Labor Immigration Law

It may seem like an April Fools Day joke at first sight, but apparently it is not.  The Texas Service Center has been issuing and emailing premium processing receipt and approval notices for I-140 cases filed as far back as April 2010.

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.”

In late January 2011, U.S. Citizenship and Immigration Services (USCIS) announced that they would begin testing their new Validation Instrument for Business Enterprises (VIBE) tool.

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.

U.S. Citizenship and Immigration Service (“USCIS”) has proposed a change to the relevant regulations requiring all employers who wish to file for an initial H-1B cap petition to preregister with USCIS.    The proposal is for an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification.  In the future, other classifications may be added as needed.

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.

Our office is often approached and asked to assist in obtaining the return of original documents submitted to USCIS as part of a petition or an application.   Normally and for most types of documents, USCIS accepts a copy of the original document in lieu of the original.  Unless specifically instructed and required, only clear copies of the documents should be submitted as part of a USCIS application package.

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.

Along with the USCIS filing fee increase which went into effect on November 23, 2010, USCIS has revamped the guidelines, criteria and application process for filing fee waivers.   While granting a waiver is still in USCIS’s sole discretion, the process and qualifications are now more transparent.

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.

On November 23, 2010, the pre-announced increase in the U.S. Citizenship and Immigration Service (“USCIS”) filing fees went into effect.  All applications and petitions filed must now include the new and correct filing fee, or the filings will be rejected.

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).

We wrote earlier in the summer about USCIS’ plans and proposed rule to increase certain filing fees.   The final rule was published a few days ago in the Federal Register and the new increased filing fees are set to go into effect on November 23, 2010.

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.

Our office continues to handle an increasing number of naturalization and citizenship applications so it is interesting to share with our clients and readers some recent numbers on the citizenship statistics for Fiscal Year 2009 (FY2009).

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.

We have previously written extensively about the January 2010 Neufeld Memorandum and the lawsuit filed earlier this year challenging its validity.   This lawsuit has been of great interest to most of our clients as the Neufeld memorandum created some new requirements applicable not only to IT consulting companies but to most, if not all, H-1B employers.

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.

The Los Angeles Times has requested and been able to obtain statistics from USCIS regarding the adjudication rates for H, L, O and P petitions for the Vermont and California Service Centers since Fiscal Year 2008 (FY2008).   The statistics are current as of July 2010 and provide a very helpful overview of approval, denial and RFE rates.

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.