Business Immigration Monthly Update - May 2009

Date: 5/1/2009
 Immigration Monthly_May.pdf

H-1B Quota for Fiscal Year 2010 Not Met During Initial Filing Period (UPDATED April 27, 2009)

The U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2009 that the H-1B quota for fiscal year 2010 (October 1, 2009 through September 30, 2010) WAS NOT met during the initial filing period. (April 1, 2009 through April 7, 2009). Therefore, the USCIS continues to accept H-1B petition filings under both the regular H-1B quota and the U.S. Master's or higher Degree exemption quota. The regular H-1B quota is limited to 65,000 and the U.S. Master's or higher Degree exemption is limited to an additional 20,000. The USCIS stated that it will continue to monitor filings and notify the public when either of the two quotas has been met. When either of the quotas has been met, a random selection process will be conducted only on the petitions received on the date which the quota is actually met. The petitions received before this date will be accepted and adjudicated by the USCIS.

UPDATE: As of April 27, 2009, which is the latest update provided by the USCIS, the USCIS has indicated that it has received approximately 45,000 petitions against the fiscal year 2010 H-1B quota of 65,000. The USCIS also indicated that it has received approximately 20,000 petitions requesting the exemption from the H-1B quota for individuals who have earned U.S. Master's Degree or higher degrees. Therefore, it is assumed that the USCIS will be announcing shortly that the U.S. Master's or higher degree exemption has been exhausted. However, after this exemption is exhausted, employers will still be able to file H-1B quota subject petitions even for individuals who have earned U.S. Master's or higher degrees until the regular H-1B quota is met.

For the past few years, the H-1B quota has been met during the initial filing period and the USCIS has had to conduct random selection processes of the petitions received. However, it appears that due to the current economic conditions, employers have not filed as many petitions as they have in the past. Therefore, unlike in previous years, the quota for fiscal year 2010 has not been met during the initial filing period and all H-1B petitions filed during the initial filing period will be accepted by the USCIS for processing.

Additional information about the H-1B quota for fiscal year 2010 will be contained in our firm's future Immigration Updates when it becomes available.

Legislative Update: H-1B and L-1 Visa Reform Act Introduced in the Senate

An H-1B and L-1 Visa Reform Act has been reintroduced in the Senate. This legislation was previously introduced in the Senate in 2007 but failed to move in the Senate at that time. The Act was re-introduced by Senator Dick Durban from Illinois and Senator Chuck Grassley from Iowa. Some of the highlights of provisions contained in the Act include:

  1. Making all employers (including colleges, universities and other organizations currently exempt from the H-1B quota) H-1B dependent and eliminating the exemption for H-1B dependent employers that currently employ exempt H-1B nonimmigrants who either possess a Master's or higher degree or are offered a salary in excess of $60,000. The Act would require all H-1B employers to make a good-faith
    attempt to recruit equally or better qualified U.S. workers than the H-1B nonimmigrant and prohibit H-1B employers or their clients where the H-1B nonimmigrant is placed from displacing similarly situated U.S. workers by H-1B nonimmigrants.

  2.  Prohibiting employers from placing "H-1B only" advertisements.

  3. Prohibiting employers from petitioning for additional H-1B and L nonimmigrants if more than 50% of their employees are H-1B or L-1 nonimmigrants.

  4. Permitting the U.S. Department of Labor (DOL) to initiate investigations without a complaint and without the DOL Secretary's personal authorization.

  5. Authorizing the DOL to review Labor Condition Applications (LCA) for fraud prior to approving the applications.

  6. Allowing the DOL to conduct random audits of any company (including colleges, universities and other employers exempt from the H-1B quota) that uses the H-1B program.

  7. Requiring the DOL to conduct random annual audits of companies (including colleges, universities and other employers exempt from the H-1B quota) who employ large numbers of H-1B nonimmigrants.

  8. Providing safeguards for H-1B and L-1 nonimmigrants so that they know their rights under the law including wage rates and access to benefits.

  9. Instituting a process to investigate, audit and penalize L-1 visa abuses.

  10. Restricting the L-1B specialized knowledge category.

  11. Requiring employers to pay the prevailing wage and applicable benefits to L nonimmigrants.

While the Act would increase enforcement and modify wage requirements, it would not eliminate the L or the H-1B program or change the numerical cap of H-1B visas available to petitioning employers. When this Act was introduced in the Senate in 2007, it did not move in the Senate due in part to Republican objections to the legislation. However, parts of the Act were included in Comprehensive Immigration Reform legislation which was also introduced in 2007 but failed to pass Congress. It is assumed that Comprehensive Immigration Reform legislation will again be introduced in Congress later this year. Therefore, this Act may again be included in Comprehensive Immigration Reform legislation either in whole or in part. However, there is a greater likelihood that more (if not all) parts of this legislation will be contained in future Comprehensive Immigration Reform Legislation due to the fact that it appears that the Democratic leadership in Congress supports this legislation.

Legislation was also introduced in the Senate last year which would have increased the H-1B User fee from $1,500 to $5,000. Colleges, universities and other organizations exempt from the current H-1B User fee would not have been exempt from the additional $3,500 User Fee under the proposed legislation. Although this legislation did move in Congress last year but ultimately did not pass Congress, it is assumed that this legislation may be reintroduced by Senator Grassley later this year. However, as of this date, it has not been reintroduced in the Senate.

Additional information about this Act and its movement in Congress will be contained in our firm's future Immigration Updates when it becomes available.

DOL Issues Guidance on New H-2B Regulations

In December 2008, the DOL issued a final regulation modifying the H-2B temporary labor certification process and the enforcement of the H-2B program. This regulation became effective on January 18, 2009. Although the DOL has withdrawn its previously released H-2A regulations, the DOL has not indicated that it will be withdrawing the new H-2B regulations. Instead, the DOL has recently released guidance about how to interpret various provisions of the new regulation.

The following are some of the highlights from the guidance:

  1. The DOL confirmed that employers will need to request a prevailing wage from the federal DOL and not the State Workforce Agencies (SWA) for any H-2B temporary labor certification requesting an employment need on or after October 1, 2009. Because employers are allowed to file applications 120 days prior to the requested need, most H-2B employers will need to begin to request prevailing wage determinations from the DOL on Form ETA 9041 beginning in June. The DOL has previously stated that it may take up to 30 days for the DOL to process a prevailing wage request.

  2. The DOL confirmed that an employer may not commence the recruitment process until it has received a prevailing wage determination. After it receives the prevailing wage determination, it can submit a job order to the SWA serving the area of intended employment and then publish print advertisements, one of which must be on a Sunday unless no Sunday edition exists.

  3. If an employer has laid off any employees in the same job occupation within 120 days of the date of the requested need, the employer must document that it has notified or will notify each laid-off worker of the job opportunity and has considered or will consider each laid-off worker who has expressed an interest in the opportunity.

  4. As part of the process, the employer is required to prepare a Recruitment Report which is submitted with the application to the DOL. However, the Recruitment Report cannot be prepared any earlier than two calendar days after the last day on which the job offer was posted and no earlier than five calendar days after the last newspaper advertisement was published.

  5. The DOL confirmed that the job order which is required as part of the recruitment process must be posted with the SWA in the area of intended employment for no less than ten full days. The newspaper advertisements must be published while the job order is posted.

  6. The DOL stated that the job offer must state that it is being filed in support of the future H-2B application.
  7. If the SWA requires that the job order remain active for more than ten days, the employer can not submit the application and the Recruitment Report to the DOL until at least two calendar days after the last date on which the job order was posted.

  8. The employer is not required to submit the newspaper advertisement tearsheets or copies of resumes or applications from applicants with the application and the Recruitment Report. However, the employer must maintain this documentation for three years from the date of certification in the event of an audit.

  9. The DOL confirmed that employers and their attorneys or agent are prohibited from seeking or receiving payment of any kind from the potential employee, including payment of the employer's attorney or agent fees or recruitment costs.

Additional information about the DOL's implementation of its new H-2B program will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Addresses Employment-Based Visa Wait Times

USCIS Acting Deputy Director, Michael Aytes, provided additional information about processing times for employment-based immigrant visas in the U.S. Department of Homeland Security (DHS) Leadership Journal. In the posting, Mr. Aytes stated that the USCIS received approximately 300,000 employment-based adjustment of status applications in late 2007 when all of the employment-based immigrant visa categories became available due to the anomaly in the July 2007 Immigrant Visa Bulletin. Mr. Aytes confirmed that since this Visa Bulletin, many of the employment-based immigrant visa categories have retrogressed creating a backlog of adjustment applications that can not be approved until an immigrant visa again becomes available. Mr. Aytes acknowledged that USCIS customers are frustrated because they have "no idea of how many people are waiting in line with pending adjustment of status applications or how long it may take before the USCIS can process and approve the applications." Mr. Aytes stated that the USCIS is working on compiling this information and making it available on its website.

Mr. Aytes also stated that the USCIS is aware that many foreign nationals pending in the adjustment of status process would like to take advantage of "green card" portability. An individual is only eligible for "green card" portability if his/her Form I-140 Immigrant Petition for Alien Worker has been approved, his/her adjustment of status application has been pending for more than six months and he/she is employed by a new employer in the same or similar occupation. In order to address this issue, Mr. Aytes has stated that the USCIS has taken the following steps:

  1. It has placed increased emphasis on processing older Form I-140 petitions while also processing newer petitions within its targeted processing times of four months. Mr. Aytes stated that the USCIS is making progress towards this goal and anticipates reaching this goal by the end of September 2009.

  2. The USCIS is issuing Employment Authorization Documents (EAD) valid for two years, as needed.

  3. The USCIS is working with the U.S. Department of State (DOS) to make sure that every available immigrant visa number is used.

Mr. Aytes concluded by stating that the USCIS is "working hard" to make improvements and to increase the transparency in the employment-based immigrant visa process.

DOL Introduces New iCERT System – System Becomes Mandatory for LCA Processing on May 15

The DOL recently released the new iCERT system. The iCERT system is a one-stop visa portal system which the DOL says will improve employer access to employment-based visa application services and immigration news and information. Employers or their authorized representatives can now register with the iCERT system and establish a single account to file Labor Condition Applications (LCAs) covering the H-1B, the H-1B1 and E-3 visa programs. Although the system is currently optional for LCA processing, it will become mandatory on May 15, 2009. At that time, the DOL will no longer allow employers to submit LCAs through the current system. However, the DOL will continue to allow employers to access the current system to withdraw previously filed LCAs through that system. The DOL also stated that beginning in September 2009, employers will be able to file PERM applications through the iCERT system. The DOL currently plans to make the iCERT system mandatory for PERM submissions beginning in October.

The DOL has indicated that it will take at least seven working (not calendar) days to review LCAs submitted through the iCERT system. Additionally, the iCERT system will inform employers when it believes that an employer is making an error on the application which could result in a denial of the application. However, based on initial usage, the system in some instances has been indicating potential errors which actually were not errors based on current DOL regulations. It is assumed that the DOL will modify the programming logic as it receives feedback from employers, especially when the system becomes mandatory.

Additional information about the iCERT system will be contained in our firm's future Immigration Updates when it becomes available.

USCIS and DOL Continue to More Aggressively Review Applications

Both the USCIS and the DOL continue to more aggressively review submissions and more consistently issue Requests for Evidence (RFE) and Audits. It is assumed that both the USCIS and DOL are being more aggressive in their programs due to current economic conditions. The USCIS is being particularly more aggressive with petitions filed by smaller companies. However, the USCIS is also being aggressive with any size of consulting company. The DOL is now consistently issuing random audits in the PERM process. Additionally, the DOL is not currently reducing its audit backlog. The DOL still has audits pending from applications which were initially filed in September 2007. After both the USCIS and DOL review responses to RFEs and Audits, they are denying petitions based on issues on which they have not been previously focusing on.

Additionally, the USCIS has begun to pre-adjudicate adjustment of status applications for which priority dates are not currently available and thus the USCIS can not approve them. The USCIS appears to be reviewing the applications for completeness and also identifying any issues which would normally arise in the adjudication process. However, after applicants respond to the RFEs, the USCIS can not close out the cases due to the priority date retrogression. Additional information about the priority date retrogression is contained in our Immigration Alert available at http://www.masudafunai.com/showarea.aspx?Show=74. It is unknown whether the USCIS will have to review the applications a second time when the priority dates become available and the USCIS can then close out and approve the cases.

Additional information about USCIS and DOL processing procedures will be contained in our firm's future Immigration Updates when it becomes available.

New Visa Procedures in Ciudad Juarez for Nonimmigrants

Nonimmigrant applicants who apply for visas at the U.S. Consulate in Ciudad Juarez must now obtain an Application Support Center (ASC) appointment for biometrics before attending the nonimmigrant visa interview appointment. The ASC is located at the old U.S. Consular post site at Avenida Lopez Mateos 924 N, Fracc. La Playa in Building C. The ASC is open from 8 AM to 1:30 PM, Monday through Friday. The Consulate's goal is to enable applicants to complete their biometrics at the ASC in the morning before the consular interview in the afternoon. However, the same day option is not yet available. It takes approximately 20 to 25 minutes for applicants to drive from the old Consulate building to the new Consulate building in Ciudad Juarez. Currently, applicants have to allot one day for the biometric appointment at the ASC and the following day for the nonimmigrant visa appointment. Currently, the Consulate is not requiring that the ASC and Consular appointments be scheduled on consecutive days.

DOS Releases May 2009 Visa Bulletin – The Employment-Based Third Preference Category Becomes Unavailable

The U.S. Department of State (DOS) recently released its May 2009 Visa Bulletin. The DOS has experienced a high demand in the employment-based third preference (EB-3) category and the EB-3 Other Worker category. As a result, the DOS has stated that the annual limits have been reached in the EB-3 and the EB-3 Other Worker categories. Consequently, both categories have become "Unavailable". In contrast, the DOS has neither advanced nor retrogressed the EB-2 categories for Indian and Chinese nationals. 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

Mar 2009

Apr 2009

May 2009

EB-3 World

03/01/01

09/01/02

03/01/06

05/01/05

03/01/03

U

EB-2 China

05/01/00

01/01/03

04/01/04

02/15/05

02/15/05

2/15/05

EB-3 China

05/01/00

10/15/01

03/22/03

10/22/02

03/01/03

U

EB-2 India

11/01/99

01/01/02

04/01/04

02/15/04

02/15/04

2/15/04

EB-3 India

01/01/98

05/01/01

11/01/01

10/15/01

11/01/01

U

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

03/15/03

03/01/01

U

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

Applicability Date for E-Verify Federal Contractor Rule Extended

On April 17, 2009, the government published a regulation postponing the applicability date of the final rule requiring federal contractors and subcontractors to begin using the U.S. Citizenship and Immigration Services' (USCIS) E-Verify system. The applicability date of the final rule has been extended until June 30, 2009. The government sought the extension to have an adequate opportunity to review the entire rule prior to its applicability to federal contractors and subcontractors. The rule requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees was first published on Nov. 14, 2008, and was initially schedule to be effective on January 19, 2009. However, the implementation date has now been postponed two times. Also, a lawsuit is currently pending in federal court which seeks to enjoin the government from enforcing the new regulation.

MFEM NEWS:

Mr. Bob White Will Be Speaking on Panels at the AILA National Conference and the NAFSA National Conference

Mr. Bob White of the firm's Immigration Practice Group has been selected to speak on panels at both the NAFSA: Association of International Educators' Annual National Conference in May 2009 being held in Los Angeles, California and at the American Immigration Lawyers Association (AILA) Annual National Conference in June 2009 being held in Las Vegas, Nevada. During the NAFSA national conference, Mr. White will be participating on a panel discussing Immigration Compliance Issues in the F-1, J-1, H-1B, PERM, and I-9 programs. During the AILA national conference, Mr. White will be moderating a panel on Trainee Issues, including H-3, B-1 and J-1 issues.

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.