate to contact us if you have any questions or if we can help you prepare and file your I-485 adjustment application, should your priority date become current.

AILA Sues USCIS Under FOIA For Release of H-1B Policy Documents

admin — Thu, 22 Jul 2010 12:43:41 +0000

On Tuesday, July 20th, AILA filed a lawsuit against the Department of Homeland Security (DHS) and Citizenship and Immigration Service (USCIS) seeking the release of records concerning agency policies and procedures for the H-1B visa program. AILA had attempted to obtain these documents under a Freedom of Information Act (FOIA) request which had been denied in full by USCIS.

This lawsuit focuses on the government’s H-1B visa review and processing procedures. Since 2008, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced worksite inspections – expected to reach 25,000 visits in 2010 alone – in connection with H-1B cases. At the same time, USCIS has kept under secret the rules and guidelines related to the review process. The lack of publicly available information on the government’s heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.

The lawsuit seeks the release of policy and other agency memoranda regarding H-1B adjudication and enforcement. Considering the full denial of AILA’s earlier FOIA request, it may be expected that the government will fight this lawsuit to prevent this disclosure. We will continue providing updates and developments on this case. Please stay tuned.

Developments in Neufeld Memo Lawsuit

admin — Thu, 22 Jul 2010 12:33:08 +0000

We have previously written extensively about the January 2010 Neufeld Memorandum and the recent lawsuit challenging its validity. We wanted to provide some recent updates on the case as it is of great interest to many of our clients and readers.

On June 25, 2010, the government filed a Memorandum in Opposition to the complaint. The opposition is mainly based on technical arguments. However, the government makes also the arguments that its policy-making ability pursuant to memoranda is exempt from the Notice and Comment requirements for rulemaking and that the plaintiffs have failed to show irreparable harm if the preliminary injunction were to be granted and, most interestingly perhaps, that agency memoranda are do not have the force of regulations and are just a suggestion to adjudicators on review criteria.

Subsequently, on July 9, 2010, the plaintiffs filed a reply to the government’s Memorandum of Opposition. In it, the plaintiffs directly address the government’s arguments, including the argument that the policy memoranda does not constitute a regulation. Plaintiffs argue that the policy guidance may not explicitly state that it is binding; however, in spirit and practice, it actually is.

We will continue to monitor the developments in this case as it affects a large number of our readers and clients. Furthermore, the impact of this lawsuit may be broader than just the Neufeld Memorandum as the scope of the case may expand to cover other USCIS memoranda. If you haven’t already, please subscribe to our free weekly newsletter to receive news and updates on this and related topics.

FY2011 H-1B Numbers Update – 25,300 Regular and 11,000 Masters Cap Visas Used (July 16, 2010)

admin — Thu, 22 Jul 2010 12:18:18 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of July 16, 2010, USCIS has received approximately 25,300 H-1B petitions counting toward the 65,000 cap (an increase of only 500 over the week). Similarly, as of July 16, there were 11,000 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 400 over the week).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that there was a very small weekly decrease in the number of H-1B filings for both the regular and Masters’s caps compared to the weeks prior. The overall trend shows that the H-1B filings (for both regular and U.S. master’s caps) have been decreasing over the past few days. As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time. We wish to caution potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

AAO Processing Times Report (July 1, 2010)

admin — Thu, 15 Jul 2010 20:58:59 +0000

About the AAO

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of July 1, 2010. Overall, there is not much change in comparison to the April 1, 2010 report (the last we reported).

Among the most notable AAO processing times:

H-1B appeal takes 12 months (decrease by two months compared to April 1, 2010);
I-140 EB1 Extraordinary Ability takes less 7 months (one month increase), Multinational Manager or Executive takes 15 months (increase by three months) while EB1 Outstanding Professor or Researcher category takes 6 months (increase by one month);
I-140 EB2 (Advanced Degree) takes 24 months (no change) while EB2 (NIW) takes 6 months (increase by one month); and
I-140 EB3 Skilled Worker takes 25 months (increase by one month) while EB3 Other Worker takes 23 months on appeal (increase by one month).

Read the full AAO Processing Times report.

FY2011 H-1B Numbers Update – 24,800 Regular and 10,600 Masters Cap Visas Used (July 9, 2010)

admin — Wed, 14 Jul 2010 13:34:02 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of July 9, 2010, USCIS has received approximately 24,800 H-1B petitions counting toward the 65,000 cap (an increase of only 600 over the week). Similarly, as of July 9, there were 10,600 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 200 over the week).

H-1B Quota Trends

August 2010 Visa Bulletin – EB-2 and EB-3 Substantial Forward Movement

admin — Tue, 13 Jul 2010 12:01:22 +0000

The August 2010 Visa Bulletin was just released by the State Department. The eleventh visa bulletin for the fiscal year 2010 brings some substantial forward movement in the EB-2 India category which had not moved for the past few months. Also, there is some gradual forward across all EB-3 employment-based categories.

Summary of the August 2010 Visa Bulletin – Employment-Based (EB)

Below is a summary of the August 2010 Visa Bulletin with respect to employment-based petitions:

EB-1 remains current across the board.
EB-2 ROW (Rest of World) remains current, EB-2 China moves forward by slightly over three (3) months to March 1, 2006, EB-2 India moves forward by five (5) months from October 1, 2005 to March 1, 2006.
EB-3 ROW moves forward by nine and a half months (9.5) months to June 1, 2004, EB-3 China moves forward by slightly over one (1) month to September 22, 2003, while EB-3 India moves forward by slightly over one (1) month to January 1, 2002. EB-3 Mexico remains unavailable.
The “other worker” category moves forward by a few months, to May 15, 2002 for ROW and China and to January 1, 2002 for India.

Substantial Forward Movement Continues

The notable forward movement in EB-2 and some EB-3 categories continues in this month’s visa bulletin as well. This significant movement is due to the fact that there are some visa numbers available from other countries have not been reached yet and such countries’ per-country limit has not been reached. As a result, as we are getting close to the end of the fiscal year, and after taking the worldwide demand into account, the State Department has determined only 8,100 of the total available EB-2 preference numbers would be used in that quarter. In this case, the unused 3,500 numbers could then be made available to China-mainland born and India regardless of their per-country limits.

Forward Movement Is Temporary

Note that the substantial forward movement does not indicate a trend; instead, the last two visa bulletins’ forward movement was to ensure that no available visa numbers remain unused due to poor allocation of the unused numbers. We expect that there be some retrogression over the next 1-3 months.

Please do not hesitate to contact us if you have any questions or if we can help you prepare and file your I-485 adjustment application, should your priority date become current.

). Applicants from other countries that have not yet reached their per-country limit have reported a total demand of 6,500 numbers. After taking the worldwide demand into account, it is determined that as a result of the China-mainland born and India per-country limits only 8,100 of the total available Employment Second preference numbers would be used in that quarter. In this instance, the otherwise unused 3,500 numbers could then be made available to China-mainland born and India regardless of their per-country limits. Should that occur, the same cut-off date would be applied to each country, since numbers must be provided strictly in priority date order regardless of chargeability.

US Consulates in China Relax Visa Interview Appointment Policy

admin — Sun, 11 Jul 2010 17:04:24 +0000

The Department of State has announced that effective immediately, non-immigrant visa applicants may book interview appointments at any U.S. Consular Section in China, regardless of the province or city where they live. Under the old policy, appointments had to be made only at a specific consulate, based on province of residence.

Consular Sections are located at the U.S. Embassy in Beijing and U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang. The purpose of the rule is, according to the State Department, to “increasing mutual understanding between the United States and China through people-to-people exchange.” According to Department of State numbers, in 2009, almost 500,000 people received U.S. non-immigrants visas in China and the new policy should serve to increase this number by eliminating barriers to application.

Current PERM Processing Dates/Times (as of May 31, 2010)

admin — Thu, 08 Jul 2010 21:19:37 +0000

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of May 31, 2010. They are as follows:

Regular processing: August 2009. DOL is processing PERM applications with priority dates in August of 2009. This suggests that there is certain forward movement for regular PERM processing. Accordingly, regular PERM processing times should be approximately nine (9) months.
Audited applications: May 2008. This is no movement in this category in comparison to prior months. Accordingly, audited PERM applications are processed approximately 24 months after the initial PERM was filed and the priority date established.
Appealed applications: December 2007. There is some delay in this category in comparison to prior months. Accordingly, PERM appeals are processed approximately 29 months after the initial PERM was filed and its priority date established.

We 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 announcement.

USCIS Plans Increase in Filing Fees

admin — Thu, 08 Jul 2010 21:12:11 +0000

In a recent announcement, USCIS, as part of their annual budget review and due to lower-than-estimated fee revenue collection, proposed a fee increase that will amount to an average increase of 10% across the board.

A formal proposal has been published in the Federal Register and there is a 45-day comment period. Some of the increases are substantial, especially when considered in conjunction with the ~60% fee increase done in 2007. For example, an I-130 petition for an alien relative will jump from $355 to $420. An I-131 application for a travel document goes up by $55, and an application for an employment authorization document increases by $40. Adjustment of status fees will increase by $55. Businesses will also need to pay more – I-140 petitions for immigrant workers are increasing by over $100, premium processing fee is going up by $225 and a brand new fee of $6,230 is proposed to establish a Regional Center under the EB-5 program.

The USCIS justification is plain – our costs are high, our revenues are low, we need to either decrease service (by having less adjudicators and by increasing processing times) or to raise fees. In a conference call to discuss the fee increase, USCIS Director Mayorkas explained that the fee increase is necessary to bridge the $160 million budget shortfall at the agency.

The 45-day comment period is due to expire in late July, so we encourage our readers and clients to comment on the proposed fee increase. We will continue monitoring this proposal and will announce any developments with respect to any changes to the rule or to its effective date. Please subscribe to our weekly newsletter to receive timely updates on this and related topics.

FY2011 H-1B Numbers Update – 24,200 Regular and 10,400 Masters Cap Visas Used (July 2, 2010)

admin — Thu, 08 Jul 2010 20:49:30 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of July 2, 2010, USCIS has received approximately 24,200 H-1B petitions counting toward the 65,000 cap (an increase of only 700 over the week). Similarly, as of July 2, there were 10,400 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 400 over the week).

H-1B Quota Trends

FY2011 H-1B Numbers Update – 23,500 Regular and 10,000 Masters Cap Visas Used (Jun 25, 2010)

admin — Tue, 29 Jun 2010 21:16:57 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of June 25, 2010, USCIS has received approximately 23,500 H-1B petitions counting toward the 65,000 cap (an increase of only 600 over the week). Similarly, as of June 25, there were 10,000 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 300 over the week).

H-1B Quota Trends

FY2011 H-1B Numbers Update – 22,900 Regular and 9,700 Masters Cap Visas Used (June 18, 2010)

admin — Thu, 24 Jun 2010 19:11:33 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of June 18, 2010, USCIS has received approximately 22,900 H-1B petitions counting toward the 65,000 cap (an increase of only 700 over the week). Similarly, as of June 18, there were 9,700 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 300 over the week).

H-1B Quota Trends

H-1B Statistics for Fiscal Year 2009

admin — Thu, 24 Jun 2010 15:04:09 +0000

Each year, the Department of Homeland Security is required by law to provide to Congress a report on the characteristics of the H-1B specialty occupation workers. The report for fiscal year 2009 (FY2009) which covers October 1, 2008 to September 30, 2009 was released recently.

The report is interesting because it covers partially the period when the economic crisis began. Also, there are some interesting numbers.

Number of H-1B Petitions. The number of H-1B petitions filed decreased 15 percent from 288,764 in FY2008 to 246,647 in FY2009. This number includes all H-1B filings — new employment, amendment and transfers. Although the report does not attribute the decrease in numbers, it is most likely due to the economic slowdown which started in 2008 and continued through 2009.

Number of H-1B Approvals. The H-1B petitions approved decreased 22 percent from 276,252 in FY2008 to 214,271 in FY2009. This does not mean that the rate of approval has changed by 22 percent – instead, the decrease of approvals is due to the decrease in filings. In comparison, in FY2008, the rate of approval was 95 percent (based on calculating the number of FY2008 approvals out of number of FY2008 filings) and the FY2009 rate of approval was 87 percent, or 8 percentage points decrease.

Change of Status v. Consular Processing. The breakdown of initial employment H-1B cases changed notably. During FY2009, the number of aliens outside of the U.S. who applied for initial H-1B dropped by 40 percent from 56,000 in FY2008 to 33,000 in FY2009. Initial H-1B applicants who were in the U.S. and applied for change of status from the U.S. remained steady at 53,000.

Country of Nationality. Most H-1Bs were issued to Indian nationals – 48 percent, followed by China (10 percent), Canada (5 percent) and the Philippines (4 percent).

Age. The report indicates that two-thirds of the H-1B petitions approved in FY2009 were for workers between the ages of 25 and 34.

Education. Forty-one percent of the approved H-1B petitions were for workers with a bachelor’s degree, 40 percent had a master’s degree, 13 percent had a doctorate and 6 percent were for workers with a professional degree.

Salary. The median salary of beneficiaries of approved H-1B petitions increased from $60,000 in FY2008 to $64,000 in FY2009.

Guide to Infopass

admin — Thu, 24 Jun 2010 12:03:07 +0000

About InfoPass

In addition to being able to obtain basic case status information or obtain services related to immigration through the USCIS customer service phone line, InfoPass is a free service which allows scheduling an appointment with a USCIS immigration officer by using the Internet. InfoPass is helpful for resolving immigration issues that are best handled by a trained USCIS immigration officer or where certain information or documents need to be presented for review or processing.

Scheduling an InfoPass Appointment

InfoPass is free – it costs nothing to schedule an appointment via the USCIS website at http://infopass.uscis.gov/. When scheduling an appointment, the InfoPass website allows selection of the closest USCIS center to a given address. After completing the registration form, the system allows the selection of a time and date with available InfoPass appointments. Generally, as InfoPass appointments are often cancelled or added, the selection will vary by area and time of the day and time of the year.

Appointments can be canceled or rescheduled through the InfoPass website. Since USCIS centers can be very busy in many areas of the country, we always encourage our clients and readers to cancel their InfoPass appointments if they cannot make them as early as possible to allow somebody who may need urgent help to be able to take the appointment. Lost InfoPass notices can be reprinted online as well.

What Should I Bring to My InfoPass Appointment?

In order for the USCIS immigration officer to be able to resolve a particular issue, there may be a need to bring good information and documents to the InfoPass appointment. In addition to the InfoPass appointment (printed when scheduling the appointment) and a government-issued ID, the government asks that any relevant documents be taken along. Such documents can be immigration forms, receipt notices, approval or denial letters, translations and original documents that relate to a particular inquiry or problem.

Suitability of InfoPass Appointments for General Inquiries

InfoPass is a great tool for solving issues on immigration cases. However, it is not suitable for a number of other inquiries. Routine inquiries can be handled quickly and easily over the phone or Internet. It is generally best to try to resolve an inquiry or a problem by calling the National Customer Service Center at 1-800-375-5283 and speaking with immigration officer (see our guide to NCSC).

* InfoPass allows you to cancel or reschedule appointments by using the identification numbers at the bottom of your printed out appointment confirmation notice.
* To allow us to serve the most customers possible, please cancel your appointment if you cannot make it at the appointed time. There is no penalty for rescheduling or canceling an appointment.
* If you lose your appointment notice, you can print a replacement by accessing InfoPass and entering the information requested.

Federal Lawsuit Challenges the January 2010 Neufeld Memo on Employer-Employee Relationship

admin — Thu, 17 Jun 2010 17:02:49 +0000

We have written extensively in the past regarding the January 8, 2010 Neufeld Memo which introduced guidance requiring H-1B applications to show proof of employer-employee relationship between the H-1B petitioner and beneficiary. The Neufeld Memo has affected mostly staffing and consulting companies where the H-1B beneficiaries are employed at third-party worksites.

USCIS Sued to Prevent Enforcement of the Neufeld Memo Guidelines

In a five-count complaint filed by a coalition of staffing companies and representative trade associations, the USCIS is asked to stop temporarily and permanently from applying the Neufeld Memo in H-1B adjudications. The case is Broadgate v. USCIS and is assigned to Judge Kessler at the U.S. District Court for the District of Columbia.

The complaint alleges that the Neufeld Memo abruptly altered long-standing agency policy which has permitted companies from placing H-1B workers at third-party job sites. The complaint further alleges that existing USCIS guidelines specify that an employer-employee relationship does exists when the petitioner company may “hire, pay, fire, supervise, or otherwise control the work of any such employee.” The plaintiffs in this case claim that the Neufeld Memo constitutes a legislative regulation because it sets forth new binding standards that prevent employers that place employees at third-party worksites, but which otherwise meet the regulatory definition, from sponsoring H-1B nonimmigrants.

The complaint alleges that the new policy (i) is contrary to existing law and regulations, (ii) is arbitrary and capricious because the government failed to articulate a policy justification, (iii) violates the Administrative Procedure Act notice-and-comment requirements, and (iv) should have been issued following a certification under the Regulatory Flexibility Act (which requires regulators to consider the potential impact of regulations on small business).

Conclusion: More to Follow

Our office has been very involved in this issue from the publication of the Neufeld Memo and we have seen the impact of the memo on H-1B adjudications and RFEs. USCIS has been under some pressure to amend the Neufeld Memo, at least in some respects, and this lawsuit is certain to put more pressure on resolving this controversy. We will continue monitoring this case and the Neufeld Memo developments coming out of USCIS and will provide updates. In the meantime, please do not hesitate to contact us or subscribe to our free weekly newsletter.

FY2011 H-1B Numbers Update – 22,200 Regular and 9,400 Masters Cap Visas Used (June 11, 2010)

admin — Wed, 16 Jun 2010 02:48:08 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of June 11, 2010, USCIS has received approximately 22,200 H-1B petitions counting toward the 65,000 cap (an increase of only 1,400 over a two-week period). Similarly, as of June 11, there were 9,400 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 700 over a two-week period).

H-1B Quota Trends

July 2010 Visa Bulletin – EB-2 India Jumps Ahead by Ten Months; Gradual Movement in EB-3

admin — Thu, 10 Jun 2010 20:14:37 +0000

The July 2010 Visa Bulletin was released earlier this afternoon by the State Department. The tenth visa bulletin for the fiscal year 2010 brings some substantial forward movement in the EB-2 India category which had not moved for the past few months. Also, there is some gradual forward across all EB-3 employment-based categories.

Summary of the July 2010 Visa Bulletin

Below is a summary of the July 2010 Visa Bulletin with respect to employment-based petitions:

EB-1 remains current across the board.
EB-2 ROW remains current, EB-2 China remains unchanged at November 22, 2005, and, most notably, EB-2 India moves forward by ten (10) months from February 1, 2005 to October 1, 2005.
EB-3 ROW moves forward by almost two (2) months to August 15, 2003, EB-3 China also moves forward by almost two (2) months to August 15, 2003, while EB-3 India moves forward by one (1) month to November 22, 2001. EB-3 Mexico remains unavailable.
Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is unavailable.

Finally Movement in EB-2 India

Previously we wrote about the lack of movement in the EB-2 India category for the past four months. Finally, there is a substantial forward movement in EB-2 India which should benefit at least some of our clients and readers. Please do not hesitate us if you have any questions or if we can help you prepare and file your I-485 adjustment application.

USCIS to Launch a Redesigned E-Verify Site

admin — Tue, 08 Jun 2010 13:27:09 +0000

USCIS has unveiled a substantial redesign of the E-Verify system website. The changes are both in terms of design and functionality. The new E-Verify site will go live on June 13th, and USCIS has advised us that all user accounts will remain valid and active.

Graphic Design

E-Verify’s design has seem to be somewhat of an afterthought for the initial designers. Not anymore. E-Verify’s design now features cleaner page elements, better visual clues for case status and other important pieces of information.

Functionality

Some interesting functionality has been added. Among the most interesting, and most disappointing, is the case alerts feature. E-Verity can keep track of a work authorization document’s expiration date and provide an alert when such document is about to expire. However, the disappointment comes after realizing that a user must log into E-Verify to obtain such alerts. According to USCIS, their “current system doesn’t support automatic “blast” e-mails other than for enrollment-related actions. We’re looking into solutions that would allow us to use e-mail more, but in the meantime, the new case alerts feature represents a big improvement in case management.”

Transition Resources

USCIS has made available some transition resources:

Watch the two new “How to” videos, which demonstrate how to create a case and how to respond to a tentative nonconfirmation (TNC).
Download the new user manuals and quick reference guides to become familiar with how to use E-Verify (updated publications will be available in early June).
Attend one of our sneak preview Webinars to learn more and get your questions answered.

Conclusion

E-Verify’s redesign is a step in the right direction. Not only visually pleasing, the system starts to add requested functionality. We encourage USCIS to continue to listen to its constituents and add and improve features as more and more businesses decide (or are required) to adopt E-Verify.

The Capitol Immigration Law Group PLLC is E-Verify Designated Agent, please contact us if we can help your organization with its E-Verify and compliance matters.

Texas Service Center Launches I-485 Notification Pilot Program

admin — Fri, 04 Jun 2010 02:45:04 +0000

The Texas Service Center (TSC) recently launched a pilot program pursuant to which employment-based I-485 applicants can facilitate TSC processes relating to specific stages of the employment-based adjustment of status. A special email address has been designated for this purpose: ebupdate.tsc@dhs.gov.

Procedure and Process

After sending an email pursuant to this pilot program, applicants will receive an automatic reply from TSC stating that the email was received. After submitting information through this pilot email initiative, one follow-up inquiry may be sent if no communication has been received from TSC, such as a decision notice, a request for evidence, or other notice, within 90 days. The automatic email reply will provide further information on how to submit the follow-up inquiry.

Notification of AC21 Change of Employer
I-485 applicants who wish to change employer and retain their adjustment process pursuant to AC21 are advised to follow the following steps:

Identify only one applicant in a single e-mail. E -mails must pertain to applicants whose I-485s have been pending for 180 or more days and who are eligible for AC21 porting.
Send an email to: EBUPDATE.Tsc@dhs.gov.
On the subject line, write “EB I-485/AC21.” (Example: EB I-485/AC21)
In the text of the email, provide: A-number, old employer’s name and new employer’s name. Attach a copy of the new employer’s letter of employment. The letter must identify the following information: the new employer, the letter’s author and his/her job title, the applicant’s new job title, start date of new employment, hours per week, salary, and specific description of the duties to be performed.
If the applicant has more than one A-number, they should be typed on the same line separated by a “/”. (Example: All 1222333 I A444555666). If there are multiple family members, they should be typed all on the same line separated by commas. (Example: AIII222333, A222333444, A444555666). You should also indicate which of the A-numbers is that of the principal I-485 applicant / I I-140 beneficiary.

Notification When an Applicant Has Multiple I-140s With Available Priority Dates

Adjustment applicants who have two or more I-140s and when the priority date of one or more of these I-140s is current, the procedure to notify TSC is as follows:

Identify only one applicant in a single e-mail. E-mails must pertain to applicants whose I-485s are eligible for processing because the priority date of another approved I-140 is visa available.
Send an email to: EBUPDATE.Tsc@dhs.gov.
On the subject line, write “I-485 Multiple I-140s.”
In the text of the email provide the A-number and the receipt number of the I-140 that has the priority date that is visa available. If the applicant has more than one A-number, or if there are multiple family members, please follow the instructions described above under the e-mail instructions regarding AC 21 portability.

Notification When Applicant is Eligible for Cross-Country Chargeability

Applicants who are eligible to obtain chargeability under a different country should follow the following procedure:

As with the categories described above, identify only one applicant in a single e-mail. E-mails should pertain to applicants whose I-485s are currently eligible for processing because the applicant is entitled to receive a cross-charged priority date from a qualifying family member under Section 202 of the Immigration and Nationality Act.
Send an email to: EBUPDATE.Tsc@dhs.gov
On the subject line, write “I-485/ CC”
In the text of the email, provide A-numbers, including the A-number of the I-485 applicant who will acquire the current priority date from the qualifying family member, and the country of cross chargeability. Also include the A-number of the family member who will confer the current priority date. If the applicant who is to receive the cross-charged priority date has more than one A-number, or if there are multiple family members, the instructions described above under AC 21 portability apply.

Notification of Case in Need of Transfer

Applicants can also notify TSC of cases which are in need of transfer. The procedure is as follows:

Identify only one applicant in a single e-mail. E-mails must pertain to applicants whose I-485s are eligible for processing because the priority date of another petition relating to the I-485 applicant (such as an I-130) has a visa available.
Send an email to: EBUPDATE.Tsc@dhs.gov
On the subject line, write “Transfer”.
In the text of the email, provide A-numbers or receipt numbers and the office to which the I-485 should be transferred. If the applicant has more than one A-number, or if there are multiple family members please follow the instructions described above under the AC 21 portability instructions.

Conclusion
TSC’s pilot notification program is a great idea; however, its success will depend on how well TSC will respond to legitimate notifications send to them via the new email address and how well TSC will advise applicants who use the notification tool of the status and progress of their request. We will continue monitoring this pilot program and using it with selected clients who can benefit from it and will provide further updates on the pilot program’s usefulness.

FY2011 H-1B Numbers Update – 20,800 Regular and 8,700 Masters Cap Visas Used (May 28, 2010)

admin — Thu, 03 Jun 2010 16:27:03 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of May 28, 2010, USCIS has received approximately 20,800 H-1B petitions counting toward the 65,000 cap (a weekly increase of only 1,200). Similarly, as of May 28, there were 8,700 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of only 500).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that after there was a very small weekly decrease in the number of H-1B filings for both the regular and Masters’s caps compared to the week prior. The overall trend is that the H-1B filings have been decreasing over the past few days. As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time. We wish to caution potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

FY2011 H-1B Numbers Update – 19,600 Regular and 8,200 Masters Cap Visas Used (May 21, 2010)

admin — Thu, 27 May 2010 20:06:16 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of May 21, 2010, USCIS has received approximately 19,600 H-1B petitions counting toward the 65,000 cap (a weekly increase of only 600). Similarly, as of May 21, there were 8,200 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of only 100).

H-1B Quota Trends

Paper Form I-94W Eliminated for Visa Waiver Travelers

admin — Mon, 24 May 2010 02:27:18 +0000

DHS Secretary Napolitano announced earlier this week that as of late this summer, the paper Form I-94W (arrival/departure record) for authorized travelers from nations participating in the Visa Waiver Program (VWP) will be eliminated. Instead, the arrival/departure information will be stored electronically.

After a successful 7-month trial conducted with VWP travelers from New Zealand on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (ESTA) arriving in the United States at all airports by the end of this summer. CBP will activate automated processing for U.S. airports on a rolling basis over the next several months.

Applying for an ESTA VWP travel authorization became mandatory on January 12, 2009, for all nationals of VWP countries prior to boarding a carrier to travel by air or sea to the United States. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa, and allows DHS to determine whether a VWP traveler presents a threat long before the individual boards a U.S.-bound aircraft. By eliminating the paper Form I-94W, travelers will be able to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States.

DOS Announces Increased Visa Stamp Application Fees

admin — Thu, 20 May 2010 15:12:51 +0000

The Department of State (DOS) issued an advance copy of the interim final rule on the Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates. The notice was published today at the Federal Register.

According to the notice, the new rule will become effective on June 4, 2010 (15 days after publication). The increase in fees is mainly due to increase in processing costs for a number of non-immigrant visas processed at the U.S. consulates abroad. For most of these visa types, the current fee is $131.00. As a result, while some categories see a minor increase of $10-20, some categories see the fees more than double (for example, K visa applications).

The New Non-immigrant Consulate Visa Fees

    (a) Non-petition-based nonimmigrant visa (except E              $140
     category)..........................................
    (b) H, L, O, P, Q and R category nonimmigrant visa..            $150
    (c) E category nonimmigrant visa....................            $390
    (d) K category nonimmigrant visa....................            $350
    (e) Border crossing card--age 15 and over (valid 10             $140
     years).............................................
    (f) Border crossing card--under age 15; for Mexican              $14
     citizens if parent or guardian has or is applying
     for a border crossing card (valid 10 years or until
     the applicant reaches age 15, whichever is sooner).

It should be noted that these fee increases apply to consular visa applications only. The USCIS petition processing fees remain unaffected by this rule.

Analysis of “REPAIR” Immigration Reform Proposal

admin — Wed, 19 May 2010 15:10:07 +0000

The political climate here in Washington, DC changes very quickly. We wrote recently about some broad conceptual proposals for comprehensive immigration reform, followed by our reports of President Obama’s remarks that he does feel that the time is ripe for immigration reform.

However, some congressmen are pushing an immigration reform proposals forward. A recent proposal for a bill, introduced by Senators Reid, Durbin, Schumer, Leahy, Feinstein, and Menendez aims to put more concrete plan out for discussion, despite what some may consider a poor timing for reform. The Real Enforcement with Practical Answers for Immigration Reform (REPAIR) proposal sets the framework for a comprehensive immigration reform. We hope to outline selected parts of the proposal.

Better Enforcement and Ending Illegal Employment

The REPAIR proposal calls for better immigration law enforcement, at the borders and inside the country, in addition to establishing a new biometric identification and employment verification system to prevent the employment of unauthorized workers. New tamper-resistant Social Security cards will be issued which would contain photo and biometric information. The proposal calls for sophisticated technology that will protect information about the cardholder and will not store any of the biometric data contained in the card on any government database. The proposal does not state where the data will be stored. The proposal will make it unlawful for anyone or any private or government entity to use the card for any other purpose than employment verification.

All employers will be required to verify a new hire’s employment eligibility status through an electronic system. Failure to do so would carry penalties. The system would, in effect, be a build-up of the currently-existing E-Verify employment eligibility verification system.

High-Skilled Immigrants Will See Substantial Benefit

Permanent Residency. The proposal provides for an immediate green card to foreign students with an advanced degree from a U.S. institution of higher education in the field of science, technology, engineering or mathematics (STEM), and who have an offer of employment in the field related to their degree, from a U.S. employer. The proposal would also eliminate per country employment caps which have resulted in substantial delays under the current system for nationals of many countries, but particularly for India and China.

H-1B Visas. The proposal creates new requirements on H‐1B visas including: 1) revising how wages are determined; 2) requiring web posting of job openings; 3) lengthening U.S. worker displacement protection; 4) applying certain dependent employer rules to all H‐1B employers; 5) prohibiting “for H‐1B only” job ads; and 6) limiting the number of H‐1B and L‐1 employees that an employer of over 50 workers in the U.S. may hire. The proposal also authorizes the Department of Labor (DOL) to investigate application fraud and conduct H‐1B compliance audits.

L-1 Visas. The proposal also creates new requirements on the L‐1 visa prohibiting the hiring of an L‐1 for more than one (1) year who will: serve in a role involving specialized knowledge and be located at a worksite other than that of the petitioning employer. The proposal specifies L‐1 visa employer petition requirements for a new office; wage rates and working conditions; and employer penalties.

Family Immigration Proposals

The proposal will clear the family immigration backlog over an eight (8) year period. After the eight year period, family caps will return to the current levels. Spouses and children of lawful permanent residents (LPR) will be classified as “immediate relatives”. Per country caps in the family immigration system will be raised from 7 percent to 10 percent. The proposal will also allow permanent partners of U.S. citizens and LPRs to obtain LPR status; provide protection for children and people with special humanitarian considerations; and address technical issues related to stepchildren and adoptive children.

Unauthorized Aliens Must Register and Wait For Permanent Residency

With respect to those ~11 million unauthorized aliens, the proposal has a two-phase approach.

Phase I. All undocumented persons will be required to come forward and register their presence through a rigorous process that includes identity, criminal background and security screening, fingerprinting, and the payment of fees, civil penalties and taxes. Upon completing registration, they will be considered for eligibility for a new interim status: “Lawful Prospective Immigrant” (LPI). In addition to the above requirements, undocumented persons must remain in the country continuously from the date of enactment to be eligible for LPI status. Spouses and minor children living abroad will be eligible for legalization once their relative receives LPI status. Those found ineligible in Phase I will be placed in removal proceedings. Those who fail to register will remain undocumented and be subject to arrest and deportation.

Those convicted of three or more misdemeanors or any felony punishable with a prison term of more than one year; those who engaged in persecution of others; those “inadmissible” pursuant to INA 212(a) for national security and criminal grounds; those in the country in an “authorized immigrant or nonimmigrant status”; and those who entered illegally after the bill’s introduction date will not be eligible for LPI status.

Phase II. It will begin eight years after enactment when current family visa backlogs are cleared at which time LPIs will be permitted to petition for adjustment to Lawful Permanent Resident (LPR) status. Requirements for eligibility include demonstrating basic citizenship skills, English language skills, and continuous residence in the United States; submitting to additional background and security checks; payment of all taxes, fees and civil penalties; and registration for Selective Service. The proposal allows for some administration and judicial review of denials.

Conclusion

The REPAIR proposals set forth a very interesting framework for comprehensive immigration reform. It remains to be seen how the initial proposal will be taken by both parties here on Capitol Hill during an election year and during a political climate some political experts describe as “difficult.” Also, it is important to note that REPAIR is just a proposal for law — it is not an introduced bill and it may (and will most certainly) will undergo substantial changes as it makes its way through the political system here in Washington.

If you have not already, please consider subscribing to our weekly free immigration newsletter to receive weekly updates on immigration reform, news and developments.

FY2011 H-1B Numbers Update – 19,000 Regular and 8,100 Masters Cap Visas Used (May 14, 2010)

admin — Tue, 18 May 2010 19:45:01 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of May 14, 2010, USCIS has received approximately 19,000 H-1B petitions counting toward the 65,000 cap (a weekly increase of 1,000). Similarly, as of May 14, there were 8,100 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of 500).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that after there was a very small weekly decrease in the number of H-1B filings for both the regular and Masters’s caps compared to the week prior. As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time. We wish to caution potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

USCIS Lockbox Procedure Adds to Expedited Reentry Permit Processing Time

admin — Mon, 17 May 2010 22:57:30 +0000

Starting December 2009, USCIS started implementing changes on the way I-131 reentry permit applications are receipted and processed. Previously, I-131 reentry permit applications were filed directly at the Nebraska Service Center (NSC) which issued receipts and, where appropriate, issued expedited processing biometrics notices.

The NSC processing of expedited processing reentry permit biometrics allowed us to have the required biometrics scheduled often within 7-10 days after filing of the I-131 reentry permit application. This way we were able to accommodate clients who had a very limited period of stay in the U.S.

The New I-131 Reentry Permit Acceptance Procedure Delays Biometrics

Under the new procedure, all I-131 reentry permit applications are now filed at a USCIS lockbox. The purpose of the lockbox is to accept the application and do initial processing such as issuing a receipt. Following the initial processing, the case is transferred to the service center tasked with processing the reentry permits – NSC.

Only after the lockbox center forwards the I-131 reentry application to NSC the expedited processing biometrics appointment can be issed. This adds an additional week or so of processing and scheduling a biometrics notice.

In light of these changes, we have had to advise our I-131 reentry permit expedited processing clients to adjust their travel accordingly and to plan on being in the U.S. 3-4 weeks (up from 2-3 weeks) to be able to accommodate their required biometrics appointment while in the U.S.

Unfortunately, USCIS has indicated that they intend to use the lockbox for the future and we do not foresee any improvement in the processing times or the efficiency of the expedited reentry permit application procedure. USCIS has indicated that they are exploring ways to be able to process biometrics abroad; however, as of today, the biometrics can be done only in the U.S.

Filing a New I-140 When Another I-140 Is Pending on Appeal

admin — Mon, 17 May 2010 13:26:53 +0000

In addition to the numerous inquiries on filing a new I-140 when a previous I-140 is pending on appeal, our office handles a number of such new I-140 filings. Pursuant to USCIS guidance, a previously approved labor certification which was timely used to file an I-140 can, in many circumstances, be subsequently used to file a new I-140 if the initial I-140 was denied. Many initial I-140 denials are appealed with the Administrative Appeals Office (AAO); in such cases, the issue becomes whether the petitioner can file a new I-140 while the initial I-140 is pending on appeal.

Background

USCIS current policy is that when a denied I-140 is appealed and is sent by a service center to the AAO for adjudication (which can take up to two years months), the service center will hold in abeyance a newly refiled I-140 the same Beneficiary in the same EB classification. The question becomes whether a new I-140 for the same beneficiary but for a different classification would be also held in abeyance?

Recent Texas Service Center Guidance

A recent guidance from the Texas Service Center (TSC) has indicated that whether or not an I-140 filed for a Beneficiary in a different classification will be held in abeyance while an appeal is pending is determined on a case-by-case basis and depends on the reason for the initial denial. As an example, if an I-140 is denied for lack of ability to pay, and the ability to pay issue is appealed, a subsequent identical I-140 filing, even in a different classification, would typically be held in abeyance pending the outcome of the appeal.

Considering the long AAO processing times (20-24 months for I-140 appeals), before an I-140 appeal is filed, it is important to evaluate the alternatives and the options of filing a new I-140 without appealing the previously-denied I-140. Many beneficiaries need to file an appeal in order to be able to obtain H-1B extension benefits; however, if this is not a factor, appealing I-140 may not provide much of a strategic benefit, in fact, it may only delay the I-140 process.

How We Can Help

Our office handles a number of I-290B I-140 AAO appeals and we would be happy to review your case and advise you on the best options. Please do not hesitate to contact us for a free initial consultation. Also, please feel free to subscribe to our weekly newsletter to receive free immigration law updates.

FY2011 H-1B Numbers Update – 18,000 Regular and 7,600 Masters Cap Visas Used (May 6, 2010)

admin — Thu, 13 May 2010 15:45:58 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of May 6, 2010, USCIS has received approximately 18,000 H-1B petitions counting toward the 65,000 cap (a weekly increase of 1,500). Similarly, as of May 6, there were 7,600 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of 700).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that after there was a very small weekly increase in the number of H-1B filings for both the regular and Masters’s caps. As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time. We wish to caution potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

AC21 Green Card Process Porting: How Similar Should the Jobs Be?

admin — Thu, 13 May 2010 15:37:19 +0000

In connection with the 2007 adjustment of status (I-485) filing “blizzard” and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases. One of the most frequent questions we receive is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed. For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases. NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard. In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field. On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC. Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

Computer Systems Analysts – 15-1051.00

USCIS to Issue Redesigned U.S. Green Cards

admin — Thu, 13 May 2010 15:21:08 +0000

USCIS has announced that effective Tuesday, May 11, 2010, it would issue redesigned U.S. Permanent Resident Cards (also known as “green cards.”) The redesign is mainly driven to incorporate new security features to deter counterfeiting, tempering and document fraud, generally.

Features of the Redesigned Green Card

Among the main features of the redesign: secure optical media will store biometrics for rapid and reliable identification of the card holder. There will be a holographic images, laser engraved fingerprints, and high resolution micro-images which will make the card nearly impossible to reproduce. There will be a tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen. Also, a Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. Finally, a preprinted return address will enable the easy return of a lost card to USCIS.

Design

The “green card” is now actually “green” in color and design patterns. Samples of the front and back are shown below:

Frequently Asked Questions

Who can obtain the new green card? All requests for initial or replacement (renewal) green cards, once approved, will be issued the green card, as newly redesigned. USCIS has not announced a campaign to replace the existing green cards which are currently valid and in circulation.

What is the cost of replacing a green card? The application filing fee for an application to replace a green card is $370.00.

How to apply to obtain a damaged or lost green card? A lawful permanent resident may seek a replacement card by filing a Form I-90, Application to Replace Permanent Resident Card. If abroad, the permanent resident should contact the nearest consulate, USCIS office or port of entry before filing Form I-90. Our office can help you with the green card renewal or replacement application – please contact us.