Labor Immigration Law

We wrote in June about the lawsuit challenging the 17-month OPT extension for STEM students.  The lawsuit was brought by  the Immigration Reform Law Institute, joined by the Programmers Guild and other organizations.   The lawsuit challenged the administration’s decision to extend the work period for students under the OPT program and argued that the OPT extension is just a way to go around the H-1B cap limit.  The argument was based on the fact that the H-1B program, and its annual cap, is set by U.S. Congress and by extending the OPT by 17-month, the administration has circumvented the required process of consent by the U.S. Congress.

There is a disposition in this case favorable to the F-1 and OPT holders who may benefit from the 17-month extension. In an opinion dated August 5, 2008, the US District Court for the District of New Jersey denied the request for preliminary injunction to stop the OPT 17-month program.

The September 2008 Visa Bulletin has been released by the Department of State.  It brings a mix of good and bad news.

The good news for EB-2 applicants from India and China continues this month as well - the dates for EB-2 India and EB-2 China moved by two months, from June 1, 2006, to August 1, 2006.  There are no other changes to the employment-based dates.

However, there were some bad news for employment-based applicants in the EB-3 category.  Earlier in July, when the EB-3 category became “Unavailable” the comment was that it is expected that in October, upon the beginning of the new fiscal year, the EB-3 dates would return to their June 2008 values.  However, the State Department has revised this expectation and has indicated “the that continued heavy demand in those categories may require the establishment of cut-off dates which are earlier than those which had applied in June. ” Although this backward movement is not certain yet, a formal decision is expected in September.

The USCIS has released an update to the projected processing times for naturalization petitions.  Based on updated projections, USCIS estimates that the naturalization process would take an average of 10-12 months by the end of September 2008 (compared with the estimated 16-18 months projections announced last year).

The increase in processing time was mainly due to the 1.4 million naturalization applications received in 2007, an amount which is double the normal annual volume.

The USCIS projections for processing time by office are listed below:

Agana, Guam…………………………….5.0
Albany, N.Y……………………………..5.6
Albuquerque, N.M……………………..8.4
Anchorage, Alaska…………………….5.0
Atlanta, Ga………………………………..6.7
Baltimore, Md…………………………..7.0
Boise, Idaho…………………………….10.5
Boston, Mass…………………………….8.8
Buffalo, N.Y……………………………..7.0
Charleston, S.C………………………..14.1
Charlotte Amalie, Virgin Islands….7.2
Charlotte, N.C………………………….14.9
Chicago, Ill……………………………….5.1
Cincinnati, Ohio………………………..7.0
Cleveland, Ohio…………………………6.8
Columbus, Ohio…………………………5.7
Dallas, Texas…………………………..11.0
Denver, Colo…………………………….5.2
Des Moines, Iowa………………………5.7
Detroit, Mich…………………………….5.0
El Paso, Texas…………………………..7.9
Fort Smith, Ark………………………….7.6
Fresno, Calif……………………………..6.7
Harlingen, Texas……………………….5.0
Hartford, Conn…………………………14.3
Helena, Mont…………………………….5.0
Honolulu, Hawaii………………………5.0
Houston, Texas………………………….5.1
Indianapolis, Ind………………………..5.0
Jacksonville, Fla………………………..7.4
Kansas City, Mo………………………..7.0
Las Vegas, Nev………………………….9.0
Los Angeles, Calif……………………12.5
Louisville, Ky……………………………7.1
Manchester, N.H………………………..5.3
Memphis, Tenn…………………………8.4
Miami, Fla………………………………12.0
Milwaukee, Wis………………………..6.6
Mount Laurel, N.J……………………..5.0
New Orleans, La……………………..14.5
New York, N.Y……………………….10.0
Newark, N.J………………………………7.4
Norfolk, Va………………………………7.2
Oklahoma City, Okla…………………8.6
Omaha, Neb……………………………..5.0
Orlando, Fla……………………………..9.5
Philadelphia, Pa……………………….10.0
Phoenix, Ariz……………………………8.6
Pittsburgh, Pa……………………………6.0
Portland, Maine…………………………5.5
Portland, Ore…………………………….5.4
Providence, R.I………………………….6.7
Reno, Nev…………………………………5.0
Sacramento, Calif………………………5.0
Salt Lake City, Utah…………………..5.0
San Antonio, Texas……………………5.0
San Diego, Calif………………………..5.0
San Francisco, Calif…………………..5.5
San Jose, Calif…………………………..5.0
San Juan, Puerto Rico………………10.4
Seattle, Wash…………………………….9.0
Spokane, Wash………………………….5.0
St Albans, Vt…………………………….9.5
St Louis, Mo……………………………10.3
St Paul, Minn…………………………….5.5
Tampa, Fla……………………………….8.6
Tucson, Ariz……………………………12.0
Washington, D.C……………………..12.7
West Palm Beach, Fla………………..5.0
Yakima, Wash…………………………..5.0

Of course, these times are projections and although we hope that USCIS would be able to meet these timelines, we encourage applicants to allow additional time.

On July 30, the USCIS announced that it has reached the H-2B cap for the first half of the fiscal year 2009.  According to this announcement, July 29, 2008 is the “final receipt date” for H-2B petitions.  All petitions received after July 29, 2008 for H-2B with starting date of April 1, 2009 will be rejected.

USCIS has provided two recent updates on the numbers on the H-2B visa count.  The two recent updates are useful because it allows us to sample the rate at which H-2B visa numbers are being used.

The July 1 announcement stated that the H-2B count, as of July 1, stands at 17,305 for the first half of FY 2009.  The July 7 announcement stated that the H-2B count, as of July 7, stands at 20,390, an increase of nearly 3,000 over a period of less than a week. It should be noted that the period included the July 4th holiday, so it is safe to assume that the actual filing rate is somewhat higher.

The cap for the first half of FY 2009 is set at 33,000, so based on current demand at a rate of 3,000 visa petitions in 6 days, we anticipate that the remaining numbers will be exhausted some time in August.  This expectation assumes that the rate of 3,000 visa petitions per 6 days will not change.

We wrote on Friday about the anticipated significant forward movement for EB-2 India.  The August 2008 Visa Bulletin is out now and it confirms our expectation.  In addition, EB-2 China has also moved forward significantly.  Both EB-2 India and China have a date of June 1, 2006 (from April 2004 previously).

Another important update related to the visa bulletin is the unavailability of visas in the “Other Workers” category - they are now unavailable (from April 2003 previously).  The visa bulletin explains that such unavailability is due to the numbers for the “Other Workers” category reaching their annual numerical limit.  It is expected that once the FY 2009 begins in October, the dates should return to April 2003.

The August 2008 Visa Bulletin is about to be released and we have reliable (based on past experience) information that EB-2 India will move forward by more than two years - from April 2004 to June 2006.

This is excellent news for applicants in the EB-2 India category.  Stay tuned as we wil update this post with more information as the official State Department Visa Bulletin is distributed.

BREAKING NEWS

The USCIS has confirmed that on July June 16, 2008, it will resume premium processing for I-140s in certain limited circumstances. It is expected that these limited circumstances will cover cases where beneficiaries whose H status will expire within 60 days of filing the request and who need I-140 approval to become eligible for the additional H time. This change is intended to address circumstances where an individual needs the approved I-140 to receive additional H time under AC21.

The USCIS has not yet issued an official notice and we will continue to monitor the situation and update as we learn more.

Update: the starting date is June 16, 2008, not July 16, 2008, as we reporter earlier.

BREAKING NEWS

EB-3 Unavailable.  The July 2008 Visa Bulletin is out.  As we predicted in May, the Employment Based Third Category (EB-3) is now unavailable until the end of the Fiscal Year in October.   This means that no EB-3 cases will be approved until at least October.  It is expected that in October the EB-3 priority dates will return to their May/June level.

Good news for EB-2 India and China.   The July 2008 Visa Bulletin, however, brings good news to EB-2 applicants from India and China.  According to Section 202(a)(5) of the Immigration and Nationality Act, the total demand for EB-2 visas from countries other than India and China has been insufficient to meet the number of available visas; therefore, such estimated excess numbers have been allocated to EB-2 India and China.  It is expected that because Indian nationals constitute a larger proportion of the currently pending EB-2 cases, most of the newly available EB-2 visas will go to Indian nationals.

The recent OPT 17-month extension which went into effect in early April 2008 has been challenged in the U.S. District Court in Newark, N.J. by the Immigration Reform Law Institute, joined by the Programmers Guild and other organizations.   The lawsuit challenges the administration’s decision to extend the work period for students under the OPT program and argues that the OPT extension is just a way to go around the H-1B cap limit.  The argument is based on the fact that the H-1B program, and its annual cap, is set by U.S. Congress and by extending the OPT by 17-month, the administration has circumvented the required process of consent by the U.S. Congress.

We do not have a copy of the complaint at this hour to comment on the sufficiency of the legal arguments and whether it has actual merit as opposed to  its PR value.  However, we will monitor this lawsuit and report on any significant developments related to the OPT extension program.  Feel free to subscribe to our  electronic newsletter to receive updates on this and other immigration law-related stories.

Update: August 5, 2008, ruling against the plaintiffs.