Washington has been busy for the past few months with health care, wars and the economic crisis.  Not surprisingly, immigration reform has not been high on the President’s agenda.

A pair of senators trying to put together a comprehensive immigration bill showed their outline to President Barack Obama Thursday and asked his help in recruiting additional Senate backers. But with a full plate already and elections looming, it was unclear how involved the White House plans to get on the issue.

According to the Wall Street Journal, while President Obama remains “fully committed” to immigration reform, his administration has taken a more hands-off approach and has left Congress to propose the outline of the reform plans and to “sell” it on Capitol Hill.

The Schumer/Graham plan, proposed by Senators Charles Schumer (D-NY) and Linsay Graham (R-SC), was presented to the President.  However, Sen. Graham is looking for another Republican sponsor, but has been unable to find one.  Senator McCain (R-AZ) who supported a similar plan when President Bush proposed it, has not been willing to sign on.

The Schumer/Graham Plan Outline

While the Senators have not released their plan formally,  it may include many of the building blocks from the last failed effort, including a path to citizenship for those here illegally, now estimated at 10.8 million people; a guest worker program; and, in a new twist, a mandatory biometric identification card for workers to stem the flow of illegal workers into the country in future years.

Immigration Reform – Slow Movement

In this political climate, it seems that immigration reform, if it happens, will move forward very slowly.   The President has seemingly delegated to Congress finding support for the immigration reform, and the current political gridlock in Congress will not help.   We will provide to monitor the current state of the immigration reform from our offices in Washington, DC, and provide further updates.   To stay up-to-date on this and other immigration topics, please consider subscribing to our free weekly immigration newsletter.

USCIS has refused to expand the temporary policy and as a result, effective March 10, 2010, USCIS will no longer accept H-1B petitions filed without a certified LCA.    All H-1Bs filed on or after March 10, 2010, must be accompanied by a certified LCA or will be rejected.

The VWP will enable citizens of Greece to travel to the United States, beginning on April 10, 2010, for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA).

Currently, 35 countries participate in the Visa Waiver Program. The U.S. Congress authorized DHS in August 2007 to reform the VWP and strengthen the security arrangements required of existing participant countries, as well as to expand the opportunity for aspiring countries to join the program. This legislation also mandates certain improvements to the VWP for all participating countries, such as the requirement that travelers first obtain an online authorization to travel under the recently established ESTA, a web-based system that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States.

Anticipating reaction from practitioners and affected individuals, AILA has attempted to clarify this comment with VSC. VSC has clarified this statement. In the VSC’s view, the “credit” for RFES is meant to encourage qualitative RFES. Under the previous policy, VSC was concerned that since examiners were not given “credit” for RFES, examiners were not spending the appropriate amount of time on them, resulting in RFES that were not appropriate. According to VSC, the purpose of giving credit is to improve the quality of RFES by making it something adjudicators have to stop and think about, rather than something to quickly send off. VSC has indicated that the amount of RFES issued has not changed as a result of the policy change.

Inevitably, this comment will trigger a fair amount of speculation and, possibly, accusations that RFES are being issued unfairly. We cannot confirm that RFES are unfair or issued disproportionately; our recent experience indicates that VSCS RFES are fair and well-prepared. We will continue to monitor RFES coming out of VSC and provide updates to our clients and readers.

About the H-1B Program and the Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2011 starting on October 1, 2010.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H1B status and who are seeking to extend their visa or change employers.

Timing of the Cap-subject H-1B Petition Filing

The earliest date on which cap-subject H-1B petitions to be counted under the FY2011 H-1B cap is April 1, 2010.  By law, the earliest starting employment date for petitions approved under the FY2011 H-1B cap is October 1, 2010.  As a result of this up to 6-month window  between the time of filing and the time of employment, it becomes important to plan properly with respect to resources, valid status in the U.S. and work authorization.

Before an H-1B petition can be filed on or after April 1, there are a number of lead-time items.   Employers who have not submitted Labor Condition Applications (LCAs) with the Department of Labor’s iCERT system must have their Federal Employer Identification Number (FEIN) verified – a process which generally takes 2-4 business days.  Subsequently, an LCA must be filed for the offered position.  LCAS tend to be certified within 7 business days.   Only after the LCA is certified (with very minor exceptions) can an H-1B petition can be finalized and filed.  Accordingly, it becomes important to start the H-1B petition process as early as possible.  At a very minimum, an H-1B petition preparation can take at least two (2) and often at least three (3) weeks.

Cap-exempt Employers Can File H-1B at Any Time

Not all H-1B petitions must be filed under the H-1B annual cap.  Certain employers can file for H-1B workers at any time of the year and without being subject to the numerical H-1B visa limitations.  Such employers are generally qualified institutions of higher education (universities, colleges) and non-profit research organizations, or non-profits affiliated with institutions of higher education.   Note, not all non-profit organizations qualify; only those who are engaged in research may file for cap-exempt H-1B petitions.

Please see our helpful Guide to H-1B Cap Exempt Employers for more details.

Projections About This Year’s H-1B Cap

As discussed above, the H-1B cap “opens” on April 1, 2010 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached.  While it is impossible to predict exactly when the FY2011 H-1B cap will be reached, it is helpful to provide some context.  For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days.   Last year, for FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.

Due to the recovering economy, we do not expect that this year’s H-1B cap will be reached in eight days.  However, we do not anticipate that the H-1B cap will remain open until December of 2010.  Accordingly, to eliminate uncertainty, we recommend to our clients to aim for an early April H-1B filing.

Throughout the H-1B filing season, we provide weekly (or more often, if necessary) updates about the status of the H-1B cap and any related developments.  Please check back often or subscribe to our Weekly Newsletter to receive news and updates related to the H-1B filing season.

Conclusion

Because USCIS received more applications than there were visas available for fiscal years 2009, 2008, 2007 and 2006 within a few days of the cap opening, and for the 2010 fiscal year the cap was hit in December 2009, we recommend that clients consider their needs as soon as possible and be prepared to file on the first available date – April 1, 2010.    Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.

One of the points of the story is that the EB-5 program may be considered as a unfair “pay-to-play” program where foreign nationals “buy” their U.S. visa.  Of course, the story provides plenty of support for the EB-5 program which is considered by many to be a beneficial job-creating and foreign capital-attracting program in these difficult economic climate.

NPR story:  For Some Immigrants, The Ticket To A Visa Is A Check.

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 March 1, 2010.  Overall, there is not much change in comparison to the February 1, 2010 report.

Among the most notable AAO processing times:

• H-1B appeal takes 13 months (decrease by one month compared to February 1, 2010);
• I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 12 months (no change) while EB1 Outstanding Professor or Researcher category takes 4 months (decrease by three months);
• I-140 EB2 (Advanced Degree) takes 24 months (decrease by one month) while EB2 (NIW) takes 4 months (decrease by three months); and
• I-140 EB3 Skilled Worker takes 24 months (increase by one month) while EB3 Other Worker takes 22 months on appeal (increase by one month).

Read the full AAO Processing Times report.

According to numbers provided by USCIS, the period between 2001 and 2010 noted a slowdown in the number foreign nationals becoming U.S. citizens.  The number of naturalized Americans between 2001 and 2010 was 5.6 million, roughly the same as between 1991 and 2000.  By comparison, 1991 to 2000 doubled in comparison to 1981 to 1990.   Much of the slowdown during 2001 to 2010 period is attributed to increased scrutiny as a result of the September 11, 2001 attacks.  As the U.S. immigration authorities adjust their policy, we expect the growth to continue, although not so quickly.

The naturalization statistics, broken down by decade, are as follows:

2001-2010: During this decade, the United States welcomed more than 5.6 million new citizens, including more than 744,000 people during fiscal year 2009 and more than 138,000 in the current fiscal year.  Since September 2001, USCIS has assisted more than 55,000 members of the military to become naturalized U.S. citizens.

1991-2000: Approximately 5.6 million individuals became U.S. citizens during this period, doubling the number from the previous decade. The late 1990s also marked another shift in naturalization demographics, with those of Mexican decent yielding the most naturalized citizens, followed by Vietnamese and Filipinos.

1981-1990: Nearly 2.3 million people were naturalized during the 1980s, nearly half of whom came from Asia. Together, Canada and Mexico accounted for more than one quarter of the remaining new citizens.

1971-1980: The United States welcomed approximately 1.5 million new citizens during the 1970s. The Philippines, Cuba, and China were the leading countries of origin. This trend represented a shift from the 1960s, when the largest number of new citizens came from Europe. An estimated 66,000 members of the U.S. military were naturalized during this decade.

1908: The United States naturalized approximately 25,975 individuals.

1907: The United States naturalized approximately 7,941 individuals.

Our office handles many naturalization and citizenship applications every year.  Please contact us if we can provide you with an initial case consultation or if we can help you with your immigration process.

The procedure is effective February 1, 2010, and applies in cases where the I-130 immigrant petition and the I-129F K-3 petitions are both approved and sent to the National Visa Center (NVC).  In such instances, DOS will administratively close the K-3 application and will proceed instead only with the immigrant visa application based on immediate relative category (IR).

Background of K-3

The K-3 visa allows the foreign spouse of a U.S. citizen (and his or her dependents) to be admitted into the U.S. while they are waiting for their permanent residency application to be completed.  K-3 visa also allows the foreign spouse to engage in employment in the U.S. while waiting for approval of the green card.

The K-3 visa requires the filing of an I-130 and I-129F petitions with USCIS.  In terms of timing, the I-130 and I-129F are filed almost at the same time.  Generally, the I-129F K-3 petition is approved slightly before the I-130 and, in such cases, the foreign spouse can apply for the K-3 visa stamp and travel to the U.S.

The New K-3 Policy

However, in some cases the I-130 and the I-129F are approved at the same time.   In such cases, the foreign spouse faces the (not always so clear) choice of applying for K-3 visa or green card at the U.S. consulate.  This is the kind of situation the new DOS policy is intended to address and prevent any confusion.  Under the new policy, when the I-130 and I-129F are approved at the same time and received by NVC, NVC will, on its own, administratively close the I-129F K-3 application process.  NVC will contact the applicant with instructions on how to process the IR green card process.

According to DOS, the rationale behind this procedure is that the need of the K-3 visa ends once the green card I-130 petition is approved because the foreign spouse would be entitled to apply for green card immediately.   Our past experience has confirmed this — when a foreign spouse has to choose between K-3 or green card, the choice is confusing and counterintuitive.

An important note: the new procedure applies only when NVC has received both the approved I-129F and I-130 petitions.  If NVC receives only the approved I-129F petition, the foreign spouse can apply for the K-3 visa while the I-130 remains pending.   In this case, NVC will send the petition to the embassy or consulate in the country where the marriage took place or, if the marriage took place in the U.S., to the embassy or consulate that issues visas in the foreign spouse’s country of nationality.

It is helpful to describe the criteria which USCIS (and our office, in preparing such requests) uses in establishing whether a particular case warrants expedited processing:

• Severe financial loss to company or individual;
• Extreme emergent situation;
• Humanitarian situation;
• Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government);
• USCIS error; and
• Compelling interest of USCIS.

Expedited processing can be requested for both an application which is about to be filed (by indicating clearly EXPEDITED PROCESSING on the cover) or for a pending application (by contacting the National Customer Service Center at 1-800-375-5283 or by sending a fax to the applicable Service Center).

Additionally, our office routinely handles expedited processing requests and we are happy to discuss your case and whether it can be expedited and, if so, whether we can help you.  Please contact us for more information.

Senators Kerry (D-MA) and Lugar (R-IN) have introduced a new bill in Congress seeking to drive job creation and increasing America’s global competitiveness by helping immigrant entrepreneurs secure visas to the United States.  The bill’s title is the “StartUp Visa Act of 2010″ and will allow an immigrant entrepreneur to receive a two-year visa if they can show that a qualified U.S. investor is willing to dedicate a significant sum – a minimum of $250,000 – to the immigrant’s startup venture.   Please see full text of the draft bill and Senator Lugar’s press release.

The Act would amend immigration law to create a new EB-6 category for immigrant entrepreneurs, drawing from existing visas under the EB-5 category, which permits foreign nationals who invest at least $1 million into the U.S., and thereby create ten jobs, to obtain a green card.  After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she would receive permanent legal resident status.

We will monitor the path of this bill through Congress and provide updates as we have them.

The Report’s Findings

The report focused on many aspects of E-Verify, but the main number which has drawn attention recently is the fact that according to the Westat report, 54% of the unauthorized workers run through E-Verify result in an authorization to work.  Westat and USCIS attribute this high number to identify fraud – unauthorized workers who use and submit documents of a person who is authorized to work.  However, this high percentage of inaccurate E-Verify authorization has stirred some political and emotional responses.  See Wall Street Journal and Forbes articles.

Overall, Westat found that an estimated 96 percent of all E-Verify initial responses were consistent with the person’s work authorization status:  93.1 percent of all E-Verify cases involved authorized workers who were initially found to be authorized; 2.9 percent of all E-Verify cases involved unauthorized workers who received final non-confirmations.

4.1 percent of the initial responses were inconsistent with employment eligibility status: 0.7 percent of all E-Verify cases involved authorized workers who were not initially found to be authorized to work; 3.3 percent of all E-Verify cases involved unauthorized workers who were found to be employment authorized.

Although the numbers, overall, are positive, the main concern and recent political storm came after breaking down this number relating to the 3.3 percent of all E-Verify cases involving unauthorized workers who were found to be eligible to work.  Put in another way, out of the 6.2 percent of all E-Verify cases in which the workers were not authorized to work, the system failed to discover the unauthorized worker and permitted work 54 percent of the time.

USCIS’ Response

In the summary of the report, USCIS tries to defend this alarming number of inaccurate work authorizations by putting the numbers in context and by showing the high success rate across other categories.  While this is true, one of E-Verify’s main goals was to eliminate unauthorized work.  The Westat report casts shadow on this.   USCIS has taken steps to eliminate or decrease this rate of inaccurate authorizations.  It is USCIS’ claim that most of these false authorizations are due to identity theft – as a result, USCIS is implementing a photo tool as part of E-Verify so that employers can match the photo of the documents submitted, with one in government records, and with the actual employee.  Additionally, USCIS is attempting to integrate additional government databases to be able to provide more accurate and reliable information into E-Verify and increase its accuracy rate.

Basis for the Report

The report was based on several sources of data covering September 2007 to June 2008: USCIS staff and contractor interviews, focus groups, web survey of 2,320 E-Verify employers, in-person interview with 109 E-Verify employers and 424 workers who have received tentative non-confirmations (TNC), review of 1,246 records of workers who received TNCs and review of E-Verify program data.  Additionally, Westat developed models to develop estimates of the numbers of true employment authorizations; models were necessary because the true data is unavailable.

Conclusion

The Westat report is very useful in evaluating the E-Verify program’s current state.  Obviously, the 54 percent inaccuracy rate discussed above is going to be the focal point of discussions related to E-Verify over the near term.  It is worth noting, however, that the Westat report used data which is not at least 18 months old and E-Verify has steadily been improving the accuracy of its data and models.  Additional tools, such as the photo tool, are also helpful in eliminating certain types of work authorization and identify fraud.

We applaud USCIS efforts to improve E-Verify and to engage independent third parties to conduct research and test the accuracy of the system.  As an E-Verify Designated Agent, we have helped many of our clients handle with a number of E-Verify issues and have been happy with the willingness of USCIS to improve the system.

The Session Generated Great Interest

The session proved to be very popular.  There were about 50 in-person attendees and over 600 phone conference dial-ins.   Obviously, this Memorandum has stirred many interests and has caused a tremendous amount of emotions, both negative and positive.

Although the session was expected to be a question-and-answer format, it turned out that both the questions were posed mainly as comments and reactions to the Memo.  In addition, when questions were posed, USCIS representatives, which included Donald Neufeld, did not provide much information or guidance.  As a result, we can report on what we heard and felt are concerns associated with the January 8, 2010 Memo.  Hopefully, USCIS will provide some sort of a response to the multitude of comments and reactions.

There were comments from immigration attorneys and practitioners, business owners, employees, representatives of trade organizations, and former congressmen, among others.  USCIS started first, by setting out their goals in drafting the Memorandum – to provide clearer standards for adjudication and to provide more clarify and transparency in the H-1B adjudication process for all parties involved.

Comments Were Mostly Critical

Then, the floor was open for questions and comments.  Overall, the comments were critical of the Neufeld Memorandum.   Many comments confirmed what we have realized from recent conversations with some of our consulting or staffing company clients – that the new Memorandum is likely to hurt their business due to the unpredictability of the current adjudication standards.  Several owners of IT consulting companies cited downsizing (and potentially closing) their companies due to the new standards and having to cut not only H-1B employees but also U.S. workers who work at the company.  A number of comments referred to the unintended (negative) consequences of the Neufeld Memorandum – for example, some physicians work at hospitals, but hospitals are prohibited by state law to employ them directly, thereby resulting in a situation where H-1B for a physician employed at a hospital is not possible under the Memorandum.

A caller expressed a concern that the Memorandum creates even more ambiguity in cases where an employer has in-house and client-placements of H-1Bs and with respect to a real situation where USCIS rejected H-1Bs for both in-house and client-placed employees due to the fact that USCIS could not have guarantee that in-house employees would not be placed at a client site at a later time.

We have seen RFEs which are drafted as a result of the January 8, 2010 Memorandum and a caller expressed dissatisfaction with (1) the length of the standard RFE seeking explanation of the employer-employee relationship but also with (2) the legally incorrect requirements for establishing such employer-employee relationship.

Some Callers Praised the Memorandum

There were also comments which praised the Memorandum.  A caller from a professional association was outraged that in this economic climate the H-1B program exists at all; citing high unemployment, the caller seemed to call for abandonment of the H-1B program altogether.   The Memorandum was similarly praised from callers representing organizations calling for limited number of work visas and also calling for a more restrictive set of rules on current staffing companies.

USCIS Listened, Mostly

USCIS representatives mostly listened.  What USCIS could acknowledge was that the January 8, 2010 Memorandum is not related to the Customs and Border Protection (CBP) issues some H-1B holders faced since the holidays at Newark, New Jersey, airport.   However, it was noted that CBP has coordinated its Newark actions with the FDNS investigations on employers who potentially have violated the H-1B program rules.

Conclusion

While we applaud USCIS’ desire to open a dialogue with its stakeholders regarding the implementation and the impact of the Memorandum, given the number of negative comments and the unintended consequences of the Memorandum, it may seem that such dialogue should have been done before the publication of the Memorandum.  USCIS stated as one of its goals a transparent process; yet, it appears that the Memorandum was drafted in the shadows.

We are hoping that, in response to this meeting, USCIS will engage in a more robust review process and will provide some amendments to the Memorandum or, at the very least, some clarifications and explanations.

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 February 1, 2010.  Overall, there is not much change in comparison to the January 4, 2010 report.

Among the most notable AAO processing times:

• H-1B appeal takes 14 months (increase by one month compared to January 4, 2010);
• I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 12 months (increase by one month) while EB1 Outstanding Professor or Researcher category takes 7 months (increase by one month);
• I-140 EB2 (Advanced Degree) takes 25 months (increase by one month) while EB2 (NIW) takes 7 months (increase by one month); and
• I-140 EB3 Skilled Worker takes 23 months (no change) while EB3 Other Worker takes 21 months on appeal (increase by two months).

Read the full AAO Processing Times report.

DHS Investigations on Employers to Continue and Increase

Janet Napolitano, the DHS Secretary, has indicated that employer investigations will continue and, possibly, intensify.  In 2009 there were $24 million in employer fines (compared to zero in 2006).  In 2009, 45 businesses and 47 individuals have been debarred while in 2008 only one was debarred.  Immigration and Customs Enforcement (ICE) has issued  over 1,000 I-9 Notice of Inspection (NOI) in 2009 to random employers with another 1,000 announced at the symposium.   I-9 audits, many of which are conducted randomly, may result in civil penalties, and where bad faith is found, lead to criminal prosecution.

DHS has clarified that it would continue under a two-prong approach:  (1) prosecute employers acting in bad faith and (2) work with employers to achieve compliance.

E-Verify Updates

DHS announced that there are more than 170,000 employers in the E-Verify system.  In 2008, there were 8.5 million queries run on new hires.  96.9% of those new hires were authorized by E-Verify within 24 hours; 2.8% are found to be ineligible to work; and 0.3% received tentative non-confirmation but were later confirmed as authorized to work.

DHS announced that the photo tool will be soon made available to designated agents, as well as to employers. The photo tool should also be expanded to include passport photos of U.S. citizens.

E-Verify Usage Issues.  DHS noted several E-Verify usage issues, as reported by a third party engaged to analyze E-Verify usage.

• It was reported that 16% of the E-Verify employers did not complete the tutorial – which can indicate, according to DHS, sharing of passwords by employers or insufficient training;
• 16% of the E-Verify employers use the system as a pre-screen, which is a violation of the E-Verify and can be prosecuted;
• 20% of employers took adverse action against prospective employees who received a tentative non-confirmation, again, in violation of E-Verify rules;
• 9% of employers received a tentative non-confirmation but failed to give notice to the employee of the election to contest.

FAR

Over 18,000 federal contractors are now enrolled in E-Verify following rules requiring such participation.  9,000 federal contractors have the FAR clause inserted in the federal contracts.

Conclusion

In light of these updates on DHS policies, it is clear that DHS will sharpen its focus on employers and require proper E-Verify participation (for E-Verify employers) and good Form I-9 compliance practices.  The increasing audits, fines and, in some cases, debarments, should serve as a notice to employers to create and follow proper employment authorization and immigration compliance programs.    Please contact us if we can help you evaluate and modify your programs.

Here is a summary of the March 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by six (6) weeks to July 8, 2005, and EB-2 India, moves forward by only one (1) week to February 1, 2005.
• EB-3 ROW moves forward by almost three (3) months to December 15, 2002, EB-3 China moves forward by almost three (3) months also to December 15, 2002, while EB-3 India moves forward by only one (1) week to July 1, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001.

Overall Pending Immigrant Visa

Family-based.  As of November 1, 2009, there are 245,516 family-based first preference category applications pending; 842,762 second category (324,864 in 2A and 517,898 in 2B sub-category); 553,280 in third category; and 1,727,897 in fourth category.  The total family-based NVC pending cases are 3,369,455.

Employment-based.   As of November 1, 2009, there are 3,601 employment-based first preference category applications pending; 6,295 second category; 119,759 in third category (103,448 in skilled workers and 16,311 in other workers sub-category); 529 in fourth category; and 325 in fifth category.  The total employment-based NVC pending cases are 130,509.

Distribution by Country

Thirteen countries represent 79% of the total NVC pending immigrant petitions.  Mexico is number one with 1,178,761 cases (most of which are family-based);  Philippines is second with 482,694, China-mainland is third with 197,559, while India is fourth with 194,954.

Please see the full report for more detailed statistics.  It is important to note that the annual FY-2010 maximum of family-based immigrant visas issued for any one country is 15,820.  The maximum employment-based immigrant visas issued for any country is 10,440.

Because DOL was not ready to accept electronic submissions on January 1, it announced that it would accept paper prevailing wage submissions until the iCert system is modified to accept prevailing wage requests on Form 9141.   As a result, many prevailing wage requests from early this year were submitted via mail.  On or about January 15, 2010, DOL launched the online prevailing wage request form and is now accepting online submissions.

Prevailing Wage Determinations Currently Take Three to Four Weeks

Unfortunately, delays in the processing of the prevailing wage requests are widely reported.  In many instances, paper request forms submitted before January 15th took one or two weeks to be entered into the system and confirmed as submitted.  We are seeing that it currently takes between three and four weeks for DOL to provide prevailing wage determinations.

In communications related to the new system, DOL has indicated that prevailing wage determinations may take up to 60 days.  This is in a sharp contrast to the pre-January 1, 2010 system where state workforce agencies were often able to provide prevailing wage determinations within 1-2 days.

We hope that DOL is experiencing adjustment issues to the new system and once system glitches are ironed out, DOL will staff the prevailing wage determination bureau properly so that determinations can be issued promptly.   To avoid delays in H-1B petitions associated with prevailing wage determinations, our office uses alternative prevailing wage surveys.  However, for PERM labor certification applications, the new prevailing wage determination system adds one to two months of additional PERM preparation time.

Background

Starting in December of 2009, our office has been receiving alerts from current and prospective clients about a number of incidents where holders of valid H-1B stamps were questioned and, in some cases, offered the opportunity to withdraw their request for admission into the U.S. or be subject to expedited removal proceedings;  in many cases, such H-1B holders were not admitted into the U.S. and sent back to their home country and have had their H-1B visas cancelled.

Due to the lack of information from CBP and the seriousness of the situation, a number of misleading and sometimes false rumors have began circulating among communities of H-1B holders on the Internet.    We hope that this alert will provide helpful information and understanding of what happens at Newarj, NJ airport and what can be done about it.

USCIS/ICE Employer Fraud Investigations Cause Scrutiny of H-1B Employees

CBP has confirmed that at least several of these cases involved companies which were under investigation by Immigration and Customs Enforcement (“ICE”) and/or USCIS for ongoing H-1B program fraud.  CBP noted that they use as much advance information as possible to target specific individuals who warrant additional inspection.  CBP also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.”

In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (“FDNS”) and the Department of Labor – Office of Investigations.  CBP stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed.  CBP confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

Newark, NJ Airport New Policy to Verify L-1 and H-1B Employees

CBP has also announced that the Newark, New Jersey airport has instituted a new policy which involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders.  Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

Public Information May be Consulted During or After Inspection

Employers should be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

Note the new fraud related language added to I-797 approval notices –

NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.

Conclusion: Proper Pre-Travel Preparation is Essential

It should be noted that although the recent news were linked with Newark, New Jersey airport, CBP may expand its policy and enforcement to other airports at any time.  In light of these developments, it becomes increasingly important for holders of H-1B and L-1 visas to prepare well for their return trip into the U.S., regardless of the port of entry they use to enter the U.S.

We advise all of our clients to thoroughly prepare for their trip to the U.S. and their inspection upon application for admission.  H-1B and L-1 visa holders should review all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer.  In addition, the H-1B or L-1 employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation.  Finally, employers should ensure that public information, such as websites and/or other materials, may be consulted by CBP agents to determine whether a particular H-1B or L-1 petition is valid.

In November of 2009, USCIS agreed to temporarily (for a period of 120 days) create a policy in line with the USCIS Ombudsman’s recommendations.   In a Memorandum dated as of January 28, 2010, by Alejandro Mayorkas addressed to the USCIS Ombudsman, USCIS announces that it will make permanent policy changes in line with the October 2009 Ombudsman recommendations.

USCIS Will Accept H-1B Petition With Evidence of Initial LCA Filing

H-1B petitions will be accepted with evidence of initial LCA filing if the H-1B has been filed at least 7 calendar days after the LCA was filed with DOL.   The petitioner must include a copy of the LCA submission’s email confirmation as evidence.

Petitioners who seek to use this H-1B filing procedure must wait until they receive an RFE before they can submit the already DOL-certified LCA in support of the H-1B filing.  The certified LCA must be the same LCA which was filed with the original H-1B petition, unless the petitioner provides an LCA which was certified prior to the submission of the H-1B petition.

Late Filings Due to LCA/FEIN Verification Delays Should Be Excused

In addition, USCIS has confirmed that it will continue to excuse late H-1B filings under 8 C.F.R. 214.1(c)(4) or 8 C.F.R. 248.1(b) when the delay in filing of the H-1B petition requesting an extension of H-1B stay or change of status to H-1B was related to LCA issuance delays beyond the control of the petitioner and/or denials by DOL due to employer’s FEIN verification issues.

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 January 4, 2010.  Overall, there is not much change in comparison to the December 2, 2009 report.

Among the most notable AAO processing times:

• H-1B appeal takes 13 months (increase by one compared to December 2, 2009);
• I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 11 months (no change) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
• I-140 EB2 (Advanced Degree) takes 24 months (two months improvement) while EB2 (NIW) takes 6 months (or current, meaning less than 6 months); and
• I-140 EB3 Skilled Worker takes 23 months (no change) while EB3 Other Worker takes 23 months on appeal (no change).

Read the full AAO Processing Times report.

AILA Seeks Rescission of the Neufeld Memorandum

Our office has revised its standard H-1B preparation guidelines for third-party worksite H-1B petitions to comply, to the extent possible, with the new requirements imposed by the Neufeld Memorandum.  In the meantime, the American Immigration Lawyers Association (AILA), in a January 26, 2010, Memorandum addressed to the Chief Counsel of USCIS, calls for the rescission of the Neufeld Memorandum effective immediately and for the issuance of a new memorandum to redefine the employer-employee relationship differently, considering legal precedent.

The AILA Memo is quite lengthy (24 pages) and goes into a great detail to substantiate its main claims that (1) the Neufeld Memorandum improperly creates substantive new rule outside the proper channel for making such rules and (2) that the employer-employee relationship definition in the Neufeld Memorandum is improper and is against congressional intent.

The Neufeld Memorandum is Improper Rulemaking

As an initial matter, AILA argues that the Neufeld Memorandum is issued improperly  because it seeks to change substantive rules without the necessary process.  Change in substantive rules must be done by following the required notice and comment procedures.  AILA argues that the “guidance” in the Neufeld Memorandum is a substantive rule change which cannot be imposed by a memorandum;  instead it should follow the normal rulemaking process.  As a result, AILA argues that the Neufeld Memorandum should be set aside as a violation of the Administrative Procedures Act (APA).

The Neufeld Memorandum Definition of Employer-Employee Relationship is Incorrect

As its main argument for seeking the rescission of the Neufeld Memorandum, AILA argues that the sweeping definition of “employer” is inconsistent with the law, impedes its intent and purpose and is inconsistent with decades of precedent.  The AILA Memo then goes into great detail and legal analysis of its claim to conclude that the Neufeld Memorandum, in addition to certain recent AAO’s non-precedent decisions and the accompanying adjudications at the Service Centers that are applying these decisions to current filings seek to overturn over fifty years of consistent precedent and regulatory interpretation to categorically deny eligibility for benefits to an entire class.

Conclusion

The AILA Memorandum is a well researched and substantiated request for the rescission of the Neufeld Memorandum.  However, we do not know yet what USCIS’ position would be in response and whether USCIS will take any steps in response to this memorandum.  We will continue to provide updates on this topic as it is of great interest of our clients, readers and a large portion of the employment-based immigration community.

ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the Visa Waiver Program (WVP). ESTA has been mandatory since Jan. 12, 2009 for all nationals of VWP countries traveling to the U.S under the VWP. The requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.

ESTA applications may be submitted at any time prior to travel, and once approved, generally will be valid for up to two years or until the applicant’s passport expires, whichever comes first. Authorizations are valid for multiple entries into the U.S. The Department of Homeland Security recommends that ESTA applications be submitted as soon as an applicant begins making travel plans.

VWP travelers are required to log onto the ESTA Web site and complete an online application. The web-based system prompts applicants to answer basic biographic and eligibility questions typically requested on a paper I-94W form; ESTA is expected to completely replace the paper I-94W in the coming months. A third party, such as a relative, a friend, or a travel agent, may submit an application on behalf of a VWP traveler.

ESTA Registration Mandatory – New Enforcement Campaign

We have written in the past about the Electronic System for Travel Authorization (ESTA) which became mandatory more than one year ago, on January 12, 2009, for all Visa Waiver Program (VWP) travelers into the U.S.

The Department of Homeland Security (DHS) has recently announced a 60-day campaign to enforce ESTA registration.  Pursuant to this campaign, DHS will use its authority to deny entry to all VWP travelers to U.S. who have not registered with ESTA.   Beginning January 20, CBP will initiate a 60-day transition to enforce ESTA compliance for air carriers; VWP travelers without an approved ESTA may not be allowed to board a U.S.-bound plane.

Background of H-1B Filing Fees

There are several H-1B filing fees, which are applied differently depending on the employer (private employer v. university or non-profit research entity) and on the type of petition (new H-1B, first extension or second/subsequent extension).  We are happy to guide on the applicability of these fees.

Regardless of their applicability, the H-1B filing fees are:

1. H-1B filing fee – $320;
2. Fraud prevention fee – $500;
3. ACWIA fee – $750 (for employer with 25 or less employees) or $1,500 (for employers with 26 or more employees); and
4. Premium processing fee (optional) – $1,000.

Fraud Prevention Fee Must be Paid by Employer

The only requirement with respect to who pays a specific H-1B fee is that the $500.00 fraud prevention fee be paid only by the employer.  The rest of the H-1B filing fees can be paid by either the employer or the employee.

What Happens if the Employee Pays the $500 Fraud Prevention Fee?

In cases where the $500.00 fraud prevention fee is paid by the employee, this cost will be deducted from the total wage paid to the H-1B beneficiary when determining whether s/he has received the required wage.   Pursuant to H-1B regulations, the “required” wage is the higher of the actual or prevailing wage.  The “actual” wage is defined as the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question.

As a result, if the employee is paid an amount which is $500.00 or less more than the required wage (as defined above), then the employer may be deemed to be in violation of the H-1B regulations requiring payment of the so called required wage.

Conclusion

To avoid uncertainties associated with whether the employer has paid the required wage, we urge our H-1B clients to structure the fee payment in a way that the $500 fraud prevention fee is paid by the employer.   The rest of the fees may be paid by either the employee or employer, as the parties negotiate or as the employer’s policies dictate.

Focus on Employer-Employee Relationship

The guidance is primarily concerned with the employer-employee relationship.  Pursuant to the H-1B regulations, an employer who seeks to sponsor a temporary worker in an H-1B specialty occupation is required to establish such employer-employee relationship.  USCIS deems that such relationship is established when the employer has the right to control the means and manner in which the work is performed.

Some of the factors which are helpful in determining whether such employer-employee relationship exists are the employer’s ability to pay, hire, fire, supervise or otherwise control the work of the employee.

Who Is Most Affected by the New Guidance?

While the employer-employee relationship must be established in all H-1B cases, in practice, the right to control and the employee-employer relationship issues arise in self-employment, contractor (or consultant) companies or with beneficiaries placed at third-party worksites.  The right to control issue should be addressed also with in-house H-1B petitions, although in many cases it would be easy to establish such right to control when the employee is working on the employer’s premises.

Establish the Employer’s Right to Control

Under the Neufeld Memorandum guidance, with each H-1B petition, USCIS must determine if the employer  has a sufficient level of control over the employee.

The right to control can be established when considering the following factors:

1. Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
2. If the supervision is off-site, how does the petitioner maintain such supervision (weekly calls, progress reports, site visits, etc.)?
3. Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
4. Does the petitioner provide tools or instrumentalities needed by the beneficiary?
5. Does the petitioner hire, pay and  have the ability to fire the beneficiary?
6. Does the petitioner evaluate the work-product of the  beneficiary?
7. Does the petitioner claim the beneficiary for tax purposes?
8. Does the petitioner provide the beneficiary any type of employee benefits?
9. Does the beneficiary use proprietary information of the petitioner in order to perform the duties?
10. Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
11. Does the petitioner have the ability to control the manner and the means in which the work product of the beneficiary is accomplished?

The Neufeld Memorandum provides that these factors should be weighed in the “totality of the circumstances” which allows some flexibility to focus on some, but not all, factors.

Additional Evidence Required in H-1B Filings by Consulting Companies and Third-party Worksite Employers

As a result of the Neufeld Memorandum, USCIS establishes a new level of evidence to be submitted as part of all new, transfer and even extension H-1B petitions filed by employers which intend to place the beneficiary at a third-party worksite.

Currently, such third-party worksite H-1B applications require evidence to establish the exact position and duties in which the beneficiary will be engaged at the third-party worksite.  In addition, as a result of the new guidance, H-1B petitioners will have to now include information to satisfy all or many of the right to control factors described above.

Pursuant to the field guidance, such right of control test is applied to all new, transfer and even H-1B extensions with the same employer.

Conclusion

The Neufeld Memorandum creates another set of information and documents which will have to be prepared and provided as part of each H-1B filing by a consulting, self-employment and third-party worksite petitioner.

While the guidance is intended to apply for all H-1B beneficiaries, regardless of where they are employed, the guidance is most likely to be more rigorously enforced against employers who file H-1B petitions on behalf of employees placed at a third-party site or off-site.

Petitioners who regularly place employees off-site should become familiar with the 11 factors described above  and be prepared to answer and document the petitioner’s right to control the intended H-1B beneficiary.

In 1990, the U.S. Congress created the fifth employment-based preference category (EB-5) for qualified foreign entrepreneurs seeking to invest in a business that will benefit the U.S. economy and create or save at least 10 full-time jobs. The basic amount required to invest is $1 million, although that amount is reduced to $500,000 if the investment is made in a rural or high unemployment area.  Of the approximately 10,000 EB-5 green cards available each year, 3,000 are reserved for foreign nationals who invest through a Regional Center.

A Regional Center is a private enterprise or corporation or a regional governmental agency with a targeted investment program within a specific region.   The Regional Center Investment Program allocates 3,000 green cards each year for people who invest in designated Regional Centers.  The program does not require that the foreign investor’s enterprise itself directly employ 10 U.S. workers.  Instead, it is enough if 10 or more jobs will be created directly or indirectly as a result of the investment. As a result, he Regional Center Investment Program aids foreign investors by directing and professionally managing their investment in the designated business and geographic focus of their Regional Center.

Current Regional Centers

An updated list of approved EB-5 Regional Centers can be found at USCIS’ website below:

Immigrant Investor Regional Centers (external link)

As of the date of this article, there are 75 approved Regional Centers and there are approximately 50 Regional Center applications pending for review at USCIS California Service Center.

Contact Us for Information and Help

Please contact us if we can help you  understand the EB-5 Regional Center program, help you establish eligibility and guide you through the process.

I-526 Premium Processing Possible Later in the Year

A review of the question of reinstating premium processing for I-526 petitions will be done during the second quarter of 2010.  USCIS will reinstate premium processing if it determines that it has sufficient resources at the California Service Center to adjudicate I-526 within the 15-calendar day window.

EB-5 Statistics

As of December 14, 2009, USCIS was able to provide only statistics for fiscal year 2009 (FY 2009).  Accordingly, in FY 2009, where were 1,028 I-526 petitions (EB-5 immigrant petition) filed, of which 966 were approved and 163 denied.   Also, in FY 2009, where were 437 I-829 (removal of condition) petitions filed of which 335 were approved and 55 denied.

Note that these numbers do not add up because not all petitions filed during FY 2009 are adjudicated during FY 2009.  Additionally, some petitions filed during FY 2008 are adjudicated during FY 2009 and are included in the numbers above.

• Regular processing: March 2009.  DOL is processing PERM applications with priority dates in March 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: December 2007.  This is movement forward of two (2) months in comparison to the November 31, 2009 report, resulting a net additional gain of one (1) month for audited PERM applications.  Accordingly, audited PERM processing times should be approximately 24 months.
• Appealed applications: August 2007.  There is no movement this month in this category in comparison to November 31, 2009, resulting a net additional delay of one (1) month for appealed PERM applications.  Accordingly, PERM appeals take approximately 28 months.

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.

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by three (3) weeks to May 22, 2005, and EB-2 India, again, remains unchanged at January 22, 2005.
• EB-3 ROW moves forward by almost two (2) months to September 22, 2002, EB-3 China moves forward by almost two (2) months also to September 22, 2002, while EB-3 India remains unchanged.
• Other worker visa numbers remains unchanged at June 1, 2001.

From our daily interactions with clients, we have a number of USCIS website topics which are in need of improvement, or at the very least, discussion.  However, we wish to solicit some feedback and comments from our clients and readers.  If you have a story, comment, a complaint or a suggestion, please use our contact form to submit your comment, story or a question no later than Monday, January 25, 2010.  We will try to raise as many of those questions as we can and post the responses on our website.  Thank you!

Submit USCIS website comments and feedback.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferree

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

H-1B Program Changes by Congress Unlikely

While we do not expect Congress to raise the H-1B cap for FY2010, it is nonetheless possible.  There are a number of proposals currently circulating in Congress, some of which aim to increase the H-1B cap.  However,  the chance of such proposals becoming law outside of a comprehensive immigration reform (which is barely starting to gain ground) is small.

Wait and File on April 1, 2010 for the FY2011 Cap

For some of our clients, waiting until April 1, 2010 to file a new cap-subject H-1B petition may be the best option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, the FY2011 H-1B cap is expected to be the same as it was for the FY2010 fiscal year – 65,000 H-1B visas.  However, as the economy starts to improve and employers increase hiring, we do not expect that next year’s H-1B numbers will remain available for as much as 8 months, as they did in 2009.   Accordingly, we urge employees and employers to prepare and file most or all of their H-1B petitions on or about April 1, 2010, to ensure that their petition has the greatest chance to be included in the quota.

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 December 2, 2009  Overall, we notice delays across all categories.

Among the most notable AAO processing times:

• H-1B appeal takes 12 months (one month improvement compared to the November 1, 2009);
• I-140 EB1 Extraordinary Ability takes 4 months (one month improvement), Multinational Manager or Executive takes 11 months (increase by one month) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
• I-140 EB2 (Advanced Degree) takes 26 months (one month improvement) while EB2 (NIW) takes 6 months (or current, meaning less than 6 months); and
• I-140 EB3 Skilled Worker takes 23 months (no change) while EB3 Other Worker takes 23 months on appeal (no change).

Read the full AAO Processing Times report.



• Regular processing: February 2009.  DOL is processing PERM applications with priority dates in February 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: October 2007.  This is movement forward of two (2) months in comparison to the July 31, 2009, resulting a net additional delay of two (2) months for audited PERM applications.
• Appealed applications: August 2007.  This is movement forward of only one (1) month in comparison to July 31, 2009, resulting a net additional delay of three (3) months for audited PERM applications.

Based on these numbers, we can conclude that while the August-November 2009 period brings certain forward movement for regular PERM applications, it still takes approximately 9 to 10 months for a regular PERM case to be certified.  With respect to audited or appealed cases, the processing times indicate additional delay.

Thank you for your support throughout 2009. We owe our success to you, our clients, readers and friends and we wish to express our gratitude and continued support.

We are looking forward to working with you during the new year and we wish you a prosperous, happy and joyous New Year 2010.

About Section 221(g)

Section 221(g) of the Immigration and Nationality Act (INA)  provides for temporary refusal of visa when an otherwise qualified visa applicant is found to be lacking a specific document, or when a consular officer determines that additional “security clearance” is appropriate and needed.  Consular officers mainly use 221(g) as a way of giving the visa applicant another opportunity to supplement their applications in order to address concerns or deficiencies in the initial application.   Once the deficiency is addressed, the 221(g) refusal is “overcome” and the visa may be issued.

Reasons for 221(g) Refusals

There are several reasons for issuing a 221(g) refusal.  Among the most common are:

• The applicant is asked to provide additional supporting documents, such as proof of employment.
• The applicant is employed in a field listed on the Technology Alert List (TAL) and the consular officer requests a Visas Mantis Security Advisory Opinion.   This is one of the most common reasons for issuing 221(g) to applicants in India, China and elsewhere where the applicants are told that their application requires “administrative processing.”
• The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the grounds of inadmissibility.
• There are no empty visa pages in the applicant’s passport, or the application photo does not meet the requirements.
• The applicant’s petition approval is not yet listed in PIMS.

Section 221(g) Refusals Are Very Common

The Department of State has acknowledged that 221(g) refusals happen too often and may be subject to overuse.  According to the Visa Office, in fiscal year 2008,  there were 589,418 nonimmigrant visa refusals under 221(g).  Of those, 510,549 were successfully overcome and visas issued – a success rate of 87%.

Section 221(g) Impact on Future Applications

Since Section 221(g) is technically a refusal, our office often is asked whether a 221(g) should be disclosed on future visa applications, or, in the case of Visa Waiver Program travelers, on their electronic registration forms.

The answer is that 221(g) is a refusal and the applicant, in a subsequent visa application, must answer “YES” to the question “Have you ever been refused a U.S. visa?” on Form DS-156 or DS-160.   This applies even if the 221(g) refusal is based on something as innocent as lack of information in the PIMS database.   Of course, after disclosing YES, on this question in a subsequent visa application, the applicant should be prepared to explain the circumstances of the 221(g) refusal.

Similarly, Visa Waiver Program travelers,  must disclose any 221(g) refusals in their ESTA forms.  We wrote about this topic earlier in November 2009.

Help With 221(g) Refusals

Despite the reason of the 221(g) refusal, we urge applicants who are issued a 221(g) to contact an immigration attorney to better understand the reasons for the 221(g) refusal and to evaluate their case for options and alternatives.  Often, we are in a position to explain the deficiency and help an applicant take steps to address it, either by preparing additional documents or by explaining the circumstances directly to the consular officer who issued the 221(g).  Please contact us if you received a 221(g) and need assistance with your application.

Mr. Oppenheim’s Comments

Although there is no guarantee that Mr. Oppenheim’s comments to AILA would turn into reality, he has been very accurate and careful in his comments in the past.

EB-3 Worldwide (ROW).  Visa numbers are expected to progress to April-August 2005.  Such movement will be gradual and is expected to start in January or February of 2010.

EB-2 China and India.  Annual limits are expected to be reached no later than May.  It is possible that otherwise unused second preference numbers to be made available.  This makes the cut-off date for both EB-2 India and China to progress to October-December 2005.

EB-3 China.  It is expected to move along with EB-3 ROW over the next few months.  The fiscal year is expected to end with a June-September 2003 cut-off.

EB-3 India.  Very slow movement expected.  There are 58,000 pending applications and it is expected to move only  up to five (5) weeks over the entire fiscal year.

Our Conclusion

While there are some good news in this announcement, it becomes clear that some categories, especially EB-3 India, become very undesirable and we strongly recommend clients and readers who are in EB-3 India to consider either filing in EB-2, if possible, given education and experience.  Many EB-3 India applicants who have been waiting for 4-5 years already find themselves facing another 4-5 year wait.  As a result, we often see second EB-2 applications using the recently gained experience filed (often by switching employers) by retaining the earlier EB-3 priority date.  Please contact us if we can help you understand whether your case may qualify.

No New FY2010 Cap-Subject H-1B Filings Accepted

USCIS will reject all cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009.  For those petitions received on December 21, 2009, USCIS will apply a computer-generated random selection process.

H-1B Quota – Last Day(s)

The numbers, as reported indicate that the H-1B cap will close within one or two days.  As a result, we are not be able to take any new FY2010 H-1B cases.  Please contact us if you would like us to help you obtain an H-1B under the FY2011 quota which is set to open on April 1, 2010.

About DS-160

The DS-160 application form combines all information previously collected on the DS-156, 157, and 158 for appropriate applicants, and the DS-3052. Applicants for “E” class treaty trader NIVs will complete the DS-160 and have to fill out a hard copy DS-156E until the DS-160E electronic form is fielded in the near future. Until further notice, K visa applicants should continue to use the DS-156 and DS-156K instead of the DS-160.

Timeline of Worldwide Rollout

The rollout will be in two main phases.  First phase posts must adopt the DS-160 prior to March 1, 2010, for all applicants, with the exception of K’s.   Those posts are Algiers, Algeria; Vienna, Austria; Manama, Bahrain; Minsk, Belarus; Beijing, China; Chengdu, China; Guangzhou, China; Shanghai, China; Shenyang, China; Havana, Cuba; Djibouti, Djibouti; Cairo, Egypt; Addis Ababa, Ethiopia; Paris, France; Frankfurt, Germany; Chennai, India; Hyderabad, India; Kolkata, India; Mumbai, India; Delhi, India; Jakarta, Indonesia; Surabaya, Indonesia; Tel Aviv, Israel; Jerusalem; Amman, Jordan; Nairobi, Kenya; Kuwait City, Kuwait; Kuala Lumpur, Malaysia.

All remaining posts not listed above should implement the DS-160 between March 1, and April 30, 2010 for all applicants, with the exception of Ks.

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by one (1) month to May 1, 2005, and EB-2 India remains unchanged at January 22, 2005.
• EB-3 ROW moves forward by two (2) months to August 1, 2002, EB-3 China moves forward by two (2) months to August 1, 2002, while EB-3 India moves forward by almost two (2) months to June 22, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one month to June 1, 2001.