Size and Composition of the Foreign-Born Population

In 2012, about 40 million foreign-born people lived in the United States, making up about 13 percent of the U.S. population—the largest share since 1920. The number of immigrants was about the same in 2011, the latest year for which certain data on immigrants are available. Of that total in 2011, naturalized citizens (foreign-born people who have fulfilled the requirements for U.S. citizenship) accounted for about 18 million, and noncitizens (foreign-born people authorized to live and work in the United States either temporarily or permanently and people who are not authorized to live or work in the United States) accounted for about 22 million. About half of the noncitizens were people without authorization to live or work in the United States, either temporarily or permanently.   See chart.

In 2011, about 37 percent of foreign-born people in the United States were from Mexico or Central America; the next-largest group came from Asia and constituted about 28 percent of the total foreign-born population.  Of noncitizens unauthorized to live in the United States, an estimated 59 percent were from Mexico, and an estimated 14 percent were from El Salvador, Guatemala, or Honduras.   See chart.

Lawful Permanent Residents

From 2000 to 2012, more than 13 million people were granted lawful permanent resident (LPR) status in the United States, an average of about 1 million per year. Lawful permanent residents are permitted to live, work, and study in the United States, and receiving LPR status is an important milestone on the path to U.S. citizenship. Roughly two-thirds of new LPRs were immediate relatives of U.S. citizens or were admitted under family-sponsored preferences.

Demographic Characteristics of the Foreign-Born Population

In 2012, about 1 in 4 people in California and about 1 in 5 people in New York and in New Jersey were born in another country. However, in another 31 states, taken together, only about 1 person in 20 was foreign born. See chart.

Between 1999 and 2012, the share of the population constituted by foreign-born people increased in all but two states and, for the nation as a whole, rose by 2.8 percentage points, to roughly 13 percent.   See chart.

Level of education is somewhat less, on average, among foreign-born people than among native-born people, and it varies considerably depending on immigrants’ country of origin. In 2012, 27 percent of the foreign-born population between the ages of 25 and 64 had not completed high school, compared with 7 percent of the native-born population. More than half of the people from Mexico and Central America, 54 percent, had not finished high school, but only about 9 percent of the people from Asia and 5 percent of the people from Europe and Canada had less than a high school education. In addition, about 55 percent of the people from Asia had at least a bachelor’s degree, as did 51 percent of the people from Europe and Canada; just 33 percent of the native-born population had earned at least a bachelor’s degree.   See chart.

Labor Market Characteristics

An interesting analysis focused on the ability to seek/find employment and on the salaries received by various segments of the immigrant population.   For example, foreign-born men are more likely to be working or looking for work (that is, to be
in the labor force) than are native-born men; foreign-born women, however, are less likely than native-born women to be in the labor force.

The differences in educational attainment and participation in the labor force (as well as in groups’ concentration in particular occupations) were reflected in differences in annual earnings. The amount and distribution of annual earnings were similar for naturalized and native-born citizens, but earnings tended to be much lower among noncitizens. The amount of annual earnings among foreign-born workers also varied greatly by their country of origin. For example, in 2011, the median annual earnings of male workers from Mexico and Central America was $24,000—whereas among male workers from Asia, the median was $50,000; among their counterparts from Europe and Canada, it was $55,000; and among native-born male workers, $46,000. Among female workers from Mexico and Central America, median annual earnings were $17,000—whereas among their counterparts from Asia, the median was $30,000; among those from Europe and Canada, it was $35,000; and among native-born female workers, $32,000.

Conclusion

The CBO report is very interesting as it raises some questions with respect to the demographics and labor market participation of the individuals who would be covered under the proposed CIR.   Also, this report is likely to be used by all sides in the CIR debate as to why certain parts of the proposed reform should be kept or changed, depending on the political standpoint of those making the argument.

We continue to monitor closely developments in Congress related to Comprehensive Immigration Reform and we expect a lot of activity over the next days and weeks.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of April 1, 2013.

Current PERM Processing Times

Most notable is the slight delay in the processing time for regular PERM applications — to approximately four months.  The processing times, as reported by DOL, are as follows:

• Regular processing: December 10, 2012.  DOL is processing PERM applications with priority dates of about December 10, 2012.  Accordingly, regular PERM processing times should be around four to five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: June 30, 2012.  DOL is processing PERM audits which have a priority date of June 30, 2012.  This processing time has remained steady over the past few months.   Accordingly, audited PERM applications are processed approximately eight to nine months after the initial PERM was filed and the priority date established.
• Appealed applications (requests for reconsideration to the Certifying Officer):  April 4, 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in April 2013.  There is continued notable improvement in this category in comparison to prior months.    Accordingly, PERM requests for reconsideration are processed within approximately one or two months  after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
• “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The April 2013 PERM processing times report shows steady trend in the regular and appealed PERM processing times, and a notable (and welcome) improvement in the PERM appeal (motion for reconsideration) processing times.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the improvements in PERM audit and appeal processing times would continue in the fall and spring.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

Please see our recent alert about the changes to the Form I-9.   Among the most notable changes in the new edition of the Form I-9 are:   improvements to include new fields (such as passport, telephone and email of the worker), reformatting to reduce errors, and clearer instructions to both employees and employers.

Those employers who are still using a Form I-9 edition other than revision date 03/18/2013 should immediately start using the new form for hiring and re-verification, when applicable.  USCIS has also updated the Handbook for Employers, Guidance for Completing Form I-9 to reflect the changes to Form I-9.

Conclusion

The newest version of Form I-9 represents the most significant revision of the Form since its last major revision in November 1991. Capitol Immigration Law Group is happy to answer any questions and will host a Form I-9 training seminar to assist employers with navigating and understanding the new Form I-9. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our I-9 compliance practice group can be of any help, please feel free to contact us.

Alternatives to H-1B Cap Petitions

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2014, when the new fiscal year’s H-1B quota would begin (as a reminder, April 1, 2014 is the earliest a cap-subject H-1B application can be filed).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our FREE initial consultation.

Cap-Exempt H-1B

A number of employers may qualify to be cap-exempt and are allowed to file for H-1B petition at any time.   A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or  (3) nonprofit research organization or a governmental research organization.  Please see our cap-exempt H-1B employer guide.   As a result, many educational institutions, non-profit and research organizations may qualify to file cap-exempt H-1Bs.   We are happy to help evaluate whether an employer can qualify to be cap-exempt.

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 Transferee

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.

TN for Canadian and Mexican Professional Workers

An option available to certain Canadian and Mexican nationals in certain occupations is the TN visa classification.   It is available to citizens of Canada and Mexico who would be employed in the U.S. in one of the designated occupations.  The TN visa is not subject to a cap and can be obtained fairly easily either by applying at the border (for Canadians) or by filing a petition with USCIS.    Please see more information on the TN visa classification.

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 Possible, Although Timing is Uncertain

Not entirely by coincidence, the comprehensive immigration reform proposal which was introduced in the U.S. Senate over the past couple of days increases substantially the H-1B cap, among other changes to the H-1B program and the immigration system, generally.     Please read our overview and analysis of this proposal.

Unfortunately, this proposal is likely to be subject to extensive discussion, amendments and negotiation here on Capitol Hill and we do not know if or when the proposed immigration reform would become a law.   As a result, we urge caution with respect to reading too much into the initial proposal.   However, if the proposal becomes a law, then the H-1B cap would expand significantly and hopefully,  in upcoming  H-1B cap years, we would not face this kind of extremely narrow filing H-1B cap window.

Wait and File on April 1, 2014 for the FY2015 Cap

For some of our clients, waiting until April 1, 2014 to file a new cap-subject H-1B petition may be the best (or only?) 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, and assuming the proposed immigration reform is not enacted by then, the FY2015 H-1B cap is expected to be the same as it was for the FY2013 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).

Conclusion

Our office will continue to monitor developments relating to the H-1B program, this and next year’s caps and the immigration proposals.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

Update (April 17, 2013):  the full text of the proposed legislation has been made available.

Please note that at this point, this is only a proposed legislation and is not the law.

Summary of the Proposed Immigration Reform

The Border Security, Economic Opportunity and Immigration Modernization Act of 2013 deals with a number of immigration issues:

• Family Visa (Green Card) Program.   Allows unlimited number of immigrant visas per year for spouses, children and parents of U.S. citizens and permanent legal residents.   Eighteen months after enactment of the law, eliminates immigrant visas for foreign brothers and sisters of US citizens, and married children over 30 years of age.  Backlog to be eliminated.
• Employment Visa (Green Card) Program.  Backlog targeted for elimination.  Derivative beneficiaries (spouses/children) will be exempt from the annual visa numerical limits.  Also, exempt will be extraordinary ability, outstanding professors/researchers, multinational executives/managers, Ph.D. holders and certain physicians.  Increased allocation for EB-2 and recent U.S. STEM Master’s degree holders.
• Startup Visa (Green Card) Created.  The proposal would create a startup visa for entrepreneurs who seek to emigrate to the U.S. to start their own company.
• Merit Based Visa (Green Card) Created.  After five years, a new merit-based visa will be created and would allocate green cards based on points awarded on the basis of education, employment, length of residence in the US and other factors.   120,000 visas available per year, with annual adjustments.
• H-1B Cap, Salaries and Fees Increases; H-1B Dependent Employers.   The H-1B cap will double to 110,000 with the possibility of adjustments of the cap of up to 180,000 per year.  The minimum H-1B salary will increase and the fees paid by H-1B employers will be increased.   Employers will see limits on how many H-1B workers they can have.
• Guest Worker Program.  Establishes a new visa program for 20,000 foreigners in low-skilled jobs starting in 2015.   The number of visas increases to 75,000 in 2019.   A new federal agency will analyze employment date to make adjustments on the cap – with a maximum of 200,000 annually.   Construction companies will be limited to no more than 15,000 per year.   There is also a “safety-valve” to allow additional visas in excess of the annual cap provided employers pay workers higher wages.
• Farm Worker Program.   Visas for agriculture workers (including those who are without authorization) would be made available and wages will have to be based on survey of labor-market data.  The H-2A program will be eliminated once the new W-2 or W-3 program is operational.
• Diversity Visa (Green Card) Lottery.   To be eliminated in 2015.
• Path to Citizenship.   Most of the 11 million people who are in the country without authorization would be able to apply for a green card after 10 years and for citizenship three after that.   Applicants must pay a fine, pay back taxes, learn English and pass background check.   The cutoff date for eligibility is December 31, 2011.   Dream Act youth can obtain green cards in five years and citizenship immediately thereafter.
• Border Control and E-Verify Required.   The Department of Homeland Security will receive funding to improve border security with drones, agents and fencing.   US companies must implement the E-Verify employment authorization system which ensures that workers are legal residents within five years.   All non-citizens will be required to show “biometric work authorization card” or “biometric green card.”   A new entry/exit tracking system will be implemented at ports to better track foreign visitors who overstay their visas.

Family and Employment-Based Immigrant Visas

The proposed immigration law will substantially revise the current family- and employment-based immigrant visa (green card) system.  It will aim to eliminate the current (significant) backlog in most of the immigrant visa categories and then, in five years, introduce a merit-based immigrant visa.

Family-based.

Out of the four family-based preference categories (which have annual limit of 480,000), two will be eliminated and the eligibility for the rest will be revised.   Under the new bill, there will be two family-based categories and they will cover unmarried adult children; married adult children who file before age 31, and unmarried adult children of lawful permanent residents.   The V visa will be expanded to allow individuals with approved family petition to reside in the US and other family members to visit the US for up to 60 days per year.

The bill removes immigrant visas for siblings of U.S. citizens (in 18 months after the bill is enacted) and amends the definition of “immediate relative” to include a child or spouse of an alien admitted for lawful permanent residence.  Also, the existing category for married sons and daughters of U.S. citizens is amended to include only sons and daughters who are under 31 years of age.

Employment-based.

The new bill will exempt the annual numerical limitations the following categories:  derivative beneficiaries (spouses/children) of employment-based immigrants; aliens of extraordinary ability, outstanding professors/researchers; multinational executives and managers; Ph.D. degree holders in any field; and certain physicians.  Currently, all of these categories are counted under the annual numerical limits and, as a result, are slowing down the approval of the immigrant visas for everyone else.

Forty percent of the employment-based immigrant visas will be allocated to what are now considered to be EB-2 workers with the addition of recent (the five years before petition is filed) U.S. master’s degree holders in a STEM field.

Additionally, an increased allocation (forty percent) of the annual employment-based limit will be allocated to skilled workers, professionals and other professionals.  The limit to immigrant visas for special immigrants will be ten percent and visas for those who foster employment creation (entrepreneurs/job creators) will also be limited to ten percent.

The bill would also create a startup visa for foreign entrepreneurs who seek to emigrate to the U.S. to start their own companies (and presumably create jobs).

Merit-based.

The merit-based immigrant visa will be created in the fifth year after enactment of the proposal and would award points to applicants on the basis of education, employment, length of residence in the US and other factors.   The applicants with the most points would be granted the merit-based immigrant visa.   The annual limit would be set at 120,000 and the number would increase by 5% per year if demand exceeds supply in any year, assuming the U.S. unemployment rate is under 8.5%.  The cap cannot exceed 250,000 per year.

Until the merit-based program starts (five years after enactment), the government will allocate the visa numbers to employment-based applicants who have been pending for more than three years, family-based petitions filed prior to enactment and pending for more than five years, long-term immigrants (those who have been in the US for 10 years).  In other words, the government will use these numbers to decrease the current backlog in the employment and family immigrant visa categories.

H-1B Visa Reformed – Cap and Fees Will Increase; H-4 Spouses May Work; Additional Requirements on H-1B Employers

Cap Increase.

The H-1 work visa program is set to be revised substantially.  The H-1B cap will be doubled from 65,000 to 110,000 per year, with the U.S. master’s cap amended to include only U.S. master’s degree holders in STEM fields and with the cap for such holders increased to 25,000 per year.   The H-1B cap will be adjusted annually, depending on demand and can go as high as 180,000 per year (but with maximum annual adjustment of 10,000).

H-1B Fees.

The H-1B fees will increase substantially, for some (mostly H-1B dependent) employers.  If an employer has 50 or more employees and more than 30% but less than 50% are H-1B or L-1 employees (who do not have a green card petition pending), the employer must pay a $5,000 fee per additional worker in either H-1B or L-1 status.  If the employer has 50 or more employees and 50% are on H-1B or L-1 status (and do not have a green card petition pending), then the additional fee is $10,000 per worker.

H-1B Employee Number Limits and Recruitment Requirements.

The bill also introduces certain restrictions on the number of H-1B employees a company can have.   Starting fiscal year 2014, companies will be banned from brining any additional workers if more than 75% of their workers are H-1B or L-1 employees.   Starting fiscal year 2015, the ban applies to companies if more than 65% of their workforce are H-1B and L-1 workers and in fiscal year 2016, the ban moves down to 50%.  It is unclear if pending green card applicants would be included in this count.

Before an employer can file an H-1B petition, the employer will have to recruit American workers first.  The Department of Labor will have a searchable website for posting H-1B positions and employers will have to post a detailed job opening on this website for 30 days before hiring an H-1B applicant to fill that position.

H-4 Employment Authorization

The bill would allow spouses of H-1B workers (who are on H-4 status) to obtain work authorization if the country of origin provides reciprocal treatment to spouses of U.S. workers.

H-1B Portability.

The bill would create a 60-day transitional period during which H-1B workers will be eligible to change jobs – in contrast to the current system where there is no grace period between switching jobs.

Dual Intent for F-1 Student Status.

The bill would create dual intent for F-1 students who apply to come to the U.S. to study in a bachelor’s (or higher) level program.  This should make it easier for many F-1 students to obtain a visa stamp at the U.S. Consulate as a substantial number of F-1 visas are being denied due to some immigrant intent.

New Guest Worker Program

The bill proposed a new guest worker program which would be a “W” visa.   The W visa holder will be able to come to the US o perform services or labor for a “registered” employer in a “registered” position.  Spouses and children would be able to accompany the worker and would be given work authorization.   There will be an annual cap of 20,000 initially, with annual increase to a maximum of 75,000 in 2019.  Afterwards, the annual cap would vary depending on a calculation of employment and demand with an increase in the cap being linked to lower unemployment and increase in the required salary – the so-called “safety valve”

The maximum period of stay for W nonimmigrants would be 3 years and may be renewed for an additional 3-year period.  There is a limit on unemployment (60 consecutive days).

Employers who wish to employ W visa workers will have to submit an application and describe the type and number of employees needed.  Before an application can be submitted, however, the employer would have to advertise for at least 30 days and carry a number of recruitment steps.  Annual reports will have to be submitted to the government.  The wages should be either the actual wage paid by the employer to other employees with similar experience or the prevailing wage, whichever is higher.

The W visa would not be available to positions which normally require a bachelor’s degree or higher, including some computer-related occupations.

Diversity Visa Lottery to be Eliminated in 2015

The diversity visa (green card) lottery will be eliminated in 2015.  Applicants/winners under the 2013 and 2014 lotteries will be processed.

Path to Citizenship to People without Authorization

The bill creates a path to citizenship to the 11 million or so people who are currently in the U.S. without authorization.  The bill creates a Registered Provisional Immigrant (RPI) status.  To obtain an RPI status, a foreign national must have been in the US as of December 31, 2011 with continuous physical presence in the US, must pay a $500 penalty (except Dream Act youth), pay taxes and application fees (to be determined).  Ineligibility grounds include:  conviction for aggravated felony; conviction of felony; conviction of three or more misdemeanors; conviction of an offense under foreign law; unlawfully voting; and otherwise inadmissible due to health, security or moral grounds.

Immigrants who are granted RPI status and their spouses/children will obtain work and travel authorization.  The RPI status will be for a 6-year term, with the possibility of extension.  After an immigrant has been in RPI status for 10 years they can adjust to a permanent status under the merit-based system (described above) and assuming all existing immigrant visa backlogs have been cleared and after paying a $1,000 fine (and only after the borders have been secured, see below).

Border Control Strengthened and E-Verify Required for All Employers

The bill sets certain goals for securing the US borders and directs the Department of Homeland Security to implement certain measures to secure the border.  Beginning to implement such programs is a condition to the approval of RPI status to people who are in the US without authorization and there are certain benchmarks as conditions to allowing RPI holders to adjust and obtain lawful permanent status.

Additionally, the bill requires all employers to use the E-Verify system over a 5-year phase-in period.  Large employers with 5,000 or more employees will be required to start using E-Verify in two years.  Employers with more than 500 employees will have three years and all employers will have to start using E-Verify in four years.  E-Verify will have a photo-matching component requiring employers to match E-Verify system photo with the new hire and to ensure that this is the same person.

Finally, the new bill would create a better entry/exit tracking system at ports of entry to allow better tracking of foreign visitors who overstay their status in the U.S.

Important Note:  This is Just a Legislative Proposal and Not a Law Yet

It is important to underscore that this is a legislative proposal introduced by a number of U.S. Senators and not a law.  Only after an identical bill is passed by both the Senate and the House and signed by President Obama would the bill be enacted into law.   We expect that there would be a number of hearings, comments, amendment to this proposal over the next days and weeks and it is entirely possible that many of the provisions would change, some substantially.

Conclusion

We are very happy to be finally able to share some actual proposal for a comprehensive immigration reform.  We expect a lot of activity over the next days and week and we will monitor closely and report on any substantial developments on immigration reform.   Also, we will be conducting a series of live chats and webinars to discuss and analyze this proposal, in its current form and as it may be amended before it becomes law.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

Lottery Conducted on April 7th

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of H-1B petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.   This suggests that for many H-1B beneficiaries, the chances of being selected under the H-1B lottery are a little bit over 50% (U.S. master’s degree holders have slightly higher chance because they are part of two iterations of the lottery, if they are not successful in the initial U.S. master’s degree iteration of the lottery).

For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service will start to be processed on April 15 and this is when the 15-day premium processing clock will begin.

Conclusion
We will continue providing updates on the FY2014 H-1B cap season, including filing statistics, as they become available.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

The Lottery Process

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received between April 1 and April 5, 2013.  The agency will conduct the selection process for advanced degree exemption petitions first.  All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.   Also, the total number of petitions received is not yet known due to the large volume of applications.

Petitions Not Selected under the Lottery Will Be Returned With Filing Fees

Petitions accepted for filing but not selected under the lottery will be returned to the petitioners together with the filing fees.

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service will start to be processed on April 15 and this is when the 15-day premium processing clock will begin.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers are cap-exempt.

Conclusion

The FY2014 H-1B cap was reached, as anticipated during the first week it was open.   The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue providing updates on the FY2014 H-1B cap season, including filing statistics, as they become available.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next 2-3 days, at the most,  in order to have a decent chance of being accepted under the H-1B cap before it is reached, as anticipated, on April 5th.

H-1B Applications Filed Over the First Five Days in April Will Be Subject to Random Lottery

Assuming the H-1B cap is reached by April 5th, all H-1B filings which are received over the first five days in April will be subject to  a random lottery to determine which of these H-1B applications would be counted and included under the cap.   This means that, as of now, we expect all H-1B cap cases filed over the first five days in April to be subject to the random lottery.   The last time a lottery was used to allocate H-1B numbers over the first five days of the H-1B filing season was in April 2008.

H-1B Filings Not Picked by the Lottery or Filed Afterwards Are Rejected and Returned

H-1B cases filed over the first five days in April but not picked by the random lottery or H-1B cases filed after April 5th (again, assuming there are more filings over the first five days than there are available H-1B visas) are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.

Premium Processing Clock for New H-1B Cases to Start April 15, 2013

In connection with the high level of H-1B filings, USCIS has also announced that they are altering the way they would process premium processing H-1B cases under the H-1B cap.    Under current practice, the 15-day premium processing “clock” starts on the day a case is received by USCIS.      For cases filed under the H-1B cap, in order to facilitate the prioritized data entry of cap-subject petitions requesting premium processing,  USCIS has annonced that premium processing for cap-subject H-1B petitions, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher, will begin on April 15, 2013.   This means that even for cases filed on April 1, 2013, the premium processing 15-day response window would not start until April 15.      Premium processing H-1B petitions filed outside of the H-1B cap (such as extensions or transfers) would not be affected.

Conclusion

We have been writing over the past few weeks about the possibly very short H-1B cap filing season this year.   Given the time it takes to prepare and file an H-1B cap case,  this is the last call for starting an H-1B case with a chance of filing under the H-1B cap.

W will be providing updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us immediately.

The H-1B Quota and Expectations for This Year

When the H-1B visa category was created in 1990, Congress imposed an annual cap on the number of new H-1B visas which can be issued.  Although the cap has varied through the years, it is set to 65,000 per year plus 20,000 for graduates of U.S. masters programs for the new fiscal year (FY2014) starting on October 1, 2013.

As discussed above, the H-1B cap “opens” on April 1, 2013 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 FY2014 H-1B cap will be reached, it is helpful to provide some context.  For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.  For FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011. For FY2012, the H-1B cap was open between April 1, 2011 and November 22, 2011 while last year, FY2013, the H-1B cap was open between April 2, 2012 and June 11, 2012, or for just over two months.

Given the improving economic outlook, it is our expectation that the H-1B cap will be reached very quickly after it opens on April 1st.   While it is impossible to predict how quickly the cap will be reached, the H-1B cap  may be open for as little as 5 days.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next few days in order to have a decent chance of being accepted under the H-1B cap before it is reached.

Conclusion

We do not know yet how quickly would this year’s H-1B cap be reached.   But we do know that the demand this year is significant and we are preparing (and advising our clients accordingly) for a very short H-1B filing season and the possibility that the H-1B cap be reached in the first 5-10 days of April.

Assuming the H-1B cap remains open for longer,  we will be providing bi-weekly updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  We will also be providing updates on the number of H-1B cap filings and will be revising (hopefully by making them more accurate) our estimates of how long the H-1B cap would last.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us as soon as possible.

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only  about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.    The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

About the AAO

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

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as ofMarch  1, 2013.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

• H-1B appeal is “current” (6  months or less) (no change from our last report as of February 1, 2013);
• L-1 is current (no change);
• I-140 EB-1 Extraordinary Ability is current (no change), Multinational Manager or Executive is also current (improvement with 3+ months since last month) and EB-1 Outstanding Professor or Researcher category is current (no change);
• I-140 EB-2 (Advanced Degree) is current (no change) and EB-2 (NIW) is current (no change); and
• I-140 EB-3 Skilled Worker takes 12 months (improvement of two months) while EB-3 Other Worker is current on appeal (no change).

If our office can be of any assistance regarding AAO representation or consultation, please contact us.  Also, please feel free to subscribe to our free weekly newsletter to receive updates and immigration news.

Summary of Mr. Oppenheim’s Key Points

Immigration Reform.  Immigration reform proposals that are currently circulating in Washington, DC are under review at Mr. Oppenheim’s office so that his office is ready to adjust if/when an immigration reform (whatever it ends up looking like) becomes a law, his office is ready to respond.

EB-5.  Over the past few months, Mr. Oppenheim’s office had expressed a concern that EB-5 China numbers were moving too fast; however, it appears that the numbers have leveled off which means that a cutoff date for EB-5 China, while possible, is not as likely anymore.   At the same time, worldwide EB-5 usage is up 75% when compared to the same period of last year.

EB-1 India and China.  According to Mr. Oppenheim, EB-1 India and China have used numbers for the year, but the rest of the EB-1 categories’ numbers can “fall across” and satisfy any additional EB-1 India and China demand and prevent a cutoff date.

EB-2 India.   Very little, if any, movement expected in the short term due to upgrades (porting of priority date) from EB-3 India to EB-2 India.   According to Mr. Oppenheim, in December 2012 alone, India EB-2 had 125 cases approved that were from 2003 or earlier.   Considering the current 2004 cutoff dates, EB-2 India could easily reach the annual limit — an indication that any forward movement is extremely unlikely.   Possible good news is the possibility of certain “fall down”  from EB-1 (numbers are not known at this point) to allow for more numbers to be used for EB-2 India.   “Fall down” refers to taking numbers from one category which may remain unused (EB-1) and allocating t another category which has a high demand (EB-2 India, for example).     Current numbers indicate that there are approximately 42,000 EB-2 India cases in line with priority dates prior to May 2010.

EB-3 India.   There are 44,000 cases with priority dates before August 2007, which have been pre-adjudicated, though final approval and visa issuance has not taken place due to priority date retrogressions over the past several years.   Also, some of these cases are upgrading to EB-2 so the numbers are in constant flux.

Visa Bulletin Predictions – Employment-Based

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

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

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, Mr. Oppenheim suggested that depending on demand he may introduce a cutoff date towards the end of the fiscal year, not unlike what happened during the summer of 2012.

EB-2 India. No forward movement expected; possible retrogression.

EB-2 China.   Three-to-six weeks per month.

EB-3 Rest of World (ROW).    Four-to-six weeks per month.

EB-3 China.  Two-to-three months per month.

EB-3 India.  Up to two weeks per month.

EB-3 Mexico.  Four-to-six weeks per month.

EB-3 Philippines.   Up to one week per month.

On Predicting the Visa Bulletin Cutoff Dates

We wish to reiterate previous comments and thoughts of Mr. Oppenheim with respect to the ability of others outside of his office to predict reliably the cutoff date movements.   He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim.   There are many variables that affect the demand.  For example, the slow rate of EB-2 India forward movement in the future is due to the number of I-485 filings but also due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases.   Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down the EB-2 India forward movement even further to be able to accommodate EB-2 India applicant with a very early (2003, 2004, etc.) priority date.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Our EB-2 India and our EB-3 India clients would find Mr. Oppenheim’s predictions disappointing, especially since many EB-2 India applicants were able to get very close to being current earlier this year.   Fortunately, those EB-2 India and China applicants who became current earlier this year and were able to file I-485 applications would  be able to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

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

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

DOL Processing Statistics (First Quarter, 2013 Fiscal Year)

PERM

According to the report, during the quarter, there were 16,724 cases received (slight decrease from previous quarters), 12,123 certified (notable increase from prior quarters), 1,532 denied (another notable decrease) and 680 withdrawn.  Since the net amount of applications filed exceeded the number of applications adjudicated, DOL’s PERM load has grown during the quarter by about 2,000-3,000 cases.

As of December 31, 2012, there are 29,344 (increase from prior quarters) PERM cases pending at DOL.   Of these, 48% are pending analyst review (slight decrease), 37% are in audit (no change), 14% are on appeal (substantial increase) and 1% are in sponsorship verification (at filing).  It is interesting to note that there were no cases reported in supervised recruitment — we believe that this may be incorrect reporting, because there are supervised recruitment cases right now at DOL.

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the first quarter, there were approximately 31,000 prevailing wage determination requests filed — of those, 25,747 were for PERM cases, 1,804 were for H-1B cases (notable decrease) and 3,130 were for H-2B cases (notable increase).

In terms of activity, more prevailing wage determinations were issued in Q1 compared to prior quarters – 33,246.   The number of pending applications has decreased over each of the months in the quarter and is at 11,519 at the end of the quarter.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers, in addition to the top positions and geographic areas.    Since this quarter fell entirely outside of the H-1B cap filing season, the number of LCA filings is low compared to other quarters during the year.    There were 58,812 H-1B LCA filings in the first quarter, a decrease over prior quarters which is, again, mainly attributed to the lack of H-1B cap filings.  During the quarter, there were 56,637 LCAs certified for 175,806 positions (one LCA can include more than 1 position).

According to DOL, 99% of the LCAs are processed within seven days of receipt.    The rate of LCA denial is very small (1,461, out of 66,303) and the main reasons are (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

How Would the Sequester Affect USCIS?

One of the questions we hear most often is whether the upcoming sequestration (which seems very likely to happen, as of the date of this article) is, Would the sequestration affect USCIS operations and processing times?

While it appears that DHS’s budget will be affected as a whole, many agencies within DHS will be impacted more than others.  For example, the FEMA, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are among the agencies hardest hit.   All of this means that there will be less agents, airport screeners and border agents on duty, which would affect waiting and processing times.

While USCIS is also slated to lose funding, most of its budget comes from fees collected for processing various applications and services, so the impact to USCIS should not be as significant compared to ICE or CBP.   However, even if USCIS does not suffer directly from the cuts, the magnitude of the cuts and the fact that other related agencies are affected is likely to affect at least somewhat USCIS operations.  For example, of CBP has to furlough some of its workforce, it may take longer to cross through certain border posts and it may be more difficult to obtain immigration-related benefits by CBP – such as I-94 processing, corrections, FOIA requests.

Conclusion

We remain hopeful that Congress would reach a compromise over the next week or so and avert the sequestration.   However, we have urged our clients who rely on federal agencies to consider that there may be an additional delay in obtaining certain immigration-related services.   While we do not expect USCIS to be affected as dramatically as other agencies within DHS, it is still possible for our clients and readers to experience notable delays when dealing with USCIS.   Therefore, please plan accordingly.

We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

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 FY2014 starting on October 1, 2013.

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 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H-1B 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 H-1B 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 FY2014 H-1B cap is April 1, 2013.  By law, the earliest starting employment date for petitions approved under the FY2014 H-1B cap is October 1, 2013.  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, 2013 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 FY2014 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.   For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.  For FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011. For FY2012, the H-1B cap was open between April 1, 2011 and November 22, 2011 while last year, FY2013, the H-1B cap was open between April 2, 2012 and June 11, 2012, or in just over two months.

Below is a comparison chart of the H-1B cap demand for the past two H-1B cap seasons.

As the U.S. economy is gaining strength, we believe that the H-1B cap will be finished faster than last year when it took a little over two months for all H-1B visas to be used.    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 of the increasing demand and the recovering U.S. economy, it is our expectation that the H-1B cap this year will be in high demand and we recommend that clients consider their H-1B needs as soon as possible and be prepared to file on the first available date – April 1, 2013.    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.

Background of DACA

On June 15, 2012, USCIS announced the Deferred Action for Childhood Arrivals process for certain individuals without current valid immigration status and who meet specific criteria.  The process allows those individuals to request consideration of deferred action (and work permit) for up to two (2) years, with the option of renewal.  Deferred Action gives the Department of Homeland Security the authority to postpone removal proceedings and is not considered a lawful immigration status.   A valid work authorization document is also issued to successful applicants.  The required criteria for DACA applicants are:

• Must be under the age of 31 as of June 15, 2012;
• Must have arrived in the United States before the age of 16;
• Must have continuously resided in the United States from June 15, 2007 – June 15, 2012;
• Must have entered the United States without inspection or have expired status as of June 15, 2012;
• Must be in school, graduated, obtained a GED, or honorably discharged from the United States military force; and
• Must not have been convicted of a felony, significant misdemeanor, three or more misdemeanors, or pose a threat to national security or public safety.

USCIS Guidance for Companies Hiring or Employing DACA Employees

Approved DACA applicants are issued an Employment Authorization Document (“EAD”) cards by USCIS for up to two (2) years at a time.  Like all other employees, the DACA employee must complete and sign a Form I-9 within 3 days of hire.  For more information on employer responsibilities regarding Forms I-9, see our recent I-9 compliance article.   The employer is responsible for documenting the EAD and its validity dates on the Form I-9, under Section 2.  The employer should not request additional documentation to confirm DACA status, the EAD card is sufficient.

USCIS Guidance for DACA Employees Conflicts With General I-9 Requirements

The M-274 Handbook for Employers should be the ultimate resource for all Form I-9 related concerns.  While the USCIS DACA Guidance for Employers indicates that a new Form I-9 should be completed if an employee’s name, date of birth, signature, or social security number change, this directly conflicts with M-274 Handbook for Employers.  The M-274 Handbook for Employers advises that incorrect or outdated information on the Form I-9 simply be crossed out and updated on the same form.  USCIS’s own I-9 Central states the same.

Conclusion

Only in the case of major errors, such as full sections of the Form I-9 being left incomplete, should a new Form I-9 be completed.  Even then, the incorrect Form I-9 should be attached to the new form with an explanatory note detailing the errors and corrective steps taken.  Finally, the USCIS DACA Guidance also advises employers to submit a new e-Verify application, if the employer participates in the program for all employees, each time a new employment authorization documentation is provided.  This conflicts with the e-Verify program instructions to submit e-Verify only for newly hired employees.  While we applaud USCIS’s efforts to educate employers on completing Form I-9 and submitting e-Verify requests for potential DACA employees, their guidance should match the already existing I-9 and e-Verify rules and procedures.

How Can We Help

The Capitol Immigration Law Group is here to assist with pending DACA applications or questions regarding the DACA process or obtaining the associated EAD.  The Capitol Immigration Law Group can also provide various levels of I-9 compliance education, audits, and on-site employee training as well as training materials and guidance for performing regular audits and training.  We encourage all employers to mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only  about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.    The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

About the AAO

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

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of February 1, 2013.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

• H-1B appeal is “current” (6  months or less) (no change from our last report as of January 1, 2013);
• L-1 is current (no change);
• I-140 EB-1 Extraordinary Ability is current (no change), Multinational Manager or Executive takes 9 months (no change) and EB-1 Outstanding Professor or Researcher category is current (no change);
• I-140 EB-2 (Advanced Degree) is current (improvement of one month) while EB-2 (NIW) is current (no change); and
• I-140 EB-3 Skilled Worker takes 14 months (improvement of five months) while EB-3 Other Worker is current on appeal (no change).

If our office can be of any assistance regarding AAO representation or consultation, please contact us.  Also, please feel free to subscribe to our free weekly newsletter to receive updates and immigration news.

Employment-based Nonimmigrant H-1B Visas

The Immigration Innovation Act of 2013 seeks to increase the H-1B cap from 65,000 to 115,000 and establish a dynamic “H-1B escalator” which would increase the cap based on demand during each H-1B filing season, with a maximum of 300,000.   The bill also removes the cap (to unlimited number) from US advanced degree holders (currently at 20,000 per year).   Dependent spouses to H-1B visa holders will be permitted to work and increased portability rules will make it easier for H-1B workers to switch employers (creating grace periods after termination, etc.).

Employment-based Green Cards

The bill would enable the recapture of green card numbers that were approved by Congress but were not used in the past.   Certain categories of applicants would be exempt from the green card numbers:  dependents of employment-based green cards; U.S. STEM advanced degree holders; persons with extraordinary ability and outstanding professors and researchers (under the EB-1 category).   The bill would also provide for the roll-over of unused employment-based immigrant visa numbers to following fiscal year so that green cards numbers are not lost.   Also, the proposal would eliminate the annual per-country limits for employment-based visa petitioners and also adjusts the per-country caps for family-based visas.

Additional Fees to be Used for U.S. Training Programs

The bill would raise the fees for H-1B and I-140 petitions and the increased fees would be used to support grant programs to the states to promote STEM education and worker retraining.

Conclusion

It should be noted specifically that this is simply a proposed bill, and not a law.   This bill, in its current shape, is likely to undergo changes, some of which dramatic, even if it ultimately becomes a law.   Since there are a number of immigration proposals circulating at this time in Congress, it is possible that this bill may be folded into a more comprehensive immigration package.

We will certainly follow developments very closely and provide updates.   We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of January 3, 2013.

Current PERM Processing Times

Most notable are the steady processing times for regular and audited PERM applications and the improvement in the initial intake of appeals to the certifying officer.   The processing times, as reported by DOL, are as follows:

• Regular processing: October 2012.  DOL is processing PERM applications with priority dates in October of 2012.   Accordingly, regular PERM processing times should be around three to four months (no change compared to recent reports).   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: May 2012.  DOL is processing PERM audits which have a priority date of late May 2012.  This processing time has remained steady over the past few months.   Accordingly, audited PERM applications are processed approximately eight to nine months after the initial PERM was filed and the priority date established.
• Appealed applications (requests for reconsideration to the Certifying Officer): January 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of early January 2013.  There is continued notable improvement in this category in comparison to prior months.    Accordingly, PERM requests for reconsideration are processed in  approximately one month after the appeal was filed.    Please note that unlike the reports for the regular review and audit review (above) which refer to the priority date of the PERM case, this report reflects the date on which the PERM appeal was filed.
• “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue (see above for processing times).

Increased Scrutiny and Enforcement May Lead to Increased PERM Processing Times

It should be noted, however, that DOL has indicated that they would continue increasing enforcement of the PERM program — according to recent DOL report, they plan on auditing or performing supervised recruitment for 30% of PERM cases.   This is likely to add to the volume of DOL officers and, perhaps, add to the processing times.   Preparing and filing a strong PERM application becomes very important.  Also, in terms of H-1B extension and green card processing planning, it becomes prudent to plan conservatively on a PERM case remaining under review for 9+ months.

Conclusion

The January 2013 PERM processing times report shows steady trend in the regular and appealed PERM processing times, and a notable (and welcome) improvement in the PERM appeal processing times.   We hope that DOL would be able to continue to improve (or at least keep steady) the PERM processing times over the next weeks and months even as they plan on increasing their PERM program enforcement reviews.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

Our office has closely monitored Congress’ attempts to enact into law a comprehensive immigration reform over the past few years; however, this time around it seems that passing a comprehensive immigration measure is actually possible, and even likely.    After the November 2012 elections, the Republicans have embraced the idea of immigration reform more warmly.   As a result, we will continue monitoring serious developments on this topic and provide updates for the benefit of our readers and clients.

The Proposed Comprehensive Immigration Reform Framework

Create a Path to Citizenship for Unauthorized Immigrants Already in the U.S.

Under the proposal, the law would allow undocumented immigrants with otherwise clean criminal records to quickly achieve probationary legal residency after paying a fine and back taxes.   Such immigrants could pursue full citizenship — giving them the right to vote and access to government benefits — only after new measures are in place to prevent a future influx of illegal immigrants.  Such measures would include border security, a new program to help employers verify the legal status of their employees and more stringent measures aiming to prevent immigrants to overstay their visas.

Minor children who are not documented and who were brought to the U.S. would not be subject to the “back-of-the-line” provisions and would have an easier path to citizenship.  Similarly, agricultural workers who have been working without documentation would have an easier path to citizenship.

Improve the Legal Immigration System and Attract the World’s Best and Brightest

The proposal seeks to reduce current backlogs  in the family and employment-based visa categories so that future immigrants see the lawful immigration system as the only way of entry into the U.S.   Also, a green card would be awarded to Ph.D. or Master’s degree holders in science, technology, engineering or math (STEM) from an American university.

Stronger Employment Verification

The proposal calls for a “tough, fair, effective and mandatory” employment verification system making employers liable for hiring undocumented workers and making it harder for undocumented workers to falsify documents and find employment.

Increasing Foreign Workers Quotas

The proposal seeks to improve the system for hiring lower-skilled workers by U.S. employers by allowing more lower-skilled workers’ quotas and making it faster and easier for U.S. workers (after following procedural safeguards to ensure no U.S. workers are available for the job) to bring foreign workers.

Other Immigration Proposals in Congress

There are other immigration proposals, in varying stages, intended to deal with related issues.   For example, Senator Orrin G. Hatch of Utah, a Republican, and Senator Amy Klobuchar of Minnesota, a Democrat, would propose a bill which would nearly double the number of H-1B temporary visas available each year to highly skilled immigrants. It would also free up more permanent resident visas, known as green cards, so those immigrants could eventually settle in the United States and go on to become citizens.

Conclusion

It seems as finally there seems to be broad enough consensus here in Washington, DC that the current immigration system must be reformed to deal with structural problems.   Our office faces and helps individuals who have to deal with such structural immigration system problems every day and we welcome these proposals.    Just because this is a framework, it is subject to (and will likely) change, negotiation and political manipulation by many; however, we hope that what would emerge as immigration reform law is a fairer system which would allow certainty and path to achieving the American dream to many.

We will certainly follow developments very closely and provide updates.   We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.

The concept of a “public charge” has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation.  The idea is that the U.S. taxpayer should not support new immigrants, at least for an initial period of their admission into the U.S.   An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge.

Background

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” If an individual is inadmissible, admission to the United States or adjustment of status will not be granted.

Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits. Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge.   As a result, there is some confusion as to what kind of benefits do constitute a public charge and what kind of benefits do not.   We seek to provide some general guidance.

Public Charge – Definition

USCIS defines “public charge” as

an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

Benefits Subject to Public Charge Consideration

USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called “general assistance” programs.   Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met.  However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds.   Each determination is made on a case-by-case basis in the context of the totality of the circumstances.  See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.

Benefits Not Subject to Public Charge Consideration

Under the USCIS guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:

• Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
• Children’s Health Insurance Program (CHIP)
• Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)- commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
• Housing benefits
• Child care services
• Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
• Emergency disaster relief
• Foster care and adoption assistance
• Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education
• Job training programs
• In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
• Non-cash benefits under TANF such as subsidized child care or transit subsidies
• Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits
• Unemployment compensation

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF.   Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration.

Unemployment Insurance Benefits Are Normally Not Subject to Public Charge

USCIS has specifically indicated that unemployment insurance benefits paid to a noncitizen worker are not subject to public charge consideration.   The unemployment benefit insurance program is administered by the states who pick up the cost of providing the unemployment insurance initially (normally 26 weeks).  After this period, the federal government pays for the cost of the unemployment insurance up to a certain maximum number of weeks.

Eligibility for unemployment insurance varies slightly by state and also as to whether the benefits are paid by the state (during the first 26 weeks) or by the federal government (afterwards).   The group of eligible recipients during the state-paid initial 26 week period is larger than the eligible recipients under the extended federal benefits period.  For example, H-1B holders may be eligible to obtain benefits under the state-paid initial 26 week period, but they are normally not included in the list of eligible recipients of the extended federal benefits.  Lawful permanent residents (green card holders) are normally eligible for both the state-paid and federal-paid periods.

Conclusion

As described above, a public charge can have very serious consequences on one’s immigration process.  As a result, we caution that the information provided above is based on general USCIS guidance which can vary based on individual case facts.   We urge our clients and readers to conduct extensive research (contact us or schedule a phone consultation to analyze your case) before accepting benefits which may be deemed to be public charge.

How Does Cross-Chargeability Work?

Cross-chargeability allows a family of applicants to move their country of immigrant visa chargeability from one category to another if a member of the family was born elsewhere.  Most often this applies to a spouse (not the main applicant) who was either born in a different country, or their place of birth was a different country at the time of birth, or they were born on the high seas (rare).  Here are a few examples of how the rules apply to real-world situations:

• A married foreign worker born in India has a pending Employment-Based Third Category (“EB-3”) case with a October 2006 priority date, and it could be a few years before the current EB-3 cutoff time moves beyond November 15, 2002 (from the February 2013 Visa Bulletin).  However, because the worker’s spouse was actually born in Canada, in this example, cross-chargeability would allow the EB-3 October 2006 priority date to be processed under the all-other-nationalities (Rest of the World, or ROW) EB-3 category, which is processing priority dates of February 1, 2007 and earlier.  As a result, a long delay in waiting for the EB-3 India category to reach the October 2006 priority date is bypassed and the family can obtain their green cards within weeks or few months (depending on how the application is filed).
• Another married foreign worker born in China has an EB-2 immigrant visa waiting with a July 2009 priority date.  Currently, EB-2 China cases with a priority date of January 15, 2008 and earlier are being issued permanent resident status.  However, the worker’s spouse was born in Hong Kong before 1997 when it became part of China again.  Since Hong Kong was not part of China at the time of birth, cross-chargeability allows the worker and spouse to be processed under the all-other-nationalities (ROW) EB-2 category.  As this category is current, there would be no wait time for a current priority date.

It is important to note that parents cannot take advantage of cross-chargeability and use the country of birth of a child.

How Can We Help?

Do you have a family member whose country of birth differs from the country of birth of the main applicant/worker? We would be happy to consult with you and analyze your options for filing or other alternatives, if they apply to your situation.   The possibility of significant improvement in the waiting/processing of one’s green card application makes cross-chargeability a desirable option, if it is applicable.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

Basic I-9 Requirements

Form I-9 is required by all employers to have each employee complete within 3 business days of hiring them, regardless of immigration status or citizenship.

I-9 Retention

A properly completed I-9 should be on file for every current employee.  For former employees, I-9’s should be retained for 1 year after termination or 3 years after start of employment, whichever is longer.

I-9 Storage

These confidential forms should be kept secured with access limited to trained staff only.  I-9’s and supporting documents may be retained electronically or in paper hard copies as long as the company correctly processes and consistently retains I-9’s in the same format.

Accepted Versions of I-9

New I-9’s should be filled out using the latest version of the form (either February 2, 2009 or August 7, 2009).  A new version does not need to be completed for current employees with a previously completed Form I-9.  The Spanish version I-9 may only be completed by employers and employees located in Puerto Rico.

I-9 Supporting Documents

If the employer utilizes e-Verify, e-Verify must be consistently performed and documented for every employee.  For non-U.S. citizens or non-permanent residents, evidence of current and valid employment authorization is required.

Common I-9 Errors

I-9 errors can be costly to employers if identified by the DOL or ICE during an audit.  Some common I-9 errors include:

• Not timely completed;
• Employer discrimination by requesting too few, too many, or only specific documents;
• Incorrectly completed forms, such as incorrect date of birth or wrong box checked, missing social security number, no signature, document list incomplete or incorrect, incorrect form version, etc., as well as inconsistent manner of completion by the various company representatives, including an inconsistent mix of electronic documents and paper documents;
• Not properly tracking immigration employment authorization expirations and documenting timely renewals or extensions of employment authorization;
• Improper retention by not timely removing expired I-9’s for former employees or not maintaining I-9’s in a safe and secure manner; and
• Incorrectly completing or not consistently documenting e-Verify, including situations where no-match letters are received and timely resolved.

Many of these pitfalls can be avoided through regular employee training and annual I-9 audits.

I-9 Auditing

We certainly recommend periodic internal I-9 reviews by companies.  However, such reviews should be done carefully.  It is not uncommon for self-audits of companies, once done incorrectly, to cause additional costly errors; therefore, an I-9 compliance audit by a qualified outside source is strongly recommended.

In addition to auditing actual completed I-9’s and supporting documents, employers are responsible for ensuring their hiring managers, human resources, executive staff, and other responsible employees are trained in employment law requirements, specifically what can and cannot be asked or requested.  For example: not all designated employees know how to avoid discrimination allegations when requesting documents by employees;  not all designated employees know who is authorized to sign I-9’s on behalf of the company, and not all designated employees know (or can easily find out) the difference between employees and contract workers?

I-9 Official Resources

We would like to share some general I-9 resources.

• USCIS’ I-9 Central Home
• USCIS’ Handbook for Employers, Instructions for Completing Form I-9
• USCIS’ E-Verify User Manual

How Can We Help

The Capitol Immigration Law Group can provide various levels internal I-9 compliance audits and on-site employee training as well as training materials and guidance for performing regular audits and training.  We can provide immigration compliance training and auditing to meet an employer’s specific needs.  We encourage all employers to mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only  about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.    The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

About the AAO

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

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of January 1, 2013.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

• H-1B appeal is “current” (6  months or less) (a notable decrease, or improvement, of three months, compared to our last report as of November 1, 2012);
• L-1 is current (improvement of four months);
• I-140 EB-1 Extraordinary Ability is current, Multinational Manager or Executive takes 9 months (improvement of one month) while EB-1 Outstanding Professor or Researcher category is current;
• I-140 EB-2 (Advanced Degree) is at 7 months (increase of one month) while EB-2 (NIW) is current (no change); and
• I-140 EB-3 Skilled Worker takes 19 months (improvement of five months) while EB-3 Other Worker is current on appeal (no change).

If our office can be of any assistance regarding AAO representation or consultation, please contact us.  Also, please feel free to subscribe to our free weekly newsletter to receive updates and immigration news.

The system asks for a case number (for IV cases) or Application ID/Case Number of consular cases and displays (at this point, fairly limited) information about the designated case.   We hope that DOS would continue expanding the functionality and the availability of information to make it more valuable to applicants who have cases pending with DOS.

It is important to note that the DOS Visa Status Check system is different and separate than the U.S. Citizenship and Immigration Service (USCIS) online status check system which provides information on cases filed with USCIS (such as petitions for an immigration benefit or applications for status).

We welcome the introduction of DOS’s Visa Status Check system but hope that DOS would expand the system to allow more detailed information to be provided in order to make the system really useful and to allow applicants for visas to obtain timely information on the outcome of their case.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

What is the USCIS Immigrant Fee?

In its press release, USCIS explains that the fee was established by the September 24, 2010 fee change rule (last time the fees were revised in a substantial manner) and will is being introduced now after collaboration between USCIS and the Department of State (“DOS”) on how to best collect the fee without disrupting the existing procedures.  The fee is imposed to recover the costs of processing immigrant visas in the United States after immigrant visa holders receive their visa packages from DOS. This includes staff time to handle, file and maintain the immigrant visa package, and the cost of producing and delivering the permanent resident card.    See Federal Register notice.

It is important to understand that this fee is in addition to the fees already collected by USCIS and DOS (via the National Visa Center).

How Should the New Fee be Paid?

The new fee will have to be paid online through USCIS website after immigrant visa applicants receive their visa package from DOS (usually the U.S. Consulate) and before they depart to the U.S.   DOS will be providing such applicants with specific information on how to submit payment when they attend their consular interview.  Acceptable methods of payment would be checking account information or debit/credit card, drawn on U.S. funds.

Who is Affected by the New Fee?

All immigrant visa applicants who process their immigrant visas through a U.S. Consulate abroad (including Canada and Mexico) will be required to pay the new fee, starting February 1, 2013.   USCIS processes approximately 36,000 immigrant visa packages (green card “activations”) each month.  Please note that permanent residency applicants who process their green cards from within the U.S. will not have to pay the new fee — for example, I-485 applicants to adjust status from within the U.S. will not have to pay the fee.   Also, prospective adoptive parents whose child will enter the United States under the Orphan or Hague processes are exempt from the new fee.

What Happens If the Fee is Not Paid?

The applicant will not receive a green card until the required USCIS Immigrant fee is paid.    However, failure to pay does not affect the lawful status of the applicant.   While the applicant can use their Customs and Border Protection (CBP) Form I-94, Arrival and Departure Record, for one year to document they are a lawful permanent resident, once that I-94 stamp expires, the applicant will need to possess a green card as evidence of their lawful permanent resident status.

Conclusion

We are hopeful that USCIS and DOS will establish a clear process to inform applicants, especially those who are currently undergoing their immigrant process, of the new requirement to pay the fee before the green card is produced.   Our office will continue to monitor this new fee and related procedures and provide updates.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

The Online Entrepreneur Resource Center

By launching the online resource center, USCIS acknowledged that “our nation has always attracted individuals with great drive and entrepreneurial spirit.” As the world’s greatest economy and a global leader in innovation, the United States must continue to welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.

The Online Entrepreneur Resource Center is essentially a collection of materials describing (in a fairly cursory manner) the visa options for foreign entrepreneurs.   The guide has few sections, explaining what visa options there may be, how to file an application, what happens after approval, when an arrival can be expected, etc.   However, the descriptions and guidance provided are extremely broad and vague and are unlikely to provide an entrepreneur, willing to start a business or invest a substantial amount of funds, the level of accuracy and detail which are key for a sound business decision.

Clarifications to Options for H-1B Holders-Entrepreneurs

An interesting portion of the guide is how it deals with the option for H-1B work visa for entrepreneurs.   Our office has previously reported on the problems H-1B holders entrepreneurs face in the U.S.   Specifically, the issue of “right to control” (discussed below) effectively prevented many foreign entrepreneurs establishing a company and then having this company sponsor an H-1B for them.

By way of background, the H-1B temporary work visa program was made off-limits to many individual entrepreneurs, as a result of the January 8, 2010 Neufeld Memorandum which required each H-1B work visa petition to show that the petitioning employer has the right to control, including to hire and fire, the foreign national employee.   Most often entrepreneurs are the owners or have a controlling interest over a company, and the right to control in many cases could not be shown.   Effectively, the Neufeld Memorandum prohibited H-1B self-sponsorship for foreign entrepreneurs.   In subsequent guidance, USCIS has indicated that certain corporate structures may permit companies to sponsor H-1B work visas for founders/owners if there is a mechanism (such as independent board of directors) which can provide the company’s right to control over the sponsored H-1B employee/owner.

The Online Entrepreneur Resource Center provides more information on the kind of documents/information which may be needed to establish the employer-employee relationship (or the right to control).   Specifically,

If you own your company you may be able to demonstrate an employer-employee relationship if the ownership and control of your company are different.  For example, if your company has a board of directors, preferred shareholders, investors, or other factors that show your organization has the right to control the terms and conditions of your employment (namely the right to hire, fire, pay, supervise or otherwise control the terms and conditions of employment), you may be able to meet this requirement. Some of the evidence you may submit to demonstrate the distinction between your ownership interest and the right to control your employment includes: Term Sheet, Capitalization Table, Stock purchase Agreement, Investor rights Agreement, Voting Agreement, Organizational documents and operating agreements.

This additional information is helpful as it provides a clearer guidance on what USCIS is looking for.   Essentially, it seems that they may consider the employer-employee relationship and the right to control established when the ownership (by the sponsored entrepreneur) and the control (voting, etc.) are by different parties.    In many situations, this may permit a foreign entrepreneur to qualify for H-1B; however, in many others, especially small startup companies, this structure may not be feasible or practicable.

In the welcome move, the EIR initiative announced that while the entrepreneurs will not be able to file the petition on their own behalf, in some cases the business entity that they will run or create may file as their employer. This effectively contradicts the 2010 Neufeld Memorandum’s requirement for a petitioner’s right to control.

Conclusion

We welcome USCIS Director Mayorkas’s announcements and welcome the additional options for entrepreneurs who seek to start a business in the United States. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

Last week, in a press release from November 19, 2012, the U.S. Embassy in India announced that the IWP would be expanded to include (1) H-1B and individual (non-blanket) L-1 workers, (2) F-1 students returning to the same school/program; and (3) children applying before their 14th birthday traveling on any visa.

About the Interview Waiver Program

The Interview Waiver Program was introduced in March 2012 and allows individuals who seek to obtain U.S. visa stamp and who meet the eligibility requirements to skip the interview by a consular officer step.    According to the U.S. Mission in India, this program has been successful so far and will be expanded to allow additional applicants to take advantage of the streamlined procedure.

Another reason behind this move is also the increasing demand in U.S. visas in India.    In 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of over 11 percent over the previous year.   At the current time, applicants have to wait fewer than ten days for a visa interview to be scheduled and, according to the Department of State, spend less than one hour at U.S. consular facilities in India.   In addition to the Interview Waiver Program, in September 2012, the U.S. Mission in India introduced additional changes to the application process, including the payment, biometrics and interview steps.

Interview Waiver Program Eligibility Requirements

Under the expanded program, the following types of visas are eligible for the interview waiver program:

• Business/Tourism (B1 and/or B2);
• Students (F-1) returning to attend the same school and same program;
• Temporary workers on H-1B visas or on individual L-1A or L-1B visas who are returning to work for the same petitioner in the same classification and the previous visa has not expired for more than 12 months;
• Dependent (J2, H4, L2);
• Transit (C) and/or Crew Member (D) – including C1/D;
• Children applying before their 14th birthday traveling on any visa class;
• Applicants applying on or after their 80th birthday traveling on any visa class.

There are additional requirements, all spelled out at the www.ustraveldocs.com website.  Among the most notable are (1) the previous visa must have been issued in India, must be issued after November 1, 2008 (for dropbox use) or after August 1, 2004 (biometrics required);  (2) there must not be a “Clearance Received” annotation on the previous visa; and (3) the previous visa must not have expired for more than 48 months (for most classifications, 12 months for H-1B or L-1 visas).

Conclusion

We encourage the U.S. Mission in India’s efforts to streamline the application process and allow applicants, especially H-1B or L-1 workers who are often under time pressure to return to their employment, to process their visas faster.    It should be noted, however, that even though some visa applicants may be able to take advantage of the interview waiver program, the U.S. Consular Section officers are likely to call for an interview any applicant whose application paperwork is missing or if there are questions about one’s continued eligibility.

As always, prior to submitting a visa application, please remember to check with the U.S. consulate regarding documentation requirements for the specific visa type.  As the U.S. consulates in India are implementing the new application processes, we recommend that you stay flexible, and build in extra lead time to accommodate travel itineraries.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only  about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.    The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

About the AAO

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

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of November 1, 2012.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

• H-1B appeal takes 9 months (a notable decrease, or improvement, of three months, compared to our last report as of October 1, 2012);
• L-1 appeal takes 10 months (improvement of three months);
• I-140 EB-1 Extraordinary Ability is current (less than six months), Multinational Manager or Executive takes 10 months (improvement of three months) while EB-1 Outstanding Professor or Researcher category is current;
• I-140 EB-2 (Advanced Degree) is current (or six months or less, improvement of one month) while EB-2 (NIW) is current (no change); and
• I-140 EB-3 Skilled Worker takes 24 months (improvement of five months) while EB-3 Other Worker is current (6 months or less) on appeal (no change).

If our office can be of any assistance regarding AAO representation or consultation, please contact us.  Also, please feel free to subscribe to our free weekly newsletter to receive updates and immigration news.

As a result, there are a number of options for foreign nationals who are impacted by the Hurricane Sandt.   The relief may be available to all foreign nationals if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Foreign nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.  Normally, an application to change or extend status filed after the period of authorized stay has expired would be denied.  In this case, the delay can be excused if it is caused by the disaster.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, foreign students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Immediate Relatives Immigrant Petitions

USCIS would also permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain foreign nationals who are impacted by Hurricane Sandy and the widespread destruction.  Our office stands ready to assist affected foreign nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

If you are planning to submit a DV-2014 entry, please do so well before the deadline because the website may become overloaded as the deadline approaches and some applicants may not be able to submit their entry in a timely manner.

Please see our alert about this year’s DV lottery, the eligibility requirements and how to apply.

OPT Eligibility Requirements

Most foreign students are eligible for some form of Optional Practical Training (OPT) after completion of a certain educational degree.  There are several types depending on the student’s visa status, educational focus, and anticipated program completion date.

Generally, some of the OPT eligibility requirements are:

• Must be a full-time student for at least 1 year prior to OPT;
• OPT can be filed no more than 90 days before the 1 year school mark, 90 days before program end date, or no more than 60 days after program end date;
• OPT may be full-time or part-time, but cannot extend beyond 1 full year of work (with certain exceptions for STEM students, who can benefit from the 17-month STEM OPT extension);
• The student must have valid and active status in SEVIS;
• The employment must be related to the student’s field of study;
• For post-program completion OPT, the employment application (Form I-765) must be filed with USCIS within 30 days of the date the school representative enters the OPT recommendation into the student’s SEVIS record. In addition, the employment application must include the student Form I-20 endorsed by the authorized school representative within the last 30 days or less;
• For STEM OPT, the employment application must be filed before any prior post-completion employment authorization expires; and
• For M visa students, they must apply before the completion of their educational program.

While previously USCIS may have issued a Request for Evidence (RFE) when some of these eligibility deadlines were not met, they are now denying applications which do not meet these required dates after accepting them for review and after holding on to the applications for weeks, or even months.  In fact, an updated Form I-20 would no longer suffice to correct a delayed application for post-program completion OPT.  The school representative must also correct the student’s SEVIS record before USCIS will approve OPT employment authorization.  Because of this possibility of OPT application denial weeks or months after filing, it becomes important to not only file the OPT application well in advance (but within the required timeframes) but to anticipate and be prepared for a possible delay in work authorization.

USCIS Also Targeting Student Status Violations

In addition to adopting a more stringent approach towards reviewing and adjudicating I-765 OPT applications as discussed above, USCIS is also cracking down on student status violations.  There are several common mistakes which may cause a student to violate their student status:

• SEVIS is not updated with changes to student’s status and/or program, including a change of address or change of employer (if working pursuant to practical training);
• The student does not monitor their immigration status and is unaware if the U.S. government has not been properly made aware of reportable changes; and
• Unexpected changes such as personal hardship, financial difficulties, medical emergencies, or family emergencies.

While USCIS allows reinstatement of student status in some cases, the student must be able to rectify their status relatively quickly.  One of the most important (and often very difficult to overcome) requirements for filing a reinstatement of F-1 student status is that the student should not have been out of status for more than five months (or show exceptional circumstances otherwise). Other requirements for reinstatement of status include that the student must be or will be pursuing full-time student status and must have no history of prior violations, unauthorized employment, or lapse in status.

How Can Our Office Help?

If you are a student or educational facility representative needing assistance with these F-1 student status requirements, OPT processing or student status and reinstatement, please contact us.  We would be happy to consult with you and analyze your options for filing or other alternatives, if available.   Alternatively, we urge all foreign students and educational representatives to keep in mind that it is their responsibility to maintain visa status and visa sponsorship by following all relevant rules and regulations.  Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.

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

Summary of Mr. Oppenheim’s Key Points

EB-2 China and India have huge backlog and will move very slowly over the next few months.   EB-2 India will move very slowly, if at all.    EB-3 China and, specifically, India, will also move very slowly forward.  EB-5 is becoming very popular category and a cutoff date later in the year is possible.

General Visa Number Trends

Mr. Oppenheim reiterated the fact that in the employment-based context, each green card application case is “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children).  As a result, and in recognition of the fact that many EB-3 India and China candidates are now eligible for and applying under the EB-2 category, Mr. Oppenheim noted that the EB-3, in additiion to EB-2 visa numbers are expected to remain oversubscribed and to move slowly forward, more so for India than China.

At this time last year, Mr. Oppenheim had indicated that he expects to advance EB-2 India and China significantly over the next few months.  His predictions were correct – as we witnessed, EB-2 India and China moved forward very rapidly in late 2011 and early 2012.   Unfortunately, today’s comments by Mr. Oppenheim do not bring much good news, especially for EB-2 India.   Because of the significant number of EB-2 India filings early this year and because of the very high number of EB-3 to EB-2 porting cases, Mr. Oppenheim indicated that EB-2 India, specifically, will move very slowly, if at all, over the next months.

Mr. Oppenheim suggested that the EB-1 and EB-5 categories are relatively “popular” this year and expects more numbers to be used in these categories, compared to the past years.   A cutoff date for EB-5 is possible.   This high demand also means that there will be less “leftover” visa numbers available to allocate to other categories, such as EB-2 India and China which would further contribute to the slow EB-2 India and China forward movement.

Mr. Oppenheim did not elaborate too much on family-based cases — so we are unable to provide his thoughts on this subject.  However, the general expectation is that there family-based cases should continue to move with the same steady pace they have been moving over the past months — in other words, without the kind of wild swings seen in the employment-based categories such as EB-2 India and China.

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

Visa Bulletin Predictions – Employment-Based

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

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

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, Mr. Oppenheim suggested that depending on demand he may introduce a cutoff date towards the end of the fiscal year, not unlike what happened during the summer of 2012.

EB-2 China and EB-2 India.  Unlike last year, where these two categories were anticipated to move forward dramatically, unfortunately, EB-2 for China and India are expected to move very slowly.   Specifically, Mr. Oppenheim indicated that he expects EB-2 China to move forward by approximately 2 weeks in every month’s visa bulletin with a possible target of cutoff date somewhere in the second half of 2008 by the end of the fiscal year (September 30, 2013).

For EB-2 India Mr. Oppenheim indicated that very little or no movement is expected over the next months.  The reason is simply the huge demand of EB-2 cases and the very small number of visa numbers available in this category.    The high demand appears to be caused by the high number of I-485 cases filed by EB-2 applicants (and their family members) earlier this year and also the very high number of EB-3 India applicants who are now porting into EB-2 India.   Mr. Oppenheim suggested almost no movement in EB-2 India with an absolutely best case scenario of having a cutoff date of late 2007 or early 2008 by the end of the fiscal year.

EB-3 Rest of World (ROW).  This category is expected to move gradually forward for the next few visa bulletins — anticipated forward movement of 3 to 4 weeks per month.

EB-3 China.  This category is expected to move notably forward – by 4-6 weeks per month for the next few months.

EB-3 India.  Unfortunately, this category continues to be oversubscribed and forward movement will continue to be slow.    This category is expected to remain unchanged or to move very slowly forward (by a 1-2 weeks or so each month).   This is mainly caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available.   However, as many EB-3 India applicants are porting into EB-2, there is some possibility that EB-3 may move a little bit faster because some EB-3 candidates will simply drop out of the line after receiving a green card under a newly ported EB-2 category.

EB-5.   Mr. Oppenheim suggested that the demand for EB-5 is very strong — a 120% increase compared to last year, with 80% of the allocated numbers going to Chinese nationals.   Mr. Oppenheim suggested that a cutoff date (the first for EB-5) is possible (even highly likely) towards later in the fiscal year.   As an example, Mr. Oppenheim indicated that 20% of the annual numbers for EB-5 have been used in the first two months of the fiscal year – October and November.

On Predicting the Visa Bulletin Cutoff Dates

Mr. Oppenheim shared his thoughts on the ability  of others outside of his office to predict reliably the cutoff date movements.   He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim.   There are many variables that affect the demand.  For example, the slow rate of EB-2 India forward movement in the future is due to the number of I-485 filings but also due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases.   Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down the EB-2 India forward movement even further to be able to accommodate EB-2 India applicant with a very early (2003, 2004, etc.) priority date.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Overall, Mr. Oppenheim’s comments are likely to create some mixed feelings among our employment-based clients.   Our EB-2 India and China and our EB-3 India clients would find Mr. Oppenheim’s predictions disappointing, especially since many EB-2 India applicants were able to get very close to being current earlier this year.   Fortunately, those EB-2 India and China applicants who became current earlier this year and were able to file I-485 applications would  be able to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

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

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

Proposed Elimination of Form I-94

In the near future, the U.S. Customs and Border Protection (CBP,  the agency which admits foreign nationals in the U.S.)  is expected to stop issuing Form I-94s to most foreign national at the U.S. ports of entry.    The Department of Homeland Security (which oversees CBP and Citizenship and Immigration Service) is instead proposing to use an automated entry system to record each nonimmigrant’s arrival.   Travelers will receive a passport stamp annotated with their immigration status and the date their period of stay expires.  After the I-94 is eliminated, CBP may create an online portal to allow nonimmigrants to check their status and period of stay and print out a record of their admission.  But until such time, foreign nationals will only have their passport stamp to prove entry and validity of status.

It should be noted that foreign nationals entering at land ports of entry will, for the time being, continue to receive a functional I-94 card, as will refugees and some other classes of foreign nationals.

What the I-94 Change Means to Employers and Foreign Nationals

Currently, the I-94 card is used as proof of lawful immigration status and the permissible period of stay. In addition, numerous federal and state agencies use the I-94 to verify whether a foreign national is entitled to certain benefits, including a Social Security number, a driver’s license, among others.  USCIS rules require nonimmigrants to carry the I-94 as proof of their status.

Further, along with a valid foreign passport, the I-94 is one of the documents used to verify a foreign national’s employment eligibility on Form I-9 and in the E-Verify database.  Since Form I-9 require employees to present and employers to inspect the actual paper I-94 card, it is important for employers to expect, and keep abreast of, the upcoming changes.  It is not yet clear how elimination of the I-94 will affect these critical procedures and requirements pertaining to completing the Form I-9. Though CBP has been meeting for some time now with interested government agencies about its paperless I-94 implementation program, specific plans to revise regulations that currently require Form I-94 are not yet known.

Conclusion

While we applaud the government’s efforts to create a more efficient paperless system of recording foreign nationals’ entry information, the impact of eliminating the paper Form I-94 is significant and, in many cases, not fully understood and analyzed.   We will continue monitoring this subject and provide updates to our clients and readers.   Please do not hesitate to contact us if we can help you.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.