Labor Immigration Law

We have clients and our office handles a number of U.S. visa applications submitted in Canada.  Accordingly, we wish to report on a new appointment service for all U.S. visa applicants in Canada, which becomes effective on September 1, 2010.

As of September 1, 2010, all services — including calling for information and scheduling an appointment — will be provided for no additional cost, with no requirement that applicants pay phone charges or PIN numbers to access such services. Starting September 1, 2010, applicants will visit CSC Visa Information Services to either obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada.

For those U.S. visa applicants who have already scheduled an appointment or paid their MRV fee, the U.S. Embassy in Canada has some specific instructions.

The Department of State has announced that effective immediately, non-immigrant visa applicants may book interview appointments at any U.S. Consular Section in China, regardless of the province or city where they live.   Under the old policy, appointments had to be made only at a specific consulate, based on province of residence.

Consular Sections are located at the U.S. Embassy in Beijing and U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang.  The purpose of the rule is, according to the State Department, to “increasing mutual understanding between the United States and China through people-to-people exchange.”   According to Department of State numbers, in 2009, almost 500,000 people received U.S. non-immigrants visas in China and the new policy should serve to increase this number by eliminating barriers to application.

The Texas Service Center (TSC) recently launched a pilot program pursuant to which employment-based I-485 applicants can facilitate TSC processes relating to specific stages of the employment-based adjustment of status.  A special email address has been designated for this purpose: ebupdate.tsc@dhs.gov.

Procedure and Process

Notification of AC21 Change of Employer
I-485 applicants who wish to change employer and retain their adjustment process pursuant to AC21 are advised to follow the following steps:

1. Identify only one applicant in a single e-mail. E -mails must pertain to applicants whose I-485s have been pending for 180 or more days and who are eligible for AC21 porting.
2. Send an email to: EBUPDATE.Tsc@dhs.gov.
3. On the subject line,  write “EB I-485/AC21.” (Example: EB I-485/AC21)
4. In the text of the email, provide: A-number, old employer’s name and new employer’s name.  Attach a copy of the new employer’s letter of employment. The letter must identify the following information: the new employer, the letter’s author and his/her job title, the applicant’s new job title, start date of new employment, hours per week, salary, and specific description of the duties to be performed.
5. If the applicant has more than one A-number, they should be typed on the same line separated by a “/”. (Example: All 1222333 I A444555666). If there are multiple family members, they should be typed  all on the same line separated by commas. (Example: AIII222333, A222333444, A444555666). You should also indicate which of the A-numbers is that of the principal I-485 applicant / I I-140 beneficiary.

Notification When an Applicant Has Multiple I-140s With Available Priority Dates

Notification When Applicant is Eligible for Cross-Country Chargeability

Applicants who are eligible to obtain chargeability under a different country should follow the following procedure:

1. As with the categories described above,  identify only one applicant in a single e-mail. E-mails should pertain to applicants whose I-485s are currently eligible for processing because the applicant is entitled to receive a cross-charged priority date from a qualifying family member under Section 202 of the Immigration and Nationality Act.
2. Send an email to: EBUPDATE.Tsc@dhs.gov
3. On the subject line, write “I-485/ CC”
4. In the text of the email,  provide A-numbers, including the A-number of the I-485 applicant who will acquire the current priority date from the qualifying family member, and the country of cross chargeability. Also include the A-number of the family member who will confer the current priority date.  If the applicant who is to receive the cross-charged priority date has more than one A-number, or if there are multiple family members,  the instructions described above under AC 21 portability apply.

Notification of Case in Need of Transfer

Applicants can also notify TSC of cases which are in need of transfer.  The procedure is as follows:

1. Identify only one applicant in a single e-mail. E-mails must pertain to applicants whose I-485s are eligible for processing because the priority date of another petition relating to the I-485 applicant (such as an I-130) has a visa available.
2. Send an email to: EBUPDATE.Tsc@dhs.gov
3. On the subject line,  write “Transfer”.
4. In the text of the email, provide A-numbers or receipt numbers and the office to which the I-485 should be transferred. If the applicant has more than one A-number, or if there are multiple family members please follow the instructions described above under the AC 21 portability instructions.

Conclusion
TSC’s pilot notification program is a great idea; however, its success will depend on how well TSC will respond to legitimate notifications send to them via the new email address and how well TSC will advise applicants who use the notification tool of the status and progress of their request.  We will continue monitoring this pilot program and using it with selected clients who can benefit from it and will provide further updates on the pilot program’s usefulness.

The Department of State (DOS) issued an advance copy of the interim final rule on the Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates.  The notice was published today at the Federal Register.

According to the notice, the new rule will become effective on June 4, 2010 (15 days after publication).  The increase in fees is mainly due to increase in processing costs for a number of non-immigrant visas processed at the U.S. consulates abroad.  For most of these visa types, the current fee is $131.00.  As a result, while some categories see a minor increase of $10-20, some categories see the fees more than double (for example, K visa applications).

The New Non-immigrant Consulate Visa Fees

    (a) Non-petition-based nonimmigrant visa (except E              $140
     category)..........................................
    (b) H, L, O, P, Q and R category nonimmigrant visa..            $150
    (c) E category nonimmigrant visa....................            $390
    (d) K category nonimmigrant visa....................            $350
    (e) Border crossing card--age 15 and over (valid 10             $140
     years).............................................
    (f) Border crossing card--under age 15; for Mexican              $14
     citizens if parent or guardian has or is applying
     for a border crossing card (valid 10 years or until
     the applicant reaches age 15, whichever is sooner).

It should be noted that these fee increases apply to consular visa applications only.  The USCIS petition processing fees remain unaffected by this rule.

Late spring and early summer are generally busy period for recent foreign college graduates as far as employment immigration is concerned.  On one hand, foreign college graduates are either applying for their initial term OPT, their 17-month STEM extensions (if they qualify) or their H-1B work visas.

Our office fields many questions from prospective or recent college graduates with respect to their OPT and H-1B options.   In this article we will focus on a number of questions relating to H-1B and the “cap-gap” provision allowing students with expiring OPT work permits to continue working subject to a timely-filed H-1B petition under the H-1B cap.

Background on the H-1B 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.

What Is “Cap-Gap”?

The current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between F-1 and H-1B status that might otherwise occur if F-1 status was not extended for qualifying students.

How to Invoke the “Cap-Gap”?

Most importantly, H-1B petitions must be timely filed on behalf of an eligible F-1 student.  This means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Is Proof of Cap-Gap Status Necessary?

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue an interim cap-gap I-20 showing an extension until June 1st.  Students whose approved period of OPT already extends beyond June 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

Are Expired or Expiring OPT EAD Holders Eligible for Cap-Gap?

For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date which is generally the date of filing of the H-1B petition.

Can Students Travel While Under Cap-Gap Extension?

The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence.  However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired.  Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans, accordingly.

Generally, the U.S. Department of State likes to process visas at the consulate located at the applicant’s home country.  Howevre, U.S. consulates in Mexico and Canada have the practice of allowing third-country nationals (TCN) to apply for a U.S. visa stamp in addition to their home country.  However, recent AILA interactions with the Department of State Canadian missions have provided some cautionary notes.

First, U.S. consular posts in Canada are increasingly refusing to issue visas under INA 221(g) in cases where the H-1B visa applicant has a foreign (non-U.S.) degree and who does not have a previous H-1B stamp issued by the U.S. consulate in their home country.  This practice is dictated mainly by a concern about increasing fraud with foreign diplomas.

Second, U.S. consulates in Canada generally discourage TCNs from applying at Canadian U.S. consular posts if they last entered the U.S. in visitor status.

While these announcements are not change in policy, it is important that we share them with our clients and readers as we encounter, on a daily basis, a number of inquiries about the feasibility of obtaining a U.S. visa stamp in Canada.  These notes should certainly provide examples of cases where a visa application should not be submitted in Canada.  The notes do not seem to include Mexico, although we suspect that the U.S. consulates in Mexico may trend similarly to their counterparts in Canada.

The Texas Service Center (TSC), in a meeting with AILA, has provided some helpful updates regarding processing of petitions filed with TSC.

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.

The Department of State (DOS) announced recently that it is changing the procedure for K-3 (spouse) visa applications filed at U.S. consulates abroad.

The procedure is effective February 1, 2010, and applies in cases where the I-130 immigrant petition and the I-129F K-3 petitions are both approved and sent to the National Visa Center (NVC).  In such instances, DOS will administratively close the K-3 application and will proceed instead only with the immigrant visa application based on immediate relative category (IR).

Background of K-3

The K-3 visa allows the foreign spouse of a U.S. citizen (and his or her dependents) to be admitted into the U.S. while they are waiting for their permanent residency application to be completed.  K-3 visa also allows the foreign spouse to engage in employment in the U.S. while waiting for approval of the green card.

The K-3 visa requires the filing of an I-130 and I-129F petitions with USCIS.  In terms of timing, the I-130 and I-129F are filed almost at the same time.  Generally, the I-129F K-3 petition is approved slightly before the I-130 and, in such cases, the foreign spouse can apply for the K-3 visa stamp and travel to the U.S.

The New K-3 Policy

However, in some cases the I-130 and the I-129F are approved at the same time.   In such cases, the foreign spouse faces the (not always so clear) choice of applying for K-3 visa or green card at the U.S. consulate.  This is the kind of situation the new DOS policy is intended to address and prevent any confusion.  Under the new policy, when the I-130 and I-129F are approved at the same time and received by NVC, NVC will, on its own, administratively close the I-129F K-3 application process.  NVC will contact the applicant with instructions on how to process the IR green card process.

According to DOS, the rationale behind this procedure is that the need of the K-3 visa ends once the green card I-130 petition is approved because the foreign spouse would be entitled to apply for green card immediately.   Our past experience has confirmed this — when a foreign spouse has to choose between K-3 or green card, the choice is confusing and counterintuitive.

An important note: the new procedure applies only when NVC has received both the approved I-129F and I-130 petitions.  If NVC receives only the approved I-129F petition, the foreign spouse can apply for the K-3 visa while the I-130 remains pending.   In this case, NVC will send the petition to the embassy or consulate in the country where the marriage took place or, if the marriage took place in the U.S., to the embassy or consulate that issues visas in the foreign spouse’s country of nationality.

Our office has handled many cases where a specific USCIS benefit or application must be approved on an expedited basis.  Also, we have received numerous inquiries from applicants who seek to expedite the processing of a pending application due to long processing times.

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 National Visa Center (NVC) has released numbers and statistics on the immigrant visa numbers pending at NVC.   The information is as of November 1, 2009.  It is important to note that these numbers reflect immigrant visas which have chosen “consular processing” and not adjustment of status (I-485) applications filed from within the U.S.  Also, the numbers reflect all applicants, including derivative beneficiaries such as spouses and children.

Overall Pending Immigrant Visa

Family-based.  As of November 1, 2009, there are 245,516 family-based first preference category applications pending; 842,762 second category (324,864 in 2A and 517,898 in 2B sub-category); 553,280 in third category; and 1,727,897 in fourth category.  The total family-based NVC pending cases are 3,369,455.

Employment-based.   As of November 1, 2009, there are 3,601 employment-based first preference category applications pending; 6,295 second category; 119,759 in third category (103,448 in skilled workers and 16,311 in other workers sub-category); 529 in fourth category; and 325 in fifth category.  The total employment-based NVC pending cases are 130,509.

Distribution by Country

Thirteen countries represent 79% of the total NVC pending immigrant petitions.  Mexico is number one with 1,178,761 cases (most of which are family-based);  Philippines is second with 482,694, China-mainland is third with 197,559, while India is fourth with 194,954.

Please see the full report for more detailed statistics.  It is important to note that the annual FY-2010 maximum of family-based immigrant visas issued for any one country is 15,820.  The maximum employment-based immigrant visas issued for any country is 10,440.