Business Immigration Monthly for January 2010

Date: 1/1/2010
 Business Immigration Monthly for January 2010

DOS Provides Projections about the Future Movement of the Employment-Based Immigrant Visa Categories

The U.S. Department of State (DOS) recently provided projections for priority date movement in the employment-based immigrant visa categories for the remainder of fiscal year 2010 (October 1st, 2009 through September 30, 2010). The DOS stated that based on current indications of demand, the "best case scenarios" for priority date movement by the end of fiscal year 2010 are as follows:

Employment-based 2nd Category:

World: Current

China: July through October 2005

India: February through early March 2005

However, DOS indicated that if not all of the available numbers in the employment-based 2nd World category are used, the leftover numbers would be allocated to the employment-based 2nd category for China and India. If this occurs, the DOS predicted that the employment-based 2nd category for China and India may advance to a date between October and December 2005.

Employment-based 3rd Category:

World: April through August 2005

China: June through September 2003

India: January through February 2002

Mexico: January through June 2004 Philippines: April through August 2005

The DOS advised that the projections are estimates which are subject to fluctuation in demand. The DOS stated that the actual future priority date movement can not be guaranteed and that it is possible that some of the categories may become Unavailable prior to the end of the fiscal year depending on demand.

DOS Releases January 2010 Visa Bulletin – Most Employment-Based Immigrant Visa Categories Continue to Barely Advance

The DOS recently released its January 2010 Visa Bulletin. Similar to the other Visa Bulletins issued in fiscal year 2010 (October 1, 2009 through September 30, 2010), the January 2010 Visa Bulletin contains minimal (if any) advancements in the employment-based immigrant visa categories. One of the greatest advancements in the Visa Bulletin was the EB-3 World category. After many months of not advancing, this category has advanced by two months to August 2002 in the January 2010 Visa Bulletin. All of the other employment-based immigrant visa categories advanced by one month or less.

The following is a comparison of the movement of the employment-based immigrant visa categories since the beginning of retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

Oct 2009

Nov 2009

Dec 2009

Jan 2010

EB-3 World

03/01/01

09/01/02

03/01/06

06/01/02

06/01/02

06/01/02

08/01/02

EB-2 China

05/01/00

01/01/03

04/01/04

03/22/05

04/01/05

04/01/05

05/01/05

EB-3 China

05/01/00

10/15/01

03/22/03

02/22/02

06/01/02

06/01/02

08/01/02

EB-2 India

11/01/99

01/01/02

04/01/04

01/22/05

01/22/05

01/22/05

01/22/05

EB-3 India

01/01/98

05/01/01

11/01/01

04/15/01

04/22/01

05/01/01

06/22/01

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

06/01/01

06/01/01

06/01/01

05/01/01 (India)

06/01/01

Additional information about the employment-based immigrant visa categories will be contained in our firm's future Immigration Updates when it becomes available.

DOS Proposes Increasing Nonimmigrant Visa Application Fees

The DOS recently published a proposed rule to increase the nonimmigrant visa application fees. The proposed rule would establish a tiered structure with separate fees based upon the visa category. For example, the nonimmigrant visa fee for a B-1/B-2 visa, would increase from $131 to $140. However, a H, L, O, P, Q, or R visa would increase from $131 to $150. The DOS stated that the new tiered fee structure was created to cover the higher cost for processing certain categories of nonimmigrant visas that require more in-depth consideration than other categories. The proposed rule will not become effective until the DOS publishes a second, final rule later this year.

DHS to Expand E-Verify Audits in 2010

The U.S. Department of Homeland Security (DHS) recently confirmed that it is now increasing its investment in the back-side of E-Verify, namely the Compliance Management and Tracking System (CMTS). CMTS was created by DHS in June 2009 to track and manage non-compliance in the E-Verify system. CMTS regularly generates reports such as multiple security number use in E-Verify, employers who terminate employers as a result of a tentative non-confirmation and employers who run queries through E-Verify more than three days after hire, to name a few. DHS confirmed that in the fourth quarter of fiscal year 2009, it sent approximately 1,000 letters to employers with regard to E-Verify non-compliance. DHS stated that in fiscal year 2010 it expects to greatly expand CMTS with further automation and monitoring for additional violations and increasing its compliance coordination efforts with Immigration Customs Enforcement (ICE).

DOL Implements New Prevailing Wage System

The U.S. Department of Labor (DOL) will fully implement its new prevailing wage system effective January 1, 2010. After this date, the State Department of Labor offices will no longer issue prevailing wage determinations for any of the federal DOL foreign labor programs. Instead, the National DOL will issue prevailing wage determinations through its new National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, DC. Initially, the new Center will only accept prevailing wage requests on the DOL Form 9041 by mail. The Center will not accept the form by fax or e-mail. Additionally, the Center will not return the determination using a pre-paid express mail envelope. The DOL did indicate that if an e-mail address is indicated on the Form 9041, the DOL will return the determination by e-mail. However, since the implementation of the new system for the H-2B and H-2A programs in January 2009, the DOL has not consistently returned prevailing wage determinations by e-mail. Instead, it has mailed a majority of the determinations by regular mail. The DOL stated that it anticipates that a prevailing wage functionality will be added to its iCERT system during the third week of January 2010 so that prevailing wages may be submitted electronically.

Additional information about the complete implementation of the prevailing wage system will be contained in our firm's future Immigration Updates.

H-1B Cap for Fiscal Year 2010 Met on December 21, 2009

The U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B quota for fiscal year 2010 (October 1, 2009 through September 30, 2010) was reached on December 21, 2009. The USCIS stated that any petitions subject to the H-1B quota received by the USCIS after December 21, 2009 will be rejected. Additionally, the USCIS stated that petitions subject to the H-1B quota received on December 21, 2009 will not be automatically accepted. Instead, the USCIS will conduct a computer-generated random selection process of all the petitions received on December 21, 2009 and will select a specific number of the petitions received to ensure that the H-1B quota for fiscal year 2010 is completely met. Petitions subject to the H-1B quota which were received on December 21, 2009 that are not selected in the computer-generated random selection process will be returned to the Petitioner and not adjudicated. The H-1B quota for fiscal year 2011 (October 1, 2010 through September 30, 2011) will open on April 1, 2010.

USCIS to Hold Permanent Residency Cases Until CDC's New Vaccination Requirements Become Effective

Since November 13, 2009, the USCIS has been temporarily holding certain applications for adjustment of status (Form I-485) to allow the Department of Health and Human Services (HHS), Centers for Disease Control and Prevention's (CDC) new vaccination requirements to become effective. The CDC recently announced a new criteria to determine which vaccinations will be required for the lawful permanent residency process. Under the new criteria, effective December 14, 2009, the vaccines for herpes zoster (zoster) and human papillomavirus (HPV) will no longer be required for immigration purposes. Consequently, the USCIS decided to hold any applications that would have been denied solely based on the applicant's failure to receive the HPV or zoster vaccine as of Nov. 13, 2009 The USCIS will continue processing these applications on the effective date of the new vaccination criteria.

DOS Announces Worldwide Deployment of the DS-160

The DOS announced that it will deploy the fully web-based Form DS-160, Nonimmigrant Visa Application, which will replace the Forms DS-156, DS-157, DS-158 and DS-3052. Information previously collected on the Electronic Visa Application Forms (EVAF) has been included on the Form DS-160. The DOS expects all consular posts listed in its cable to adopt the Form DS-160 prior to March 1, 2010. Those posts not included in the list will have until April 30, 2010 to adopt the new form. The DOS seeks to replace all EVAFs no later than April 30, 2010. E visa applicants will utilize the Form DS-160, but must continue to fill out the DS-156E until the DS-160E supplement is available electronically. K visa applicants will continue to use the Form DS-156 and the Form DS-156K supplement until further notice.

The following is the list of consular posts expected to be ready to implement the Form DS-160 by March 1, 2010.

Algiers, Algeria

Vienna, Austria

Manama, Bahrain

Minsk, Belarus

Beijing, China

Chengdu, China

Guangzhou, China

Shanghai, China

Shenyang, China

Havana, Cuba

Djibouti, Djibouti

Cairo, Egypt

Addis Ababa, Ethiopia

Paris, France

Frankfurt, Germany

Chennai, India

Hyderabad, India

Kolkata, India

Mumbai, India

Delhi, India

Jakarta, Indonesia

Surabaya, Indonesia

Tel Aviv, Israel

Jerusalem Amman, Jordan

Nairobi, Kenya

Kuwait City, Kuwait

Kuala Lumpur, Malaysia

Casablanca, Morocco

Muscat, Oman

Islamabad, Pakistan

Karachi, Pakistan

Dhahran, Saudi Arabia

Jeddah, Saudi Arabia

Riyadh, Saudi Arabia

Singapore, Singapore

Khartoum, Sudan

Damascus, Syria

Taiwan, Taiwan

Kyiv, Ukraine

Dubai, UAE

Abu Dhabi, UAE

London, United Kingdom

Caracas, Venezuela

Sana'a, Yemen

Consular posts not listed above must implement the DS-160 between March 1 and April 30, 2010.