Extraordinary visa wait times at U.S. consular posts in India

News Release from Jewell Stewart & Pratt PC The American Immigration Lawyers Association (AILA) has reported that U.S. Consular Posts in India are experiencing extraordinary wait times for nonimmigrant visa interview appointments. The wait times for all categories other than B, F, and J are currently:

• Chennai – 75 days
• Hyderabad – 93 days
• Kolkata – 96 days
• Mumbai – 88 days
• New Delhi – 100 days

These wait times are likely to continue, if not worsen, during the summer. Indian nationals who are considering obtaining a new visa may therefore wish to defer that travel until the backlogs have subsided; or, if their travel is essential, to be prepared for long delays in the scheduling of visa interviews. AILA provides the following helpful reminders:

• The Mission India visa appointment system allows requests for expedited appointments. First priority goes to cases with humanitarian issues. Second priority goes to business emergencies; such requests must include reasons why the need to travel is urgent, why advance planning was not possible, the impact to the business if the travel does not occur, etc.

• Applicants for a petition-based visa must have already obtained USCIS approval of the underlying petition before requesting an interview.

• If an Indian national has reason to travel to another jurisdiction, applying outside of India as a Third Country National may be an option. Such applications are mostly likely to be successful in petition-based cases where INA §214(b) does not apply (i.e., H-1B and L-1).

Jewell Stewart & Pratt will continue to monitor progress and will report significant developments here.

AILA members can access the original post at www.aila.org (doc. no. 16061330, dated June 13, 2016).

© Jewell Stewart & Pratt PC 2016

H-1B Cap update – USCIS reports 236,000 H-1B petitions received

News Release from Jewell Stewart & Pratt PC

Today USCIS announced that it received over 236,000 H-1B petitions in the filing period that began on April 1. On April 9 USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for advanced degree exemption petitions first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.

© Jewell Stewart & Pratt PC 2016

H-1B Cap reached, lottery triggered

News Release from Jewell Stewart & Pratt PC

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2017. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the U.S. advanced degree exemption. USCIS will not accept H-1B petitions subject to the FY 2017 cap or the advanced degree exemption after today.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2017 cap-subject petitions received through April 7, 2016. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.

USCIS is expected to provide more detailed information about the H-1B cap soon.

© Jewell Stewart & Pratt PC 2016

USCIS suspends premium processing for H-1B petitions where extension of stay is requested

News Release from Jewell & Associates, PC As of May 26, 2015 USCIS has temporarily suspended premium processing for all H-1B petitions where a request for extension of stay is requested. This is to allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule, and to adjudicate the first applications under that rule, in a timely manner. Premium processing for H-1B extension of stay petitions is scheduled to resume on July 27, 2015.

Premium processing remains available for certain H-1B petitions, including:

• Petitions subject to the H-1B cap, and cap-exempt petitions, as long as the petition requests a change of nonimmigrant status, or consular notification.
• Petitions filed on behalf of individuals who already have H-1B status, as long as the petition requests consular notification, or an amendment of a previously approved petition that does not include a request for an extension of stay.
• All H-1B1 petitions.

USCIS will continue to premium process H-1B extension of stay petitions filed prior to May 26, 2015.

The full text of USCIS’s announcement is available here.

© Jewell & Associates, PC 2015

UPDATE: USCIS publishes information regarding H-4 EAD procedure

News Release from Jewell & Associates, PC

We previously posted here about USCIS's announcement that, starting May 26, 2015, it would begin accepting applications for employment authorization from certain H-4 spouses of H-1B nonimmigrants who are in the employment-based lawful permanent residence (green card) process. USCIS has now published the following information to help prospective applicants:

• An Employment Authorization for Certain H-4 Dependent Spouses web page; and

• A list of Frequently Asked Questions, and answers to those questions.

Under the rule, eligible applicants will be required to file Form I-765, Application for Employment Authorization, with the required $380 fee and the documents establishing their eligibility. USCIS usually adjudicates Form I-765 within 90 days; if employment authorization is approved, the applicant will receive an EAD. Once the H-4 spouse receives an EAD, he or she may begin working in the United States.

Applications will not be accepted by USCIS before Tuesday, May 26, 2015.

© Jewell & Associates, PC 2015

H-1B Cap update – USCIS reports 233,000 H-1B petitions received

News Release from Jewell & Associates, PC

On April 7 USCIS announced that it received approximately 233,000 H-1B petitions in the filing period that began on April 1. Today USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for the 20,000 set-aside for beneficiaries with U.S. advanced degrees first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.

© Jewell & Associates, PC 2015

DHS to propose allowing work authorization for spouses of certain H-1B workers, and more

News Release from Jewell & Associates, PC

The Department of Homeland Security has announced that it will publish a proposed rule that would:

1. Allow work authorization for H-4 spouses of certain H-1B workers in the permanent residence (green card) process based on employment. For the H-4 spouse to qualify for work authorization, the H-1B worker would have to (a) be the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker, or (b) have been granted an extension of H-1B status beyond the usual six-year limit, under the provisions of AC21 (the American Competitiveness in the Twenty-first Century Act of 2000, as amended).

2. Clarify that Australian E-3 workers and Singaporean and Chilean H-1B1 workers do not need EAD cards to work for the sponsoring employer; also, allow Australian E-3s,  Singaporean and Chilean H-1B1s, and Northern Marianas CW-1s to continue working for up to 240 days during the pendency of an E-3, H-1B 1, or CW-1 extension application filed with USCIS. The rule would add E-3 and H-1B1 nonimmigrant workers to the list of classes of aliens authorized for employment “incident to status” with a specific employer, meaning that the E-3 or H-1B status itself carries work authorization, without the necessity of a separate Employment Authorization Document (EAD card).  The rule would also bring E-3, H-1B1, and CW-1 nonimmigrant workers into line with H-1Bs and other work classifications in allowing up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while an extension request is pending.

3. Expand the list of evidentiary criteria for EB-1 outstanding professors and researchers to include “other comparable evidence.” This would add “other comparable evidence” to the list of types of evidence supporting an EB-1 immigrant petition for an “outstanding professor or researcher,” i.e., an EB-1B petition.  EB-1A petitions, for persons of “extraordinary ability,” already permit the use of “other comparable evidence.”

Further information can be found in the White House press release.

By Phyllis Jewell and Christopher Beckerson. © Jewell & Associates, PC 2014

H-1B Cap update – USCIS reports 172,500 H-1B petitions received

News Release from Jewell & Associates, PC

Today USCIS announced that it received approximately 172,500 H-1B petitions in the filing period that began on April 1. On April 10 USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for advanced degree exemption petitions first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.

© Jewell & Associates, PC 2014

H-1B Cap reached, lottery triggered

News Release from Jewell & Associates, PC

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the U.S. advanced degree exemption. USCIS will not accept H-1B petitions subject to the FY 2015 cap or the advanced degree exemption after today.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2015 cap-subject petitions received through April 7, 2014. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.

USCIS is expected to provide more detailed information about the H-1B cap soon.

© Jewell & Associates, PC 2014

DOL online labor certification registry now live

News Release from Jewell & Associates, PC

In January the Department of Labor (DOL) announced that it would make copies of various documents submitted to it by employers available to the public in a searchable Labor Certification Registry (LCR). These include documents submitted in PERM labor certification, H-1B, H-1B1, H-2A, H-2B, and E-3 cases.

On July 1, 2013, the LCR went live, providing public access to redacted copies of documents related to these cases. For PERM labor certifications DOL will redact the employer’s and employee’s names, but not the position’s job description, minimum requirements, salary, prevailing wage, or worksite address. DOL will also not redact company contact information, such as the name of the individual listed as the company contact on the labor certification and his or her e-mail address, or information about the employer and employee’s attorney.

You can access the LCR here, and read DOL’s Federal Register notice here.

By Christopher Beckerson. © Jewell & Associates, PC 2013

H-1B Cap update – USCIS reports 124,000 H-1B petitions received

News Release from Jewell & Associates, PC

Today USCIS announced that it received approximately 124,000 H-1B petitions between April 1 and April 5. It was the first time the statutory H-1B cap of 85,000 (including 20,000 available under the advanced degree exemption) was reached within the first week of the filing period since 2008.

On April 7 USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for advanced degree exemption petitions first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.

© Jewell & Associates, PC 2013

H-1B Cap reached, lottery triggered

News Release from Jewell & Associates, PC

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the U.S. advanced degree exemption. USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption after today.

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

USCIS will provide more detailed information about the H-1B cap next week.

© Jewell & Associates, PC 2013

DOL announces online labor certification registry

News Release from Jewell & Associates, PC

The Department of Labor (DOL) has announced that it will make copies of H-1B, H-1B1, E-3, H-2A, H-2B, and PERM labor certification documents, as submitted by employers, available to the general public through its iCERT system in a searchable Labor Certification Registry (LCR).

The LCR will provide access to copies of labor certification and labor condition application (LCA) documents in a single location. Public access to the LCR will begin on July 1, 2013. It will provide the following features:

• An interactive map displaying all labor certification and LCA documents posted within the last 30 calendar days;
• A “quick search” feature allowing queries by employer name, job title, industry, state or territory, zip code radius, and/or visa classification;
• An advanced search feature allowing queries by occupation, industry, education and training, range of wage offers, worker positions requested, and dates of employment;
• Search results in table format with sortable column headings, the ability to filter the search results, and quick links to view or download the document; and
• Access to OFLC's latest program performance reports and case file datasets to allow in-depth statistical research and analysis.

DOL’s stated aim for the LCR is to provide extra transparency for the labor certification system while protecting information in compliance with privacy and confidentiality statutes. Data to be redacted in the documents should include the employer’s Federal Employer Identification Number and revenue, and the name, address and class of admission of the foreign worker.

For more information see the Federal Register, here.

By Christopher Beckerson. © Jewell & Associates, PC 2013

H and L fee increases

News Release from Jewell & Associates, PC – August 13, 2010 On 8/13/2010, President Obama signed into law H.R. 6080, an act making emergency supplemental appropriations for border security.  One provision of the act raises the filing fee and Anti-Fraud fee for H and L visa petitions.  The fee hikes apply to petitioning companies with more than 50 employees in the United States, if more than 50% of those employees are either in H or L status.  The fee increase for Ls is $2,250.00, and the increase for Hs is $2,000.00.  The language of the act appears to add these fees onto the existing $320.00 filing fee and $500.00 Anti-Fraud fee for each, bringing the total to $3,070.00 for Ls and $2,820.00 for Hs (not including PPS or ACWIA fees).  It is unclear whether these fees apply only to initial petitions or if they also apply to extensions.  Also unclear is whether the 50% determination for H or L counts individually or cumulatively.  The fee increases appear to go into effect immediately, but we are uncertain whether USCIS will start rejecting petitions that are en route, or if USCIS will announce an effective date with an updated fee schedule.  The fee increases are set to expire on September 30, 2014.  We will post updates as more information becomes available.

© Jewell & Associates, PC 2010

Companies’ H-1B wages available online

News Release from Jewell & Associates, PC - May 6, 2010 All H-1B petitions are supported by a Labor Condition Application (LCA), on which the employer attests to the wage to be paid to the H-1B employee.  The same is true for H-1B1 and E-3 visas.  The LCA does not identify the employee, but it names the employer, the occupation and location (e.g., ABC Corporation, Software Engineer, Mountain View, California), and the rate of pay.  According to regulations of the U.S. Department of Labor (DOL), this information “shall be available for public examination at the Office of Foreign Labor Certification, Department of Labor, 200 Constitution Avenue, NW, Room C-4312, Washington, DC 20210.”  20 C.F.R. 655.760(b).

Although the DOL regulation indicates that the information sits in an office in Washington, DC, employers have discovered that the information is also available online, and is being used by compensation consultants and others.  How did this happen?

Since 1994, DOL has contracted with the State of Utah to run the Foreign Labor Certification (FLC) Data Center, a branch of DOL concerned with LCAs for H-1Bs, as well as PERM labor certifications for U.S. permanent residence.  The State of Utah has made the LCA wage information available on the FLC Data Center web site since 2001, the first year that a majority of LCAs were submitted in an electronic format.  The information is currently available at http://www.flcdatacenter.com/CaseH1B.aspx.

© Jewell & Associates, PC 2010

“Neufeld Memo” of 1/8/2010 on Employer-Employee Relationship

News Release from Jewell & Associates, PC - January 13, 2010

On January 8, 2010, USCIS’s Associate Director, Service Center Operations, Donald Neufeld, issued a memo making additions to the Adjudicator’s Field Manual (AFM), the manual used by USCIS officers in adjudicating nonimmigrant and immigrant visa petitions, including H-1B petitions.  The January 8, 2010 “Neufeld Memo” is intended to provide guidance in determining the existence of an employer-employee relationship in the context of H-1B petitions, including H-1B petitions in which an owner of the petitioning entity is also the H-1B beneficiary, and H-1B petitions involving third-party site placements.    The memo appears designed to limit the approvability of such H-1B petitions.  The memo is troubling in that it is not fully consistent with the existing federal regulation at 8 CFR §214.2(h)(4)(ii)(2) that identifies the factors defining an employer-employee relationship.

Under accepted principles of administrative law, it is not proper for USCIS to make significant new rules through the issuance of memos.  Under the Administrative Procedure Act, significant changes in agency regulation, policy or practice require that appropriate notice be given to the public and that the public be permitted to comment.  Accordingly, we expect the Neufeld Memo to be met with vigorous opposition and a call for withdrawal of the memo.

The Neufeld Memo is available on the USCIS web site at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf

© Jewell & Associates, PC 2010

DOL implements TARP restrictions on H-1Bs

News Release from Jewell & Associates, PC - February 19, 2009

The U.S. Department of Labor’s electronic portal for filing Labor Condition Applications (LCAs) in support of H-1B petitions now contains a warning to employers that have received TARP funding regarding the limitations placed on their H-1B hiring by the American Recovery and Reinvestment Act of 2009 (the “stimulus bill”).  The warning states that an employer that has received TARP funds are prohibited from hiring H-1B nonimmigrants for new employment unless the employer has complied with the additional attestations required of “H-1B-dependent” employers – attestations regarding the non-displacement of, and recruitment of, U.S. workers. Information regarding these additional attestations can be found at 20 CFR sections 655.738 and 655.739. For information regarding those employers who are recipients of such funding, go to http://www.treas.gov/initiatives/eesa/transactions.shtml.

© Jewell & Associates, PC 2009

H-1B and L-1 visa reforms passed by Congress

News Release from Jewell & Associates - November 22, 2004 On Sunday, November 21, 2004, Congress passed the Fiscal 2005 Omnibus Appropriations Bill (H.R. 4818), which contains significant amendments to the H and L visa categories.  The bill will be presented to the President for signature shortly.  Upon signing by the President, the bill will have been enacted into law.  Some of the bill’s key immigration provisions include:

20,000 new H-1Bs: The new law will exempt from the annual H-1B cap 20,000 H-1Bs with advanced degrees from U.S. universities. This provision will go into effect 90 days from the date of enactment.

Increase in H-1B filing fees: Effective immediately upon enactment, the new law will restore the supplemental H-1B filing fee known as the “ACWIA fee,” and increase it to $1,500 per petition. Employers with no more than 25 full-time employees in the U.S. will be assessed only half of the full fee, however. In addition, each petition for an initial H-1B will carry a $500 supplemental fee that will go into a government account to be used for fraud-detection.

Change in calculation of the prevailing wage: The new law will eliminate the “95% rule” and instead require H-1B employers to pay at least 100% of the local prevailing wage for the occupation in question. However, the law will also require governmental surveys made available to employers for purposes of determining the prevailing wage to provide four levels of wages commensurate with experience, education, and the level of supervision. If a two-level wage survey is used (such as the widely used OES Survey, which provides only an “entry level” and an “experience” wage), the law will provide a formula for calculating the two additional intermediate levels. These provisions will go into effect 90 days from the date of enactment.

Restoration of requirements for “H-1B-dependent” employers: The new law will restore the requirement that employers who meet the definition of “H-1B dependent” or of “willful violators” make a non-displacement attestation (an attestation that U.S. workers have not been displaced) in connection with any H-1B filings. This provisions will go into effect 90 days from the date of enactment.

Limits on placement of L-1Bs at client sites: The new law will prohibit L-1Bs from being principally stationed at the worksite of an unaffiliated employer if L-1B employee will be controlled and supervised by the unaffiliated employer, or if placement of the L-1B employee at the third-party site is part of an outsourcing arrangement instead of in connection with the provision of a product or service involving specialized knowledge specific to the L-1B employer. This provision will apply to initial, extended or amended L-1B petitions filed 180 days from the date of enactment.

Restores 12-month service requirement to blanket L-1s: The new law replaces the requirement that beneficiaries of “blanket” L-1 petitions have only six months of service to the employer abroad with a twelve-month requirement. The twelve-month rule will apply only to requests for initial L-1 classification filed on or after the 180^th day from the date of enactment.

© Jewell & Associates 2004