Labor Immigration Law» H-1B – Articles

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

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

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

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

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

Developments in Neufeld Memo Lawsuit

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

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

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

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

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

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

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

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

H-1B Quota Trends

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

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

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

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

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

H-1B Quota Trends

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

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

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

H-1B Quota Trends

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

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

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

H-1B Quota Trends

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

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

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

H-1B Quota Trends

H-1B Statistics for Fiscal Year 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

USCIS Sued to Prevent Enforcement of the Neufeld Memo Guidelines

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

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

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

Conclusion: More to Follow

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

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

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

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

H-1B Quota Trends

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

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

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

H-1B Quota Trends

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

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

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

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

H-1B Quota Trends

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

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

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

H-1B Quota Trends

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

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

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

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

H-1B Quota Trends

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

FY2011 H-1B Numbers Update – 16,500 Regular and 6,900 Masters Cap Visas Used (April 27, 2010)

admin — Tue, 04 May 2010 13:42:13 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of April 27, 2010, USCIS has received approximately 16,500 H-1B petitions counting toward the 65,000 cap (a weekly increase of 475). Similarly, as of April 27, there were 6,900 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of only 160).

H-1B Quota Trends

Extension of Post-Completion OPT and F-1 Status for Eligible Students under H-1B Cap-Gap Regulations

admin — Thu, 29 Apr 2010 20:48:11 +0000

Late spring and early summer are generally busy period for recent foreign college graduates as far as employment immigration is concerned. On one hand, foreign college graduates are either applying for their initial term OPT, their 17-month STEM extensions (if they qualify) or their H-1B work visas.

Our office fields many questions from prospective or recent college graduates with respect to their OPT and H-1B options. In this article we will focus on a number of questions relating to H-1B and the “cap-gap” provision allowing students with expiring OPT work permits to continue working subject to a timely-filed H-1B petition under the H-1B cap.

Background on the H-1B Cap

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

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

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

What Is “Cap-Gap”?

The current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between F-1 and H-1B status that might otherwise occur if F-1 status was not extended for qualifying students.

How to Invoke the “Cap-Gap”?

Most importantly, H-1B petitions must be timely filed on behalf of an eligible F-1 student. This means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Is Proof of Cap-Gap Status Necessary?

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

Are Expired or Expiring OPT EAD Holders Eligible for Cap-Gap?

For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date which is generally the date of filing of the H-1B petition.

Can Students Travel While Under Cap-Gap Extension?

The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired. Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans, accordingly.

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an interim cap-gap I-20 showing an extension until June 1st. Students whose approved period of OPT already extends beyond June 1st do not need an interim extension.In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

FY2011 H-1B Numbers Update – 16,000 Regular and 6,700 Masters Cap Visas Used (April 22, 2010)

admin — Tue, 27 Apr 2010 02:42:53 +0000

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of April 22, 2010, USCIS has received approximately 16,025 H-1B petitions counting toward the 65,000 cap (a weekly increase of 2,425). Similarly, as of April 22, there were 6,739 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of only 939).

H-1B Quota Trends

The numbers, as reported over the past three weeks – indicate that after there was a very small weekly increase in the number of H-1B filings two weeks ago, last week the number of H-1B filings have increased. As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time.

FY2011 H-1B Numbers Update – 13,600 Regular and 5,800 Masters Cap Visas Used (April 15, 2010)

admin — Tue, 20 Apr 2010 15:21:46 +0000

USCIS released the second “official” FY2011 information on the numbers of cap-subject H-1Bs filed since April 1. As of April 15, 2010, USCIS has received approximately 13,600 H-1B petitions counting toward the 65,000 cap (a weekly increase of only 100). Similarly, as of April 15, there were 5,800 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of only 200).

H-1B Quota Trends

The numbers, as reported over the past two weeks – as of April 8th and as of April 15th, indicate that there was a very small increase in the number of H-1B filings over the past week. As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time.

FY2011 H-1B Numbers Update – 13,500 Regular and 5,600 Masters Cap Visas Used (April 8, 2010)

admin — Fri, 09 Apr 2010 06:10:02 +0000

The H-1B season is well underway. Yesterday we reported on the Vermont Service Center’s H-1B FY2011 numbers as of April 5.

Today, USCIS released the first “official” FY2011 information on the numbers of cap-subject H-1Bs filed since April 1 for both the Vermont and California Service Centers. As of April 8, 2010, USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap. This count means that as of April 8, there are 51,500 H-1B visas left under this year’s H-1B quota and USCIS will continue to accept petitions subject to the general (regular) cap.

Similarly, as of April 8, there were 5,600 H-1B visas filed subject to the U.S. Masters cap (which has 20,000 limit). This means that as of April 8, there are approximately 14,400 visas left under the U.S. Masters H-1B cap.

H-1B Quota Trends

Throughout every H-1B cap filing season, we provide timely updates on the H-1B numbers and we draw predictions and conclusions based on the numbers and our experience. So early in the process for this year, it is impossible to draw any trends; however, stay tuned for more numbers and updated trends over the next days and weeks. You may want to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

FY2011 H-1B Numbers Update – Vermont Service Center (April 5, 2010)

admin — Thu, 08 Apr 2010 04:10:01 +0000

The Vermont Service Center (VSC) of USCIS has released the first “semi-official” Fiscal Year 2011 H-1B numbers. As of close of business on Monday, April 5th, VSC has received a total of 9,525 cap-subject H-1B petitions. Of those, 6,791 were “regular H-1B cap” and 2,734 were “master’s cap” petitions.

Note that this information is for the Vermont Service Center. The California Service Center, the second service center processing cap-subject H-1B petitions has not announced any numbers yet.

H-1B Quota Trends

Throughout every H-1B cap filing season, we provide timely updates on the H-1B numbers and we draw predictions and conclusions based on the numbers and our experience. So early in the process for this year, and especially without the California Service Center numbers, it is impossible to draw any trends; however, stay tuned for more numbers and updated trends over the next days and weeks.

Warnings for TCN Visa Applications in Canada

admin — Sat, 03 Apr 2010 05:39:50 +0000

Generally, the U.S. Department of State likes to process visas at the consulate located at the applicant’s home country. Howevre, U.S. consulates in Mexico and Canada have the practice of allowing third-country nationals (TCN) to apply for a U.S. visa stamp in addition to their home country. However, recent AILA interactions with the Department of State Canadian missions have provided some cautionary notes.

First, U.S. consular posts in Canada are increasingly refusing to issue visas under INA 221(g) in cases where the H-1B visa applicant has a foreign (non-U.S.) degree and who does not have a previous H-1B stamp issued by the U.S. consulate in their home country. This practice is dictated mainly by a concern about increasing fraud with foreign diplomas.

Second, U.S. consulates in Canada generally discourage TCNs from applying at Canadian U.S. consular posts if they last entered the U.S. in visitor status.

While these announcements are not change in policy, it is important that we share them with our clients and readers as we encounter, on a daily basis, a number of inquiries about the feasibility of obtaining a U.S. visa stamp in Canada. These notes should certainly provide examples of cases where a visa application should not be submitted in Canada. The notes do not seem to include Mexico, although we suspect that the U.S. consulates in Mexico may trend similarly to their counterparts in Canada.

Brief Trips to the U.S. and Foreign Residency for New 6-year H-1B Term

admin — Thu, 25 Mar 2010 16:48:09 +0000

As many of our clients and readers know, the H-1B program allows stay in the U.S. on H or L status of up to six years. Time spent abroad during this period may be “recaptured” and added towards the six years of H-1B time.

However, many foreign nationals who are not eligible to extend their H-1B term past the 6th year based on pending PERM labor certification or approved I-140 immigrant petition are limited from being employed in the U.S. pursuant to H-1B status unless they spent at least one continuous year abroad before they are counted under the H-1B cap again and given another 6-year H-1B term.

The relevant rule is 8 CFR §214.2(h)(13)(i)(B) which states:

When an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under sections 101(a)(15) (H) or (L) of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad. The petitioner shall provide information about the alien’s employment, place of residence, and the dates and purposes of any trips to the United States during the period that the alien was required to spend time abroad.

Recently, the USCIS has confirmed this but has reiterated the point that any stay in the U.S. which is not a brief business or pleasure trip will not only not count towards meeting the one-year foreign residency requirement, but would also reset the one-year clock.

The question then becomes what is a brief business or pleasure trip to the U.S. Unfortunately, no definition has been provided by USCIS, but generally a common-sense approach may be helpful. If the trip to the U.S. contemplates employment, longer stay or is generally one which would require a visa other than business or tourist (B1/B2) visa, then it may be considered “not brief trip” and would reset the clock. Of course, each trip would vary in its duration and circumstances, so we are happy to help our clients and readers when they are unsure whether their U.S. trip may reset the one-year foreign residency clock for new 6-year H-1B term purposes.

AILA Letter to USCIS on Employer-Employee Relationship Memo

admin — Mon, 22 Mar 2010 13:16:24 +0000

We have written extensively over the past two months on the January 8, 2010 Neufeld Memorandum (the “Neufeld Memo”) changing the H-1B adjudication standards for H-1B employers engaged in 3rd party placement or employee-owners. We have also written about AILA’s efforts to rescind the Neufeld Memo.

In a letter dated March 19, 2010 addressed to the USCIS Director, AILA puts forward a renewed call for rescission of the Neufeld Memorandum by explaining the unintended and burdensome consequences of the Neufeld Memo. The AILA letter discusses the economic impact of the Neufeld Memo on a number of H-1B petitioners. Also, the letter discusses the undesired and unintended (according to AILA) impact of the Neufeld Memo on a number of industries:

physicians – since many states prohibit the physician to work directly for a hospital, many physicians are unable to obtain H-1B under the Neufeld Memo employer-employee relationship standard because they cannot, by law, be sponsored by the employer where they will actually work.
government contractors – many government contractors operate on a purely third-party worksite placement system, and for many of these contractors, the Neufeld Memo precludes hiring H-1B workers.
H-1B entrepreneurs/job creators – the Neufeld Memo would also prevent H-1B visas to be issued to foreign entrepreneurs (and job creators) who have some ownership interest in their U.S. company.
IT consulting companies – meeting the Neufeld Memo obligations also impacts IT consulting companies, which have very useful in helping larger companies set-up projects quickly and with the right staffing.

The AILA letter concludes that the Neufeld Memo should be rescinded because of its negative impact on a number of industries and the fact that the de facto rulemaking is done in violation of the Administrative Procedures Act.

Analysis of Proposed Changes to Form I-129 (H-1B, L-1, TN)

admin — Thu, 18 Mar 2010 16:19:34 +0000

USCIS published a notice in the Federal Register with proposed changes to Form I-129 which is used for H-1B, L-1, TN, among other visa type filings. Please see the DRAFT proposed Form I-129 (and draft instructions). The proposed changes are significant and are likely to impact most, if not all, employers who file Form I-129.

More Amendments Will Be Required

The proposed draft contemplates that an H-1B amendment filing will be required for ANY material change in employment. The instructions provide as an example of material change in employment a change on primary job duties or change in the geographic location of the job. Currently, H-1B petitions do not always have to be amended when there is a change in the geographic location of the job. Under current guidance, a valid Labor Condition Application (LCA) is required for such geographic location job change.

Under the proposed Form I-129, an H-1B amendment, in addition to LCA filing, will be required for any job change with respect to geographic location. While this is unlikely to affect many employers who employ their H-1B workers onsite; the proposed change will be very burdensome to consulting companies and companies with roving employees.

Furthermore, the requirement of filing H-1B amendments for geographic location job changes will create another level of uncertainty associated with the H-1B amendment process. The cost (filing fees and preparation expenses) of having to prepare such amendments is also likely to be significant and impact consulting and roving-employee companies.

Export License Acknowledgement

The draft revised Form I-129 requires a deemed export license acknowledgment. Certain H-1B, L-1 and O-1A workers must have a “Deemed Export License” issued by the Department of Commerce to be eligible for employment pursuant to H-1B, L-1 or O-1A status. Accordingly, the employer must submit evidence that a review of the deemed export license requirements has been completed (under 15 C.F.R. 734.2).

If a deemed export license is required, a copy of the Department of Commerce approved license must be supplied. Alternatively, if a deemed export license is not required, the employer will have to indicate whether the technology with which the foreign worker will be engaged is subject to Export Administration Regulations (EAR) and identify the Export Control Classification Number (ECCN) of the technology in which the beneficiary will have access to.

Evidence of Valid Status Required

The draft instructions also indicate that evidence of valid status will be required as initial evidence with any Form I-129 petition. USCIS will require, for all change or extension of status petitions, copies of the last two paystubs and Form W-2 in addition to Form I-94 and Form I-797 approval notice to support that the beneficiary has maintained a valid status.

Third-party Worksite Attestations

In cases where the worker will be placed at a third-party worksite, the revised Form I-129 requires certain attestations – name of the company where the worker will be placed, the work address and a contact person. Although changes to the language may be necessary due to apparent misuse of terms, the petitioning employer will also have to attest that the worker will receive at least the prevailing wage or the offered wage (same under current H-1B regulations).

H-1B Worker Will Have to Sign Data Collection Supplement

Under the revised form, the H-1B worker will be required to sign the Data Collection Supplement. The purpose of this is to attest that the worker has accepted the terms of the job offer, including offsite placement and the possibility of relocation. Currently, the employee does not have to sign or otherwise acknowledge any portion of the H-1B filing paperwork.

Duplicate Forms Required

The proposed instructions also require that all of the forms and supporting evidence be submitted in duplicate. Currently, duplicates are necessary for petitions requesting consular processing. However, since each H-1B worker is, at some point of their H-1B period, likely to apply for a visa at a U.S. consulate abroad, this requirement is certainly helpful to eliminate visa processing delays associated with lack of information in the consular service database due to lack of duplicate copy.

It is our office’s practice to almost always submit duplicate copies of the petitions and all supporting evidence, so this change should not affect our practice.

Conclusion

The proposed changes to Form I-129 are fairly significant and create a number of additional requirements and burdens on at least some, if not all, employers using Form I-129 to petition for foreign workers. Our office will remain involved in this comment period and we will provide updates on this proposed Form I-129 draft and any developments related to it. Please consider subscribing to our free weekly newsletter to receive email updates on this and related immigration law developments.

USCIS Will No Longer Accept H-1Bs Without Certified LCAs

admin — Fri, 12 Mar 2010 13:59:43 +0000

In November of last year and in February of this year, we wrote about a temporary change USCIS made with respect to H-1B petitions filed without certified Labor Condition Applications (LCAs). The reason for this temporary change in policy was to accommodate LCAs which have been delayed past the 7-day LCA processing window. Pursuant to the temporary policy, H-1Bs could be filed with evidence of filed LCA which shows that the LCA has been pending for more than 7 business days.

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

VSC Officers and “Credit” for RFES

admin — Thu, 11 Mar 2010 02:51:35 +0000

During a recent AILA conference, the Vermont Service Center (VSC) Director Dan Renaud told the audience that the performance review structure for adjudicating officers has recently changed. Pursuant to the new performance review structure, officers get credit for issuance of Requests for Evidence (RFES), in addition to issuing approvals and denials, under the previous performance review structure.

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

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

H-1B Cap for Fiscal Year 2011 Opens on April 1, 2010

admin — Mon, 08 Mar 2010 18:44:31 +0000

The U.S. Citizenship and Immigration Service (USCIS) is set to begin accepting H-1B visa applications pursuant to its Fiscal Year 2011 (FY2011) quota. The first day on which USCIS will accept new, cap-subject H-1B petitions, is April 1, 2010.

About the H-1B Program and the Annual Cap

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

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

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

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

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

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

Projections About This Year’s H-1B Cap

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

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

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

Conclusion

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

USCIS Meeting on H-1B Employer-Employee Relationship Memo

admin — Thu, 18 Feb 2010 21:34:23 +0000

Earlier today USCIS held a collaboration session on “Determining Employer-Employee Relationships for Adjudication of H-1B Petitions.“ We had the opportunity to attend the session, to listen and to engage in a discussion regarding the January 8, 2010, USCIS Memorandum by Donald Neufeld on the Employer-Employee Relationship.

The Session Generated Great Interest

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

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

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

Comments Were Mostly Critical

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

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

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

Some Callers Praised the Memorandum

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

USCIS Listened, Mostly

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

Conclusion

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

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

Prevailing Wage Request Delays Under iCert Form 9141 System

admin — Thu, 04 Feb 2010 16:20:54 +0000

Effective January 1, 2010, the Department of Labor (DOL) centralized all prevailing wage determinations needed in connection with certain programs – PERM, H-1B, H-2B and E-3. All prevailing wage requests now must be submitted to DOL for processing and not to the state workforce agencies, as it was done before.

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

Prevailing Wage Determinations Currently Take Three to Four Weeks

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

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

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

Alert on H-1B Admissions at the Newark, NJ Airport

admin — Wed, 03 Feb 2010 16:35:33 +0000

The American Immigration Lawyers’ Association (AILA) has provided some guidance and information from Customs and Border Protection (CBP) at the Newark, New Jersey airport.

Background

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

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

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

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

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

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

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

Public Information May be Consulted During or After Inspection

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

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

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

Conclusion: Proper Pre-Travel Preparation is Essential

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

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

USCIS to Accept H-1B Filings without Certified LCA or Late H-1B Filings

admin — Wed, 03 Feb 2010 16:09:10 +0000

We wrote in late October and early November of 2009 about the USCIS Ombudsman’s recommendation that USCIS (1) accept H-1B filings without a certified LCA but with a proof of filed and pending LCA and (2) to excuse late H-1B filings where the delay in filing was caused by pending LCA or employer’s Federal Employed Identification Number (“FEIN”) verification.

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

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

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

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

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

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

AILA Seeks Rescission of the January 8, 2010 Neufeld Memorandum

admin — Thu, 28 Jan 2010 17:27:24 +0000

The Neufeld Memorandum of January 8, 2010, has generated a substantial amount of discussion with its newly-proposed standard for “employer-employee” relationship applied to third-party H-1B employee placements, which are very common for consulting companies. Our office has handled many consultations and inquiries relating to the Neufeld Memorandum and what it means for the thousands of H-1B employees currently on H-1B visa and for their employers.

AILA Seeks Rescission of the Neufeld Memorandum

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

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

The Neufeld Memorandum is Improper Rulemaking

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

The Neufeld Memorandum Definition of Employer-Employee Relationship is Incorrect

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

Conclusion

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

H-1B Filing Fees – Who Can Pay What?

admin — Tue, 19 Jan 2010 22:04:39 +0000

Our office received many inquiries by both H-1B sponsor companies and employees about what kind of fee payment arrangement is permissible under the H-1B regulations.

Background of H-1B Filing Fees

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

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

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

Fraud Prevention Fee Must be Paid by Employer

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

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

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

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

Conclusion

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

USCIS Guidance on H-1B for Contractors and Third-party Worksites

admin — Tue, 19 Jan 2010 21:47:00 +0000

In a January 8, 2010, Memorandum, Donald Neufeld, the Associate Director for Service Center Operations, provides some guidance on the standards for H-1B petitions filed by independent contractors, self-employed beneficiaries, and beneficiaries working at third-party worksites.

Focus on Employer-Employee Relationship

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

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

Who Is Most Affected by the New Guidance?

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

Establish the Employer’s Right to Control

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

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

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

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

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

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

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

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

Conclusion

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

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

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

H-1B Quota Reached – Alternatives to H-1B Visa

admin — Sun, 03 Jan 2010 16:14:55 +0000

Now that the H-1B quota has been reached (as of December 21, 2009), 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, 2010, when the new fiscal year’s H-1B quota would begin (as a reminder, April 1, 2010 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.

O-1 or P-1 Extraordinary Ability Visas

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

L-1 Intracompany Transferree

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

E-1/E-2 Treaty Trader or Investor

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

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

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

H-1B Program Changes by Congress Unlikely

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

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

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

Breaking News – FY2010 H-1B Cap Reached (December 22, 2009)

admin — Tue, 22 Dec 2009 18:56:27 +0000

A few minutes ago USCIS announced that as of December 21, 2009, it has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.

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

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

FY2010 H-1B Numbers Update – 800 H-1B Visas Left (December 17, 2009)

admin — Thu, 17 Dec 2009 19:47:58 +0000

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1. As of December 17, 2009, USCIS has received approximately 64,200 H-1B petitions counting toward the 65,000 cap. The updated count means that as of December 17, 2009, there were 800 H-1B visas left under this year’s H-1B quota and USCIS will continue to accept petitions subject to the general cap.

H-1B Quota – Last Day(s)

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

FY2010 H-1B Numbers Update – 2,500 H-1B Visas Left (December 10, 2009)

admin — Sat, 12 Dec 2009 23:26:03 +0000

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1. As of December 10, 2009, USCIS has received approximately 62,500 H-1B petitions counting toward the 65,000 cap (an increase of 1,000 in the past three days). The updated count means that as of December 10, 2009, there were 2,500 H-1B visas left under this year’s H-1B quota and USCIS will continue to accept petitions subject to the general cap.

U.S. Masters Degrees Quota Reached

USCIS has received sufficient number of petitions for aliens with advanced degrees and as a result, USCIS has announced that the master’s cap for FY2010 has been met. As of October 25, 2009, all FY2010 H-1B petitions for holders of U.S. advanced degrees will be counted towards the general cap of 65,000.

H-1B Quota – One Week Remaining?

The numbers, as reported over the past few weeks and days indicate that there was a notable increase in the H-1B filings. As a result, if the current trend remains, we estimate that the H-1B quota will be reached in approximately one week.

FY2010 H-1B Numbers Update – 3,500 H-1B Visas Left (December 8, 2009)

admin — Wed, 09 Dec 2009 17:47:43 +0000

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1. As of December 8, 2009, USCIS has received approximately 61,500 H-1B petitions counting toward the 65,000 cap (an increase of 3,000 in the past week). The updated count means that as of December 8, 2009, there were 3,500 H-1B visas left under this year’s H-1B quota and USCIS will continue to accept petitions subject to the general cap.

U.S. Masters Degrees Quota Reached

H-1B Quota – Last Call for Filing

The numbers, as reported over the past few weeks indicate that there was a notable increase in the H-1B filings. As a result, if the current trend remains, we estimate that the H-1B quota will be reached one or two weeks.

If you are considering filing a cap-subject H-1B petition as part of the FY2010 quota, please contact us as soon as possible.

FY2010 H-1B Numbers Update – 6,100 H-1B Visas Left (November 27, 2009)

admin — Tue, 01 Dec 2009 17:11:22 +0000

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1. As of November 27, 2009, USCIS has received approximately 58,900 H-1B petitions counting toward the 65,000 cap (an increase of 2,000 in the past week). The updated count means that as of November 27, 2009, there were 6,100 H-1B visas left under this year’s H-1B quota and USCIS will continue to accept petitions subject to the general cap.

U.S. Masters Degrees Quota Reached

H-1B Quota Trends

The numbers, as reported over the past few weeks indicate that there was a notable increase in the H-1B filings. As we previously reported, there has been an increase of about 900-1,300 H-1B visas for each of the past five weeks, in addition to this week’s increase of 2,000 H-1B visas. Based on our tracking of the H-1B numbers, this increase shows a notable weekly increase in the numbers of H-1B filings. As a result, if the current trend remains, we estimate that the H-1B quota will be reached within a 3-5 weeks.

If you are considering filing a cap-subject H-1B petition as part of the FY2010 quota, please contact us as soon as possible.