Business Immigration Monthly Update - March 2009

Date: 3/2/2009
 Immigration Monthly_March.pdf

Fiscal Year 2010 H-1B Quota Opens on April 1, 2009 – Employers Should Prepare H-1B Petitions Now

The fiscal year 2010 (October 1, 2009 through September 30, 2010) H-1B quota will open on April 1, 2009. Similar to this fiscal year, the H-1B quota for the next fiscal year will be limited to 65,000. Additionally, the exemption for individuals who have earned U.S. Master's or higher degree will again be limited to 20,000. Last year more than 166,000 petitions were filed against the H-1B quota with 33,000 of the 166,000 requesting the U.S. Master's or higher degree exemption. It is again assumed this year that the H-1B quota will be met during the initial eligibility period from April 1 through April 7, 2009 and the USCIS will have to conduct a random selection process (a.k.a lottery) on the petitions received. Last year, the U.S. Citizenship and Immigration Services (USCIS) changed its procedures to allow any petition that was filed during the first five business days after the quota opens on April 1st to be counted as if the petition was filed on April 1st.

The USCIS will again continue with this filing window for the next fiscal year. Because it is assumed that the H-1B quota will again be met during the initial filing period between April 1 and April 7, 2009, our firm is strongly recommending that employers that will need to file H-1B quota subject petitions prepare the petitions now so that they are ready to be filed when the quota opens up.

If you have any questions about next year's H-1B quota, please contact either Ms. Kathleen Gaber or Mr. Bob White of the firm's Immigration Practice Group.

DOL Provides Additional Information About its Backlogs

The U.S. Department of Labor (DOL) recently provided additional information about its current processing times and its backlogs in the PERM program. The DOL stated that PERM processing significantly slowed during the fourth quarter of 2008 due to contractor issues. The DOL awarded a contract for additional contractor staff during the summer of 2008. However, the losing contractor appealed and won the appeal. The initial contractor that was awarded the contract then sued. Therefore, the contractors did not come on board until September 2008 when the contractor issue was resolved and then had to complete training.

The DOL stated that the contractors are now trained and in place so that the pace of PERM processing has increased. The DOL stated that although only approximately 4,500 PERM applications were completed during the fourth quarter of 2008, more than 3,500 PERM applications were completed in January 2009 alone. However, the DOL expects that this rate will not increase and may slow down again because the DOL's Atlanta Processing Center where PERM application adjudications have been centralized only has 40 federal employees and these employees must be available to review the contractors' work.

LEGISLATIVE UPDATE: Stimulus Legislation Adds Restrictions to H-1B Program for TARP Institutions

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (otherwise known as the Stimulus Bill). The final version of the legislation included a restriction on the use of the H-1B program by companies and institutions which have received Targeted Asset Relief Protection (TARP) funds under the Emergency Economic Stabilization Act of 2008 or Section 13 of the Federal Reserve Act. However, the final version of the Stimulus Bill did not contain a provision requiring companies who benefit from this legislation to verify the employment eligibility of all employees through the E-Verify system.

As of February 17, 2009, companies and institutions which have received TARP funding or credit directly from the Federal Reserve System will not be able to hire a new foreign national employee and petition for the foreign national employee for H-1B status unless the employer complies with the recruitment and displacement attestations for H-1B dependent employers. The exemption from the H-1B dependent employer requirements for employers who will be petitioning for an exempt H-1B nonimmigrant specifically does not apply in this provision. The U.S. Treasury Department regularly posts updates to its official list of TARP funding recipients at http://www.treas.gov/initiatives/eesa/transactions.shtml. This list currently includes approximately 400 companies and institutions (including banks, insurance companies, and automobile companies to name a few) that have accepted TARP funding and thus are subject to the H-1B restrictions contained in this legislation. However, this Web site does not include recipients of direct Federal Reserve credit. Recipients of funding through the Federal Reserve's Discount Window program are not disclosed by the Federal Reserve to the public. This provision will only sunset on February 17, 2011.

Additional information about how the USCIS and U.S. Department of Labor (DOL) implement is provision will be contained in our firm's future Immigration Updates when it becomes available.

Various Law Enforcement Agencies Conduct Multi-State Operation Targeting H-1B Visa Fraud

The U.S. Attorney's Office for the Southern District of Iowa and Immigration and Customs Enforcement (ICE) recently announced that federal agents arrested 11 individuals in seven states as part of an investigation of suspected H-1B visa and mail fraud. In addition to these arrests, Vision Systems Group, Inc. was also indicted in a 10-count federal indictment that included one count of conspiracy, eight counts of mail fraud, and one count "notice of forfeiture" in the amount of $7.4 million. The U.S. Attorney's Office stated that the investigation involved companies sponsoring H-1B nonimmigrants for positions which they did not have and thus did not pay the nonimmigrants the required wage as part of the H-1B process. The complaint alleges that Vision Systems filed fraudulent documents with USCIS, the DOL, the Internal Revenue Service (IRS) in addition to other agencies in support of the fraudulent applications. The U.S. Attorneys office indicated that the maximum sentences for the charges against the individuals are as follows:

  1. Conspiracy – Five years in prison and a $250,000 fine
  2. Mail Fraud – 20 years in prison and a $250,000 fine
  3. Wire Fraud – 20 years in prison and a $250,000 fine
  4. False Statements in Immigration Matters – Ten years in prison and a $250,000 fine

Additional information about this case will be contained in future Immigration Updates when it becomes available.

DOS Releases March 2009 Visa Bulletin – Very Little Advancement in Most of the Employment-Based Immigrant Visa Categories

The U.S. Department of State (DOS) recently released its March 2009 Visa Bulletin. Similar to the Visa Bulletins for the past six months, the March 2009 Visa Bulletin does not rapidly advance any of the employment-based immigrant visa categories. However, the DOS continues to slowly advance the EB-2 and EB-3 categories for Indian and Chinese nationals. Also, for the fifth consecutive month, the DOS does not advance the EB-3 World category. However, it is still assumed that the DOS will have to advance this category within the next few months so that it uses all of the available immigrant visa numbers allocated to this category by the end of the current fiscal year on September 30, 2009.

The following is a comparison of the employment-based immigrant visa categories since the beginning of the current retrogression:

 

Oct 2005

Dec 2007

Jun 2008

Jan 2009

Feb 2009

Mar 2009

EB-3 World

03/01/01

09/01/02

03/01/06

05/01/05

05/01/05

05/01/05

EB-2 China

05/01/00

01/01/03

04/01/04

07/08/04

01/01/05

02/15/05

EB-3 China

05/01/00

10/15/01

03/22/03

06/01/02

10/01/02

10/22/02

EB-2 India

11/01/99

01/01/02

04/01/04

07/01/03

01/01/04

02/15/04

EB-3 India

01/01/98

05/01/01

11/01/01

10/15/01

10/15/01

10/15/01

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

03/15/03

03/15/03

03/15/03

Additional information about the advancement of the employment-based immigrant visa categories will be contained in our firm's future Immigration Updates.

DOL Issues Update About the Release of its New Visa Portal

The DOL recently provided additional information about its new Office of Foreign Labor Certification (OFLC) Visa Portal named iCERT System. The DOL stated that the iCERT System will allow employers to save time preparing applications by pre-populating visa forms with business and contact information; allow users to track the status of applications across nonimmigrant and immigrant visa programs through a single account; and allowing users to create and manage sub-account users to prepare and submit applications. The DOL provided the following implementation timelines for its iCERT System:

  • For the LCA Form 9035:

April 15, 2009: DOL will release the new Labor Condition Application (LCA) for processing through the iCERT System;

May 15, 2009: DOL disables filing of existing LCA form and requires employers to file LCAs through the new iCERT System.

  • PERM Form 9089:

July 1, 2009: DOL releases new PERM form for processing through the iCERT System.

August 1, 2009: DOL discontinues the existing PERM form and requires employers to file PERM applications through the new iCERT System. However, DOL will allow users to continue to access the previous PERM system for case status checks and withdrawals of applications.

As previously announced by the DOL, when employers begin to use the LCA form through the iCERT System, the form will not be immediately approved after submission as with the current LCA system. Instead, the DOL stated that it may take at least seven days for the DOL to review LCAs submitted through the new iCERT System prior to approval.

Additional information about the implementation of the DOL's new iCERT System will be available in our firm's future Immigration Updates when it becomes available.

DOL Releases Selected Statistics about the PERM Program

The DOL recently released selected statistics about its PERM Program.

The DOL stated that in the first quarter of fiscal year 2009 (October 1, 2008 through September 30, 2009), 20,752 PERM applications were filed with the DOL. During the same timeframe, the DOL only completed adjudicating 4,571 PERM applications. Of these, approximately 30% were denied. This denial rate is significantly higher than the historical denial rate of approximately 21% since the inception of the PERM program.

The DOL stated that it currently has 53,200 active PERM applications pending. 67% of these cases are awaiting initial review while 26% are pending for audit review.

The DOL stated that it is currently initially reviewing PERM applications filed in June 2008. The DOL also stated that it is currently reviewing audit cases of PERM applications filed in August 2007.

Additional information about the status of the PERM program will be contained in our firm's future Immigration Updates when it becomes available.

ICE SEVP Announces System Changes to SEVIS with its Next Update

ICE Student and Exchange Visitor Program (SEVP) recently announced that it has upgraded the SEVIS system. This upgrade is called SEVIS Release 6.0.

SEVIS Release 6.0 will make some of the following changes to the SEVIS system:

  1. The Release will allow Designated Student Officials (DSO) to update a student's SEVIS record to indicate H-1B cap-gap extension status when the student provides evidence that he/she has had an H-1B quota petition filed or wait listed on his/her behalf.

  2. The Release will also update SEVIS to require DSOs to report every six months on students participating in STEM Optional Practical Training (OPT). SEVP indicated that the reporting due dates will be six months and 12 months after the STEM employment start date. During a reporting period which will be 15 days before and 31 days after each reporting due date, the DSO will be required to confirm the student's employment status and current contact information. If a DSO does not report that a student is participating in the STEM OPT extension or does not update the STEM OPT extension information within the reporting period, the student's SEVIS record will automatically be set to Terminated status with a new reason of "Failure to Report while on OPT" 32 days after the reporting due date.

  3. The Release will allow the SEVIS system to reflect on a dependent's Form I-20 that the principal F-1 student has current or a future OPT on page 3 of the dependent's Form I-20. The statement reflect the principal F-1 student's OPT status and the OPT validity dates.

  4. The Release will allow the DSOs to edit a pending or approved OPT with a future end date so that the DSO can delete the employer address when a student is not employed.

USCIS California Service Center Aggressively Reviews H-1B Petitions for Consulting Companies

The USCIS' California Service Center (CSC) recently has begun to even more aggressively review H-1B petitions for consulting companies. The CSC is consistently issuing Requests for Evidence (RFE) on H-1B petitions filed by consulting companies. Although the overall content of the RFEs vary, they consistently request a copy of the contract between the consulting company and the client and a copy of the Work Order (or similar document) signed by the client detailing the duties of the position, the requirements for the position and the terms and conditions of the position. If the company is unable to provide these documents from the client, the CSC will deny the H-1B petition.

Additional information about the H-1B process will be contained in our firm's future Immigration Updates when it becomes available.

For more information about this or any other immigration law topic, please contact Bob White, at 847.734.8811 or via email at rwhite@masudafunai.com. Weekly Immigration Updates are provided in the Legal Updates section of our Immigration Practice Area page at http://www.masudafunai.com/articles.aspx?Type=109.