We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate that Mr. Oppenheim has shared his first-hand knowledge of the demand in the employment-based green card categories and has afforded us to get some advance sense of the movement of the priority dates and also on short- and long-term immigrant visa trends.

Summary of Mr. Oppenheim’s January 2012 Visa Bulletin Predictions

The main points are that due to lower than anticipated demand in EB filings, EB-2 India and China cutoff dates may move forward by another 6 months in the March 2012 Visa Bulletin, and then slow down (or even retrogress) over the summer.   The slow demand in EB-1 is expected to continue this year as well.

Observations of the Demand in Employment-based Visa Numbers

Unexpectedly Low EB-2 Usage and Rate of Filings.  The employment-based (EB) visa number usage has been very slow in FY2012; as a result, the Department of State (DOS) is moving the dates forward to see how many cases are out there waiting to be filed.  Mr. Oppenheim indicated that he is relying on USCIS and their estimates of the incoming EB I-485 cases (because 85 to 90% of all EB filings are I-485s filed with USCIS).  It seems that USCIS had anticipated a higher demand — the rate of I-485 adjustment of status (AOS) filings has been only 50% of their estimates.

EB-1 Demand Low.   Mr. Oppenheim assumes low usage of EB-1 numbers again this year.  A “fall-down” of 12,000 additional EB-1 numbers into EB-2 is calculated into Mr. Oppenheim’s projections for 2012, although he thinks EB-1 number availability may be down by approximately 1,000 as compared to last year, due to heavier EB-5 usage since unused EB-5 numbers “spill up” to EB-1 and then down to EB-2.     Mr. Oppenheim is very surprised by the severe downturn in EB-1 numbers –  possible reasons are the impact of Kazarian on USCIS filings and demand for EB-1 EA numbers.

EB Visa Bulletin Predictions for 2012

March 2012 Visa Bulletin.   According to Mr. Oppenheim, employment-based priority dates will advance again with the March 2012 Visa Bulletin, very likely by at least a few months.    An advance of six months is possible, although an advance of one year is not likely.    Mr. Oppenheim noted that given current AOS processing times of 4-6 months, filing AOS in March is the last time to get a case possibly approved before the end of the fiscal year on September 30, 2012.

Spring, Summer and rest of FY2012. After some movement in the March (and possibly the April 2012 Visa Bulletin), Mr. Oppenheim expects to hold the priority date over the summer, and then retrogress or advance, as needed and as determined by demand over the summer.  Mr. Oppenheim does not have enough data at this time to predict demand and priority date changes in the last quarter of FY2012.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Overall, Mr. Oppenheim’s comments are likely to create some mixed feelings among our employment-based clients.   Although EB-2 is likely to continue to move forward over the next one or two months, the long term prospects of EB-3 China and India are not good.

Our office has been very active and aggressive in preparing and timely filing I-485 adjustment of status applications for clients who have become “current” over the past few months.   We will continue to be ready to handle the anticipated forward movement in the EB-2 China and India categories.    Please do not hesitate to contact us if we can review your case or answer any questions.  We are also happy to provide a free quote for preparing and filing your I-485 application.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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USCIS has not indicated if and how this outage would affect case updates scheduled to be sent out during this period.   We hope that outgoing case update email alerts would be unaffected; but it is possible that due to the system maintenance USCIS will not issue case alerts as well.

We urge our clients and readers who need to change address (AR-11) online, locate a local office or a civil surgeon or to otherwise interact with one of these tools to do so before the beginning of the outage.

Comparison of FY2011 and FY2012 H-1B Cap Seasons

This H-1B cap season lasted approximately two months shorter than last year’s.  Last year’s (fiscal year 2011, FY2011) H-1B cap season lasted until January 26, 2011, when the H-1B quota was reached.  This year, FY2012, the H-1B cap season was two months shorter.  This can be explained in a number of ways, most notably due to the gradual improvement in the U.S. economy and increase in the rate of hiring for the next 6-12 months.  As we saw the rate of H-1B filings over the past few weeks of this H-1B cap season to increase, we expect that as the economy continues to improves over the next couple of quarters, the H-1B demand should pick up and we expect that the new H-1B cap season, to open on April 2, 2012, to be busier than the last one.

Alternatives to H-1B Cap

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2012, when the new fiscal year’s H-1B quota would begin (as a reminder, April 2, 2012 is the earliest a cap-subject H-1B application can be filed).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our FREE initial consultation.

Cap-Exempt H-1B

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

O-1 or P-1 Extraordinary Ability Visas

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

L-1 Intracompany 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 FY2013, it is nonetheless possible.  There are a number of proposals currently circulating in Congress, some of which aim to increase the H-1B cap.  While none of these proposals have gained momentum at this time, we will be providing updates as soon as there is a likelihood that there will be development on this front.

Wait and File on April 2, 2012 for the FY2013 Cap

For some of our clients, waiting until April 2, 2012 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 FY2013 H-1B cap is expected to be the same as it was for the FY2012 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).  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 8-9 months, as they did this year.   Accordingly, we urge employees and employers to prepare and file most or all of their H-1B petitions on or about April 2, 2012, to ensure that their petition has the greatest chance to be included in the quota.  Please contact us to start preparing for your FY2013 H-1B cap filing.

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As November 14, 2011, USCIS has received approximately 56,300 H-1B petitions counting toward the 65,000 cap (an increase of 7,100 over the previous two weeks).  Similarly, as of November 14, there were 20,000 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit.

H-1B Quota Trends – Rate of Regular Cap H-1B Filings Increases Significantly; H-1B Masters Cap Reached

The numbers, as just reported for the past week, confirm that the rate of filing of new cap-subject H-1B filings is increasing significantly.  Now that the H-1B U.S. Master’s cap has been reached, all H-1B filings (regardless of level of education) will be counted under the regular H-1B cap.   As a result, we expect the average weekly rate of filings to be around 3,500, compared to 1,000-1,500 previously.     Additionally, we often see a rush of filings towards the end of the cap season as employers realize that the cap is about to close, so we anticipate the rate of filings to increase over the next few weeks.

H-1B Cap Likely to Close by Late November or Early December 2011 — Last Call for Cap-Subject H-1B Filings

Given an estimated rate of H-1B filings of 3,500 per week for the next few weeks, and given that there are approximately 9,000 H-1B visa numbers left towards meeting the annual cap, it is likely that the H-1B cap for FY2012 will be reached towards the end of the year — likely by the end of November or early December  2011.

Considering the fact that an H-1B petition takes at a minimum 7 to 10 business days to file, we urge all employers and future H-1B workers to start the H-1B filing process as soon as possible.    If you are considering filing a cap-subject H-1B petition as part of the FY2012 quota, please contact us.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

H-1B Quota Trends – Rate of Regular Cap H-1B Filings Increases; H-1B Masters Cap Reached

The numbers, as just reported for the past week, confirm that the rate of filing of new cap-subject H-1B filings is increasing slightly.  Now that the H-1B U.S. Master’s cap has been reached, all H-1B filings (regardless of level of education) will be counted under the regular H-1B cap.   As a result, we expect the average weekly rate of filings to be around 3,000-3,500, compared to 1,000-1,500 previously.     Additionally, we often see a rush of filings towards the end of the cap season as employers realize that the cap is about to close, so we anticipate the rate of filings to increase over the next few weeks.

H-1B Cap Likely to Close in Mid- to Late December 2011 — Last Call for Cap-Subject H-1B Filings

Given an estimated rate of H-1B filings of 3,500 for the next few weeks, and given that there are approximately 15,000 H-1B visa numbers left towards meeting the annual cap, it is likely that the H-1B cap for FY2012 will be reached towards the end of the year — likely in mid- to late December 2011.

Considering the fact that an H-1B petition takes at a minimum 7 to 10 business days to file, we urge all employers and future H-1B workers to start the H-1B filing process as soon as possible.    If you are considering filing a cap-subject H-1B petition as part of the FY2012 quota, please contact us.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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

Summary of Mr. Oppenheim’s Key Points

EB-2 China and India will advance significantly over the next few visa bulletins.  A possible slowdown (or retrogression) may come in the summer of 2012.   EB-3 China and, specifically, India, will move very slowly and this category is “ridiculously” oversubscribed — very long times to be expected.   Family-based dates will advance gradually.

General Visa Number Trends

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

However, Mr. Oppenheim indicated that he expects to be able to advance EB-2 China and India significantly over the next few months.

With respect to family-based cases, Mr. Oppenheim noted that the demand, especially in the FB2 category has exceeded his expectations after the sharp forward movement at the end of 2010.   This sharp forward movement has generated a significant demand for FB2 preference category visas and he has had to retrogress significantly in order to control demand.   He indicated that slow forward movement is expected.

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

Visa Bulletin Predictions – Employment-Based

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

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year.

EB-2 China and EB-2 India.  These two categories are where the most action is going to be over the next few months.  Mr. Oppenheim indicated that he expects to be able to advance EB-2 China and India significantly over the next few visa bulletins.  It is possible that the December 2011 Visa Bulletin would advance EB-2 India and China to at least March 1, 2008 or even further.   Similar forward movement may be expected in the January 2012 and February 2012 Visa Bulletins.     Mr. Oppenheim cautioned, however, that if there is high demand (number of filings) in the EB-2 category, he may hold or even retrogress towards the summer of 2012.   He noted that there is usually a 4-6 month gap between filing of an I-485 adjustment application and when a visa number is actually requested and allocated — this means that EB-2 India and China I-485 applications filed in the fall will be need visa numbers in spring/summer of 2012 and this is when retrogression may happen.

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

EB-3 China.  This category is expected to move slowly forward – by 1-3 weeks per month for the next few months.

EB-3 India.  Unfortunately, this category is, according to Mr. Oppenheim, “ridiculously oversubscribed” and forward movement, if any, will be very slow.    This category is expected to remain unchanged or to move very slowly forward (by a 1-2 weeks or so).   This is mainly caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available.   Mr. Oppenheim suggested that since the summer of 2007, no new EB-3 India cases have been filed and there is a significant number of EB-3 India candidates waiting for the priority dates to move forward.

EB-3 India and China – 70 Years Wait for Green Card?

There have been a number of recent articles and comments on the possibility that Indian and Chinese applicants who are in the EB-3 category may be facing a 70-year wait to obtain a visa number.   Mr. Oppenheim’s reaction:  that this is “plausible”.

As a background, according to a recent report, since the majority of employment-based green card filings are from India and China, the current per-country limit (which restricts the number of green cards awarded to any country to 7% of the total) places a ceiling on how many EB-3 green cards can be approved every year.   For Indians, the limit of EB-3 green cards that can be issued every year is fewer than 3,000.    The estimate (generally confirmed by Mr. Oppenheim) of the pending EB-3 cases is somewhere around 210,000 (primary EB-3 candidates plus family members).   As a result, a simple calculation shows that it may take around 70 years for an EB-3 India candidate to obtain a green card.

Unfortunately, the estimates were generally confirmed by Mr. Oppenheim who, while not specifically endorsing the 70-year wait period, confirmed that EB-3 India will be very slow going forward due to very heavy demand.  EB-3 China is in a very similar situation, even though the demand numbers are proportionally lower.

Visa Bulletin Predictions – Family-Based

Mr. Oppenheim was also able to provide some predictions and expectations for movement of the family-based visa numbers over the next few months.  Unlike the employment-based visa numbers, Mr. Oppenheim indicated that the family-based visa numbers are likely to be fairly predictable.

FB 2A.  According to Mr. Oppenheim, this family-based category has shown a high demand as a result of the sudden forward movement at the end of 2010 and, as a result, had to be retrogressed.   Now that the demand is fairly predictable, a gradual forward movement of 3-6 weeks per month is to be expected.

FB 2B and FB3.  Forward movement in the 2B category is expected to be 1-2 weeks per month.

FB4.   Forward movement of about one month per month is to be expected.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Overall, Mr. Oppenheim’s comments are likely to create some mixed feelings among our employment-based clients.   Although EB-2 is likely to move forward significantly over the next few months, the long term prospects of EB-3 China and India are not good.

Our office is prepared to handle the anticipated significant forward movement in the EB-2 China and India categories.    Please do not hesitate to contact us if we can review your case or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

DOS/USCIS to Stop Approving EB Immigrant Visas Until October 1

As a result of reaching the annual EB visa number limit, DOS has stopped approving immigrant visas in all of the employment-based categories.   Employment-based immigrant visas at U.S. Consular Posts are being held or returned to applicants for resubmission on or after October 1.

Similarly, DOS has advised USCIS that due to reaching the quota, no new I-485 adjustment of status applications would be approved for the remainder of the fiscal year (which ends on September 30, 2011).    There may be a limited number of I-485 approvals between now and October 1 but such approvals are based not on changes in the availability of visa numbers, but due to the fact that some I-485 cases have had their visa number already requested, authorized and allocated under the FY2011 limit.

Conclusion

Some of our clients and readers have already experienced returned passports by US Consular section around the world with notations indicating that they should resubmit their application on or after October 1 once the numbers become available again.     As a result of this memo to USCIS, we expect that the number of I-485 approvals for EB cases for the remainder of the month of September to drop to close to zero.

The good news is that after October 1, and in accordance with the October 2011 Visa Bulletin, normal employment-based immigrant visa processing would resume.    Please do not hesitate to contact us if we can be of any assistance and please feel free to subscribe to our weekly immigration newsletter to obtain related news and developments.

Thursday’s chat will be of general nature, meaning that we will be able to have a discussion on a number of immigration topics.   You can visit the chat page and request that a reminder email be sent to you before the event.    We are looking forward to chatting with you next Thursday at 9 pm!

Background of the Need to Reprocess H-2B Prevailing Wage Determinations

Pursuant to a June 15, 2011 ruling, the U.S. District Court for the Eastern District of Pennsylvania ordered DOL  to reissue approximately 4,000 H-2B prevailing wage determinations in order to accurately reflect the new H-2B wage rates that will apply for H-2B employment beginning on or after September 30, 2011 (the new government fiscal year). The June 15, 2011 court order is related to an August 30, 2010 decision in CATA v. Solis, where the District Court ordered DOL to put in place new H-2B prevailing wage rules.

DOL Effectively Suspends Review of All Regular Prevailing Wage Requests by Shifting All Resources

As of a few days ago, DOL has confirmed that they have shifted all of its relevant Office of Foreign Labor Certification (OFLC) resources towards complying with the June 15 court order.   By making this decision, in effect, DOL has temporarily suspended the processing of all non-court mandated prevailing wage determinations.   While it is possible that DOL would switch some of its resources back to processing regular processing prevailing wage determinations, it is possible that no prevailing wage requests would be processed until DOL clears the H-2B backlog.

A federal rule dated as of August 1, 2011 states that DOL should be able to process all H-2B prevailing wages by October 1, 2011.  DOL has also indicated that they plan on completing all 4,000 H-2B prevailing wages by August 31, 2011.   As a result, we should expect (somewhat) normal processing of prevailing wage determinations to return during the month of September.

PERM and H-1B Filings to be Affected and Possibly Delayed

As a result of the prevailing wage suspension, many PERM and H-1B cases are put on an temporary, but highly undesirable, hold.   Even if DOL returns to normal prevailing wage processing as soon as September 1, there would be a significant backlog of pending regular prevailing wage requests.    Many foreign nationals must file their PERM/H-1B applications in order to be able to fit within AC21 guidelines, expiring recruitment of other urgent reasons.    We hope that DOL would be able to designate and allow some prevailing wages to be processed in order to allow foreign nationals with deadlines to make timely filings.

Additionally, and assuming that DOL returns to normal processing in September, there would be a high number of prevailing wage determinations issued which, in a few weeks or a couple of months, would result in a higher than normal volume of PERM filings.   As a result, we expect that PERM processing times to increase over the next 4-6 months.

We would continue monitoring this situation and provide updates as they become available.   Please feel free to subscribe to our weekly newsletter or contact us if our office can be of any assistance.

According to reports, federal agents seized significant amount of boxes with paper, hard drives from administrative computers and even waste baskets.    ICE confirmed the UNVA raid in a statement, “Today, officials from ICE’s Student and Exchange Visitor Program (SEVP) served UNVA with a Notice of Intent to Withdraw (NOIW) UNVA’s authorization to admit foreign students. UNVA students should call the SEVP Response Center at 703-603-3400 for guidance.”

Similarity to TVU Raid

The UNVA raid of yesterday is very similar to the raid federal agents conducted on Tri-Valley University (TVU) earlier this year.   We have written in the past about TVU’s story and the importance of maintaining good “F-1 practices” both by the school and by the foreign students whose status and ability to remain in the U.S. is affected by the closure of their school.    Some of our readers may remember that after TVU was raided, all of its F-1 foreign students were deemed to be out of status and the TVU president was indicted on a number of federal offenses.   While there are no charges filed, the UNVA raid bears similarities to the TVU raid and subsequent closure.  It is important to note, however, that as of now, UNVA continues to operate normally and students can continue to attend classes.

UNVA F-1 Students May Need to Seek Alternatives

While it is very early in the investigation process, indications are that ICE would seek to revoke UNVA’s ability to participate in the SEVP program, which would mean that all F-1 students currently enrolled in UNVA would be out of status.   If ICE takes the same approach as it did with TVU and if ultimately UNVA is closed down, it is possible that current UNVA students may have very difficult time even transferring their I-20 to a new school.

There are approximately 2,400 or so F-1 international students enrolled in UNVA and the U.S. government has indicated that those UNVA F-1 foreign students who are not attending classes and are out of status and must leave immediately.  Students who are attending UNVA and are in full compliance with their F-1 status (i.e. attending classes and not otherwise violating the terms of the F-1 program) should be still considered to be in valid status, at least for now and for as long as UNVA’s ability to sponsor F-1 visas is not revoked.   As of now, UNVA F-1 students should also be able to transfer their SEVIS I-20 record to another school.

Conclusion

It the TVU story provides any history and a roadmap to ICE’s approach, it is likely that if ICE/FBI find irregularities of the kind found at TVU, then UNVA’s ability to admit foreign students would be revoked and the 2,400 or so foreign students’ status would be terminated.    Our office will continue to monitor developments on this case as it may affect a very high number of individuals and will continue providing updates on our website and through our weekly newsletter.

We have also committing the resources to providing individual phone consultations to allow affected F-1 students to assess their options.   We offer fast and secure online booking of legal consultations. We also offer same-day urgent phone consultations.

DV-2012 Lottery Glitches

Many of our readers are aware of the glitches and the controversy surrounding this year’s DV lottery.   In May, the Department of State issued a statement that they are voiding all DV-2012 lottery results due to a computer glitch which caused the winning entries to be picked in a non-random fashion.   By the time the results were voided, many who thought they were “winners” were sorely disappointed by the outcome.  A lawsuit challenging the Department of State was filed seeking to have the initial results certified as valid.

The Department of State pressed ahead with their plans to redo the DV-2012 lottery in mid-July.   After the lawsuit was dismissed earlier this month, and after the Department of State ran the lottery again (presumably correctly and randomly this time), the results are now available.

Conclusion

We wish to congratulate those who have been selected for the DV lottery this year.   At the same time, we wish to remind these winners that they should follow the application instructions very closely and promptly because the number of winning entries is higher than the actual number of green cards available; as a result, not all winners actually receive a green card.   Timing and following the proper procedures becomes important.

Our office stands ready to assist in the preparation of the documents, either with the National Visa Center or with US Citizenship and Immigration Service for those green card lottery winners.   If you wish to discuss how we can help, please contact us.

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

About the AAO

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

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of July 1, 2011.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

• H-1B appeal takes 20 months (two months increase compared to our last report as of May 1, 2011);
• L-1 appeal takes 23 months (increase of one month);
• I-140 EB1 Extraordinary Ability takes 15 months (increase of two months), Multinational Manager or Executive takes 18 months (increase of one month) while EB1 Outstanding Professor or Researcher category takes 6 months or less (no change);
• I-140 EB2 (Advanced Degree) takes 32 months (increase by two months) while EB2 (NIW) takes 13 months (no change); and
• I-140 EB3 Skilled Worker takes 34 months (increase by two months) while EB3 Other Worker takes 4 months on appeal (increase by 1 month).

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

What Was the Glitch?

According to DOS, the glitch discovered earlier this month prompted the computer program to unfairly select people who submitted applications in the first two days of the 30-day application process that ended Nov. 3.   Officials discovered the problem May 5 around the time that entrants were checking their status. An in-house software coding error has been fixed, according to officials who were not authorized to speak on the record.  DOS has assured that their systems have not been “hacked” or otherwise compromised and that no personal information has been affected or stolen.

What Happens to the Prior Results?

As mentioned above, the results so far are void effective immediately.  DOS will hold a new lottery with the existing pool of applicants and announce the winners by July 15.  Applicants do not need to re-enter to be eligible, and no new applications will be accepted.

About the Diversity Visa

More than 14 million applicants entered a lottery last fall for one of 50,000 visas distributed as part of the annual diversity visa lottery, designed for people who would otherwise have little chance of legally entering the country. The program doesn’t require applicants to have a family or employer as a sponsor.  Under the law, the entries must be drawn randomly from all applicants.

Conclusion

While we share the disappointment of those who were already selected under this year’s diversity lottery, and while we are disappointed by fact that this computer glitch has happened, we accept DOS’s decision to void the results due to the computer glitch and the lack of random winning entry assignment.   We hope DOS would continue to work hard to ensure the integrity of the lottery process.  As we continue to monitor and report on related developments, please feel free to subscribe to our free weekly newsletter to receive email updates on this and related topics.

About NSEERS

The National Security Entry-Exit Registration System, NSEERS, required individuals from more than 20 predominantly Arab countries to register with the government on arrival and departure from the U.S.    Until today, nationals of Afghanistan,  Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq,  Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan,  Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab  Emirates, and Yemen had to register every time they entered or left the U.S. at a border post.

The manual process required about 30 minutes of additional inspection at a port of entry for those arriving on nonimmigrant visas. Visitors had to register again on exiting the country.

DHS Rationale for Ending NSEERS

According to DHS, the main reason for ending NSEERS is that since the NSEERS requirements were established, DHS has created a number of additional procedures and safeguards which, in effect, duplicate NSEERS’ need for manual registration upon entry into the U.S.

According to DHS,

Over the past six years, the Department of  Homeland Security (DHS) has implemented several new automated systems  that capture arrival and exit information on nonimmigrant travelers to  the United States, and DHS has determined that recapturing this data  manually when a nonimmigrant is seeking admission to the United States  is redundant and no longer provides any increase in security. DHS,  therefore, has determined that it is no longer necessary to subject  nationals from these countries to special registration procedures, and  this notice deletes all currently designated countries from NSEERS  compliance.

For example, the US-VISIT program, in effect since 2004, collects entry and exit information and collects biometrics, to be compared with other government records.   CBP also requires passenger manifests to be provided for passengers arriving by air or sea into the U.S.  There are also a number of international data-sharing agreements, which allow DHS to do better analysis of aliens applying for admission in to the U.S.

Conclusion

As a result of the DHS rule, nonimmigrant  nationals and citizens of these countries are no longer required to  comply with the requirements of 8 CFR 264.1(f), including the  requirement that they exit through designated ports of entry.  Accordingly, nationals and citizens from these countries are no longer  subject to the NSEERS registration requirement and DHS will  no longer register aliens under NSEERS effective on April 28, 2011.

Similarly, as of April 8, there were 4,500 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 15,500 visas left under the U.S. Masters H-1B cap.

Comparison to the Last H-1B Season (FY2011)

Our office keeps detailed statistics of the previous H-1B filing seasons, and we are able to make comparisons with prior H-1B years in an effort to estimate demand and when the H-1B caps may be reached.  While it is too early to provide an estimate of when the H-1B cap would be reached for this fiscal year, all indications are that the cap would remain open for at least 6-8 months.

Last year, during the FY2011 H-1B filing season, by April 8th, there were $13,500 regular cap H-1B petitions filed.   This is almost three times as much as this year’s April 8 indicator.    Also, last year’s April 8th count of Master’s H-1B cap filing was 5,600, compared to this year’s count of 4,500.   Based on this information, and assuming there is no dramatic increase in the rate of economic recovery, we anticipate that this year’s H-1B season would extend for at least 6-8 months.

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 FY2012 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

The U.S. State Department just released the May 2011 Visa Bulletin which is the eighth Visa Bulletin for the FY2011 fiscal year.    The major headline in the upcoming month’s bulletin is the forward movement in EB-2 India (after eight months of no movement) and the continued (but slow) slow forward movement in FB2A (after few significant backward movements).

Summary of the May 2011 Visa Bulletin – Employment-Based (EB)

Below is a summary of the May 2011 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World), Mexico and Philippines remain current, EB-2 China moves forward by one (1) week to August 1, 2006, while EB-2 India moves forward (for the first time in 8 months) by seven (7) weeks to July 1, 2006.
• EB-3 ROW and EB-3 Philippines move forward by one (1) months to August 22, 2005, EB-3 China  moves forward by six (6) weeks to April 15, 2004, while EB-3 India  moves forward by one (1) week to April 15, 2002.  EB-3 Mexico moves forward by four (4) months to September 8, 2004.
• The “other worker” category remains unchanged at  April 22, 2003 for China.  It moves forward by six (6) weeks to September 8, 2003 for ROW, Mexico and Philippines.  It moves forward by one  (1) week to April 15, 2002 for India .

Summary of the May 2011 Visa Bulletin – Family-Based (FB)

Below is a summary of the May 2011 Visa Bulletin with respect to family-based petitions:

• FB1 ROW, China and India remain unchanged at May 1, 2004.  FB1 Mexico moves forward by two (2) weeks to March 1, 1993.  FB1 Philippines moves forward by three and a half (3.5) months to July 15, 1995.
• FB2A moves forward by nine (9) weeks to June 8, 2007 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by five (5) months to January 1, 2007.
• FB2B ROW, China and India remain (again) unchanged at April 15, 2003.  FB2B Mexico moves forward by two (2) weeks to August 1, 1992.  FB2B FB2B Philippines moves forward by three (3) months to March 1, 2000.

Slow Movement  for Employment-based Petitions, Except EB-2 India; No (or Minor) Movement in Family-based Priority Dates

The slow forward movement across many employment categories continues, as expected, although we have started seeing notable movement in the EB-2 India category after eight months of no activity.  The EB-2 India movement is due to the carryover of visa numbers from the EB-1 category (also see note below).    Unfortunately, EB-3 India moved forward by only one  week (in comparison to the last two visa bulletins when it advanced by three weeks per month).

We continue to see the FB2A category move forward (by two months), after the significant retrogression over the past several months.  We wish to reiterate that the forward movement in FB2A is expected to be slow over the next  few months, according to indications from the State Department.   Unfortunately, due to strong demand, the FB1 category remains unchanged, after it retrogressed by 8 months last month.  This is due to heavy demand in the FB1 category which is expected to continue and further lack of movement (or backward movement) in FB1 is possible.

Prediction for Visa Number Availability for the Upcoming Months

Employment-Based.

According to the State Department, demand in the EB-1 category has been “extremely low” and, as a result, EB-1 is expected to remain current.  Similarly, EB-2 ROW is expected to remain current, but the demand in EB-2 India and EB-2 China is expected to continue to weigh on these two categories.   The State Department’s “best case scenario” for the upcoming few months is as follows (the estimates below are per month):

• EB-2 China – none to three weeks expected through July; August/September estimate not possible at this time;
• EB-2 India – one or more weeks, possibly followed by additional movement if demand remains stable;  August/September estimate not possible at this time;
• EB-3 ROW – three to six weeks;
• EB-3 China – one to three weeks;
• EB-3 India – none to two weeks;
• EB-3 Mexico – some forward movement, but difficult to predict; and
• EB-3 Philippines – three to six weeks.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the May 2011 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions on when a particular priority date may become current.

As it appears as of the time of this article, the U.S. federal government is likely to shut down, we would like to provide some information as to how the shutdown would affect the immigration cases pending or to be filed shortly.   Our office has been receiving an increasing number of inquiries from alarmed clients as to what would happen should the federal government close on Monday if a deal is not reached on the federal government’s budget.   (See latest Google News)

How Would a Government Shutdown Affect Immigration Cases?

There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely.  Since the last time this kind of shutdown happened was 15 years ago, there are no clear rules and guidance as to what would remain open and what would close.  With respect to immigration, it appears that there would be some disruptions to pending cases and upcoming filings.   Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services.

USCIS Cases

Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff.  Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume.   Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.”

Department of State – No (or Slow) Visa Applications; Visa Bulletin Uncertain; NVC Processing Could Continue

The Department of State (DOS) is expected to to cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad.  As a result, no new visas are expected to be issued and visa application interviews are likely to be cancelled (or postponed).   U.S. passport applications will not be accepted and processing of submitted applications is likely to be put on hold.

As a comparison, according to data from the Congressional Research Service Report, during the last shutdown in 1995,  approximately 20,000 – 30,000 visas went unprocessed each day and 200,000 applications for U.S. passports went unprocessed.

It is unknown at this point, however, whether the May 2011 Visa Bulletin, which is expected to be issued over the next few days and which is issued by the Department of State, will be affected.   We hope that it would be released before Monday when a possible shutdown would take effect.   Many of our readers are eagerly expecting the May 2011 Visa Bulletin because it is expected to bring some substantial forward movement to the EB-2 India category.

With respect to immigrant visa (family, employment, etc.) cases pending at the National Visa Center (NVC), it is possible that they would continue to be processed as NVC’s staffing funding was under contract.

Department of Labor – LCA, PERM and Audits

It is unclear exactly how the Department of Labor would be affected.   We expect that ETA Form 9035 LCA filings, used most often in connection with H-1B filings, to be affected.  This may mean that no new LCAs can be filed (and those filed may be put on hold) and, as a result, new H-1B filings can be delayed.

ETA Form 9089 PERM labor certifications are expected to be similarly affected.  It is unclear whether the system allowing new PERM labor certification filings would be shut down; however, we expect that processing of PERM labor certification cases to stop during a shutdown.  This holds true for processing of PERM audits and appeals at the BALCA.

Conclusion

While the full extent of the federal government shutdown (if it were to happen over the next day or two) is unknown; we can anticipate some disruptions to government services affecting immigrants.  Perhaps more severe would be the disruptions to visa applications at U.S. Consular Posts abroad, followed by delays or inability to file H-1B and/or PERM labor certifications.   While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed.   The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.

We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

Low EB-1 Demand to Cause Visa Number Spillover to EB-2

USCIS has reported that the demand for EB-1 visa numbers has dropped significantly since October 1, 2010.   As a result, the planned visa number demand in this category can be adjusted downwards.  By doing this, the unused EB-1 numbers can be allocated to other categories.  This is Mr. Oppenheim’s statement:

“[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

EB-2 India Expected to Move Forward (Substantially?) in the May 2011 Visa Bulletin

Based on Mr. Oppenheim’s comments, it is expected that the EB-2 India category will move forward in the May 2011 Visa Bulletin (please see our Visa Bulletin topic page where updates are posted immediately).  This should be a welcome development for the thousands of EB-2 India filers who have been waiting for 8 months now without any movement in this category.   While we cannot estimate by how much EB-2 India will advance, we hope that the move would be substantial, based on the 12,000 available visa numbers mentioned by Mr. Oppenheim.

Porting of EB-3 India to EB-2 India to Continue — Heavy Demand in EB-2 Expected

Our office has been advising over the past couple of years, and we continue to do so, that all EB-3 India filers who are now eligible to port their priority dates into EB-2 to do so.   In many cases porting is extremely helpful in advancing one’s green card application substantially, especially when the EB-3 priority date, as ported to EB-2 becomes current, and especially considering a possible significant forward movement in EB-2 India.   Please contact us if we can provide analysis of your ability to port your EB-3 priority date into EB-2.

EB-2 India Expected Forward Movement to Cause Increase in I-485 Filings and Interfilings

We also expect the EB-2 India forward priority date movement to cause an increase in I-485 adjustment of status filings for both primary beneficiaries or for family members who have not been able to file I-485 previously (most often during the summer of 2007).

Additionally, many I-485s remain pending and “connected” to I-140s which reflect an older EB-3 priority date which is not current.  If a subsequent EB-2 I-140 has been filed and if the earlier EB-3 priority date has been ported into the new I-140, an “interfiling” may be needed to notify USCIS and have them “connect” the pending I-485 with the new, and current, EB-2 I-140.

Please contact our office if we can help you prepare and file your I-485 application or if you need assistance with interfiling your pending I-485 to a new and (soon to be) current EB-2 I-140.   We also invite you to subscribe to our free weekly immigration newsletter to obtain alerts of related news and developments.

The H-1B Quota and Expectations for This Year

When the H-1B visa category was created in 1990, Congress imposed an annual cap on the number of new H-1B visas which can be issued.  Although the cap has varied through the years, it is set to 65,000 per year plus 20,000 for graduates of U.S. masters programs for the new fiscal year (FY2012) starting on October 1, 2011.

As discussed above, the H-1B cap “opens” on April 1, 2011 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 FY2012 H-1B cap will be reached, it is helpful to provide some context.  For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days.   For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009 and for last year, FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011.

Conclusion

As a result, and due to the slow economic recovery, while we expect a robust H-1B filing season this spring, we anticipate that H-1B visa demand would be similar to last year when the H-1B cap was open for eight months.   Throughout the H-1B season, and as early as mid-April, we will be providing updates on the number of H-1B cap filings and will be revising (hopefully by making them more accurate) our estimates of how long the H-1B cap would last.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us.

The U.S. State Department just released the April 2011 Visa Bulletin which is the seventh Visa Bulletin for the FY2011 fiscal year.    The major headline in the upcoming month’s bulletin is the slow forward movement in FB2A (after few significant backward movements), the significant retrogression in the FB1 preference visa numbers, accompanied by the continued slow forward movement across the employment-based categories.

Summary of the April 2011 Visa Bulletin – Employment-Based (EB)

Below is a summary of the April 2011 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World), Mexico and Philippines remain current, EB-2 China moves forward by two (2) weeks to July 22, 2006, while EB-2 India remains (again, for eight consecutive months) unchanged at May 8, 2006.
• EB-3 ROW and EB-3 Philippines move forward by three (3) weeks to July 22, 2005, EB-3 China  moves forward by five (5) weeks to March 1, 2004, while EB-3 India  moves forward by three (3) weeks to April 8, 2002.  EB-3 Mexico moves forward by four (4) months to May 8, 2004.
• The “other worker” category remains unchanged at  April 22, 2003 for China.  It moves forward by five (5) weeks to July 22, 2003 for ROW, Mexico and Philippines.  It moves forward by three (3) weeks to April 8, 2002 for India .

Summary of the April 2011 Visa Bulletin – Family-Based (FB)

Below is a summary of the April 2011 Visa Bulletin with respect to family-based petitions:

• FB1 ROW, China and India move backwards by eight (8) months to May 1, 2004.  FB1 Mexico moves forward by two (2) weeks to February 15, 1993.  FB1 Philippines moves forward by three and a half (3.5) months to April 1, 1995.
• FB2A moves forward by four (4) months to April 1, 2007 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by six (6) months to July 1, 2006.
• FB2B ROW, China and India remain unchanged at April 15, 2003.  FB2B Mexico also remains unchanged at July 15, 1992.  FB2B FB2B Philippines moves forward by four (2) months to December 1, 1999.

Slow Movement  for Employment-based Petitions, Retrogression (for some) or Minor Movement in Family-based Priority Dates

The slow forward movement across many employment categories continues, as expected, although the movement in the employment-based categories may be very disappointing to many, especially in the the EB-2 India category which did not move at all this month, for a 8 consecutive months.  The slightly positive news is that EB-3 India moved forward by three weeks (in continuation of last month’s forward movement of three weeks).

We have finally seen the FB2A category move forward by four months, after the significant retrogression over the past few months.  We wish to reiterate that the forward movement in FB2A is expected to be slow over the next  few months, according to indications from the State Department.   Unfortunately, due to strong demand, the FB1 category retrogresses by 8 months for many regions.   This is due to heavy demand in the FB1 category which is expected to continue and further backward movements in FB1 are possible.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the April 2011 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions on when a particular priority date may become current.

Immigration Live Chat Launches on March 3, 2011 at 9:00 pm EST

By popular demand by our clients and readers, we are launching a weekly immigration live chat.   The chat is initially scheduled to last 30 minutes and the inaugural Immigration Live Chat is scheduled for March 3, 2011 at 9:00 pm eastern time.

The chat will have a moderated question-and-answer format.  Chat users will be able to submit questions to the moderator who, in turn, would present them to Attorney Dimo Michailov who would answer them for the entire chat room’s benefit.   The purpose of the moderation is to ensure that questions are presented and discussed in a logical way — and to make the chat experience for you, our clients and readers a more pleasant one.

Chat Schedule

We intend to have a weekly Immigration Live Chat every Thursday evening at 9:00 pm EST.  This time is likely to allow clients and readers from a variety of time zones to join.   We realize that no time will perfectly accommodate all of our clients and readers around the world, so we are happy to experiment and find the best time.  Each upcoming chat will be published and linked from the main Immigration Live Chat page.   If you wish the software to send you a reminder for the next chat, please go to the actual chat page and provide your email address and set when you wish the reminder to be sent to you.

Our Chat Software

We are very happy with our chat software.  It is provided by “Cover It Live,” a tool used by top media companies which provides simple, portable and pleasant chat experience.   We chose this chat software because it seems to be very quick and user-intuitive to use, unlike other chat programs.  Our chat software is based on Flash and it can run across many platforms, including mobile phones.  Archives for each chat will be provided at the conclusion of each event.

Chat Rules and Guidelines

There are a few important rules and guidelines for the Immigration Live Chat.   First of all, please understand that the information provided in the chat is not a legal advice and should not be substituted for a consultation with an attorney.  No attorney-client relationship is established by posting one or more questions questions, by having your questions answered or by otherwise participating in the immigration chat.

To make the chat experience pleasant for everyone, we have a few simple chat guidelines:

1. Please keep your questions short, to the point and by including relevant (but not confidential or personally identifiable) information.
2. The Moderator will pass questions to Attorney Dimo Michailov on a first-come, first-serve basis.  Some related questions may be grouped together for better context or chat efficiency.
3. Our chats are busy and there are usually many incoming questions.  Please be patient if you do not see your question for a few minutes.  Please do not post duplicate questions.
4. Chat users will not see other chat users’ messages unless the Moderator chooses to submit them to Attorney Michailov for discussion.
5. If you are new to the chat, please take a moment to observe past archives or a few questions to get a sense of the “flow” of the chat and the kind of questions that are appropriate.
6. Please treat the Moderator, the participating attorneys and the fellow chat participants with respect and collegiality.  We will not allow behavior or content related to illegal activities.  Defamatory, harassing, infringing, obscene, offensive or other unlawful material or discussion will not be tolerated and may be banned.

Please Mark Your Calendars and Join Us on March 3, 2011

We are excited to be able to communicate with so many of our clients and readers and are looking forward to a great inaugural chat on March 3, 2011 at 9 pm EST.    Please mark your calendars and prepare your questions for a great session.

The U.S. State Department just released the March 2011 Visa Bulletin which is the sixth Visa Bulletin for the FY2011 fiscal year.    The major headline in the upcoming month’s bulletin is the major (additional) retrogression in family-based second A preference visa numbers, accompanied by the continued slow forward movement across the employment-based categories.  The retrogression in family-based categories is a surprise following recent comments by the State Department that family-based categories (especially 2A) should continue to move forward.

Summary of the March 2011 Visa Bulletin – Employment-Based (EB)

Below is a summary of the March 2011 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World), Mexico and Philippines remain current, EB-2 China moves forward by only one (1) week to July 8, 2006, while EB-2 India remains (again, for a number of consecutive months) unchanged at May 8, 2006.
• EB-3 ROW and EB-3 Philippines move forward by three (3) months to July 1, 2005, EB-3 China  moves forward by three (3) weeks to January 22, 2004, while EB-3 India  moves forward by three (3) weeks to March 15, 2002.  EB-3 Mexico moves forward by six (6) months to August 8, 2004.
• The “other worker” category remains unchanged at  April 22, 2003 for China and at May 1, 2003 for Mexico.   It moves forward by six (6) weeks to June 15, 2003 for ROW and Philippines.  It moves forward by three (3) weeks to March 15, 2002 for India .

Summary of the March 2011 Visa Bulletin – Family-Based (FB)

Below is a summary of the March 2011 Visa Bulletin with respect to family-based petitions:

• FB1 ROW, China and India remain unchanged at January 1, 2005.  FB1 Mexico moves forward by one (1) week to February 1, 1993.  FB1 Philippines moves forward by hour and a half (4.5) months to December 15, 1994.
• FB2A retrogresses even further for ROW, China, India and Philippines.  It goes back by one (1) year to January 1, 2007.  FB2A Mexico moves forward by nine (9) months to January 1, 2006.
• FB2B ROW, China and India remain unchanged at April 15, 2003.  FB2B Mexico moves forward by two (2) weeks to July 15, 1992 and FB2B Philippines moves forward by two (2) months to August 1, 1999.

Slow Movement  for Employment-based Petitions, Retrogression (for some) or Minor Movement in Family-based Priority Dates

The slow forward movement across many employment categories continues, as expected, although the movement in the employment-based categories may be very disappointing to many, especially in the the EB-2 India category which did not move at all this month, for a number of consecutive months.  The slightly positive news is that EB-3 India moved forward by three weeks (in continuation of last month’s forward movement of three weeks).

What may come as an additional negative surprise is the retrogression in the FB2A categories for ROW, China and India.  After the surprising January 2011 Visa Bulletin, when the priority dates for FB2A retrogressed by more than two years back to 2008, the March Visa Bulletin moves them back even further by one more year — to January 1, 2007.

What Are the Reasons for the FB2A Category Additional Significant Retrogression?

Simply stated, the reason for the retrogression is high demand, caused by the prompt forward movement of family-based categories over the past months.   The January 2011 Visa Bulletin showed a significant retrogression in the FB2A category, following a number of months of forward movement.  Those past forward movements have resulted in a dramatic increase in the level of applicant demand received in recent months.   This, according to the State Department, has required the retrogression of many Family preference cut-off dates for January 2011 and for March 2011 in an effort to hold number use within the various numerical limits.  Please see our analysis of the reasons behind the retrogression and the lack of movement in the FB2A category

According to the State Department, the effect of the last three months’ retrogression in this category will slow down the demand of filings in the FB2A category.  As a result, it is expected that this category will see a slow forward movement in the coming months.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the March 2011 Visa Bulletin.

Comparison of 2009 and 2010 H-1B Cap Seasons

This H-1B cap season lasted a month longer than last year’s.  The fiscal year 2010 (FY2010) H-1B cap season lasted until late December 2009, when the H-1B quota was reached.  This year, FY2011, the H-1B cap season lasted a month longer.  This can be explained in a number of ways, most notably due to the recession and the slower rate of new hiring.   While the rate of H-1B filings over the past few weeks of this H-1B cap season remained relatively steady, we expect that as the economy improves over the next couple of quarters, the H-1B demand should pick up and we expect that the new H-1B cap season, to open on April 1, 2011, to be busier than the last one.

Alternatives to H-1B Cap

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2011, when the new fiscal year’s H-1B quota would begin (as a reminder, April 1, 2011 is the earliest a cap-subject H-1B application can be filed).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our FREE initial consultation.

Cap-Exempt H-1B

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

O-1 or P-1 Extraordinary Ability Visas

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

L-1 Intracompany 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 FY2011, it is nonetheless possible.  There are a number of proposals currently circulating in Congress, some of which aim to increase the H-1B cap.  While none of these proposals have gained momentum at this time, we will be providing updates as soon as there is a likelihood that there will be development on this front.

Wait and File on April 1, 2011 for the FY2011 Cap

For some of our clients, waiting until April 1, 2011 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 FY2012 H-1B cap is expected to be the same as it was for the FY2011 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).  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 9 months, as they did in 2010.   Accordingly, we urge employees and employers to prepare and file most or all of their H-1B petitions on or about April 1, 2011, to ensure that their petition has the greatest chance to be included in the quota.  Please contact us to start preparing for your FY2012 H-1B cap filing.

The U.S. State Department just released the February 2011 Visa Bulletin which is the fifth Visa Bulletin for the FY2011 fiscal year and first for the calendar year.    The major headline in the upcoming month’s bulletin is the major retrogression in family-based visa numbers, accompanied by the continued slow forward movement across the employment-based categories.  The retrogression in family-based categories is a surprise following recent comments by the State Department that family-based categories (especially 2A) should continue to move forward.

Summary of the February 2011 Visa Bulletin – Employment-Based (EB)

Below is a summary of the February 2011 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World), Mexico and Philippines remain current, EB-2 China moves forward by only one (1) week to July 1, 2006, while EB-2 India remains (again, for a number of consecutive months) unchanged at May 8, 2006.
• EB-3 ROW moves forward by only one (1) week to April 1, 2005, EB-3 China  moves forward by two (2) weeks to January 1, 2004, while EB-3 India  moves forward by three (3) weeks to February 22, 2002.  EB-3 Mexico moves forward by almost three (3) months to July 8, 2003 and EB-3 Philippines moves forward by one (1) week to April 1, 2005.
• The “other worker” category remains unchanged at  April 22, 2003 for China.   It moves forward by one (1) week to May 1, 2003 for ROW, Mexico and Philippines.  It moves forward by three (3) weeks to February 22, 2002 for India .

Summary of the February 2011 Visa Bulletin – Family-Based (FB)

Below is a summary of the February 2011 Visa Bulletin with respect to family-based petitions:

• FB1 ROW, China and India remain unchanged at January 1, 2005.  FB1 Mexico moves forward by two (2) weeks to January 22, 1993.  FB1 Philippines moves forward by two (2) months to August 1, 1994.
• FB2A remains unchanged across the board:  ROW, China, India and Philippines are unchanged January 1, 2008;  Mexico is also unchanged at April 1, 2005.
• FB2B ROW, China and India remain unchanged at April 15, 2003.  FB2B Mexico moves forward by one (1) week to July 1, 1992 and FB2B Philippines moves forward by two (2) weeks to June 1, 1999.

Slow Movement  for Employment-based Petitions and No (or Small) Change in Family-based Priority Dates

The slow forward movement across many employment categories continues, as expected, although the movement in the employment-based categories may be very disappointing to many, especially in the the EB-2 India category which did not move at all this month, for a number of consecutive months.  The slightly positive news is that EB-3 India moved forward by three weeks (compared to only one week in the prior month).

As expected this month, after the surprising January 2011 Visa Bulletin, the family-based second preference category (FB2A) remains unchanged.  Prior to the January 2011 Visa Bulletin, it was widely expected that FB2A would  continue to move forward, and to even  be current by the February 2011 Visa Bulletin (see our comments on Charles Oppenheim’s predictions from September 2010).  However, FB2A retrogressed significantly from August 2010 to January 2008 in the January 2011 Visa Bulletin last month, and this month the FB2A category remains unchanged.

What Are the Reasons for the FB2A Category Lack of Forward Movement?

Simply stated, the reason for the retrogression is high demand, caused by the prompt forward movement of family-based categories over the past months.   Last month’s Visa Bulletin showed a significant retrogression in the FB2A category, following a number of months of forward movement.  Those past forward movements have resulted in a dramatic increase in the level of applicant demand received in recent months.   This, according to the State Department, has required the retrogression of many Family preference cut-off dates for January 2011 in an effort to hold number use within the various numerical limits.

Unfortunately, according to the State Department, further retrogressions (or lack of movement) cannot be ruled out should demand continue at the current levels.  Please see our analysis of the reasons behind the retrogression and the lack of movement in the FB2A category.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the February 2011 Visa Bulletin.

About the Export Control/ITAR Requirement

As part of the November 23, 2010 Form I-129 revision, USCIS added a new Part 6 which states:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

◊  A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
◊ A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

What Are an Employer’s (Petitioner) Export Control Attestation Obligations?

U.S. law prohibits the “export” of controlled technology and technical data to certain foreign nationals located within the United States without a license to do so. An export is considered the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not engage in any other exporting
activities.  As a result, the export control obligations apply even if a company does absolutely no business abroad if it has employees who are foreign nationals.

Technology or source code is considered “released” for export when it is made available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.), when technology is exchanged orally, or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. Such exports of controlled technology or technical data must be authorized through an export license issued by the appropriate government agency before release to the nonimmigrant foreign national. Therefore, to properly complete the new I-129 form, an employer must first classify the technology or technical data that will be released to or be accessed by a prospective foreign national employee to determine whether an export license may be required to be obtained from the Department of Commerce Bureau of Industry and Security or the Department of State Directorate of Defense Trade Controls before releasing such technology or technical data to the foreign national.

What is Controlled Technology and Technology Data?

“Technology” and “technical data” that are controlled for release to foreign persons are identified on the Export Administration Regulations (EAR) Commerce Control List (CCL) and the International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML).   The EAR uses the term “technology” to refer to information for the development, production or use of “dual-use” products or software. “Technology” that is required for the development, production or use of items on the EAR’s CCL may be subject to export licensing and other restrictions, depending on the nature of the technology, the destination, the end-user and end-use.

An export of controlled technology or technical data can occur when it is disclosed to or transferred to a foreign person, whether in the United States or abroad. Specifically, section 734.2(b)(2)(ii) of the EAR (15 CFR §734.2(b)(2)(ii)) states that an export of technology to a foreign national in the United States is “deemed to be an export to the home country or countries of the foreign national.” This is commonly referred to as the “deemed export” rule.

While the ITAR does not use the phrase “deemed exports,” the ITAR contains a similar concept. Section 120.17(a)(3) of the ITAR (22 CFR §120.17(a)(3)) states that an export occurs when “technical data” is disclosed (including oral or visual disclosure) or transferred to a foreign person in the United States.

As a result, if an export license is required to export EAR controlled technology or ITAR controlled technical data to a certain country, an export license or other authorization will be required to disclose or transfer such technology to a foreign national of that country who is located in the United States.

Penalties for Misrepresentation Are Significant

The importance of providing correct attestations with respect to the export control requirements are underscored by the penalties for providing incorrect information.    Form I-129 requires the employer to certify under penalty of perjury under the laws of the United States that the petition and the evidence with it are true and correct to the best of the employer’s knowledge.   Penalties for perjury include fines and imprisonment up to five years.   Additionally,  certain violations under the H-1B regulations may result in civil and criminal penalties, including monetary penalties up to $35,000 per violation, payment of back wages to aggrieved workers, and bar the employer from filing employment-based immigrant petitions (“green card”) and H, L, O, or P nonimmigrant petitions for up to three years.  Additionally, criminal sanctions of $10,000 and imprisonment for up to five years, or both, may be imposed for the knowing submission of false statements to the Federal Government.

The Suspension of Export Control Attestations is Only Temporary

Please note that the export control attestations (or completing Part 6 of Form I-129) are suspended temporary for 60 days (until February 20, 2011) to allow employers to institute or modify the necessary internal processes to be able to provide accurate attestations with respect to the export control section.

Please do not hesitate to contact our office if we can be of any assistance in preparing Form I-129 petitions or if we can consult with respect to the applicability of the export control regulations to your organization.

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of December 17, 2010, USCIS has received approximately 53,900 H-1B petitions counting toward the 65,000 cap (an increase of 1,500 over the last week).  Similarly, as of December 17, there were 19,700 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 600 over the last week).

H-1B Quota Trends – Final Stretch in H-1B Cap Season Results Increased Regular and Masters’ Cap Filings

The numbers, as reported over the past week, show increase over the past week compared to the weeks prior.  The regular cap H-1B filings have increased to about 1,500 per week and we expect the number of filings to continue to increase.  The U.S. masters cap H-1B filings was 600 over the past week and we expect that the Master’s cap be reached within the week.

H-1B Master’s Cap to be Reached This Week; Regular H-1B Cap Expected to be Reached in Early 2011

With the current pace of filings, or over 1,500 regular H-1B cap filings per week, we estimate that the regular H-1B cap to be reached by early 2011, most likely in January or early February 2011.  The Master’s H-1B cap is expected to be reached this week.

We wish to reiterate our caution to potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, and as the end of the H-1B cap is in sight, it is very likely that the pace of H-1B filings will increase and the cap will be reached fast.  In prior years, the H-1B filings increase over the past weeks of the H-1B cap and we expect the same this year.

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.

The U.S. State Department just released the January 2011 Visa Bulletin which is the fourth Visa Bulletin for the FY2011 fiscal year and first for the calendar year.    The major headline in the upcoming month’s bulletin is the major retrogression in family-based visa numbers, accompanied by the continued slow forward movement across the employment-based categories.  The retrogression in family-based categories is a surprise following recent comments by the State Department that family-based categories (especially 2A) should continue to move forward.

Summary of the January 2011 Visa Bulletin – Employment-Based (EB)

Below is a summary of the January 2011 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World), Mexico and Philippines remain current, EB-2 China moves forward by two (2) weeks to June  22, 2006, while EB-2 India remains (again, for a number of consecutive months) unchanged at May 8, 2006.
• EB-3 ROW moves forward by one (1) month to March 22, 2005, EB-3 China  moves forward by one (1) week to December 15, 2003, while EB-3 India  moves forward by also one (1) week to February 1, 2002.  EB-3 Mexico moves forward by 9.5 months to April 15, 2003 and EB-3 Philippines moves forward by one (1) month to March 22, 2005.
• The “other worker” category remains unchanged at  April 22, 2003 for ROW and China and Philippines.  It moves forward by one (1) week to February 1, 2002 for India.  Mexico moves forward by 9.5 months to April 15, 2003.

Summary of the January 2011 Visa Bulletin – Family-Based (FB)

Below is a summary of the January 2011 Visa Bulletin with respect to family-based petitions:

• FB1 ROW, China and India retrogress and go back by more than thirteen (13) months to January 1, 2005.  FB1 Mexico moves forward by one (1) week to January 8, 1993.
• FB2A ROW, China, India and Philippines retrogress and go back by 32 months from August 1, 2010 to January 1, 2008.  This is the most significant development this month.
• FB2B ROW, China and India retrogress and go back by approximately twenty-two (22) months to April 15, 2003.  FB2B Mexico remains unchanged at June 22, 1992 and FB2B Philippines moves backwards by almost 9 months to May 15, 1999.

Slow Movement  for Employment-based Petitions and Significant Backwards Movement in Family-based Priority Dates

The slow forward movement across many employment categories continues, as expected, although the movement in the employment-based categories may be very disappointing to many, especially in the the EB-2 India category which did not move at all this month (EB-3 India moved forward by only a week).

However, the most notable and significant movement was across the family-based preference categories.  The FB-2A category, which was widely expected to continue to move forward, and to even  be current by the February 2011 Visa Bulletin (see our comments on Charles Oppenheim’s predictions from September 2010) has retrogressed significantly from August 2010 to January 2008.

What Are the Reasons for the FB Category Retrogression?

Simply stated, the reason for the retrogression is high demand, caused by the prompt forward movement of family-based categories over the past months.   Those past forward movements have resulted in a dramatic increase in the level of applicant demand received in recent months.   This, according to the State Department, has required the retrogression of many Family preference cut-off dates for January 2011 in an effort to hold number use within the various numerical limits.   Unfortunately, according to the State Department, further retrogressions cannot be ruled out should demand continue at the current levels.

Family-based Applicants with Current Priority Dates Should File Adjustment of Status (I-485) Applications by the End of December 2010

Given the retrogression in family-based preference categories, those who have approved (or pending) I-130 petitions, who are otherwise eligible to file adjustment of status (I-485) application and whose priority dates will be affected by the retrogression in the family-based categories should consider filing their I-485 adjustments before the end of December 2010.  Please contact us immediately if we can help you prepare your I-485 application.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the January 2011 Visa Bulletin.