Background: The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS), a unit created in 2004 to combat immigration benefit fraud, recently commenced an assessment of the H-1B program. FDNS previously conducted assessments in the L-1, EB-1-3 Multi-National Manager and Executive, and R-1 visa programs. Now, it is turning its attention to H-1Bs. The following is information that employers should know about FDNS and FDNS’ current H-1B assessment program.
H-1B Cap update for FY2010
News Release from Jewell & Associates, PC - September 24, 2009
In 2008, the annual allotment of cap-subject H-1Bs was so oversubscribed within the first few days of the filing season opening on April 1, 2008 that USCIS closed the filing period on April 7th and instituted a lottery to select the filings that would proceed to adjudication. In dramatic contrast, the H-1B demand in 2009 for cap-subject FY 2010 H-1Bs has been exceedingly low. As of September 18, 2009, approximately 46,000 H-1B cap-subject petitions had been received and counted towards the H-1B cap, and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. This means approximately 12,000 H-1Bs remain available.
© Jewell & Associates, PC 2009
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
New procedures for visitors to the United States (ESTA)
The U.S. Department of Homeland Security announced recently that, beginning January 12, 2009, eligible citizens or nationals from all Visa Waiver Program countries must obtain approval through the Electronic System for Travel Authorization (ESTA) prior to traveling to the United States under the VWP.
USCIS runs random selection process for H-1B petitions
News Release from Jewell & Associates - April 14, 2008
We reproduce, below, USCIS’s April 14, 2008 update on FY 2009 H-1B cap filings.
USCIS Update
April 14, 2008
USCIS RUNS RANDOM SELECTION PROCESS FOR H-1B PETITIONS
WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) today conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number.
USCIS conducted two random selections, first on petitions qualifying for the 20,000 "master's or higher degree" (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.
The approximately 163,000 petitions received in the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers.
Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks.
For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begins today (April 14), the day of the random selection process.
USCIS has "wait-listed" some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status.
USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.
- USCIS -
© Jewell & Associates 2008
USCIS releases preliminary number of FY2009 H-1B Cap filings
News Release from Jewell & Associates - April 10, 2008
We reproduce, below, USCIS’s April 10, 2008 update on FY 2009 H-1B cap filings.
USCIS Update
April 10, 2008
USCIS RELEASES PRELIMINARY NUMBER OF FY 2009 H-1B CAP FILINGS
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced a preliminary number of nearly 163,000 H-1B petitions received during the filing period ending on April 7, 2008. More than 31,200 of those petitions were for the advanced degree category.
USCIS expects next week it will conduct the computer-generated random selection process, beginning with the selection of the 20,000 petitions under the advanced degree exemption. Those petitions not selected under the advanced degree category will join the random selection process for the cap-subject 65,000 limit.
USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate. USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.
USCIS will provide regular updates as the processing of FY 2009 H-1B cap cases continues.
- USCIS -
© Jewell & Associates 2008
New regulation on F-1 OPT extensions
On April 8, 2008, the U.S. Department of Homeland Security published an Interim Final Rule, effective immediately, that provides for additional Optional Practical Training (OPT) work authorization for foreign nationals in F-1 student visa status who would otherwise be limited to twelve months of OPT. The new regulation provides two types of prolonged OPT: (1) an automatic extension of OPT to bridge the “cap gap” between an employee’s OPT expiration date and the October 1st date when an approved cap-subject H-1B petition takes effect; and (2) a seventeen-month extension, upon application, of OPT for graduates of U.S. degree programs in Science, Technology, Engineering and Mathematics (“STEM” degrees) who have jobs related to their field of study with employers who are enrolled in the government’s E-Verify program.
USCIS to accept I-485s through August 17th
News Release from Jewell & Associates - July 17, 2007
We are delighted to report that the government has announced that it is withdrawing its July Visa Bulletin #108 and reverting to July Visa Bulletin #107, which makes all employment-based categories CURRENT for the rest of July (and in fact until August 17, 2007, to make up for the “lost” time created by the improvidently issued July Visa Bulletin #108).
This is a just and reasonable resolution to the recent controversy surrounding actions earlier this month by the U.S. Department of State (DOS) and U.S. Citizenship & Immigration Services (USCIS) to overrule DOS’s July 2007 Visa Bulletin #107. Under today’s announcement, regardless how recent the priority date (the filing date of an approved labor certification application or, in labor certification-exempt cases, the filing date of the I-140 immigrant petition), all employment-based immigrants may advance to the final stage of the green card process by filing their I-485 adjustment-of-status (AOS) applications with USCIS on or before Friday, August 17, 2007 -- concurrently with the I-140 immigrant petition if the I-140 was not already filed. Applicants whose I-485s were received at USCIS on or after July 2nd and have been held there pending resolution of the controversy do not need to re-file. USCIS intends to accept those filings and process them.
© Jewell & Associates 2007
I-485 filings in July 2007
News Release from Jewell & Associates - July 2, 2007
As many readers are aware, the U.S. Department of State (DOS) published its July 2007 Visa Bulletin in mid-June, announcing that, for the month of July, all employment-based immigrant categories would be “current.” This meant that, regardless how recent the priority date (the filing date of an approved labor certification application or, in labor certification-exempt cases, the filing date of the I-140 immigrant petition), all employment-based immigrants could advance to the final stage of the green card process by filing their I-485 adjustment-of-status (AOS) applications with USCIS in July -- concurrently with the I-140 immigrant petition if the I-140 was not already filed. DOS’s stated purpose in opening up all categories for the month of July was to generate “increased demand” for immigrant visas that could be granted before the end of the government’s fiscal year on September 30, 2007. The U.S.’s immigration scheme allows for 140,000 employment-based immigration visas (green cards) to be approved each year. The Department of Homeland Security, through its immigration agency USCIS, was thought to have approved only a fraction of the 140,000 green cards allowed, so DOS’s response was to make all categories “current” for July in order to bring more approvable applications into the system before the end of the fiscal year.
It is unprecedented for DOS to revise a published Visa Bulletin, but this morning DOS placed its July Visa Bulletin in the “archives” section of their web site and announced that, because USCIS claims it has suddenly approved 60,000 green card applications in the past month, DOS will allocate no more visa numbers this fiscal year. DOS does not say so explicitly, but the implied message is that DOS believes USCIS will come close to approving all 140,000 green cards for FY-2007, so there is now no need to let more applicants into the system in July. USCIS then followed up with its own announcement today, stating that it will reject all I-485s received today and afterwards, in all employment-based immigrant categories. This does not affect the filing of I-140s, which will still be accepted. It is only the I-485s USCIS is rejecting, and apparently in all employment-based immigrant categories for all countries of birth and all priority dates.
It is notable that the USCIS announcement today appears to contravene USCIS’s own regulation at 8 CFR Section 245.1(g)(1), which states:
(g) Availability of immigrant visas under section 245 and priority dates --
(1) Availability of immigrant visas under section 245. An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 is the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.
Many applicants’ I-485s (with I-140s if applicable) arrived at USCIS today. Others will be delivered tomorrow or later in the week or month. Other would-be applicants have chosen to pursue their I-140s, but to hold off on filing their I-485s until there is a clear signal from the government that the I-485s will be accepted. We do not believe that any of these approaches is wrong or potentially harmful. USCIS will simply keep and process any I-140s it receives, and will return all I-485s for re-filing later. In view of this, filing the I-485 may seem a wasted effort. On the other hand, it is possible that the government will be sued in a class action law suit over its recent actions. In that case, individuals who attempted to file I-485s and had them rejected or returned may have stronger claims to benefit from a favorable result in the law suit.
© Jewell & Associates 2007
New DOL regulations affecting labor certifications
News Release from Jewell & Associates - May 17, 2007 Today the U.S. Department of Labor (DOL) published regulations, effective July 16, 2007, that affect labor certifications (the first step in the employment-based permanent residence, or “green card,” process). While the thrust of the new regulations is to preclude fraud and an underground market in labor certifications, several provisions are broadly written and thus will affect all employers who file labor certification applications. Specifically, the regulations introduce three changes that will influence the permanent residence process:
- Validity period established for approved labor certifications (“use it or lose it”) - Starting July 16, 2007, an approved labor certification, which until now had no expiration, will be valid only for 180 days. Labor certifications issued before July 16, 2007 will expire on January 11, 2007. Labor certifications issued on or after July 16, 2007 will expire 180 days from the date of issuance. If an approved labor certification is not used (i.e., not filed with USCIS in support of an I-140 immigrant petition) within its validity period, it will be forfeited. This requirement to file the I-140 immigrant petition within 180 days of the issuance of the labor certification underscores the importance of taking the time to prepare the I-140 at the same time the PERM labor certification application is being prepared. Hastily preparing and filing a PERM application, only to discover later that the necessary I-140 supporting documents cannot be mustered within 180 days, is poor planning. The best practice is to lay the groundwork for the I-140 petition before the labor certification recruitment begins. That way, the I-140 is ready to be filed very soon after the labor certification is issued.
- Substitution of employees no longer permitted – As of July 16, 2007, it will not be possible to substitute an employee into a labor certification that was originally filed on behalf of a different employee. Companies with “spare” labor certifications, issued in the names of departed employees and never used, will not be able to request substitution of beneficiaries as of July 16, 2007.
- Payment by employee of labor certification legal fees and costs prohibited - Finally, the most controversial part of the new regulations severely restricts the ability of an employer and employee to share the legal fees and costs associated with a labor certification application, and restricts the ability of the employer to seek reimbursement from the employee for those legal fees and costs. Where the same attorney or law firm represents both the employer and the employee in a labor certification matter (as is normally the case), or represents the employer exclusively, the employer must bear all of the labor certification-related legal fees and costs and may not seek reimbursement from the employee in any form. Seeking or receiving payment of any kind from the employee may subject the employer to the severe penalty of “debarment,” i.e., being prevented for a period of time from filing any labor certification applications. The new regulations thus call into question the continued legality, as of July 16, 2007, of most typical repayment agreements that employers enter into with employees to encourage the employee to remain on the job for a period of time after green card sponsorship begins. It would be advisable for employers to suspend the use and enforcement of such agreements as of July 16, 2007. This controversial regulation may eventually be litigated and struck down, but until that occurs, the regulation must be regarded as law.
© Jewell & Associates 2007