Labor Immigration Law

In a recent report the National Foundation for American Policy (which claims to be a non-profit, non-partisan organization dedicated to public policy research on trade, immigration, education, and other issues of national importance) has analyzed the USCIS rates of issuing requests for evidence (RFE) and denials of L-1 and H-1B petition over the past several years and provides several interesting observations.

The Report:   USCIS Has Changed L-1 and H-1B Adjudication Standards

The report, Analysis: Data Reveal High Denial Rates For L-1 and H-1B Petitions,  dated February 2012, claims that USCIS has (silently) changed the adjudication standards for L-1 and H-1B petitions which has, between 2007 and 2011, affected dramatically the outcome of the adjudications of such petitions.   The report analyzes trends in rates of RFEs and denials between 2007 and 2011 and notes that,

“The dramatic increase in denial rates and Requests for Evidence for employment petitions without any change in the law or regulations raises questions about the training, supervision and procedures of the career bureaucracy that adjudicates petitions and the U.S. government’s commitment to maintaining a stable business climate for companies competing in the global economy.”

Key Findings of the Report

Among the key findings of the report are the following:

• denial rates for L-1B petitions rose from 7% in FY2007 to 22% in FY2008 (without changes in the relevant laws or regulations), and then stayed relatively high at 26%, 22% and 27% for fiscal years 2009, 2010 and 2011, respectively;
• denial rates for H-1B petitions increased from 11% in FY2007 to 29% in 2009, but has subsequently decreased to 21% in 2010 and 17% in FY2011;
• denial rates for L-1A (international managers) petitions increased from 8% in 2007 to 14% in 2011;
• RFE rates for L-1B rose from 17% in FY2007 to 49% in FY2008 and to 63% in FY2011 (the report also reminds that the RFE rate in FY2004 was 2%);
• RFE rates for H-1B rose from 4% in FY2004 to 18% in FY2007 to a high of 35% in FY2009 (the most recent number is 26% RFE rate for FY2011);
• RFE rates for L-1A increased from 4% in FY2004 to 24% in FY2007 and to a current 51% in FY2011.

Denial and RFE Rates Show Alarming Trends; Some Rates Appear to be Decreasing

The rate of RFEs and denials is alarming because it does not seem to be supported by substantive changes in the law or regulations.    Some of the increased RFE/denial rates may be explained due to the slowing economy, and lack of ability of petitioners to show placement or available work.   Additionally, some of the increase in -1B cases may be attributed to increased scrutiny (and the Neufeld Memo) on IT consulting companies.    Nonetheless, the sharp increase in the RFE/denial rates for the H-1 and L-1 petitions are alarming for many US companies who rely on foreign talent to continue to provide their products and services to the US market.

The good news, if any, is that the RFE/denial rates, even though they may be very high historically, seem to be leveling off or decreasing.   Our office has witnessed these increased rates (although perhaps not by the magnitude highlighted in the report) and we can share some of our clients’ concerns that one of the main concerns of a US company sponsoring a foreign worker is predictability and fair rules.     Our hope is that USCIS will provide clear guidance and consistent application of their own rules and policies to allow fair but consistent application processes.

Our office will be monitoring new developments on this topic and we would be providing relevant updates on our website and via our weekly newsletter.  In the meantime, please do not hesitate to consult us if we can be of any assistance.

Our office has actively monitored the Visa Bulletin developments for the past several months, not only by analyzing each Visa Bulletin but also by seeking input from other sources such as demand data, economy and unemployment and, most importantly,  by consulting with Mr. Charles Oppenheim (Chief of the Visa Control and Reporting Division at the U.S. Department of State and also known as the person responsible for the Visa Bulletin cutoff dates movement) when we have had the opportunity to do so.

Throughout the past few months we have been able to assist many clients in preparing and filing their I-485 adjustment of status applications or in processing their immigrant visas through the National Visa Center.    One of the most common questions we get from current and prospective clients is, “How are the cutoff dates for EB-2 India/China going to move in next month’s Visa Bulletin?”   This is especially true after the most recent Visa Bulletin, the April 2012 Visa Bulletin was released earlier this week showing no movement in the EB-2 India/China categories.

EB-2 India/China Category Outlook — No Major Forward Movement, Possible Retrogression

Before we share our own thoughts on the EB-2 India/China outlook, an important disclaimer is necessary.   This is our own opinion and estimate.  It is based on our first hand experience in analyzing the Visa Bulletin for months/years,  by talking with other stakeholders and by gathering official and unofficial public information from Department of State and Citizenship and Immigration Service.    There are so many factors and datapoints (many of which we non-public information) that go into determining the cutoff dates, that we may simply be wrong in our assumptions.

With this in mind, we think that the cutoff dates for EB-2 India and China would remain steady for the rest of the fiscal year (ending on September 30).   Judging by a note published as part of the February 2012 Visa Bulletin and by comments by Charles Oppenheim from January 19, 2012, it seems that the forward movement in EB-2 India and China for this fiscal year is coming to an end.    Mr. Oppenheim had indicated that if visa number demand (I-485 and NVC case filings) continues to be strong over January, February and March, he would need to hold the movement and, possibly, retrogress.

Given the fact that there has been notable demand, indicated by I-485 filings, and given that Mr. Oppenheim has decided to keep the April 2012 Visa Bulletin unchanged for EB-2 India and China, it may be assumed that Mr. Oppenheim has seen sufficient number of filings in order to ensure that no visa numbers go unused for the remainder of the fiscal year.     While it is possible some additional forward movement over the next few Visa Bulletin editions, such movement in EB-2 India/China, if any, is likely to be very small.

Current Priority Date?

Given the possibility of slowdown and/or retrogression in the EB-2 India/China cutoff dates, our office stands ready to assist in the applicable process to take advantage of the recent significant forward movement in the cutoff dates across many of the categories, including applicants in EB-2 India and EB-2 China.   Those applicants whose priority dates are current as of the April 2012 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the April 2012 Visa Bulletin or our thoughts about cutoff dates for the next few months.  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.

The U.S. Citizenship and Immigration Service (USCIS) is set to begin accepting H-1B visa applications pursuant to its Fiscal Year 2013 (FY2013) quota.   The first day on which USCIS will accept new, cap-subject H-1B petitions, is Monday, April 2, 2012.

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 FY2013 starting on October 1, 2012.

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 FY2013 H-1B cap is April 1, 2012 (technically, this year it is April 2, 2012 because April 1 falls on Sunday).  By law, the earliest starting employment date for petitions approved under the FY2013 H-1B cap is October 1, 2012.  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, 2012 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 FY2013 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 and last year, FY2012, the H-1B cap was open between April 1, 2011 and November 22, 2011.

Due to the recovering economy, we do not expect that this year’s H-1B cap will be reached in eight days.  However, we do not anticipate that the H-1B cap will remain open until November of 2012.  Accordingly, to eliminate uncertainty, we recommend to our clients to aim for an early April H-1B filing.

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

Conclusion

Because USCIS received more applications than there were visas available for fiscal years 2009, 2008, 2007 and 2006 within a few days of the cap opening, and for the 2012 fiscal year the cap was hit in November 2011 , we recommend that clients consider their needs as soon as possible and be prepared to file on the first available date – April 2, 2012.    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.

We are in the peak of the Republican Party primary season and we are very close to have the general Presidential election campaign under way.   Some of the candidates have expressed opinions on immigration, in connection with the campaign, or previously, and it is natural for some foreign citizens, both living in the U.S. and abroad, to be interested in contributing money and/or services to a candidate’s campaign.  However, there are strict rules that govern what a foreign citizen can do during an election campaign.

Our office receives an increasing number of inquiries about what kind of activities by foreign nationals are permitted in connection with the U.S. elections and this article seeks to provide some general guidance.   Please note that this general information article is not legal advice and we are happy to provide individual consultations and to analyze a specific case.

The Law

The relevant law is the Foreign Agents Registration Act (FARA) which was first enacted in 1966 and initially aimed to minimize foreign intervention in U.S. elections by establishing a number of limitations on foreign individuals.  In 1974, the prohibitions were incorporated into the Federal Election Campaign Act (FECA).

FECA prohibits any foreign national from contributing, donating or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly.  It is also unlawful to help foreign nationals violate that ban or to solicit, receive or accept contributions or donations from them.  Persons who knowingly and willfully engage in these activities may be subject to fines and/or imprisonment.

Who Is a Foreign National?

The prohibition is very broad, but there are exceptions.  Although a “foreign national” is defined as broadly as a foreign person or entity, persons with green cards are excluded from the definition of a foreign person and should be eligible to contribute money and/or services to a political campaign.

Money

Based on the definition of “foreign national” and the exception for green card holders, it follows that only green card holders can contribute financially to the political campaign of a presidential candidate.   The limits of such financial contributions are outside of the scope of this article.

It should also be noted that it is unlawful to provide assistance to foreign nationals making contributions to political campaigns in violation of FECA.  It is also illegal to knowingly solicit, accept, or receive contributions or donations from foreign nationals.

Contribution of Services

Some foreign nationals who do not have green cards can nonetheless help a political campaign via voluntary non-monetary contribution of services.  The Act provides that that the “volunteer” exemption applies as long as the foreign national performing the service is not compensated by anyone.

The “non-compensated” rule is very vague, and as a result, the Federal Election Commission has addressed its nuances in a couple of advisory opinions.  In Advisory Opinion 1987-25, the Commission allowed a foreign national student to provide uncompensated volunteer services to a Presidential campaign.  By contrast, the decision in Advisory Opinion 1981-51 prohibited a foreign national artist from donating his services in connection with fundraising for a Senate campaign.    During the 2008 campaign, FEC ruled that Sir Elton John (a foreign national) organizing a $2.5 million fundraiser for Hillary Clinton’s campaign was “volunteer service.”

Conclusion

As the 2012 election season gets underway and more and more people are engaged in some capacity for some of the candidates’ campaigns, it is important to understand the restrictions imposed on foreign nationals from engaging and contributing to the political process.    Our office is happy to provide consultations or to help analyze a specific situation pertaining to a foreign national and the U.S. election process.

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

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 February 15, 2012.

PERM Processing Statistics

DOL has provided some useful statistics on the number of PERM cases processed for the FY2012 fiscal year (starting October 1, 2011) until February 15, 2012.   During this period, DOL has received 17,700 cases (in comparison, DOL had received 13,000 PERM applications as of January 6, 2012, suggesting a rate of approximately 800 PERM applications filed every week, at least for the past few weeks).

During this period, the government has also processed 16,555 PERM cases.  This suggests that DOL is more or less keeping up with the rate of filings and further suggesting that there should not be major change in the regular PERM processing times in the short term (see below for the current PERM processing times).   Out of the 16,555 PERM cases processed so far this fiscal year, 12,350 were certified, 3,312 were denied and 893 were withdrawn.    Out of the 24,400 “active” PERM cases as of February 15, 2012, about 60% were at analyst review, 26% were at audit review and 8% were on appeal.

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: October 2011.  DOL is processing PERM applications with priority dates in October of 2011.  There is slight delay (of one month) in the processing times, compared to the January 2012 report.  Accordingly, regular PERM processing times should be around three to four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: June 2011.  DOL is processing PERM audits which have a priority date of June 2011.  There is improvement (of one month) in the date for this type, suggesting that PERM audits should take a month less than previously.  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): August 2010.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of August 2010.   There is notable improvement in this category in comparison to prior months.   Comparing with the January 2012 report, this category has improved the processing time by four months.   Accordingly, PERM requests for reconsideration are processed approximately 16-18 months after the initial PERM was filed and its priority date established.
• “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).

Conclusion

The February 2012 PERM processing times report shows a very delay in the regular and appealed PERM processing times, while there is a slight improvement in the audited PERM 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 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.

Among increased scrutiny and often long waiting period to obtain an H-1B (and sometimes even H-4 for their dependents) visa stamp, a number of US-based IT consulting employees are understandably nervous about traveling abroad and attending the H-1B visa stamp interview.

Our office handles a substantial number of such H-1B petitions and H-1B visa stamp applications and while we can confirm that a well-prepared H-1B stamping application has a very good chance of success, nonetheless, the scrutiny and level of review/delay has increased.

US Consulate in Hyderabad, India Introduces Attestation Document for H-1B Workers

We have learned that the US Consulate in Hyderabad has started requiring certain H-1B applicants (most likely who would be working for IT consulting companies) to sign a notarized statement attesting to a number of facts in relation to their third-party client placement and employment.     See a real (but redacted) attestation document.

H-1B Applicants in Hyderabad Must Attest to the Terms of Their H-1B Employment

The attestation seems to require the H-1B worker to provide or confirm (under oath and under penalty of permanent bar on admission to the United States) a number of facts relating to the H-1B employment.    First, the H-1B worker must confirm that he or she has read the Wilberforce pamphlet which has been provided to them by the Consulate.   The Wilberforce pamphlet is a document which is usually given out by U.S. Consulates to certain visa applicants informing them of their rights under the human trafficking and labor laws in the United States.

In addition, the H-1B workers must attest to key facts describing the employment – including name of end client, identities and contact information of supervisors, terms of employment and other facts describing the employer-employee relationship between the sponsor employer and the H-1B worker.

Importantly, the H-1B worker submits the statement under oath and subject to a permanent ban on entering the U.S. for providing false information.   Since the information required in the attestation often comes from the H-1B sponsor employer, the fact that the H-1B worker has to attest to facts to which he/she may not have direct knowledge should cause an H-1B worker to pause and ensure that all information is correct before signing his or her name.

Conclusion

It seems that the H-1B worker attestation introduced by the US Consulate in Hyderabad is a new approach in the H-1B visa stamping procedure — at least for Hyderabad.   We do not have direct reports of this kind of attestation being used by other Consulates; however, it is possible the use may spread.   We hope that this kind of attestation is limited only to cases in which the employment terms and the employer-employee relationship is not amply documented.   When the H-1B sponsor is willing and able to document amply the facts and the terms of the H-1B employment at a third-party client site, this attestation should not be needed.

Have you received or have been asked to sign similar attestation?   Please let us know.

We will continue to monitor developments on this topic and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Under the North American Free Trade Agreement (NAFTA), certain Canadian and Mexican professionals are allowed to enter the U.S. under the TN nonimmigrant classification to engage in certain TN-eligible occupations.   We wrote recently about Admission of TN Canadian Workers in the U.S.  This article is the second of the series and pertains to requirements and procedures for admission of Mexican TN workers in the U.S.

TN Admission Requirements

It is important to note that requirements for admission of Canadian and Mexican TN workers vary.   While a Canadian citizen TN worker may apply for TN classification at the border,  Mexican TN workers must first obtain a TN visa at a U.S. Consulate.     After obtaining a TN visa from the Consulate, a Mexican citizen may apply for admission in TN status at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic, or at a U.S. pre-clearance/pre-flight station.

Visa Validity and Proper Period of Admission

A TN visa issued to a citizen of Mexico by a U.S. Consular officer is valid for a maximum of one year.  The TN visa validity limitation is required by the U.S. Department of State’s reciprocity schedule.   The validity of the TN visa, however, does not determine the period of time that a Mexican TN worker may be admitted in TN status — a Mexican TN worker may be admitted for a period of up to three years in TN status, provided that the passport will remain valid for the entire period.

A key document a Mexican TN worker should be ready to present is a TN support letter, prepared and issued by the intended US employer describing how the intended position and the employee qualify for TN status.

Not all Mexican TN workers are given a 3-year TN status, however.    If the intended employment is of shorter duration, as described in the TN employer support letter, the TN worker is likely to be given TN status only for the requested work period.

Conclusion

The requirement of a passport with sufficient validity and a proper TN employer support letter makes it important for Mexican TN workers to prepare a proper application for admission into the U.S. on TN status.   Unlike Canadian TN workers, Mexican TN workers must first go through the U.S. Consular visa application review process and often can document well their employment by the time they travel to the U.S. to seek admission on TN status.   Our office routinely handles Mexican TN worker applications and we are happy to assist with the preparation of proper TN visa application and admission paperwork.    Please feel free to contact us for assistance or with questions.