Business Immigration Monthly - May 2010

Date: 5/6/2010
 Business Immigration Monthly - May 2010

USCIS Provides Updated Information about the H-1B Quota (Updated April 27, 2010)

As indicated in our firm's Immigration Updated dated April 5, 2010, the U.S. Citizenship and Immigration Services (USCIS) previously announced that the H-1B quota for Fiscal Year 2011 (October 1, 2010 through September 30, 2011) was not met in the initial filing period which closed on April 7, 2010. The USCIS indicated that it received only approximately 19,100 H-1B quota petitions during the initial filing. (Of these 19,100 petitions, approximately 13,500 were filed under the regular H-1B quota and approximately 5,600 requested the U.S. Master's or higher degree exemption.) Therefore, the USCIS indicated that it would continue to accept H-1B quota petitions until the H-1B quota for fiscal year 2011 has been met. Under the fiscal year 2011 H-1B quota, the USCIS will accept 65,000 regular H-1B quota petitions and 20,000 H-1B quota petitions requesting the U.S. Master's or higher degree exemption.

On April 27, 2010, the USCIS updated the H-1B quota count. The USCIS indicated that it has received approximately 16,500 regular H-1B quota petitions and 6,900 H-1B quota petitions requesting the U.S. Master's or higher degree exemption.

Additional information about the Fiscal Year 2011 H-1B quota will be contained in our firm's future Immigration Updates when it becomes available.

ICE SEVP Revises Previous OPT and H-1B Cap Gap Guidance

Immigration and Customs Enforcement's (ICE) Student Exchange Visitor Program (SEVP) recently revised its policy guidance regarding Optional Practical Training (OPT), STEM OPT extensions and H-1B "cap gap" relief. SEVP initially issued policy guidance interpreting an Interim Final Rule released on April 8, 2008 introducing STEM OPT extensions and H-1B "cap gap" relief. SEVP stated that the new guidance supersedes the previous guidance.

Among other items, the new policy guidance revises the previous policy guidance as follows:

1.Revises the procedures that Designated Student Officials (DSOs) need to follow to recommend OPT after a student's program end date because SEVIS has not yet been updated to allow DSOs to recommend OPT after a student's program end date (other than the STEM OPT extension).

2.Deletes the ten day exception to the time that accounts for unemployment during post completion OPT at the EAD validity start date and between jobs. Although this ten day exception has been in affect since April 2008, SEVP indicated in the revised policy guidance that such exemption needs to be made through a future proposed regulation.

3.Removes the restriction that employment during the STEM OPT extension must be paid employment. Although this restriction has been in effect since April 2008, SEVP stated that such a restriction must be approved through a future proposed regulation.

4.Confirms that a student needs a valid Employment Authorization Document (EAD) card in order to travel internationally during his/her post-completion OPT period. If a student wants to travel internationally after his/her EAD card has expired during the H-1B "cap gap" period, SEVP indicated the student may obtain the H-1B visa and return to the United States using the H-1B visa on or after September 21st.

Additional information about other changes to the OPT and H-1B cap gap programs will be contained in our firm's future Immigration Updates when it becomes available.

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 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.

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.