USCIS Releases H-1B Cap usage for the first quarter of FY04

News Release from Jewell & Associates - January 22, 2004

In a brief statement issued January 21, 2004, U.S. Citizenship and Immigration Services (USCIS) announced that, based upon tabulations for the first quarter of fiscal year 2004 (October 1, 2004 through December 31, 2004), 43,500 H-1B cases that could count against the 65,000 cap on new H-1B approvals for FY 2004 either have been approved or are in the queue for adjudication.  Based on these numbers, we believe that the annual limit on new H-1B approvals may be reached with petitions filed only through mid-February 2004, and that later-filed petitions may be rejected.  The new fiscal year, which will bring another allotment of 65,000 new H-1Bs, will not begin until October 1, 2004.  During the interval between the exhaustion of the H-1B cap and October 1, 2004, new H-1Bs will not be approved.

It is important to note that only “new” H-1B petitions are subject to the annual cap.  H-1B petitions for an amendment, an extension-of-stay or a change-of-employer are not subject to the cap.  Employers planning to file “new” H-1B petitions should consult with their immigration counsel as soon as possible on the appropriate strategy for such cases.

© Jewell & Associates 2004

Department of Homeland Security suspends some, not all, NSEERS requirements

News Release from Jewell & Associates - December 4, 2003 In an interim rule effective December 2, 2003, the U.S. Department of Homeland Security (DHS) has suspended the 30-day and annual re-registration requirements of the National Security Entry-Exit Registration System (NSEERS).  It is important to note, however, that other NSEERS requirements remain intact.  Registered individuals still must notify the U.S. Department of Homeland Security of changes of address or employment and must comply with departure control requirements whenever leaving the United States.  Willful failure to comply with the special registration provisions or with any future call-in notice or additional registration requirements would make a subject foreign national removable from the United States.

As background, The National Security Entry-Exit Registration System (NSEERS) requires foreign national nonimmigrants (non-green card holders) who are either from certain countries or who fit certain profiles to register as they enter and depart the United States.  NSEERS also includes a "call-in" component under which the U.S. Department of Homeland Security has required certain nonimmigrants from specific countries to register at a local office.  NSEERS countries designated to date are: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen.

For complete, up-to-date information on NSEERS requirements, see the web site of U.S. Immigration and Customs Enforcement (ICE) at http://www.ice.gov/graphics/enforce/imm/imm_sr.htm.

© Jewell & Associates 2003

The “PERM” program: DOL’s proposal for labor certifications

News Release from Jewell & Associates - May 21, 2003

PERM (Program Electronic Review Management) is a proposed federal regulation intended to replace the current Department of Labor (DOL) labor certification regulations that govern the way employers sponsor employees for U.S. permanent residence (a “green card”).  The PERM proposal would replace DOL regulations that have been in force for decades with an automated processing system.  DOL published the proposed PERM rule in the Federal Register on May 6, 2002 and accepted comments until July 5, 2002.  DOL is currently considering the comments and expects to publish a final rule in the September 2003.  The final rule would not be effective, however, until DOL’s electronic processing system is fully operational, which DOL expects will be no earlier than October 2003.

Summary of the existing system: “Slow track” and “fast track” labor certification applications (valid to approximately late 2003, when PERM is expected to replace current processes)

Permanent residence (the “green card”) based on employment normally requires a recruitment exercise to establish the unavailability of qualified U.S. workers.  Exceptions exist for multinational executives/managers, outstanding professors and researchers (an increasingly high standard to meet) and individuals of extraordinary ability (the highest standard in employment-based immigration law).

Currently, and until approximately late 2003 when the U.S. Department of Labor (DOL) is expected to implement its PERM program, the federal regulations provide two ways to apply for a labor certification, i.e., certification by DOL that the employer has recruited and has not found qualified, available U.S. workers:

1. Fast track / reduction-in-recruitment / RIR method:  The employer advertises in print media and other media over the course of several months, then files the application with a request that government-supervised recruitment be waived.  A final decision from DOL currently takes about two years from the time of filing, though some regional variations in timing exist.
2. Slow track / non-reduction-in-recruitment / non-RIR method:  The employer files a “bare bones” application with no evidence of recruitment, and states that it will comply with government-supervised recruitment.  The government-supervised recruitment will take place approximately a year later (though some regional variations in timing exist), and will consist of a three-day newspaper ad or a single ad in a professional journal, plus internal posting.  Provided that the recruitment yields no qualified, available U.S. workers, a labor certification should be issued about two years later, i.e., about three years from the time of filing (again, regional variations exist).

Summary of the proposed PERM system (expected to replace the current labor certification system in Fall 2003)

The summary below is based on the proposed PERM rule.  The final rule on PERM may be different from the proposed rule.

The biggest changes embodied in the PERM proposal are:

1. The employer will lose flexibility in describing job requirements and evaluating applicants:  Generally speaking, job requirements must be stated in terms of degree and experience only.  Listing of alternate ways of satisfying requirements will not be permitted.  Requiring special skills, beyond the degree and experience requirements, will not be allowed unless the skills are “normal” to the occupation and the employer has recently employed a U.S. worker with the same skills in the same occupation. Any extra requirements, even if they are a business necessity, will not be allowed.  U.S. workers who do not meet the requirements but who could be trained in a “reasonable period of on-the-job training” must be considered qualified.
2. The employer will always recruit in advance of filing:  The proposed regulation sets forth the types of recruitment that must be done, depending on the type of position.  For most professional jobs, the recruitment will involve a combination of print advertising, three additional forms of recruitment (e.g., Internet site, on-campus recruiting, job fairs, headhunters) and, if the employer has had lay-offs in the preceding six months, notification to laid-off workers.
3. The employer will not submit recruitment documentation with the application:  The application will consist principally of a DOL form on which the employer attests to having complied with all of the recruitment requirements and to not having located a qualified, available, U.S. worker.
4. The application will be processed electronically by an automated system and may result in a labor certification in as few as 21 days:   Unless an application is flagged for an audit, the processing will be entirely electronic, without human intervention.  The automated system will read the application forms and will detect responses that would flag a case for an audit.  In addition, any case may be subject to random auditing. If a filing is not flagged for an audit, the labor certification may be granted in as few as 21 days.
5. DOL may audit the employer’s recruitment documentation before rendering a decision on the application:  If a case is flagged for an audit, the employer will be given 21 days within which to produce documentation that its attestations regarding the recruitment were truthful.  Depending on what the employer provides, DOL will approve the labor certification, deny the labor certification, or order government-supervised recruitment.
6. Labor certifications may be revoked for cause within a year of issuance:  Even after a labor certification is issued, the proposed regulation would allow DOL to revoke its approval within a year, provided the employee has not yet obtained permanent residence in the U.S. or received a U.S. immigrant visa from a consulate abroad.  The proposed rule is not specific about what would be just cause for such a revocation.

The following is a summary of the procedural steps that most successful labor certification cases will follow if the PERM proposal is adopted as-is:

• Step 1:  Submit prevailing wage request (Form ETA 9088) to the State Workforce Agency and obtain a prevailing wage determination.
• Step 2:  Post internal notice of labor certification via all in-house media, including electronic media.
• Step 3:  Undertake recruitment program consisting of: (a) placing a job order with the State Workforce Agency; (b) print advertising, e.g., depending on the occupation, two Sunday newspaper ads or one national journal ad; (c) three additional forms of recruitment from among a list of acceptable forms (the list includes Internet job sites, the employer’s own web site, on-campus recruiting, job fairs, and headhunters); and (d) notice to potentially qualified workers whom the employer laid off in the preceding six months.
• Step 4:  Submit to DOL the labor certification application (Form ETA 9089), on which the employer has checked responses attesting to its recruitment efforts.
• Step 5:  Either automatically, or after a DOL audit, receive approved labor certification and proceed with the rest of the employee’s immigration process (I-140 immigrant petition; then, final application for permanent residence through I-485 adjustment-of-status or through consular processing).

© Jewell & Associates 2003

Special Registration (NSEERS) update

News Release from Jewell & Associates - January 24, 2003 We previously reported on the INS's newly implemented National Security Entry-Exit Registration System (NSEERS). This program requires foreign national nonimmigrants (non-green card holders) who either are from certain countries or who fit certain profiles to register as they enter and depart the United States. NSEERS also includes a "call-in" component under which the INS requires certain nonimmigrants from specific countries to register at a designated INS office.

It is very important that foreign workers and others who are required to register do so and contact an immigration lawyer prior to registering. Willful failure to register by the deadline can result in deportation and possible future inadmissibility to the United States.

REGISTRATION DEADLINES

To date, there have been four groups of countries designated for call-in registration for the NSEERS program, and each group has been assigned a deadline. However, due to early poor publicity and misunderstandings, individuals in the first two groups who failed to register by their deadline will have one final window of opportunity. Following is a summary of the groups and deadlines. Contact your immigration attorney for more detailed information about the registration deadlines, including the individuals required to register under each.

Group I: The December 16, 2002, deadline required male nationals and citizens of Iran, Iraq, Syria, Sudan and Libya to register if they were born on or before November 15, 1986, entered the United States on a nonimmigrant visa on or before September 10, 2002, and remained until at least December 16, 2002. Individuals who failed to meet this deadline have one final opportunity to register between Monday, January 27, 2003, and Friday, February 7, 2003.

Group II: The January 10, 2003, deadline required male nationals and citizens of Afghanistan, Oman, Algeria, Qatar, Bahrain, Somalia, Eritrea, Tunisia, Lebanon, United Arab Emirates, Morocco, Yemen, and North Korea to register if they were born on or before December 2, 1986, entered the United States on a nonimmigrant visa on or before September 30, 2002, and remained in the United States until at least January 10, 2003. Individuals who failed to meet this deadline have one final opportunity to register between Monday, January 27, 2003, and Friday, February 7, 2003.

Group III: The February 21, 2003, deadline requires male nationals and citizens of Pakistan and Saudi Arabia to register if they were born on or before January 13, 1987, entered the United States on a nonimmigrant visa on or before September 30, 2002, and will remain in the United States after February 21, 2003. Such individuals must register between Monday, January 13, 2003 and Friday, February 21, 2003.

Group IV: The March 28, 2003, deadline requires male nationals and citizens of Bangladesh, Egypt, Indonesia, Jordan, and Kuwait to register if they were born on or before February 24, 1987, entered the United States on a nonimmigrant visa on or before September 30, 2002, and will remain in the United States after March 28, 2003. Such individuals must register between Monday, February 24, 2003, and Friday, March 28, 2003.

It is important to be aware that additional restrictions apply for program participants who depart from the United States. Departures must be registered with the INS and can only be made from an official list of pre-approved airports and other ports. The INS web site (http://www.ins.usdoj.gov) provides a list of the approved exit points.

© Jewell & Associates 2003

State Department notice on visa delays at U.S. Consulates abroad

News Release from Jewell & Associates
The State Department recently posted a notice on its web site, warning applicants for nonimmigrant visas at U.S. consulates abroad to expect delays of six to eight weeks in the processing of their visa applications due to enhanced security procedures being implemented prior to the first anniversary of the September 11th terrorist attacks.  The notice appears to apply to all nonimmigrant travelers; it does not single out particular nationalities or consular posts at which delays are more likely.  We urge anyone planning to apply for a nonimmigrant visa at a U.S. consular post abroad to determine in advance what the likely delay will be, and to factor this into his or her travel plans.

For our readers’ convenience, the full text of the State Department notice, which was posted on August 23, 2001, is reproduced below:

Notice on Current Visa Processing Situation

Since the terrorist attacks of September 11, 2001, the State Department has been engaged with other U.S. government agencies in an extensive and ongoing review of visa issuing practices as they relate to the security of our borders and our nation.

Through the use of supplemental application forms and other measures, visa applications are now subject to a greater degree of scrutiny than in the past. This scrutiny means that visa applications in some instances take longer to process to conclusion than has been customary. We recognize that individual applicants may experience inconvenience and hardship if their application takes longer to process than they expected. We are doing everything possible to meet the legitimate needs of prospective travelers consistent with the priority we must attach to our security and legal responsibilities.

While our consular officers strive to offer visa applicants as expeditious service as possible, their primary responsibility is to carry out U.S. law and to ensure that applicants to whom they issue visas will not pose a threat to the safety and security of the United States and its inhabitants. This is a serious responsibility that must take precedence over other considerations pertaining to a visa application.

We realize that these necessary security measures may affect the travel plans of visa applicants, especially individuals intending to enroll in or continue college and university studies in the United States. We will make every attempt to meet the legitimate needs of prospective travelers to the United States, consistent with the priority of our security and legal responsibilities. We recommend that individuals build in ample time before their planned travel date when seeking to obtain a visa.

Special security screening procedures affect a limited number of prospective travelers. Our goal is to have assured security within a system that is responsive to everyone wishing to visit the United States. However, delays in processing of visas will continue to occur as the Department of State, working with other agencies, brings new information systems on line. Responding to the attacks of September 11, 2001, Congress ordered that security inadequacies be identified and addressed.  By legislative instruction, some of this work was specifically to be accomplished by the first anniversary of the attacks. That work is in course now in accordance with those instructions.

The time needed for adjudication of individual cases will continue to be difficult to predict, as necessary new procedures are refined. Visa applicants affected by these procedures are informed of the need for additional screening at the time of application and should expect substantial delays of six to eight weeks or more before a visa can be issued.

We trust that affected applicants will understand that this waiting period is necessary as we strive to make every effort to ensure the safety and security of the United States for all who are here, including foreign visitors.

© Jewell & Associates 2002

Concurrent filing of I-140s and I-485s now accepted by INS

News Release from Jewell & Associates

In an interim rule published in the Federal Register today (67 FR 49561 7/31/02), the INS announced that it is no longer necessary for the beneficiaries of EB-1, EB-2 and EB-3 immigrant petitions (also called I-140 petitions) to wait for INS approval of the I-140 before filing their I-485 applications to adjust status to permanent residence.   Effective immediately, I-140s and I-485s may be filed concurrently, provided that a visa number is immediately available, i.e., the beneficiary’s “priority date” is current.  I-485s may also be filed based on I-140s that are pending with INS, provided that a visa number is immediately available.

An I-485 application filed pursuant to this new rule may be accompanied by an application for an Employment Authorization Document (EAD) and an application for an interim travel permit (advance parole, or A/P).  The principal applicant’s spouse and children may also file their I-485s (including EAD and A/P applications) under the new rule.

As a practical matter, the new rule should decrease the time it takes to obtain permanent residence based on employment, and will allow the spouse and children of employment-based permanent residence applicants to work in the U.S. sooner than they could under prior rules.

© Jewell & Associates 2002

Update on requirement that non-citizens notify INS of change of address

News Release from Jewell & Associates

UPDATE: Form AR-11 (Change of Address) can now be found and completed online at http://www.uscis.gov/ar-11.

We published a notice on the INS change-of-address requirement earlier this year, containing differing requirements for immigrants and non-immigrants. INS now has changed its position and declared that all aliens in the U.S. should use the same procedure. Following is an up-to-date summary of the change-of address requirements:

Section 265 of the Immigration & Nationality Act requires aliens (i.e., non-U.S. citizens) in the U.S. to notify the INS in writing of a change of address within 10 days of the change. This provision was part of the U.S. immigration law for many years, but was not enforced. However, in the aftermath of the 9/11/01 attacks, INS is enforcing compliance with the change-of-address requirement.

For any alien in the U.S. to notify the INS of his/her address, the required notification must be made on Form AR-11, an INS change-of-address form. Form AR-11 can be downloaded from the INS web site at http://www.ins.usdoj.gov/graphics/formsfee/forms, and it includes the address to which the form should be sent.  It is advisable to send the form by certified mail, return receipt requested, and to keep a copy of the form.

The obligation to notify the INS in writing of a change of address within 10 days of the change continues until the person becomes a U.S. citizen.

© Jewell & Associates 2002