Labor Immigration Law

Some of our clients and readers are aware that in March 2012, the U.S. Embassy in India introduced the Interview Waiver Program (IWP) which allows eligible individuals to apply for certain types of visa without being interviewed in person by a U.S. consular officer.    Under this program, holders of B, J-2, H-4, L-2, C, D visa holders, in addition to children under 7 years of age and elderly applicants over 80 years of age could have their in-person interview waived.

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

About the Interview Waiver Program

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

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

Interview Waiver Program Eligibility Requirements

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

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

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

Conclusion

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

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

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.

The Department of State (DOS) has announced that effective December 1, 2011, the U.S. Consulate in Chennai will become the only acceptance center in India for all applications for intra-company transfers under the blanket L category.

The U.S. Embassy in New Delhi and U.S. Consulates in Mumbai, Kolkata and Hyderabad will no longer accept or process applications for this visa category.  The blanket L category includes specialized knowledge professionals, executives and managers.

All other visa processing procedures remain unchanged.  Spouse and children visas (L2) and individual L visas (L1B and L1A individuals) which continue to be processed at all posts in India—Chennai, Hyderabad, Kolkata, Mumbai, and New Delhi.

The Department of State has announced that as of August 26, 2011, the U.S. Consulate in Mumbai would resume processing of H and L visa stamp applications.   The earliest appointments available were for September 6, 2011 and as of today, the Consulate is in normal processing mode.

Earlier this year, in March, the Mumbai Consulate suspend all H and L visa stamp processing due to aging infrastructure.   We are delighted to see that the Mumbai Consulate is now able to process H and L visa stamp applications on a regular basis.

Please see the Mumbai Consulate page for more information and details on scheduling an appointment.   Also, please do not hesitate to contact us if we can be of any assistance in preparing and filing H or L visa stamp applications at the Mumbai or other Consular sections.

The Department of State announced yesterday that effective March 3, 2011, the U.S. consulate in Mumbai, India would limit the number of applicants it can process due to the building’s aging infrastructure.  While a new multi-million dollar facility is under construction (scheduled to open later this year), the current facility of the consulate seems incapable of handling the current number of visa interviews.

As a result, the consulate would not accept new H or L visa stamp application appointments.  H and L visa stamp applicants are urged to schedule appointments at the other U.S. consulates in India.  Appointments can be scheduled through VFS.  Note: H and L appointments which are already scheduled would be honored and processed.

The Los Angeles Times has requested and been able to obtain statistics from USCIS regarding the adjudication rates for H, L, O and P petitions for the Vermont and California Service Centers since Fiscal Year 2008 (FY2008).   The statistics are current as of July 2010 and provide a very helpful overview of approval, denial and RFE rates.

California Service Center

RFE Trends.  There is much discussion about the California Service Center (CSC) increasing RFE trends.  The numbers indicate that for FY2010 (through July 2010), the CSC RFE rate has remained steady or has decreased with respect to H petitions (20%) while it has increased with respect to L (40%), O (38%) and P (44%) petitions.    While the RFE rate for H petitions seems to have remained steady over the past few years, the RFE rate for L, O and P petitions seems to have increased substantially.

Also, it should be noted that the numbers and rates of RFEs issued do not describe the entire picture.  Anecdotal evidence (supported partially by our office’s direct practice) shows that while the percentages for RFEs for H petitions may have decreased, the length and scope of the RFEs has actually increased.

Approval Trends.  CSC shows a slight increase in approval rates for H petitions (82%), while there is a slight decrease in the approval rates for L (73%), O (80%) and P (73%) petitions.   The overall approval rate for California for FY2010 is 80.5%.

Vermont Service Center

RFE Trends. The  Vermont Service Center (VSC) has noted a significant decrease in RFE rates for H petitions in FY2010 compared to FY2009.  For the current fiscal year, the RFE rate for H petitions is 22% compared to 28% in FY2009.   The RFE rates for L, O and P petitions are 18%, 17% and 15%, respectively.  It should be noted immediately that while the H petition RFE rates for Vermont are similar to the RFE rates in California, the RFE rates in Vermont for L, O and P petitions are substantially lower – by 20-30 percentage points.

The overall RFE rate for VSC is 20.5%, compared to 24% at CSC.

Approval Trends.  The approval rates for VSC are fairly consistent over the past three years.  There is a notable increase in the RFE approval rates in this fiscal year compared to FY2009.  The approval rate for H petitions is 78%, while the approval rates for L, O, and P petitions are 90%, 95% and 96%, respectively.  Compared to California, the H approval rate is slightly lower, while the L, O and P petition approval rates for Vermont are 10-15 percentage points higher for Vermont than California.

Conclusion

While the processing statistics for the past three years allow us to draw some conclusions about a service center’s processing trends, it also dispels some myths and rumors founds often on the Internet.  The numbers, however, confirm that some petitions, most notably L, O and P, face significantly higher chances of an RFE and significantly lower chances of approval in California.

The most notable difference, in the approval rates for L, O and P petitions between Vermont and California is difficult to explain.  In our practice, we review each petition early on with respect to the applicable service center and prepare it accordingly to address any difference in adjudication standards and trends between the Vermont and California Service Centers.

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

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

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

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

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

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

Revisions of Form I-129 is Underway

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

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

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

Conclusion

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

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.

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.

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.