Business Immigration Monthly - July 2010

Date: 7/1/2010
 Business Immigration Monthly - July 2010

Attorneys from MFEM Attend the AILA National Conference

Attorneys from MFEMs Immigration Group recently attended the American Immigration Lawyers Association's (AILA) Annual Conference held in National Harbor, Maryland.

The following are some highlights from the Conference:

1. In January 2010, the U.S. Citizenship and Immigration Services (USCIS) issued a Memorandum about the Employer-Employee Relationship required in the H-1B context. In June 2010, a lawsuit was filed by various H-1B employers and Information and Technology Trade Organizations challenging the Memorandum. The USCIS recently responded to the lawsuit. In its response, the USCIS stated that the Memorandum is not binding upon officers but is only providing suggestions about how H-1B petitions should be adjudicated. The USCIS stated that the Memorandum does not represent new policy guidance. It is assumed that the Plaintiffs will respond to the USCIS' response and then the court will consider the lawsuit.

2. The U.S. Department of Labor (DOL) is currently completing a backlog reduction of its pending PERM applications. The DOL's goal is to have its backlog reduced by 50% before the end of the fiscal year on September 30, 2010. On October 1, 2009, the DOL stated that it had approximately 67,000 PERM applications pending. Since this date, it has processed about 60,000 applications and is on track to have its backlog reduced by more than half prior to the end of the fiscal year. The DOL stated that it is receiving approximately 1,000 PERM applications each week. The DOL stated that approximately 50% of its remaining backlog is pending for audit review. However, the DOL stated that its supervised recruitment backlog is also growing and that it has more than 1,000 PERM applications pending for supervised review.

3. The DOL indicated that the new Bureau of Labor Statistics (BLS) prevailing wage data was released on July 1, 2010. Any prevailing wage determination issued on or after this date, regardless of when it was filed, will be issued using the new prevailing wage data. The DOL stated that prevailing wages are processed in a first-in, first-out order and that there is no expedite allowed. The DOL indicated that it is currently taking approximately 50 days to issue prevailing wage determinations. The DOL stated that it will be issuing additional Frequently Asked Questions (FAQs) primilary dealing with the use of private wage surveys.

4. The DOL stated that it will accept documentation from employers to evidence their existence prior to the employer filing of a Labor Condition Application (LCA). As part of the new LCA process, the DOL is verifying existence of employers prior to issuing LCAs. The DOL stated that it is currently completing existence checks within 48 hours.

5. The DOL stated that it is currently denying PERM applications for medical residents because the DOL does not believe that the medical resident position is a permanent position. However, some of these decisions are currently on appeal to the DOL's Board of Alien Labor Certification Appeals (BALCA).

6. BALCA is clogged with PERM technical error cases. It is assumed that BALCA will be issuing some determinations to clarify which technical errors can be made in the DOL's PERM process and still have the PERM applications approved. The DOL stated that it is consistently denying cases on reconsideration where a clerical error was completed and the employer ignored the PERM system's prompts or failed to provide the corrected information as part of the audit response.

7. The USCIS stated that religious worker filings have significantly decreased in the past year. The USCIS stated that it believes that this is primarily due to the mandatory site visit program which it believes it has eliminated fraud in the religious worker program. The USCIS stated that site visits are completed within 90 days of the filing if a site visit is required. However, the USCIS does not delay adjudication for the site visit. Instead, the USCIS will continue with the adjudication but hold the petition for approval until a site visit is completed.

8. The USCIS stated that R-1 nonimmigrant religious workers can not recapture time spent outside the United States, unlike H-1B and L nonimmigrants. However, the USCIS did acknowledge that some adjudicators are allowing for the recapture of time spent by the religious worker outside the United States.

9. The USCIS stated that changes in the terms and conditions of an approved I-140 may require a new I-140 filing. The USCIS stated that if the changes to the terms and conditions affect the previously completed labor market test, the previously approved Form I-140 may no longer be valid (assuming that green card portability does not apply).

10. Within the past few months, the USCIS has become more aggressive with L-1B petitions. The USCIS is now consistently issuing Requests for Evidence (RFE) on L-1B petitions even those filed by large publicly traded companies because the USCIS is questioning the foreign national's uniqueness within the large organization. However, employers are not experiencing the same issues when they have an L-1 Blanket Approval and are having their foreign national employees apply for L-1 visas directly at the U.S. consulates abroad based upon the blanket's approval.

11. The USCIS indicated that it is currently revising all of its RFE templates. The USCIS indicated that it will be having more open forums similar to the open forum held regarding the O, P and Q RFEs. The USCIS stated that its attorneys are also getting involved in the RFE template revisions as well.

12. The USCIS indicated that it is proceeding with the transformation of how it adjudicates cases. The USCIS stated that the next step will be providing adjudicators with access to Dun & Bradstreet information about businesses. The USCIS stated that no petition will be denied solely upon information contained in Dun & Bradstreet. However, the USCIS believes that the Dun & Bradstreet information will allow adjudicators to more quickly adjudicate petitions instead of having to issue RFEs for corporate information.

13. The TARP restrictions in the H-1B program expire in February 2011. The provisions require TARP recipients who have not repaid the TARP funding received from the federal government to complete the H-1B dependency process prior to filing an H-1B petition. It is assumed that these provisions will be extended as long as significant TARP funding has not been repaid by a significant number of TARP recipients.

14. The USCIS confirmed that it will be continuing site visits in the H-1B program. The USCIS indicated that approximately 20-25% of the H-1B petitions filed receive site visits after the petitions are approved. If the USCIS contractor cannot verify certain information provided in the H-1B petition, the USCIS may issue a Notice of Intent to Revoke (NOIR). However, the USCIS did state that the its Fraud Detection and National Security (FDNS) officers are attempting to contact more employers before NOIRs are issued in order to clarify minor inconsistencies. This process change appears to be based at least in part upon comments provided to the FDNS by the AILA FDNS subcommittee during its recent liaison with FDNS. Mr. Bob White of MFEM's Immigration Group is the Chair of this AILA subcomittee.

DOL's BALCA Establishes Standard of Review in Prevailing Wage Challenges

The DOL's BALCA recently issued a decision on a challenge to a prevailing wage determination as part of a DOL's Wage and Hour Division's (WHD) Labor Condition Application (LCA) investigation. During the LCA investigation, WHD investigators questioned the prevailing wage sources that the employer used in the LCA process. As part of the H-1B LCA process, employers are required to pay the greater of the actual wage or the prevailing wage for the position. During the investigation, a WHD investigator obtained the prevailing wages for the offered positions from eight State Workforce Agencies (SWAs) for the same offered position located in the eight states where the positions were located. Six of the eight SWAs determined that the offered position was for a Systems Analyst and the prevailing wage was issued as a level one. However, two of the SWAs classify the position differently and issued a higher prevailing wage level. Therefore, the WHD asked the Office of Foreign Labor Certification (OFLC) Administrator to review the determinations. The employer submitted supplemental expert documentation to the OFLC Administrator attempting to justify that the offered positions should be classified as Systems Analyst. However, the OFLC Administrator issued a redetermination classifying the positions as Software Engineers but did not explain why he disagreed with six of the eight SWAs determinations and the conclusions reached by the independent experts. The employer appealed the OFLC Administrator's determination to BALCA.

BALCA determined that the standard of review for prevailing wage challenges is the very high "abuse of discretion" standard. Although the record contained no information about why the OFLC Administrator determined that the previous prevailing wage determinations issued by the SWAs were incorrect and why the independent expert determinations were not correct, BALCA upheld the OFLC Administrator's determination because it concluded that the Administrator did not exceed his authority in reviewing the exact same information which was provided to the SWAs but reached a different conclusion than the SWAs.

This BALCA decision indicates that that it will be a very difficult to challenge OFLC prevailing wage determinations in the future because significant deference will be given by BALCA to the OFLC's determination.

DOS Issues Second Interim Final Rule Increasing Fees for its Consular Services

The U.S. Department of State (DOS) recently released a second interim final rule modifying certain fees for various consular services. As discussed in our Immigration Update dated May 17, 2010, the DOS previously released an Interim Final Rule which increased the nonimmigrant visa fees effective June 4, 2010.

The following fee modifications contained in the second Interim Final Rule become effective on July 13, 2010:

 

Item

Proposed

Fee

Current

Fee

Percentage Increase

Passport Book Application Services for Applicants age 16 or over (including renewals

$70

$55

27%

File search and verification of U.S. citizenship

$150

$60

150%

Application for Consular Report of Birth Abroad of a Citizen of the United States

$100

$65

54%

Documentation of formal renunciation of U.S. citizenship

$450

$0

undefined

Passport Card Application Services for Applicants age 16 or over (including renewals)

$30

$29

50%

Immigrant visa application processing for immediate relative and family preference applications

$330

$355

-7%

Immigrant visa application processing for employment-based applications

$720

$355

103%

Immigrant visa application processing for other visa classes

$305

$355

-14%

Diversity Visa Lottery fee

$440

$375

17%

Affidavit of Support Review

$88

$70

26%

Determining Returning Resident Status

$380

$400

-5%

Immigrant visa security surcharge

$74

$45

64%

DOS Releases July 2010 Visa Bulletin – Most Employment-Based Immigrant Visa Categories Advance

The DOS recently released its July 2010 Visa Bulletin. Similar to last month's Visa Bulletin, the July 2010 Visa Bulletin advances most of the employment-based immigrant visa categories.

The most significant advance in the July 2010 Visa Bulletin is in the EB-2 Indian national preference category. While this category has not advanced in the past six months, in the July 2010 Visa Bulletin, the DOS advances the category from February 2005 to October 2005. Due to this significant advancement of over eight months and the fact that many Indian nationals who had older EB-3 priority dates but now who are qualifying for the EB-2 category based on the approval of a second PERM application and I-140 Petition, it is assumed that many Indian nationals will now be filing for adjustment of status or completed the adjustment of status process if they already had an adjustment of status application pending. Therefore, it is unclear if the DOS will be able to continue with this type of significant advancement in the EB-2 Indian national category in the near future.

Additionally, the DOS has advanced the EB-3 Indian national category from October 2001 to November 2001. This category also has not advanced in the previous few months. Finally, the EB-3 World category has advanced by approximately two months from June 2003 to August 2003.

The following is a comparison of the priority date movements since the inception of the current retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

Apr  2010

May 2010

June 2010

July 2010

EB-3 World

03/01/01

09/01/02

03/01/06

02/01/03

04/22/03

06/22/03

08/15/03

EB-2 China

05/01/00

01/01/03

04/01/04

08/22/05

09/22/05

11/22/05

11/22/05

EB-3 China

05/01/00

10/15/01

03/22/03

02/01/03

04/22/03

06/22/03

08/15/03

EB-2 India

11/01/99

01/01/02

04/01/04

02/01/05

02/01/05

02/01/05

10/01/05

EB-3 India

01/01/98

05/01/01

11/01/01

09/08/01

10/01/01

10/22/01

11/22/01

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 priority date retrogression will be contained in our firm's future Immigration Updates when it becomes available.

DOS Releases Results of FY 2011 Diversity Visa Lottery

The DOS recently released information about the results of the Fiscal Year 2011 (October 1, 2010 through September 30, 2011) Diversity Visa Lottery. The Diversity Visa Lottery makes 50,000 immigrant visas available annually to individuals from countries of "low rates" of immigration to the United States.

The DOS indicated that it received more than 12.1 million entries (16.5 million with derivatives) during the 60 day application period that ran from October 2, 2009 through November 30, 2009. The DOS indicated that it has selected approximately 100,600 "winners" and that they have been notified that they may now make an application for an immigrant visa. The DOS indicated that it notifies significantly more individuals that they have "won" the visa lottery than there are visas available to ensure that all of the visa lottery numbers are used during the fiscal year. The DOS indicated that the visas have been apportioned amongst six geographic regions with a maximum of 7% available to individuals born in any single country.

The DOS indicated that those individuals who have been selected should "act on their immigrant visa applications quickly" because individuals who do not receive visas by September 30, 2011 will no longer be eligible to benefit from next fiscal year's visa lottery. However, individuals will only be able to complete the immigrant visa process if there assigned number is available.

The DOS indicated that if an individual who submitted an application has not been notified that he/she has "won," the individual was not selected in next fiscal year's visa lottery process but may apply again in future visa lotteries.

DOS Revises its Predictions about Future Movement in the Employment-Based Immigrant Visa Categories

The DOS recently revised its predictions for future advancement of the employment-based immigrant visa categories. The DOS indicated that its revision is due to "unexpected heavy demand" during recent months in the employment-based immigrant visa categories. The DOS indicated that the following are the "best case scenarios" for priority date movement before the end of fiscal year 2010 on September 30, 2010:

Employment-First: Current

Employment-Second: China and India – March or April 2006

Employment-Third:

Worldwide – June through September 2004

China-October through December 2003

India-February 2002

Mexico- Unavailable

Employment-Fourth: Worldwide - May be necessary to establish a cut-off date in September 2010

Employment-Fifth: Current

However, the DOS cautioned that these are only projections and may not be able to be met if demand remains at its current level or increases, especially in the EB-2 Indian national preference category. If the DOS advances the categories too quickly and the annual limits are reached, the DOS indicated that the categories (similar to the Mexican national employment-based categories) may become Unavailable until at least the beginning of the next fiscal year on October 1, 2010.

USCIS Releases Statistics about the H-1B Category for Fiscal Year 2009

The USCIS recently released its annual report on the H-1B category for fiscal year 2009 (October 1, 2008 through September 30, 2009). The following are highlights from the report:

1. There was a 15% decrease in the number of H-1B petitions filed from fiscal year 2008 to fiscal year 2009.

2. There was a 22% decrease in the number of H-1B petitions approved from fiscal year 2008 to fiscal year 2009.

3. Approximately 48% of all H-1B petitions approved in fiscal year 2009 were for Indian nationals.

4. 41% of the H-1B petitions approved in fiscal year 2009 were for workers with Bachelor's Degrees, 40% had a Master's Degree, 13% had a Doctorate Degree and 6% had a professional degree.

5. Approximately 41% of H-1B petitions approved in fiscal year 2009 were in computer-related occupations with a 35% decrease in H-1B petitions approved for computer related occupations from 2008 to 2009.

6. Approximately 10% of the petitions were filed for education occupations with an approximately 15% decrease in the number of H-1B petitions approved from fiscal year 2008 to fiscal year 2009 in education occupations.

7. There was a reported 6.7% increase in the average offered salary in the H-1B process from 2008 to 2009. The highest paid occupation in the H-1B category is for Fashion Models.

8. There was a 15% decrease in the number of H-1B petitions filed from fiscal year 2008 to fiscal year 2009.

9. There was a 22% decrease in the number of H-1B petitions approved from fiscal year 2008 to fiscal year 2009.

10. Approximately 48% of all H-1B petitions approved in fiscal year 2009 were for Indian nationals.

11. 41% of the H-1B petitions approved in fiscal year 2009 were for workers with Bachelor's Degrees, 40% had a Master's Degree, 13% had a Doctorate Degree and 6% had a professional degree.

12. Approximately 41% of H-1B petitions approved in fiscal year 2009 were in computer-related occupations with a 35% decrease in H-1B petitions approved for computer related occupations from 2008 to 2009.

13. Approximately 10% of the petitions were filed for education occupations with an approximately 15% decrease in the number of H-1B petitions approved from fiscal year 2008 to fiscal year 2009 in education occupations.

14. There was a reported 6.7% increase in the average offered salary in the H-1B process from 2008 to 2009. The highest paid occupation in the H-1B category is for Fashion Models.

USCIS Proposes Significant Increase in Immigration Filing Fees

The USCIS recently issued a proposed regulation which will significantly increase many immigration filing fees. The USCIS is seeking an average 10% increase in immigration filing fees in order to close a projected $200 million deficit. The USCIS stated that a fee adjustment is necessary to ensure that it recovers the cost of its operations while also meeting its processing goals. The USCIS' last filing fee increase occurred in July 2007. The July 2007 fee modification increased filing fees an average of 66%.

The proposed rule would also establish three new fees for:

1. Regional Center Designation under the EB-5 Immigrant Investor Pilot Program ($6,230);

2. New Physicians seeking Civil Surgeon Designation to Conduct USCIS medical examinations ($615); and

3. Recovering the cost of processing immigrant visas granted by the Department of State (DOS) ($165).

The proposed rule would also increase the fee for the USCIS Premium Processing Service from $1,000 to $1,225. However, the proposed regulation would also reduce fees for the following five applications and petitions: Form I-129F, Form I-539, Form I-698, Form I-817 and Form N-565.

The following is a comparison of the current and proposed immigration filing fees:

Form

Application/Petition

Current Fees

Proposed Fees

I-90

Application to Replace Permanent Resident Card

$290

$365

I-102

Application for Replacement/Initial Nonimmigrant Arrival-Departure Document

$320

$330

I-129

Petition for a Nonimmigrant Worker

$320

$325

I-129F

Petition for Alien Fiance(e)

$455

$340

I-130

Petition for Alien Relative

$355

$420

I-131

Application for Travel Document

$305

$360

I-140

Immigrant Petition for Alien Worker

$475

$580

I-360

Petition for Amerasian, Widow(er) or Special Immigrant

$375

$405

I-485

Application to Register Permanent Residence or Adjust Status

$930

$985

I-526

Immigrant Petition by Alien Entrepreneur

$1,435

$1,500

I-539

Application to Extend/Change Nonimmigrant Status

$300

$290

I-600/ 600A

Orphan Petitions

$670

$720

I-687

Application for Status as a Temporary Resident

$710

$1,130

I-690

Application for Waiver on Grounds of Inadmissibility

$185

$200

I-694

Notice of Appeal of Decision

$545

$755

I-698

Application to Adjust Status from Temporary to Permanent Resident

$1,370

$1,020

I-751

Petition to Remove Conditions on Residence

$465

$505

I-765

Application for Employment Authorization

$340

$380

I-817

Application for Family Unity Benefits

$440

$435

I-824

Application for Action on an Approved Application or Petition

$340

$380

I-829

Petition by Entrepreneur to Remove Conditions

$2,850

$3,750

Civil Surgeon Designation

$0

$615

I-924

Application for Regional Center Under the Immigrant Investor Pilot Program

$0

$6,230

N-300

Application to File Declaration of Intention

$235

$250

N-336

Request for Hearing on a Decision in Naturalization Proceedings

$605

$650

N-400

Application for Naturalization

$595

$595

N-470

Application to Preserve Residence for Naturalization Purposes

$305

$330

N-565

Application for Replacement Naturalization/Citizenship Documentation

$380

$345

N-600 N-600K

Naturalization Certificate Applications

$460

$600

Waiver Forms (I-191, I-192, I-193, I-212, I-601, I-612)

$545

$585

Immigrant Visa

$0

$165

Biometric Services

$80

$85

The comment period on the proposed regulation continues until July 26, 2010. It is assumed that after the comment period ends, the USCIS will quickly release the final regulation so that the new fee structure is implemented in Fall 2010.

Additional information about the implementation of the new filing fees will be contained in our firm's future Immigration Updates when it becomes available.

USCIS to Introduce Redesign of E-Verify System

The USCIS recently announced that the E-Verify system will be redesigned effective Monday, June 14. According to the USCIS, the new site will enhance the system's usability, security, accuracy and efficiency. In order for current users to use the new site, they will have to complete a 20-minute tutorial to learn about the new changes in the system. At the end of the tutorial, users will have to take (and pass) an examination similar to the initial examination which was required as part of the E-Verify registration process to verify that they understand the changes to the system.

The E-Verify Program Managers have indicated that they will continue to enhance and update the system over the next few quarters. The E-Verify Program Managers will also continue to monitor for compliance in the program. E-Verify Program Managers plan to introduce more features and oversight of the Designated Agent option in the system later this year.

In the June 14th release, E-Verify will begin to confirm the bona fides of new employers attempting to register in the system. If the E-Verify system is unable to establish the bona fides of an employer attempting to register in the system, the E-Verify program will send the employer a request to confirm its bona fides before being allowed to use the system.

Information about additional updates and enhancements to the E-Verify system will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Clarifies FDNS Site Visit Process

Mr. Bob White of the Masuda Funai's Immigration Group recently attended a meeting with the Chief and Senior Management of the USCIS' Fraud Detection and National Security (FDNS) Directorate in Washington, D.C. Mr. White is the Sub-Committee Chair for the AILA FDNS Liaison Sub-Committee.

During the meeting with FDNS, FDNS clarified its current Administrative Site Visit Verification Program (ASVVP). FDNS stated that approximately 20-25,000 H-1B petitions are randomly selected for site visits each year as part of the ASVVP program. Since its implementation on July 22, 2009, the program has completed approximately 36,000 site visits.

During the site visits, FDNS contractors collect information from employers, beneficiaries and the beneficiaries' managers to confirm the information represented in the H-1B petition. The information collected by the FDNS contractor is then analyzed by an FDNS officer and at the USCIS' Service Center. Of approximately 36,000 site visits, FDNS officers were not able to verify information contained in 11% of the petitions after the site visits. Approximately 2% of the 11% were referred to local FDNS officers for further investigation. The remaining 9% were referred to USCIS adjudications for the issuance of Notices of Intent to Revoke (NOIR). Of the cases referred for NOIRs, approximately 61% resulted in adverse actions, 11% had the initial approval reaffirmed, and 28% are still pending review.

FDNS stated that it will continue site visits as part of the H-1B program. Additionally, FDNS stated that in fiscal year 2012 (October 1, 2011 through September 30, 2012), it plans to have a super majority of site visits completed by FDNS officers instead of the contractors who are currently completing FDNS site visits.

FDNS stated that there has been discussion about expanding the site visit program to L-1 petitions. However, FDNS stated that this expansion is not imminent. Later this year, however, FDNS plans to begin to verify the bona fides of R-1 beneficiaries in addition to R-1 petitioners.

Additional information about the continued expansion and implementation of the FDNS ASVVP program will be contained in our firm's future Immigration Updates when it becomes available.

MFEM NEWS

Mr. Bob White of the MFEM Immigration Group Speaks at the AILA Annual Conference Mr. Bob White of the MFEM's Immigration Group recently participated in a panel at the AILA's Annual Conference held at the Gaylord National Convention Center in National Harbor, Maryland. Mr. White's panel discussed the procedures, issues and potential significant fines imposed during a DOL's WHD H-1B LCA Investigation. Mr. White and his other panelists provided immigration practitioners with recommendations and tips for managing a DOL WHD LCA Audit and how to minimize their clients' liability in the H-1B program. Mr. White and the other panelists also wrote a detailed article on this issue as part of the conference's Continuing Legal Education (CLE) materials.

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.