Labor Immigration Law

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

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

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

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

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

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

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

In a recent announcement, USCIS, as part of their annual budget review and due to lower-than-estimated fee revenue collection, proposed a fee increase that will amount to an average increase of  10% across the board.

A formal proposal has been published in the Federal Register and there is a 45-day comment period.   Some of the increases are substantial, especially when considered in conjunction with the ~60% fee increase done in 2007.   For example, an I-130 petition for an alien relative will jump from $355 to $420.  An I-131 application for a travel document goes up by $55, and an application for an employment authorization document increases by $40.  Adjustment of status fees will increase by $55.  Businesses will also need to pay more – I-140 petitions for immigrant workers are increasing by over $100, premium processing fee is going up by $225 and a brand new fee of $6,230 is proposed to establish a Regional Center under the EB-5 program.

The USCIS justification is plain – our costs are high, our revenues are low, we need to either decrease service (by having less adjudicators and by increasing processing times) or to raise fees.   In a conference call to discuss the fee increase, USCIS Director Mayorkas explained that the fee increase is necessary to bridge the $160 million budget shortfall at the agency.

The 45-day comment period is due to expire in late July, so we encourage our readers and clients to comment on the proposed fee increase.  We will continue monitoring this proposal and will announce any developments with respect to any changes to the rule or to its effective date.   Please subscribe to our weekly newsletter to receive timely updates on this and related topics.

About InfoPass

In addition to being able to obtain basic case status information or obtain services related to immigration through the USCIS customer service phone line, InfoPass is a free service which allows scheduling an appointment with a USCIS immigration officer by using the Internet.  InfoPass is helpful for resolving immigration issues that are best handled by a trained USCIS immigration officer or where certain information or documents need to be presented for review or processing.

Scheduling an InfoPass Appointment

InfoPass is free – it costs nothing to schedule an appointment via the USCIS website at http://infopass.uscis.gov/.  When scheduling an appointment, the InfoPass website allows selection of the closest USCIS center to a given address.  After completing the registration form, the system allows the selection of a time and date with available InfoPass appointments.  Generally, as InfoPass appointments are often cancelled or added, the selection will vary by area and time of the day and time of the year.

Appointments can be canceled or rescheduled through the InfoPass website.  Since USCIS centers can be very busy in many areas of the country, we always encourage our clients and readers to cancel their InfoPass appointments if they cannot make them as early as possible to allow somebody who may need urgent help to be able to take the appointment.    Lost InfoPass notices can be reprinted online as well.

What Should I Bring to My InfoPass Appointment?

In order for the USCIS immigration officer to be able to resolve a particular issue, there may be a need to bring good information and documents to the InfoPass appointment.  In addition to the InfoPass appointment (printed when scheduling the appointment) and a government-issued ID, the government asks that any relevant documents be taken along.  Such documents can be immigration forms, receipt notices, approval or denial letters, translations and original documents that relate to a particular inquiry or problem.

Suitability of InfoPass Appointments for General Inquiries

InfoPass is a great tool for solving issues on immigration cases.  However, it is not suitable for a number of other inquiries.  Routine inquiries can be handled quickly and easily over the phone or Internet.   It is generally best to try to resolve an inquiry or a problem by calling the National Customer Service Center at 1-800-375-5283 and speaking with immigration officer (see our guide to NCSC).

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

USCIS Sued to Prevent Enforcement of the Neufeld Memo Guidelines

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

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

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

Conclusion: More to Follow

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

USCIS has announced that effective Tuesday, May 11, 2010, it would issue redesigned U.S. Permanent Resident Cards (also known as “green cards.”)   The redesign is mainly driven to incorporate new security features to deter counterfeiting, tempering and document fraud, generally.

Features of the Redesigned Green Card

Among the main features of the redesign: secure optical media will store biometrics for rapid and reliable identification of the card holder. There will be a holographic images, laser engraved fingerprints, and high resolution micro-images which will make the card nearly impossible to reproduce.  There will be a tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen.   Also, a Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data.   Finally, a preprinted return address will enable the easy return of a lost card to USCIS.

Design

The “green card” is now actually “green”  in color and design patterns.   Samples of the front and back are shown below:

Frequently Asked Questions

Who can obtain the new green card?  All requests for initial or replacement (renewal) green cards, once approved, will be issued the green card, as newly redesigned.  USCIS has not announced a campaign to replace the existing green cards which are currently valid and in circulation.

What is the cost of replacing a green card?  The application filing fee for an application to replace a green card is $370.00.

How to apply to obtain a damaged or lost green card?  A lawful permanent resident may seek a replacement card by filing a Form I-90, Application to Replace Permanent Resident Card.  If abroad, the permanent resident should contact the nearest consulate, USCIS office or port of entry before filing Form I-90.  Our office can help you with the green card renewal or replacement application – please contact us.

Many foreign nationals, employers or their attorneys have had to deal with the USCIS’ National Customer Service Center (NCSC) at one point or another – possibly for a simple status check, to request expedite processing of an application, to inquire about a missing document or on another matter.   We hope that this brief guide to the NCSC will be helpful to our clients and readers:

What Can the NCSC Do for Me?

The NCSC operates on a two-tier model.

Tier 1 Customer Service Representatives (CSRs):

Our office has fielded numerous calls from a number of foreign nationals who are in the U.S. temporarily and whose departure plans have been disrupted by the infamous Icelandic volcano ash.  For many in the U.S. whose departure travel arrangements were closely related to their I-94 expiration date, the disruption and delay in departure travel plans has caused overstay of the authorized period of stay in the U.S. on the I-94 or I-94W cards.  It is important to note that future admissibility can be permanently impacted due to an overstay of a period of authorized admission to the U.S.

Visa Waiver Program (VWP) Travelers

Overstay of the period noted on the I-94W card may make one a VWP traveler ineligible for future travel to the U.S. under VWP and require visa application for future travel.   For those in the U.S. under the VWP, contact the CBP airport office or the nearest U.S. Citizenship and Immigration Services (USCIS) office. There will be a few travelers with no I-94W under the pilot paperless I-94W project.   There is a passenger service manager list for international airports.

Per relevant regulations, 8 CFR § 217.3:

Satisfactory departure: If an emergency prevents an alien admitted under this part from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.

Travelers on Nonimmigrant Visas

For those in the U.S. under a nonimmigrant visa, CBP directs them to apply for an extension of nonimmigrant status. Even though an I-539 extension is normally recommended to be filed 45 days before expiration, CBP notes that some arrangement regarding this point has been made. Of course, the I-539 extension filing fee is $300. At present, it is not clear whether the satisfactory departure option is available for VWP or nonimmigrant visa holders unable to depart the U.S. due to the effects of the volcano.

In a USCIS alert regarding the situation, travelers on nonimmigrant visas are advised to to either (1) visit the local USCIS office and bring passport, cancelled flight itinerary and I-94 card or (2) apply for an extension of status as soon as possible by filing Form I-539.

USCIS has released a 16-minute video on the naturalization process including the eligibility requirements, application process, preliminary steps, interview, English tests and U.S. history and government test (civics).   The video also includes two simulated interviews.

USCIS Naturalization Interview and Test Video

This video should  be very helpful to naturalization applicants  to become familiar with the interview and test process and to get a better sense of what they should expect.

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

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

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

H-1B Quota Trends

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

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