Labor Immigration Law

The U.S. Citizenship and Immigration Service (USCIS) has just provided some updated numbers in connection with the 2014 fiscal year (FY2014) H-1B cap.      Many of our readers are aware that on Friday, April 5th, USCIS announced that they have received sufficient number of H-1B petitions to close the FY2014 H-1B cap as of Friday.    Today USCIS has announced that they have received a total of 124,000 H-1B petitions for both the regular and U.S. master’s degree caps.

Lottery Conducted on April 7th

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of H-1B petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.   This suggests that for many H-1B beneficiaries, the chances of being selected under the H-1B lottery are a little bit over 50% (U.S. master’s degree holders have slightly higher chance because they are part of two iterations of the lottery, if they are not successful in the initial U.S. master’s degree iteration of the lottery).

For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service will start to be processed on April 15 and this is when the 15-day premium processing clock will begin.

Conclusion
We will continue providing updates on the FY2014 H-1B cap season, including filing statistics, as they become available.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

The U.S. Citizenship and Immigration Service (USCIS) announced earlier this afternoon that they have received a sufficient number of H-1B petitions to meet the annual H-1B cap for the 2014 fiscal year (FY2014).    According to USCIS, they have received more than 20,000 H-1B petitions filed for beneficiaries with U.S. master’s degree and more than the 65,000 general H-1B cap petitions.   As a result, any cap-subject H-1B petitions received by USCIS after April 5, 2013 will be rejected.

The Lottery Process

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received between April 1 and April 5, 2013.  The agency will conduct the selection process for advanced degree exemption petitions first.  All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.   Also, the total number of petitions received is not yet known due to the large volume of applications.

Petitions Not Selected under the Lottery Will Be Returned With Filing Fees

Petitions accepted for filing but not selected under the lottery will be returned to the petitioners together with the filing fees.

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service will start to be processed on April 15 and this is when the 15-day premium processing clock will begin.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers are cap-exempt.

Conclusion

The FY2014 H-1B cap was reached, as anticipated during the first week it was open.   The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue providing updates on the FY2014 H-1B cap season, including filing statistics, as they become available.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

As many of our clients and readers are aware, unless Congress decides to act on a long-term federal deficit-reduction plan before March 1, the government will suffer automatic slashes under the looming “sequester” plan passed in 2011.  It will cut 8 percent from U.S. military spending and 5 percent from other domestic spending budgets.    The Department of Homeland Security (“DHS”), which includes Citizenship and Immigration Service (“USCIS”) is likely to be affected as well — meaning that cuts to DHS programs and staff are likely.

How Would the Sequester Affect USCIS?

One of the questions we hear most often is whether the upcoming sequestration (which seems very likely to happen, as of the date of this article) is, Would the sequestration affect USCIS operations and processing times?

While it appears that DHS’s budget will be affected as a whole, many agencies within DHS will be impacted more than others.  For example, the FEMA, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are among the agencies hardest hit.   All of this means that there will be less agents, airport screeners and border agents on duty, which would affect waiting and processing times.

While USCIS is also slated to lose funding, most of its budget comes from fees collected for processing various applications and services, so the impact to USCIS should not be as significant compared to ICE or CBP.   However, even if USCIS does not suffer directly from the cuts, the magnitude of the cuts and the fact that other related agencies are affected is likely to affect at least somewhat USCIS operations.  For example, of CBP has to furlough some of its workforce, it may take longer to cross through certain border posts and it may be more difficult to obtain immigration-related benefits by CBP – such as I-94 processing, corrections, FOIA requests.

Conclusion

We remain hopeful that Congress would reach a compromise over the next week or so and avert the sequestration.   However, we have urged our clients who rely on federal agencies to consider that there may be an additional delay in obtaining certain immigration-related services.   While we do not expect USCIS to be affected as dramatically as other agencies within DHS, it is still possible for our clients and readers to experience notable delays when dealing with USCIS.   Therefore, please plan accordingly.

We also 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 or you have any questions or comments.

The U.S. Citizenship and Immigration Service (“USCIS”) has announced that effective February 1, 2013, USCIS will begin collecting an additional USCIS Immigrant Fee of $165.00 from foreign nationals seeking admission as permanent residents to the U.S.    The fee will apply to immigrant visa applicants who have received their visa approval from a U.S. Consulate abroad and must be paid directly to the U.S. before the immigrants (and their families) travel to the U.S. for the first time as immigrants.

What is the USCIS Immigrant Fee?

In its press release, USCIS explains that the fee was established by the September 24, 2010 fee change rule (last time the fees were revised in a substantial manner) and will is being introduced now after collaboration between USCIS and the Department of State (“DOS”) on how to best collect the fee without disrupting the existing procedures.  The fee is imposed to recover the costs of processing immigrant visas in the United States after immigrant visa holders receive their visa packages from DOS. This includes staff time to handle, file and maintain the immigrant visa package, and the cost of producing and delivering the permanent resident card.    See Federal Register notice.

It is important to understand that this fee is in addition to the fees already collected by USCIS and DOS (via the National Visa Center).

How Should the New Fee be Paid?

The new fee will have to be paid online through USCIS website after immigrant visa applicants receive their visa package from DOS (usually the U.S. Consulate) and before they depart to the U.S.   DOS will be providing such applicants with specific information on how to submit payment when they attend their consular interview.  Acceptable methods of payment would be checking account information or debit/credit card, drawn on U.S. funds.

Who is Affected by the New Fee?

All immigrant visa applicants who process their immigrant visas through a U.S. Consulate abroad (including Canada and Mexico) will be required to pay the new fee, starting February 1, 2013.   USCIS processes approximately 36,000 immigrant visa packages (green card “activations”) each month.  Please note that permanent residency applicants who process their green cards from within the U.S. will not have to pay the new fee — for example, I-485 applicants to adjust status from within the U.S. will not have to pay the fee.   Also, prospective adoptive parents whose child will enter the United States under the Orphan or Hague processes are exempt from the new fee.

What Happens If the Fee is Not Paid?

The applicant will not receive a green card until the required USCIS Immigrant fee is paid.    However, failure to pay does not affect the lawful status of the applicant.   While the applicant can use their Customs and Border Protection (CBP) Form I-94, Arrival and Departure Record, for one year to document they are a lawful permanent resident, once that I-94 stamp expires, the applicant will need to possess a green card as evidence of their lawful permanent resident status.

Conclusion

We are hopeful that USCIS and DOS will establish a clear process to inform applicants, especially those who are currently undergoing their immigrant process, of the new requirement to pay the fee before the green card is produced.   Our office will continue to monitor this new fee and related procedures and provide updates.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

It is very likely that anyone who has had a case filed and pending with USCIS has used the online status check and has also checked the “normal” processing times for the type of a case they have had filed.   Many of our clients and readers are well aware of these two resources and we encourage following the information posted on the website.

Recent Issues with Inaccurate Processing Times Reports

Over the past few months, we have seen an increasing number of cases for which the processing times reports do not reflect accurate case status.  In other words, the processing times reports have been inaccurate, in some cases, substantially so.   For example, when USCIS processing times indicated that H-1B cases are processed within 3 months, our office had a number of pending cases which had been pending well above this time period.

USCIS has addressed some of these concerns and have taken steps to correct the way the processing times are gathered and reported to ensure higher quality data.     Recent internal investigations by USCIS have revealed that some of the processing times are simply being reported incorrectly.   For example, the Texas Service Center had inadvertently been processing cases out of their receipt order, thereby deviating from their standard first-in/first-out policy.    We are assured that this deviation has been corrected.

How Are Processing Times Determined?

The USCIS calculated processing times are intended to be a reflection of the number of months of application/petition receipts that an office’s inventory of pending cases represents.    For example, a 4 months processing time reported for a service center indicates that the inventory of pending cases (waiting to be processed) was equal to the number of cases that the center had received over the past 4 months.    This means that the processing times are somewhat backward looking in the sense that they do not necessarily reflect how long a new case would remain pending.

USCIS also shows the online processing times based on workload processing goals.   If USCIS is processing a specific type of a petition in less time than the processing goal, the processing time would be shown in months.    If USCIS is taking longer than the processing time goal to handle a case, USCIS will post the specific filing date of the oldest pending case the service center has to process as of the date of the processing time chart.

USCIS’s methodology in calculating the processing times is as follows:   USCIS only calculates the time a case is considered to be actively pending with USCIS and is under adjudication.  It does not take into account the time USCIS is waiting or an action by the applicant or petition.   As an example, the time is takes for USCIS to issue and wait for a response to a request for evidence (RFE) (usually 84 or 87 days), is not reflected in the processing times.

USCIS Working to Provide More Recent Processing Times Information

Another substantial problem with the processing times report is that the data is simply very old.    Often, by the time a processing times report is published online, it is already 30-, 45- or even 60-days old.    USCIS has indicated that it works with its internal IT and Performance and Quality Departments to try to speed up the information gathering and reporting process.   According to USCIS, the current process of gathering the processing times information is manual and based on self-reporting.   USCIS is working on a new system which should allow automated, accurate and faster reporting.    The system is currently being tested and is scheduled for implementation in early fiscal year 2013.

Conclusion

The ability to obtain recent, accurate and timely information on a case’s processing status and expected turnaround is vital for our office and for our clients and readers.   We had reported recently on issues with the online case status system and we remain hopeful that USCIS would continue working towards improving their online case status system and its processing times reports.     We will continue monitoring this subject and provide updates to our clients and readers.   Please do not hesitate to contact us if we can help you.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.

Many of our clients and readers may be aware that USCIS has an online status check system which allows applicants (and their attorneys and employers) to track the progress of a case and obtain case updates.   In addition to allowing a single status case lookup, the system has an extremely helpful function which allows users to create an account, add one or more case receipt numbers and be notified via email or text message if there is a case update.     While it has been very helpful, this system has not been very reliable.   Unfortunately, over the past several weeks, at least, the system has become even less reliable.

USCIS Confirms Unreliable Case Status Email Delivery

USCIS has acknowledged that the case status email alert portion of the system has been unreliable and many case status updates did not generate an email (as they should).     For example, in our office, we often receive premium processing case email updates (or a paper notice of approval), while we do not receive an email case status alert generated from the case status system.     Additionally, even after a major milestone event, such as after an approval of a case, the online status check system does not seem to have correct information and would not reflect the updated case status.

Many of our clients and readers rely on this system to obtain updates on their case and its reliability issues are causing frustration among many of our clients.   We have relayed our concerns and reliability issue reports to USCIS and they have acknowledged that we are not alone.     USCIS has assured us that they are working on a solution; unfortunately, we do not have an estimated timeline of correcting these issues.

Premium Processing Cases Less Affected

The lack of email updates is worrying because these case status alerts provide a nice warning of a case development.  For example, if the case status indicated that a Request for Evidence (RFE) has been issued, then the applicant/petitioner and/or their attorneys can anticipate the mailing within a few days and, if they do not receive it, they can take an action.   By not having this advance warning, inevitably, there will be some applicants or petitioners who may not receive an important document and may not realize this until it may be too late.

For cases filed under premium processing, where it is available, USCIS normally sends additional email notifications (which have some reliability issues, but on a much smaller scale) and correspondence via fax, so the danger of non-receipt of documents is much smaller.

Conclusion

We hope that USCIS would be able to correct the issues causing non-delivery of case status email and updates.    We will continue monitoring this subject and provide updates to our clients and readers.   Please do not hesitate to contact us if we can help you.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.

Many of our clients and readers who have had to call USCIS, including us in our office, know that sometimes it is difficult to speak to a customer service representative, especially during certain peak hours during the day.     Partly as a result of customer feedback, USCIS has announced that its National Customer Service Center (NCSC) is expanding its hours to include Saturdays from 9 a.m. to 5 p.m.

With the newly expanded hours, live customer service agents will now be available  Monday – Friday between 8 a.m. – 8 p.m. and Saturdays from 9 a.m. to 5 p.m. in each time zone.

For more information on the USCIS National Customer Service Center, please read our guide.

USCIS has released a report on the number and characteristics of naturalization applications for 2011.     The report focuses on the applicants who were 18 and over and who became U.S. citizens during 2011.    According to the data, in 2011, the total number of persons naturalizing was 694,193.   The leading countries of birth of new citizens were Mexico (94,783), India (45,985), the Philippines (42,520), the People’s Republic of China (32,864), and Colombia (22,693).  The largest number of persons naturalizing lived in California (151,183), Florida (87,309), and New York (76,603).

Historical Trend in the Number of Naturalizations

The number of persons naturalizing in the United States increased to 694,193 in 2011 from 619,913 in 2010 following a decrease from 743,715 in 2009 and 1,046,539 in 2008. The record number of naturalizations in 2008 followed a surge in applications in 2007 in advance of an application fee increase and efforts to encourage eligible immigrants to naturalize. The annual number of applications for naturalization decreased from 2007 to 2008 and increased again after 2008 to 760,000 in 2011.

Region and Country of Birth of Naturalized Applicants

Thirty-six percent of persons naturalizing in 2011 were born in Asia, followed by 31 percent from North America, and 12 percent from Europe. Mexico was the leading country of birth of persons naturalizing in 2011 (14 percent). The next leading countries of origin of new citizens in 2011 were India (6.6 percent), the Philippines (6.1 percent), the People’s Republic of China (4.7 percent), and Colombia (3.3 percent). The 10 countries with the largest number of naturalizations accounted for 48 percent of all new citizens in 2011.

Leading States and Metropolitan Areas of Residence

Seventy-three percent of all persons naturalizing in 2011 resided in 10 states. California was home to the largest percentage of persons naturalizing (22 percent), followed by Florida (13 percent) and New York (11 percent). Fifty-one percent of all new citizens in 2011 lived in 10 metropolitan areas.   The leading metropolitan areas of residence were New York-Northern New Jersey-Long Island, NY-NJ-PA (14 percent), Los Angeles-Long Beach-Santa Ana, CA (9 percent), and Miami-Fort Lauderdale- Pompano Beach, FL (8 percent).

Years in Immigrant Status

Persons naturalizing in 2011 spent a median of six years in legal permanent resident status before becoming citizens. Immigrants born in Africa spent the least time in legal immigrant status (5 years), followed by immigrants from Asia, Europe, and South America (6 years), Oceania (7 years), and North America (10 years). The median years spent in LPR status was unchanged overall in comparison to 2010, but increased by one year for persons born in Asia and South America (meaning that folks waited longer before they applied for citizenship).

One of the most popular U.S. work visas, the H-1B, will start accepting filings for new H-1B employment on April 2.     Pursuant to each yearly H-1B quota, new H-1B filings can be filed on April 1 (April 2nd this year because April 1st is a Sunday), at the earliest, for a starting date of employment on or after October 1.

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 (FY2013) starting on October 1, 2012.

As discussed above, the H-1B cap “opens” on April 2, 2012 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 FY2013 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.  For FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011 and last year, FY2012, the H-1B cap was open between April 1, 2011 and November 2, 2011.

Conclusion

We do not know yet how quickly would this year’s H-1B cap be reached.   On one hand, the US economy and hiring is improving; on the other hand, it is not improving that fast.    While we see higher H-1B work visa demand this year, compared to last, we do not anticipate that the H-1B cap will  be reached in the first few weeks of this year’s filing season.

Throughout the H-1B season, we will be providing bi-weekly updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  We will also 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.

There has been a considerable amount of discussion, excitement and, unfortunately, some incorrect rumors over the past few weeks regarding possible changes to the way employment-based immigrant visas are allocated.   Our office has been receiving many requests to comment on and speculate on what may happen with the proposed legislation.   To avoid fueling rumors, we wanted to wait until Congress takes some concrete steps towards the passage of this legislation before we provide updates.

About H.R. 3012

H.R. 3012, the Fairness for High-Skilled Immigrants Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) and its goal is to eliminate the employment-based per-country cap entirely by fiscal year 2015 and to raise the family-sponsored per-country cap from 7% to 15%.    If enacted into law, this Act would directly benefit the very high number of highly-skilled applicants for immigrant visa from countries such as India and allow them to obtain an approval much earlier (we are talking many years).

The current law places a limit so that immigrants from a country can obtain no more than 7% of the 140,000 employment-based immigrant visas (or green cards) issued annually.   That cap applies equally to all countries, regardless of the country’s population and creates an imbalance and backlogs for larger countries such as India and China.

H.R. 3012 Clears the House of Representatives; More Work Remains Ahead

On November 29, 2011, the House passed H.R. 3012 by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.  A brief reminder:  the fact that H.R. 3012 has been approved by the House does not make it a law.   To become a law, the Act must be passed, in identical form, by both the House and the Senate, and then signed into law by the President.

Many would expect that the Act to pass the Senate quickly.   Unfortunately, indications from here in Washington, DC suggest otherwise.  What is the hold-up?   The answer is politics.   After the House passed the Act on November 29th, Senator Charles Grassley of Iowa, host of the upcoming presidential election caucuses, promptly placed a hold on the bill, which is expected to have broad support from his Senate colleagues.

Conclusion

While it should be encouraging to see that H.R. 3012 cleared the House, the Act is still far from being a law.  With the presidential election politics, the Act may not be taken up by the Senate for some time.   Even then, we do not know if it will be passed by the full Senate in identical form.   As a result, much work remains to be done for the Act to become a law.    We will continue to monitor developments on this legislation and provide updates.    Please do not hesitate to contact us if we can be of any assistance 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.