Business Immigration Monthly - April 2010

Date: 4/1/2010
 Business Immigration Monthly - April 2010

USCIS Announces That H-1B Quota for FY 2011 Is Not Met During Initial Filing Period – USCIS Receives Significantly Lower Number of H-1B Quota Petitions Than Last Year

The U.S. Citizenship and Immigration Services (USCIS) recently announced that the H-1B quota for fiscal year 2011 (October 1, 2010 to September 30, 2011) was not met during the initial filing period of April 1, 2010 to April 7, 2010. The USCIS stated that it received approximately 19,100 H-1B quota subject petitions during the initial filing period. The H-1B quota for fiscal year 2011 is 65,000. Of the 19,100 petitions received, approximately 5,600 requested the U.S. Master's or higher degree exemption from the overall quota. This exemption for fiscal year 2011 is limited to 20,000. Therefore, the USCIS indicated that the H-1B quota for fiscal year 2011 remains open and the USCIS will continue to accept H-1B quota subject petitions until all of the available numbers are used.

The USCIS indicated that all petitions filed during the initial filing period will be issued receipt notices with the filing date of April 7, 2010. Additionally, for those petitions filed requesting premium processing, the 15 day premium processing clock for the initial review began on April 7, 2010, regardless of the date on which the petition was received during the initial filing period.

During fiscal year 2010 (October 1, 2009 to September 30, 2010), the H-1B quota was not reached until December 21, 2009. The H-1B quota was met during the initial filing periods in fiscal years 2008 and 2009. It is assumed that the H-1B quotas in fiscal year 2010 and 2011 were not met during the initial filing periods due to the economy and also the USCIS' aggressive review of petitions filed through the H-1B program. However, in fiscal year 2011, there was an approximately 20% decrease in the H-1B quota subject petitions filed in comparison to fiscal year 2010. Although there was this significant decrease in initial filings, it is assumed that the quota may be met earlier in fiscal year 2011 than in fiscal year 2010 due to the improving economy in the United States.

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

DOL Commences Backlog Reduction Program in PERM Process

It appears that the U.S. Department of Labor (DOL) has commenced a backlog reduction program in the PERM program. Within the past month, the DOL has completed the initial review of approximately three months of PERM applications. The date range that the DOL appears to be currently processing for initial review is May 2009 to September 2009.

Although the DOL has not officially announced that it has commenced backlog reduction in the PERM program, our firm was informed during a routine status inquiry that the DOL is planning to reduce its backlog in the program by more than 50% by the end of fiscal year 2010 (September 30, 2010). The DOL previously announced that it has more than 50,000 PERM applications pending with approximately 50% pending for initial review and 40% pending for audit review. In response to our firm's status inquiry, DOL stated that it is currently on target to meet the DOL's backlog reduction goals. It appears that the DOL is initially attempting to reduce the backlog in initial reviews. It may then address the backlog in the audit review queue. The DOL is still reviewing audits on PERM applications initially filed in January 2008. The DOL stated that it is implementing the backlog reduction to provide its customers with better customer service.

Additional information about the DOL's backlog reduction efforts will be contained in our firm's future Immigration Updates when it becomes available.

DOL Releases Supplemental Guidance About New Prevailing Wage Determination Process

The DOL recently released supplemental guidance about the new prevailing wage system. The DOL changed the prevailing wage system as of January 1, 2010. Prior to this change, prevailing wage requests were submitted to the individual State Department of Labors; however, after January 1, 2010, all prevailing wage requests are now required to be submitted to the Federal DOL. In late January 2010, the DOL upgraded its iCERT portal to include a prevailing wage functionality. Therefore, employers are now able to submit prevailing wage requests online through the iCERT portal.

Although the DOL has provided an electronic submission option for prevailing wage determinations, this option has not reduced the DOL's processing times for prevailing wage determinations. The DOL is currently taking approximately 60 days to issue prevailing wage determinations in the H-1B and PERM programs. Prior to this new system, the State Department of Labors were normally taking on average less than 1-2 weeks to issue prevailing wage determinations. Many employers are being delayed in the processing of their PERM applications due to the significantly increased processing times for prevailing wage determinations. Additionally, many employers are no longer relying on prevailing wage determinations issued by the government in the H-1B program due to the significantly increased processing times for these determinations. Instead, these employers are determining prevailing wages themselves based upon the DOL's Occupational Employment Statistics (OES) system.

In its supplemental guidance, the DOL did not state that it will be reducing its processing times for prevailing wage determinations. However, it did provide clarification about how certain employers should request prevailing wage determinations. It also clarified the prevailing wage determinations that will be issued for high paying occupations that may exceed the OES standards.

Additional information about the DOL's implementation of its new prevailing wage system will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Adds Additional Form to Its Direct Filing System

The USCIS continues to add forms that must be filed with the USCIS' new lockbox facilities. The most recent form added to the lockbox direct filing system is the Form I-131 Reentry Permit and Advance Parole Application. The other forms that currently must be filed through the direct filing system include the Form I-765, Form I-102, Form I-94, Form I-824, certain Form I-485 and Form N-400. Due to the number of Forms that have been recently added to the direct filing system, the USCIS has been delayed in issuing receipt notices. Additionally, the USCIS previously indicated that Applicants could receive an email from the USCIS confirming receipt of applications. However, although these emails are being issued, they are significantly delayed after the date of filing and do not continue any case information. It is assumed that these delays will continue as the USCIS continues to add further forms to the direct filing system. Ultimately, the USCIS indicated that within the next few months, all Forms will be filed through the direct filing system.

Additional information about the continued expansion of the direct filing system will be contained in our firm's future Immigration Updates when it becomes available.

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

The U.S. Department of State's (DOS) recently released its April 2010 Visa Bulletin. Similar to last month's Visa Bulletin, most employment-based preference categories advanced this month. Prior to last month's Visa Bulletin, there was very little (if any) advancement in the employment-based preference categories for many months. The most significant advances in this month's Visa Bulletin are in the EB-3 World category and the EB-3 Indian national category which advanced 3 months and 2 months, respectively. As the end of the fiscal year continues to approach on September 30, 2010, it is assumed that the employment-based immigrant visa categories will continue to advance to ensure that all of the employment-based immigrant visa numbers available in fiscal year 2010 are used.

The following is a comparison of the movement (or lack of movement) in the employment-based immigrant visa categories since the beginning of retrogression in October 2005.

Oct 2005

Dec 2007

Jun 2008

Jan 2010

Feb 2010

Mar 2010

Apr 2010

EB-3 World

03/01/01

09/01/02

03/01/06

08/01/02

09/22/02

12/15/02

02/01/03

EB-2 China

05/01/00

01/01/03

04/01/04

05/01/05

05/22/05

07/08/05

08/22/05

EB-3 China

05/01/00

10/15/01

03/22/03

08/01/02

09/22/02

12/15/02

02/01/03

EB-2 India

11/01/99

01/01/02

04/01/04

01/22/05

01/22/05

02/01/05

02/01/05

EB-3 India

01/01/98

05/01/01

11/01/01

06/22/01

06/22/01

07/01/01

09/08/01

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

06/01/01

06/01/01

06/01/01

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.

DHS Unveils New Initiatives to Enhance the E-Verify System

The U.S. Department of Homeland Security (DHS) recently announced new initiatives to "strengthen the efficiency and accuracy" of the E-Verify system. Currently, there are approximately 189,000 employers using the E-Verify system. DHS hopes that with the further enhancements in the E-Verify system, more employers will be inclined to use this optional system.

However, because the system requires employers to complete an additional step in the employment eligibility verification process which is not mandatory, many employers are not willing to use this optional system. The new initiatives announced by DHS include a new agreement with the U.S. Department of Justice (DOJ) that will streamline the adjudication process in cases of E-Verify misuse and discrimination; the establishment of an informational telephone hotline for employees seeking additional information about E-Verify; and training videos focusing on E-Verify procedures and policies, employees rights and employers responsibilities in English and Spanish.

Additionally, a USCIS E-Verify helpline will now provide employers and employees with assistance in completing the Form I-9 Employment Eligibility Verification form. The helpline will also assist employees to file complaints about possible discrimination in the E-Verify process. The USCIS helpline telephone number is (888) 897-7781. However, this helpline telephone number will not become available until at least April 5, 2010. It is currently unknown as to the level of assistance that the contractors who will be answering the calls through this helpline will be able to provide employers and employees due to the intricacies of the Form I-9 process. It is assumed that for more complicated questions, the contractors may suggest that employers and employees continue to consult with legal counsel in order to minimize potential liability in the Form I-9 process. The USCIS and Immigration and Customs Enforcement (ICE) have not indicated that they will create a "safe harbor exception" in an ICE Form I-9 enforcement action. Any information (whether accurate or inaccurate) provided by the contractors through the helpline which is relied upon by employers. Therefore, ICE could potentially use inaccurate information provided by the contractors and relied upon by employers against the employer when assessing penalties during a Form I-9 enforcement section.

Additional information about the E-Verify system and the enforcement of the I-9 program will be contained in our firm's future Immigration Updates when it becomes available.

DHS Designates Greece as a New Member of the Visa Waiver Program

The DHS recently announced that Greece is now included as a member country of the Visa Waiver Program (VWP). Greece joins 35 other countries already participating in the VWP. The VWP allows citizens of designated countries to travel to the United States as a business visitor or for pleasure for up to 90 days without obtaining a visa. Citizens from these 36 countries (including Greece) are required to apply for Electronic System Travel Authorization (ESTA) prior to traveling to the United States through the VWP. Information about ESTA is contained in our firm's previous Immigration Updates dated January 18, 2010. Citizens of Greece will now be able to travel to the United States to visit for business or pleasure for up to 90 days through the VWP after receiving authorization through the ESTA system.

ICE Begins New Round of I-9 Audits

ICE recently commenced a third round of Form I-9 Audits as part of its efforts to enforce the country's immigration laws. This is the third major ICE Form I-9 Audit within the past year. In this Audit, ICE issued Notices of Inspection (NOIs) to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. ICE stated that this is part of its comprehensive strategy to reduce the demand for illegal employment and to protect employment opportunities for the country's lawful workforce. After receiving the NOI, most businesses had three days in which to provide extensive documentation of their compliance with the immigration laws in their hiring practices.

Additional information about ICE's previous and future Form I-9 Audits will be contained in our firm's future Immigration Updates when it becomes available.

DOL Seeks Nearly $1.9 Million from a Computer Consulting Company for H-1B LCA Violations

The DOL recently cited a New Jersey computer consulting company for alleged violations of the Labor Condition Application (LCA) provisions of the H-1B program. The DOL cited the company more than $1.4 million in back wages due to 163 workers. The DOL also assessed Civil Monetary Penalties (CMPs) of $439,000 and debarment from certain nonimmigrant visa and immigrant visa programs for two years. The DOL's Wage and Hour Division stated that it found that the consulting company failed to pay the required wages to workers hired as Computer Systems Analysts pursuant to the H-1B program. Additionally, the DOL stated that it found that the company forced employees to sign employment agreements requiring the payment of penalties for ceasing their employment prior to the end of their H-1B period and sued the employees when those contracts were broken. Therefore, the DOL stated that due to the willful nature of the violations, the DOL assessed CMPs and debarment for a two-year period.

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 under the Legal Update link of the Immigration Group Section of our firm's website at www.masudafunai.com.