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.

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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.

While the information below should not be a substitute for the personal preparation by an immigration attorney for the naturalization interview and test, we are hoping to provide our clients and readers with an overview of the naturalization interview and test and to, hopefully, allay any anxieties an upcoming interview may cause.

The Naturalization Interview

During the naturalization interview, an N-400 applicant (who would be placed under oath) is asked to confirm the validity and correctness of key information submitted on the N-400 application.   The N-400 applicant is also asked to produce originals or copies of relevant supporting documents expressly requested in the interview notice or generally required for the N-400 process.   It is always a good idea to bring original documents of any copies submitted as part of the N-400 filing; in addition to bringing additional (and more updated) documents.     A good overview of the case (and any issues) should identify any additional items that may need to be brought.   It is difficult to over-prepare for an interview.

The Naturalization Test

In addition, the USCIS office would seek to test the applicant’s knowledge of civics and the applicant’s ability to speak, understand, read and write English.

Verbal English.  The applicant’s ability to speak and understand English is normally tested in the course of the interview by the USCIS officer who often asks questions and seeks input from the applicant.   It is often obvious, after a short conversation or after a few questions, whether an applicant has a sufficiently good command of the verbal English language.

Written English.  For the written portion of the English language test, the applicant is normally given a reading and a writing test.  The applicant must be able to read 1 out of 3 sentences correctly and must be able to write 1 out of 3 sentences correctly to pass the written English test.

Civics.  Finally, the civics portion of the test, the applicant may be asked up to 10 questions from a list of 100 civics questions.  Answering 6 out of 10 correctly is the passing rate.

Preparing for the Test, Retaking and Passing Rate

There are many websites providing study resources for the naturalization test.   USCIS provides good resources and free study materials for the English and the civics portions of the test.    USCIS also offers a number of free educational products and resources such as vocabulary flash cards, list of the 100 civics questions (in English and in other languages) and civics flash cards.  There are also commercial test preparation books and software, in addition to many websites providing free or paid naturalization test preparation assistance.

Before the naturalization interview, we recommend N-400 applicants to try the Naturalization Self Test (offered for free by USCIS).  While the format of this self-test is different than the format of the actual test (which may be verbal), the self-test helps an N-400 applicant assess his or her level of preparedness for the actual interview and test.

If an applicant does not pass the English and/or civics test, he or she is given another (but only one additional) appointment within 60 to 90 days to be retested on the section which was failed.   If the component is failed again, the N-400 application may be denied.    According to USCIS data, the passing rate as of June 2011 is 92 percent.

Video of the Interview Process

USCIS has also produced a video of the naturalization interview process.   Please see the embedded video window below or watch on YouTube.

Although there are variances in the procedures followed by different USCIS centers, the video is a very good (and helpful, we think) representation of what an applicant should expect to happen during an N-400 naturalization interview.   We recommend that every N-400 applicant watches the video in preparation of (or even before filing) the N-400 interview.

Conclusion

As mentioned above, these resources are very helpful to preparing for the N-400 interview and test but are not intended to replace a thorough N-400 review and preparation by an attorney.   Our office is happy and ready to help N-400 naturalization applicants with their process of applying to become a U.S. citizen.   Please do not hesitate to contact us if we can be of any help.

The Problem

Many employers and individuals who rely on EAD cards for employment find it frustrating that there are no reliable processing times for the EAD cards.   For most employment with EAD cards, employment is authorized only when the employee has a valid EAD card.  In other words,  if an EAD card expires and a renewal is not filed on time (with or without fault of the employee) or if the EAD application takes long time to be approved, then the employee, upon expiration of the EAD card and while waiting for the renewal to be approved, must stop working.   This brings a lot of difficulty to employees and employers.

USCIS is required to issue EAD cards within 90 days.   However, often USCIS is not able to do so.  Several years ago, local service centers were permitted to issue interim cards for EAD applications pending for more than 90 days.  This option is not currently available and the only redress an EAD applicant has is to seek expedited processing of his or her EAD application.   Expedited processing, however, is discretionary and unpredictable.

The Ombudsman’s Recommendations

To address some of the problems with the current EAD application process, the Ombudsman makes several recommendations to USCIS, after making a very thorough, interesting (for some) and somewhat critical review of the current EAD application review framework.

The Ombudsdam report, after reviewing the currently-available options for EAD applicants, and after concluding that such options are inadequate, makes five recommendations.

1. Establish methods at local USCIS offices where EAD applications can be resolved;
2. Establish a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
3. Improve monitoring and ensure real-time visibility through an automated system for tracking processing times;
4. Follow established internal procedures for issuing interim EADs in cases where background checks are pending; and
5. Issue replacement EADs with validity dates beginning on the date the old EAD expires.

Conclusion

As our office handles many EAD applications for a number of categories, many of which remain pending close to the 90-day period, and having to do a number of expedited processing EAD applications, we certainly realize that the current system does not serve the needs of employers and employees very well.   It is very difficult to see how in these challenging economic times, when an employee has to stop working and potentially lose his or her job due to delayed EAD processing.  As a result, we welcome the Ombudsman’s recommendation to USCIS and hope that USCIS would consider all of the proposed changes.

In the meantime, and even if the recommendations are fully adopted, we remind our clients and readers to always apply for EAD as soon as possible, and ideally about 120 days before the expiration date of the current EAD card.   Please contact us if we can be of any help.

Data Reports Available

Currently, there are ten data sets available on the website.    Four of the data sets will be updated monthly; they include processing times and performance data for Form N-400, Application for Naturalization; performance data for Form I-485, Application to Register Permanent Residence or Adjust Status; and statistics on Form I-914, Application for T Nonimmigrant Status, and Form I-918, Petition for U Nonimmigrant Status. Forms I-914(T) and I-918(U) are used for victims of trafficking and victims of crime.

Additionally, information about the total number of receipts and approvals by quarter and year-to-date for all form types will be published quarterly.

Conclusion

While we applaud USCIS’s efforts to provide more information and transparency to the general public, and while we recognize that this website makes an initial step towards giving the general public an overview of USCIS’s operations, the information published on the website is somewhat limited in scope.   We hope that USCIS would use this website as an opportunity to provide more information about its operations, processing times and procedures.

In addition, USCIS posts each month a schedule of the standard processing times for most of the types of cases being processed at the different USCIS offices.  The Processing Times Schedule is very helpful as it provides at least some overview of how long an application would remain pending.   While the posted processing times are updated only once a month (on the 15th of each month) and while the data is often outdated by a few months, nonetheless, it provides a useful source of general information on how long a USCIS case should take.

How Does USCIS Calculate Processing Times?

For each type of application or petition, USCIS has established processing time goals. Specific processing time calculations are based on the number of months of application or petition receipts that comprise the level of active pending cases on hand within the agency.  Processing times are posted 45 days after they are reported from the field offices or service centers to allow for a quality control process that ensures the integrity of the data.

Additionally, USCIS does not distinguish between premium and regular processing and calculates processing times together.  As a result, posted processing times for cases which are premium processing-eligible may be skewed because the posted time reflects the processing time for premium processing cases (often less than 15 days) which is certainly shorter than the regular processing time for the same case type.

Similarly, cases with requests for evidence (RFEs) and notice for intent to deny or revoke (NOID/NOIR) are not considered active cases and are not calculated under these processing times.

Why Are Processing Times Posted for Certain Applications and Petitions and Not Others?

Only a few applications for immigration benefits are not included in the processing time tables, and this is primarily due to the low volume of applications received and related customer inquiries.  Additionally, some forms are not considered applications for immigration benefits because they only provide supporting evidence, so they are not included in the processing time tables.

When Are Actual Processing Times Posted Versus Processing Time Goals?

Processing time goals are posted if an office is processing a particular type of application in less time than the stated processing time goal.  Sometimes the volume of cases USCIS receives is larger than expected, which prevents USCIS from achieving the processing time goals. In these cases, a date will be listed in the processing time table. Customers can compare their application or petition receipt notice dates to this posted date, which represents the date of the last application or petition processed by the USCIS location handling the case, to gauge potential wait time.

About the USCIS Ombudsman Office

The USCIS Ombudsman office was created by the Homeland Security Act of 2002 and was tasked to assist individuals and employers in resolving problems with USCIS.   The Ombudsman’s office addresses individual case inquiries and recommends ways to fix systemic issues to improve immigration services.  For the year between April 1, 2010 and March 31, 2011, the USCIS Ombudsman office handled 3,247 case inquiries.

The Ombudsman’s office is an independent office within the Department of Homeland Security and is not a part of USCIS.   This, in theory at least, allows it some independence and impartiality when dealing with USCIS.  The report, required by law, provides an overview of the Ombudsman’s office’s activities and significant developments reflecting on the Ombudsman and USCIS.

The 2011 Report

This  year’s report details pervasive and serious problems and best practices related to humanitarian, family, employment, customer service and transformation.

Humanitarian.  With respect to humanitarian issues, the report focuses on enhancing trafficking protections, processing of deferred action requests and asylum cases.

Family.  With respect to family issues, the report discusses the family-based visa retrogression (which we have discussed extensively), survivor benefits under section 204(l) under INA, military immigration issues and juvenile immigrant issues.

Employment.  With respect to employment immigration, the report focuses on USCIS’s VIBE tool, the immigrant investor visa program (EB-5), ongoing issues relating to improper or overly burdensome requests for evidence (RFE), E-Verify issues, and EAD processing delays.

Customer Service.   With respect to customer service, the report discusses problems with posted USCIS processing times, call center and customer service interactions, and interagency cooperation.

Conclusion

The 2011 report is an useful (yet, lengthy, at 84 pages) read as it provides a somewhat independent insight into USCIS’ operations.   We applaud the Ombudsman’s office efforts to create transparency, to improve USCIS’s processes and to assist with cases on an individual basis.

Our office would be happy to provide case assistance which may include enlisting the Ombudsman’s help.  Please feel free to contact us.

Background

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” If an individual is inadmissible, admission to the United States or adjustment of status will not be granted.

Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits. Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge.   As a result, there is some confusion as to what kind of benefits do constitute a public charge and what kind of benefits do not.   With USCIS guidance, we seek to provide guidance.

Public Charge – Definition

USCIS defines “public charge” as

an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

Benefits Subject to Public Charge Consideration

USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called “general assistance” programs.   Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met.  However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds.   Each determination is made on a case-by-case basis in the context of the totality of the circumstances.  See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.

Benefits Not Subject to Public Charge Consideration

Under the USCIS guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:

• Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
• Children’s Health Insurance Program (CHIP)
• Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)- commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
• Housing benefits
• Child care services
• Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
• Emergency disaster relief
• Foster care and adoption assistance
• Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education
• Job training programs
• In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
• Non-cash benefits under TANF such as subsidized child care or transit subsidies
• Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits
• Unemployment compensation

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF.   Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration.

Conclusion

As described above, a public charge can have very serious consequences on one’s immigration process.  As a result, we caution that the information provided above is based on general USCIS guidance which can vary based on individual case facts.   We urge our clients and readers to conduct extensive research (and/or consult us) before accepting benefits which may be deemed to be public charge.

Example of I-140 Email Notice

The emails (delivered on April 1, 2011) look something like this:

Receipt Notices

The Texas Service Center has received the following
I-140 Immigrant Petition for Alien Worker
that had been filed under the Premium Processing Service:

Receipt Number: SRCXXXXXXXX
Date Received: 05/04/2010
Petitioner: PETITIONER, INC.
Priority Date: To Be Determined
Beneficiary: BENEFICIARY NAME

The Form I-797 Receipt Notice will follow in the mail.

Approval Notices

The Texas Service Center has approved the following
I-140 Immigrant Petition for Alien Worker
that had been filed under the Premium Processing Service:

Receipt Number: SRCXXXXXXXX
Petitioner: PETITIONER COMPANY, INC.
Priority Date: 06/01/09

Beneficiary: BENEFICIARY NAME
DOB: 0X/0X/71
Classification: E21

The form I-797 Approval Notice will follow in the mail.

Please note that this e-mail message is being sent as a
courtesy and cannot be used as evidence of nonimmigrant
status. Nor can this message be used as evidence to procure
an immigrant visa.

Pending and Approved I-140 Cases Seem to be Unaffected

These notices seem to be for cases previously filed with the TSC’s premium processing unit for which email receipt and approval notices were never issued.   Our office has handled a number of TSC filings, including in the relevant period of the past 12 months, and we have never received the (expected) I-140 receipt or approval notices.   Looks like they are arriving now, months after the cases have been processed and approved.  To our knowledge, paper I-140 receipt and approval notices from TSC have not been affected.

Explanation of the Old I-140 Email Notices

There has not been an official explanation by TSC or USCIS yet.  An unconfirmed theory for the reason behind this sudden deluge of I-140 receipt and approval email notices is a glitch with TSC’s email servers.  It is possible that the outgoing email server at TSC was misconfigured and was holding all outgoing I-140 receipt and approval notice emails.   In an interesting coincidence, the problem seems to have been “fixed” on April 1st.

Update from USCIS

April 1, 2011, 5:12 pm.   USCIS has more or less confirmed our theory that this sudden outburst of delayed emails was caused by software.

“The program that sends the automated emails on premium processing cases has been off-line for some time. A new version of the program was deployed today and it appears to be catching up on emails for older cases that didn’t receive any email notifications. For cases already completed, the email notifications can be disregarded.

We are working with our Information Technology colleagues to research and confirm if emails on recent / current cases are also being queued for generation.

Sorry for any confusion this may have caused.”

About VIBE

VIBE is a tool designed to enhance USCIS’s adjudications of certain employment-based immigrant and non-immigrant petitions such as I-140 and I-129.  VIBE uses commercially available data to validate basic information about companies or organizations petitioning to employ alien workers.

The need for VIBE (or a similar tool) is apparent.  Currently, when adjudicating employment-based petitions, USCIS primarily relies on paper documentation supplied by the petitioning company or organization to establish the petitioner’s eligibility for the requested classification. Petitioners often (rightly) submit large amounts of paperwork as evidence of their current level of business operations.  When petitioners’ paperwork does not sufficiently document the evidence required under the law, USCIS issues a Request for Evidence (RFE) for additional documentation, delaying final adjudication of the petition.

With VIBE, USCIS would be able to obtain electronically commercially-available information from an independent provider (Dun & Bradstreet) about a petitioning company or organization.  Among the pieces of information which would be available through VIBE are:

• Business activities, such as type of business (North American Industry Classification System
  code), trade payment information and status (active or inactive).
• Financial standing, including sales volume and credit standing.
• Number of employees, including onsite and globally.
• Relationships with other entities, including foreign affiliates.
• Status, for example whether it is a single entity, branch, subsidiary or headquarters.
• Ownership and legal status, such as LLC, partnership or corporation.
• Company executives.
• Date of establishment as a business entity.
• Current physical address.

USCIS Would Use VIBE To Verify and Test Petitioner’s Information

As part of the adjudication process, VIBE would not only be used to verify the information submitted by the petitioning employer but also to obtain key pieces of information which may not be provided.  For example, if a petitioner is seeking L-1 status for a beneficiary, VIBE will help the adjudicating officer confirm that the petitioner has a foreign affiliate, which is a requirement for granting L-1 status.  In cases where petitioners must establish ability to pay (e.g. certain I-140 petitions), information from VIBE will assist in confirming the petitioners’ financial viability.

USCIS has indicated that they would not deny a petition based on information obtained from VIBE without first giving the petitioning employer the opportunity to explain or clarify the information via RFE or a Notice of Intent to Deny (NOID).

Petitions Included in VIBE

As of this time, the following petition types are subject to VIBE confirmation:

• Immigrant: E12 (EB-1 OR), E13 (EB-1 MM), E21 (EB-2), E31 and E32 (EB-3), EW-3 (Other Workers) — all filed on I-140 and SD1 and SR1  — filed on I-360.
• Non-immigrant: E-1, E-2, E-3, H-1B, H-2A, H-2B, H-3, L-1A/B, Blanket L, Q-1, R-1 and TN.

Petitions explicitly excluded from VIBE at this time are E11 (EB-1 EA), E21 (EB-2 NIW), EB-5, O and P.

Conclusion

While USCIS has always maintained the position that they are free to and do indeed check public records (which may include simple web searches or maps) to verify the information on a petition, the formal use of the VIBE tool would add another avenue for USCIS to test the information and, possibly, find more reasons to issue RFE or NOID notices.   Small companies, for which the Dun & Bradstreet data may not be of such high quality or accuracy are likely to suffer the most because the chance of discrepancy between information, as submitted at the time a petition is filed, and the information contained in the Dun & Bradstreet database is higher.

Employers may wish to register with Dun & Bradstreet which allows an opportunity to update key company information.  This is especially true for employers who suffer a disproportionate number of RFE or NOID notices.   Please feel free to contact us for further help or information.

The drive behind this proposed rule change is that the demand for H-1B specialty occupation workers by U.S. companies generally exceeds the numerical limitation.  As a result, the preregistration system would allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions.  It would also allow employers to electronically register for consideration of available H-1B cap numbers eliminating the need to prepare and file H-1B petitions without any certainty that an H-1B cap number will ultimately be allocated to the beneficiary named on that petition.

Benefits to USCIS and Employers

To ensure a fair and orderly distribution of H-1B cap numbers, USCIS has evaluated its current random selection process, and has found that when it receives a significant number of H-1B petitions within the first few days of the H-1B filing period, it is extremely difficult to handle the volume of petitions received in advance of the H-1B random selection process. Further, the current petition process of preparing and mailing H-1B petitions, with the required filing fee, can be burdensome and costly for employers, if the petition is returned because the cap was reached and the petition was not selected in the random selection process. Accordingly, this rule proposes to implement a new process to allow U.S. employers to electronically register for consideration of available H-1B cap numbers without having to first prepare and submit the petition.

The new mandatory, Internet-based registration system allows employers to complete a much shorter and less expensive registration process for consideration of available H-1B cap numbers. The new system will also relieve a significant administrative burden and expense from USCIS. This rule will reduce costs for some employers and increase them for others. For employers that are not allocated a cap number and therefore do not ultimately file a petition, there will be a significant cost savings. Employers that are allocated a cap number and ultimately file a petition will experience the new and additional cost of filing the registration. Additionally, USCIS will incur additional costs to implement and maintain the registration system. USCIS has weighed the benefits and costs associated with this rule and determined that the benefits to society outweigh the costs.

Timeline of Proposal

Please note that this is only a proposal at this point.  The proposed rule change is subject to a comment period until March 30, 2011.  At this point, it is not certain whether the rule will be implemented, and if so, when the system would become operational and effective.  We will continue monitoring developments on this subject and report to our readers and clients as early in advance as possible to allow H-1B employers to adjust their processes accordingly to match any new USCIS registration requirements.

Normally, USCIS does not return original documents submitted as part of a petition or an application (regardless of outcome).  There are a few exceptions, for example, when a change of status to F-1 is sought, the original Form I-20 is submitted and then, upon approval, is endorsed by USCIS and returned.

Options for Seeking Return of Original Documents

There are two ways to seek the return by USCIS of original documents.   The first one is, at the time of applying, to include one original document and a copy of the documents, with a specific request that the original document be returned to you.  Obviously, this option is available only to applications which have not been filed yet.

For applications which have been filed with original documents, USCIS requires the applicant to prepare a formal request for the return of original documents.  This is filed using Form G-884, Request for the Return of Original Documents.   It should be filed with the USCIS district office or Service Center where the case is pending, or that took the last action on the case if a final decision has been rendered.  There is no filing fee required for this form.

How Our Office Can Help You?

Our office has handled a number of requests for the return the originals of important support documents by USCIS and we are happy to assist you.   Please do not hesitate to contact us to describe your case and to obtain a quote.

Which Forms are Eligible for a Fee Waiver?

A fee waiver may be requested based on an inability to pay for the following:

1. General Fee Waivers: Forms I-90, I-191, I-751, I-765, I-817, I-821, I-881, N-300, N-336, N-400, N-470, N-565, N-600, N-600K; and
2. Humanitarian Fee Waivers: any fees associated with the filing of any benefit request by a VAWA self-petitioner or an alien who has or is requesting a T visa or U visa; is a battered spouse of A, G, E–3, or H nonimmigrant, or a battered spouse or child of a lawful permanent resident or U.S. citizen; or has Temporary Protected Status. This would include filings not otherwise eligible for a fee waiver or eligible only for a conditional fee waiver such as Forms I-212, I-485, I-539, and I-601.
3. Conditional Fee Waivers: If not listed above, you may request a fee waiver subject to the following conditions:  (a) I-131 – only if applying for humanitarian parole (i.e., only for persons located overseas who are applying for an Advance Parole Document, Application Type “e” or “f” in Part 2); (b) I-290B – only if the underlying application was fee exempt, the fee was waived, or it was eligible for a fee waiver; and (c) in addition, an applicant who does not have to show he or she will not become a public charge for admission or adjustment of status purposes according to section 212(a)(4) of the INA may request a waiver of the following fees: I-192, I-193, I-485 (This would include but not be limited to an I-485 from a “Registry” applicant, an asylee, Special Immigrant Juvenile, an application under the Cuban Adjustment Act, the Haitian Refugee Immigration Fairness Act, and the Nicaraguan Adjustment and Central American Relief Act, or similar provision, or; a Lautenberg Parolee), and I-601.
4. Biometrics: biometric services in connection with any application or petition, regardless of whether it is listed above.

What is the Fee Waiver Application Process?

USCIS has developed  Form I-912, Request for Fee Waiver, in an effort to facilitate the fee waiver request process. While USCIS will continue to consider applicant-generated fee waiver requests (i.e., those not submitted on Form I-912) that comply with 8 CFR 103.7(c), it is USCIS’s preference that Form I-912 be used to submit fee waiver requests.   Also, Form I-912 and its instructions provide helpful guidance in structuring and documenting a fee waiver request.

Who Can Get a Fee Waiver?

The review of a fee waiver request will focus on the following three steps:

Step 1. Are you receiving a means-tested benefit?  This step instructs an applicant about various acceptable means-tested benefits and the kinds of acceptable evidence used to document the receipt of a means-tested benefits. This step also outlines which family members will be considered as eligible for a fee waiver based upon the primary applicant’s receipt of a means-tested benefit. If you are receiving a means-tested benefit and you have provided sufficient evidence with your fee waiver request, your fee waiver will normally be approved and no further information is required.

Step 2. Is your household income at or below 150% of the Federal Poverty Guidelines at the time of filing? This step instructs an applicant about what is acceptable evidence in determining household income. It also specifies what family members should be included when determining household size. If you have provided sufficient evidence that your household income is at or below the 150 % threshold, your fee waiver will normally be approved.

Step 3. Do you have some financial hardship situation that you would want USCIS to consider when determining eligibility for a fee waiver? This step allows an applicant to list any special circumstances that USCIS should consider in addition to income such as extraordinary expenses and liabilities.

We have written in the past about the need of this fee increase and our office handled a surge of applications before the fee increase date to accommodate filings under the old fee structure which, for some filings, was significantly lower.

Schedule of USCIS Filing Fees

As part of the new fee structure, USCIS has prepared a helpful (and neatly organized) schedule of the current USCIS filing fees – Form G-1055 (in PDF format).

Increases (and a few decreases) in USCIS Filing Fees

A full schedule of the new fees is set forth in page 4 the final rule PDF document or in this table.  Among the most notable increases are:

• Form I-90 (replacement of green card) filing fee increases from $290 to $365;
• Form I-129 (used for H, L, P, O visas) filing fee increases from $320 to $325;
• Form I-129F (used for fiancee visas) filing fee decreases from $455 to $340;
• Form I-130 (family-based immigrant visas) filing fee increases from $355 to $420;
• Form I-131 (reentry permits and advance parole documents) filing fee increases from $305 to $360;
• Form I-140 (employment-based immigrant visas) filing fee increases from $475 to $580;
• Form I-290B (motion to reopen/appeal) filing fee increases from $585 to $630;
• Form I-485 (adjustment of status) filing fee increases from $930 to $985 (for children under 14 when filing with parent the fee increases from $600 to $635);
• Form I-539 (change or extension of status) filing fee decreases from $300 to $290;
• Form I-751 (removal of condition) filing fee increases from $465 to $505;
• Form I-765 (work permit) filing fee increases from $340 to $380;
• Form I-824 (action on approved petition, follow-to-join) increases from $340 to $405;
• Form I-907 (premium processing) increases from $1,000 to $1,225;
• Biometrics processing fee increases from $80 to $85.

Effective Date

All of these fee changes become effective on November 23, 2010.  All applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee.

Conclusion

We will not comment on the fairness and the justifications of the new fees.  We hope that the new fees will result in increased efficiency and accuracy in USCIS adjudications.

We urge our clients and readers, if possible, to prepare and file any upcoming petitions and applications for benefits before the new fees become effective in approximately two months on November 23rd.   As with previous fee increases, we expect increased workload of filings so please contact us as soon as possible so that we can ensure we can prepare and file your case on time before the filing fee increase becomes effective on November 23rd.  Please contact us now so that we can analyze and prepare your case for filing.

During FY2009, U.S. Citizenship and Immigration Service (USCIS) received 743,715 applications for naturalization (in comparison to the 1,046,539 during FY2008 and 660,477 in FY2007).  Some of our readers would conclude that there is a sharp drop in the naturalization applications in FY2009 compared to the fiscal year prior; however, FY2008 was the year when USCIS instituted a substantial Form N-400 fee increase, which prompted a higher-than-normal filing numbers.  FY2009 is actually substantially higher than FY2007 and FY2006 (660,477 and 702,589, respectively).    Based on these statistics, it is important to show that the citizenship and naturalization applications are increasing.

Most of the applicants (74%) resided in 10 states: California, New York, Florida, Texas, New Jersey, Illinois, Virginia, Massachusetts, Washington and Maryland.   The largest metropolitan area of residence was New York-New Jersey (15%), Los Angeles (11%), Miami (7.3%).

The top countries of origin of naturalization applicants were Mexico, India, Philippines, China and Vietnam.

After an exchange of arguments about dismissal of the suit in July, the District Court for the District of Columbia sided with the government and dismissed the lawsuit.   The court ruled that the Neufeld Memo did not constitute “final agency action” that might be subject to judicial review.

Background of the Neufeld Memo Lawsuit

The complaint was filed earlier this year by a coalition of staffing companies and representative trade associations. USCIS was asked to stop temporarily and permanently from applying the Neufeld Memo in H-1B adjudications.

The complaint alleged 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 plaintiffs claimed 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.

Specifically, the complaint alleged 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).

The Federal District Court Dismissal of the Broadgate Case

Judge Kessler dismissed the case because the Neufeld Memo is not legislative rule.  The court ruled that the Memo merely provides “interpretive guidelines” for the implementation of the relevant regulations and does not providing binding instructions to USCIS adjudicators in their review of H-1B petitions.

Judge Kessler determined that “the evidence demonstrates that the Memorandum is intended to provide only guidance for application of the Regulation”, somewhat based on the fact that four petitions submitted by the plaintiffs had been approved while the lawsuit was pending.    By failing to show immediate harm, the plaintiffs could not show harm in an injunction case.

Additionally, Judge Kessler found that the Administrative Procedures Act does not apply in this case.

Additional Notes from the Dismissal of the Neufeld Memo Lawsuit

There is some silver lining for consulting companies.  In the proceedings, USCIS has acknowledged that that joint employment, or staffing, is permissible under the H-1B program and that the Neufeld Memo is not binding to adjudicators.  Judge Kessler agreed and wrote that adjudicators can consider a number of factors when weighing an H-1B application,

“The memorandum instructs USCIS adjudicators to look to the totality of the circumstances in each case to determine whether there is an employer-employee relationship,” Kessler wrote.

However, Kessler added, they have “considerable discretion”  in interpreting H-1B rules.

Conclusion

Seems like this may be the end of the Neufeld Memo lawsuit as the plaintiffs do not seem likely to appeal Judge Kessler’s decision.   The Neufeld Memo lawsuit failed to accomplish its mail goal — the repeal of the Neufeld Memo; however, as a result of the lawsuit, there may be a little bit more clarity that the adjudicators are not required to follow the Neufeld Memo regulations.  Consulting companies should continue to follow the guidelines set forth by the Neufeld Memo with respect to proving employer-employee relationship.

Our office has received a number of “Neufeld Memo” requests for evidence (RFEs) and we have been able to successfully respond and address USCIS’ concerns.   Our expectation is that such RFEs will continue (if not intensify now that the Neufeld Memo lawsuit has been dismissed).   We have also shifted our filing practice towards filing upfront more evidence showing the employer-employee relationship to try and avoid RFEs.  Please feel free to contact us if we can help you respond to a Neufeld Memo RFE (on existing case) or prepare a new filing.

California Service Center

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

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

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

Vermont Service Center

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

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

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

Conclusion

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

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

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.

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.

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.

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).

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.

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.

What Can the NCSC Do for Me?

The NCSC operates on a two-tier model.

Tier 1 Customer Service Representatives (CSRs):

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 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.

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.

Note that this information is for the Vermont Service Center.  The California Service Center, the second service center processing cap-subject H-1B petitions has not announced any numbers yet. 

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, and especially without the California Service Center numbers, it is impossible to draw any trends; however, stay tuned for more numbers and updated trends over the next days and weeks.

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.

In a letter dated March 19, 2010 addressed to the USCIS Director, AILA puts forward a renewed call for rescission of the Neufeld Memorandum by explaining the unintended and burdensome consequences of the Neufeld Memo.  The AILA letter discusses the economic impact of the Neufeld Memo on a number of H-1B petitioners.  Also, the letter discusses the undesired and unintended (according to AILA) impact of the Neufeld Memo on a number of industries:

• physicians – since many states prohibit the physician to work directly for a hospital, many physicians are unable to obtain H-1B under the Neufeld Memo employer-employee relationship standard because they cannot, by law, be sponsored by the employer where they will actually work.
• government contractors – many government contractors operate on a purely third-party worksite placement system, and for many of these contractors, the Neufeld Memo precludes hiring H-1B workers.
• H-1B entrepreneurs/job creators – the Neufeld Memo would also prevent H-1B visas to be issued to foreign entrepreneurs (and job creators) who have some ownership interest in their U.S. company.
• IT consulting companies – meeting the Neufeld Memo obligations also impacts IT consulting companies, which have very useful in helping larger companies set-up projects quickly and with the right staffing.

The AILA letter concludes that the Neufeld Memo should be rescinded because of its negative impact on a number of industries and the fact that the de facto rulemaking is done in violation of the Administrative Procedures Act.

More Amendments Will Be Required

The proposed draft contemplates that an H-1B amendment filing will be required for ANY material change in employment.  The instructions provide as an example of material change in employment a change on primary job duties or change in the geographic location of the job.    Currently, H-1B petitions do not always have to be amended when there is a change in the geographic location of the job.   Under current guidance, a valid Labor Condition Application (LCA) is required for such geographic location job change.

Under the proposed Form I-129, an H-1B amendment, in addition to LCA filing, will be required for any job change with respect to geographic location.  While this is unlikely to affect many employers who employ their H-1B workers onsite; the proposed change will be very burdensome to consulting companies and companies with roving employees.

Furthermore, the requirement of filing H-1B amendments for geographic location job changes will create another level of uncertainty associated with the H-1B amendment process.  The cost (filing fees and preparation expenses) of having to prepare such amendments is also likely to be significant and impact consulting and roving-employee companies.

Export License Acknowledgement

The draft revised Form I-129 requires a deemed export license acknowledgment.   Certain H-1B, L-1 and O-1A workers must have a “Deemed Export License” issued by the Department of Commerce to be eligible for employment pursuant to H-1B, L-1 or O-1A status.   Accordingly, the employer must submit evidence that a review of the deemed export license requirements has been completed (under 15 C.F.R. 734.2).

If a deemed export license is required, a copy of the Department of Commerce approved license must be supplied.  Alternatively, if a deemed export license is not required, the employer will have to indicate whether the technology with which the foreign worker will be engaged is subject to Export Administration Regulations (EAR) and identify the Export Control Classification Number (ECCN) of the technology in which the beneficiary will have access to.

Evidence of Valid Status Required

The draft instructions also indicate that evidence of valid status will  be required as initial evidence with any Form I-129 petition.   USCIS will require, for all change or extension of status petitions, copies of the last two paystubs and Form W-2 in addition to Form I-94 and Form I-797 approval notice to support that the beneficiary has maintained a valid status.

Third-party Worksite Attestations

In cases where the worker will be placed at a third-party worksite, the revised Form I-129 requires certain attestations – name of the company where the worker will be placed, the work address and a contact person.  Although changes to the language may be necessary due to apparent misuse of terms, the petitioning employer will also have to attest that the worker will receive at least the prevailing wage or the offered wage (same under current H-1B regulations).

H-1B Worker Will Have to Sign Data Collection Supplement

Under the revised form, the H-1B worker will be required to sign the Data Collection Supplement.  The purpose of this is to attest that the worker has accepted the terms of the job offer, including offsite placement and the possibility of relocation.  Currently, the employee does not have to sign or otherwise acknowledge any portion of the H-1B filing paperwork.

Duplicate Forms Required

The proposed instructions also require that all of the forms and supporting evidence be submitted in duplicate.  Currently, duplicates are necessary for petitions requesting consular processing.   However, since each H-1B worker is, at some point of their H-1B period, likely to apply for a visa at a U.S. consulate abroad, this requirement is certainly helpful to eliminate visa processing delays associated with lack of information in the consular service database due to lack of duplicate copy.

It is our office’s practice to almost always submit duplicate copies of the petitions and all supporting evidence, so this change should not affect our practice.

Conclusion

The proposed changes to Form I-129 are fairly significant and create a number of additional requirements and burdens on at least some, if not all, employers using Form I-129 to petition for foreign workers.  Our office will remain involved in this comment period and we will provide updates on this proposed Form I-129 draft and any developments related to it.  Please consider subscribing to our free weekly newsletter to receive email updates on this and related immigration law developments.

Processing Times

TSC has confirmed that the pending application reports posted on the USCIS status check website are generally correct.  I-485s filed prior to March 26, 2009 that are still pending should be in for processing and for those I-485s, a streamline request is appropriate.  Similarly, TSC has completed review of derivative I-485 that have become separated from the primary I-485, so a streamline request may be appropriate in such cases as well.

AC21 Porting Notifications

TSC is expecting guidance from USCIS headquarters regarding cases in which the I-485 has been preadjudicated and waiting visa number but where a request for recent job verification may be necessary.  Currently, there are a high number of preadjudicated I-485 waiting for a visa number; however, many of these I-485 applicants have changed jobs pursuant to the AC21 portability provisions.

It is currently unclear whether TSC will issue an RFE requesting a more recent employment verification letter for these preadjudicated cases.  While TSC has indicated a preference to receive AC21 notifications generally, such notifications are not required.  Pending USCIS headquarters guidance, we still recommend that AC21 change of employer notifications be filed to “preemt” a possible RFE regarding employment verification even for preadjudicated I-485 cases.

Transfers from TSC to National Benefits Center (NBC)

TSC has confirmed that generally, the reason for transferring unadjudicated cases to NBC is when a I-485 requries an interview.  TSC transfers the “A file” to NBC which will then send it to a local office for interview.   Generally, TSC does not transfer cases to other centers for workload reasons.

Washington has been busy for the past few months with health care, wars and the economic crisis.  Not surprisingly, immigration reform has not been high on the President’s agenda.

A pair of senators trying to put together a comprehensive immigration bill showed their outline to President Barack Obama Thursday and asked his help in recruiting additional Senate backers. But with a full plate already and elections looming, it was unclear how involved the White House plans to get on the issue.

According to the Wall Street Journal, while President Obama remains “fully committed” to immigration reform, his administration has taken a more hands-off approach and has left Congress to propose the outline of the reform plans and to “sell” it on Capitol Hill.

The Schumer/Graham plan, proposed by Senators Charles Schumer (D-NY) and Linsay Graham (R-SC), was presented to the President.  However, Sen. Graham is looking for another Republican sponsor, but has been unable to find one.  Senator McCain (R-AZ) who supported a similar plan when President Bush proposed it, has not been willing to sign on.

The Schumer/Graham Plan Outline

While the Senators have not released their plan formally,  it may include many of the building blocks from the last failed effort, including a path to citizenship for those here illegally, now estimated at 10.8 million people; a guest worker program; and, in a new twist, a mandatory biometric identification card for workers to stem the flow of illegal workers into the country in future years.

Immigration Reform – Slow Movement

In this political climate, it seems that immigration reform, if it happens, will move forward very slowly.   The President has seemingly delegated to Congress finding support for the immigration reform, and the current political gridlock in Congress will not help.   We will provide to monitor the current state of the immigration reform from our offices in Washington, DC, and provide further updates.   To stay up-to-date on this and other immigration topics, please consider subscribing to our free weekly immigration newsletter.

Anticipating reaction from practitioners and affected individuals, AILA has attempted to clarify this comment with VSC. VSC has clarified this statement. In the VSC’s view, the “credit” for RFES is meant to encourage qualitative RFES. Under the previous policy, VSC was concerned that since examiners were not given “credit” for RFES, examiners were not spending the appropriate amount of time on them, resulting in RFES that were not appropriate. According to VSC, the purpose of giving credit is to improve the quality of RFES by making it something adjudicators have to stop and think about, rather than something to quickly send off. VSC has indicated that the amount of RFES issued has not changed as a result of the policy change.

Inevitably, this comment will trigger a fair amount of speculation and, possibly, accusations that RFES are being issued unfairly. We cannot confirm that RFES are unfair or issued disproportionately; our recent experience indicates that VSCS RFES are fair and well-prepared. We will continue to monitor RFES coming out of VSC and provide updates to our clients and readers.

About the H-1B Program and the Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2011 starting on October 1, 2010.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H1B status and who are seeking to extend their visa or change employers.

Timing of the Cap-subject H-1B Petition Filing

The earliest date on which cap-subject H-1B petitions to be counted under the FY2011 H-1B cap is April 1, 2010.  By law, the earliest starting employment date for petitions approved under the FY2011 H-1B cap is October 1, 2010.  As a result of this up to 6-month window  between the time of filing and the time of employment, it becomes important to plan properly with respect to resources, valid status in the U.S. and work authorization.

Before an H-1B petition can be filed on or after April 1, there are a number of lead-time items.   Employers who have not submitted Labor Condition Applications (LCAs) with the Department of Labor’s iCERT system must have their Federal Employer Identification Number (FEIN) verified – a process which generally takes 2-4 business days.  Subsequently, an LCA must be filed for the offered position.  LCAS tend to be certified within 7 business days.   Only after the LCA is certified (with very minor exceptions) can an H-1B petition can be finalized and filed.  Accordingly, it becomes important to start the H-1B petition process as early as possible.  At a very minimum, an H-1B petition preparation can take at least two (2) and often at least three (3) weeks.

Cap-exempt Employers Can File H-1B at Any Time

Not all H-1B petitions must be filed under the H-1B annual cap.  Certain employers can file for H-1B workers at any time of the year and without being subject to the numerical H-1B visa limitations.  Such employers are generally qualified institutions of higher education (universities, colleges) and non-profit research organizations, or non-profits affiliated with institutions of higher education.   Note, not all non-profit organizations qualify; only those who are engaged in research may file for cap-exempt H-1B petitions.

Please see our helpful Guide to H-1B Cap Exempt Employers for more details.

Projections About This Year’s H-1B Cap

As discussed above, the H-1B cap “opens” on April 1, 2010 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 FY2011 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.   Last year, for FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.

Due to the recovering economy, we do not expect that this year’s H-1B cap will be reached in eight days.  However, we do not anticipate that the H-1B cap will remain open until December of 2010.  Accordingly, to eliminate uncertainty, we recommend to our clients to aim for an early April H-1B filing.

Throughout the H-1B filing season, we provide weekly (or more often, if necessary) updates about the status of the H-1B cap and any related developments.  Please check back often or subscribe to our Weekly Newsletter to receive news and updates related to the H-1B filing season.

Conclusion

Because USCIS received more applications than there were visas available for fiscal years 2009, 2008, 2007 and 2006 within a few days of the cap opening, and for the 2010 fiscal year the cap was hit in December 2009, we recommend that clients consider their needs as soon as possible and be prepared to file on the first available date – April 1, 2010.    Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.

One of the points of the story is that the EB-5 program may be considered as a unfair “pay-to-play” program where foreign nationals “buy” their U.S. visa.  Of course, the story provides plenty of support for the EB-5 program which is considered by many to be a beneficial job-creating and foreign capital-attracting program in these difficult economic climate.

NPR story:  For Some Immigrants, The Ticket To A Visa Is A Check.

It is helpful to describe the criteria which USCIS (and our office, in preparing such requests) uses in establishing whether a particular case warrants expedited processing:

• Severe financial loss to company or individual;
• Extreme emergent situation;
• Humanitarian situation;
• Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government);
• USCIS error; and
• Compelling interest of USCIS.

Expedited processing can be requested for both an application which is about to be filed (by indicating clearly EXPEDITED PROCESSING on the cover) or for a pending application (by contacting the National Customer Service Center at 1-800-375-5283 or by sending a fax to the applicable Service Center).

Additionally, our office routinely handles expedited processing requests and we are happy to discuss your case and whether it can be expedited and, if so, whether we can help you.  Please contact us for more information.

The Report’s Findings

The report focused on many aspects of E-Verify, but the main number which has drawn attention recently is the fact that according to the Westat report, 54% of the unauthorized workers run through E-Verify result in an authorization to work.  Westat and USCIS attribute this high number to identify fraud – unauthorized workers who use and submit documents of a person who is authorized to work.  However, this high percentage of inaccurate E-Verify authorization has stirred some political and emotional responses.  See Wall Street Journal and Forbes articles.

Overall, Westat found that an estimated 96 percent of all E-Verify initial responses were consistent with the person’s work authorization status:  93.1 percent of all E-Verify cases involved authorized workers who were initially found to be authorized; 2.9 percent of all E-Verify cases involved unauthorized workers who received final non-confirmations.

4.1 percent of the initial responses were inconsistent with employment eligibility status: 0.7 percent of all E-Verify cases involved authorized workers who were not initially found to be authorized to work; 3.3 percent of all E-Verify cases involved unauthorized workers who were found to be employment authorized.

Although the numbers, overall, are positive, the main concern and recent political storm came after breaking down this number relating to the 3.3 percent of all E-Verify cases involving unauthorized workers who were found to be eligible to work.  Put in another way, out of the 6.2 percent of all E-Verify cases in which the workers were not authorized to work, the system failed to discover the unauthorized worker and permitted work 54 percent of the time.

USCIS’ Response

In the summary of the report, USCIS tries to defend this alarming number of inaccurate work authorizations by putting the numbers in context and by showing the high success rate across other categories.  While this is true, one of E-Verify’s main goals was to eliminate unauthorized work.  The Westat report casts shadow on this.   USCIS has taken steps to eliminate or decrease this rate of inaccurate authorizations.  It is USCIS’ claim that most of these false authorizations are due to identity theft – as a result, USCIS is implementing a photo tool as part of E-Verify so that employers can match the photo of the documents submitted, with one in government records, and with the actual employee.  Additionally, USCIS is attempting to integrate additional government databases to be able to provide more accurate and reliable information into E-Verify and increase its accuracy rate.

Basis for the Report

The report was based on several sources of data covering September 2007 to June 2008: USCIS staff and contractor interviews, focus groups, web survey of 2,320 E-Verify employers, in-person interview with 109 E-Verify employers and 424 workers who have received tentative non-confirmations (TNC), review of 1,246 records of workers who received TNCs and review of E-Verify program data.  Additionally, Westat developed models to develop estimates of the numbers of true employment authorizations; models were necessary because the true data is unavailable.

Conclusion

The Westat report is very useful in evaluating the E-Verify program’s current state.  Obviously, the 54 percent inaccuracy rate discussed above is going to be the focal point of discussions related to E-Verify over the near term.  It is worth noting, however, that the Westat report used data which is not at least 18 months old and E-Verify has steadily been improving the accuracy of its data and models.  Additional tools, such as the photo tool, are also helpful in eliminating certain types of work authorization and identify fraud.

We applaud USCIS efforts to improve E-Verify and to engage independent third parties to conduct research and test the accuracy of the system.  As an E-Verify Designated Agent, we have helped many of our clients handle with a number of E-Verify issues and have been happy with the willingness of USCIS to improve the system.

AILA Seeks Rescission of the Neufeld Memorandum

Our office has revised its standard H-1B preparation guidelines for third-party worksite H-1B petitions to comply, to the extent possible, with the new requirements imposed by the Neufeld Memorandum.  In the meantime, the American Immigration Lawyers Association (AILA), in a January 26, 2010, Memorandum addressed to the Chief Counsel of USCIS, calls for the rescission of the Neufeld Memorandum effective immediately and for the issuance of a new memorandum to redefine the employer-employee relationship differently, considering legal precedent.

The AILA Memo is quite lengthy (24 pages) and goes into a great detail to substantiate its main claims that (1) the Neufeld Memorandum improperly creates substantive new rule outside the proper channel for making such rules and (2) that the employer-employee relationship definition in the Neufeld Memorandum is improper and is against congressional intent.

The Neufeld Memorandum is Improper Rulemaking

As an initial matter, AILA argues that the Neufeld Memorandum is issued improperly  because it seeks to change substantive rules without the necessary process.  Change in substantive rules must be done by following the required notice and comment procedures.  AILA argues that the “guidance” in the Neufeld Memorandum is a substantive rule change which cannot be imposed by a memorandum;  instead it should follow the normal rulemaking process.  As a result, AILA argues that the Neufeld Memorandum should be set aside as a violation of the Administrative Procedures Act (APA).

The Neufeld Memorandum Definition of Employer-Employee Relationship is Incorrect

As its main argument for seeking the rescission of the Neufeld Memorandum, AILA argues that the sweeping definition of “employer” is inconsistent with the law, impedes its intent and purpose and is inconsistent with decades of precedent.  The AILA Memo then goes into great detail and legal analysis of its claim to conclude that the Neufeld Memorandum, in addition to certain recent AAO’s non-precedent decisions and the accompanying adjudications at the Service Centers that are applying these decisions to current filings seek to overturn over fifty years of consistent precedent and regulatory interpretation to categorically deny eligibility for benefits to an entire class.

Conclusion

The AILA Memorandum is a well researched and substantiated request for the rescission of the Neufeld Memorandum.  However, we do not know yet what USCIS’ position would be in response and whether USCIS will take any steps in response to this memorandum.  We will continue to provide updates on this topic as it is of great interest of our clients, readers and a large portion of the employment-based immigration community.

I-526 Premium Processing Possible Later in the Year

A review of the question of reinstating premium processing for I-526 petitions will be done during the second quarter of 2010.  USCIS will reinstate premium processing if it determines that it has sufficient resources at the California Service Center to adjudicate I-526 within the 15-calendar day window.

EB-5 Statistics

As of December 14, 2009, USCIS was able to provide only statistics for fiscal year 2009 (FY 2009).  Accordingly, in FY 2009, where were 1,028 I-526 petitions (EB-5 immigrant petition) filed, of which 966 were approved and 163 denied.   Also, in FY 2009, where were 437 I-829 (removal of condition) petitions filed of which 335 were approved and 55 denied.

Note that these numbers do not add up because not all petitions filed during FY 2009 are adjudicated during FY 2009.  Additionally, some petitions filed during FY 2008 are adjudicated during FY 2009 and are included in the numbers above.