Business Immigration Monthly - November 2010

Date: 10/29/2010
 Business Immigration Monthly - November 2010

Visa Lottery Registration Period Ends on November 3rd

The U.S. Department of State (DOS) recently reminded the public that the fiscal year 2012 Diversity Visa Lottery Registration Period ends at Noon EST on Wednesday, November 3, 2010. Additional detailed information about the fiscal year 2012 Visa Lottery is contained in an Immigration Alert on our firm's website at: http://www.masudafunai.com/showarticle.aspx?show=6079.

 Unlike previous years, the DOS limited the registration period to 30 days. Previously, the DOS allowed a registration period of 60 days. After the registration period ends, foreign nationals will not be able to apply for the visa lottery until the fiscal year 2013 lottery opens in late 2011. In the past, the DOS has encountered a capacity problem when more applicants were attempting to apply for the visa lottery than the DOS servers could accommodate. Therefore, we strongly recommend eligible foreign nationals immediately apply for the visa lottery and not wait until immediately before the end of the registration period because the DOS servers may again not be able to accommodate all of the interested applicants.

Additional information about the results of the fiscal year 2012 visa lottery will be contained in our firm's future Immigration Updates when it becomes available in Spring 2011.

H-1B Quota for Fiscal Year 2011 Remains Available

The U.S. Citizenship and Immigration Services (USCIS) recently provided an update about the fiscal year 2011 (October 1, 2010 through September 30, 2011) H-1B Quota. The regular H-1B quota for fiscal year 2011 is 65,000. An additional 20,000 numbers are available in fiscal year 2011 to individuals who have earned U.S. Master's or higher degrees. As of October 22, 2010, the USCIS indicated that it has received approximately 44,300 petitions filed under the regular H-1B quota. It has also received approximately 16,200 petitions filed under the U.S. Master's or higher degree exemption. The USCIS appears to be receiving approximately 1,000 petitions each week filed against the regular H-1B quota and approximately 300 petitions each week filed against the U.S. Master's or higher degree exemption. The USCIS will continue to accept petitions filed towards the H-1B regular cap and U.S. Master's or higher degree exemption until the quota is met. During fiscal year 2010, the U.S. Master's degree or higher degree exemption was met first in September 2009. However, the regular H-1B quota was not exhausted for fiscal year 2010 until December 23, 2009.

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

USCIS Filing Fee Increase Becomes Effective on November 23, 2010

The USCIS recently reminded the public that the modification to its fee schedule becomes effective for applications or petitions post-marked or otherwise filed on or after November 23, 2010. Most of the USCIS fees are increasing due to the modification in the fee schedule. However, a few of the filing fees are decreasing. Additionally, the USCIS is adding additional fees for various services as part of this modification to its fee schedule. Detailed information about the modifications to the fee schedule is contained in our firm's Immigration Update dated June 7, 2010 which is available on our firm's website at: http://www.masudafunai.com/showarticle.aspx?Show=5867. The USCIS stated that the new fee schedule increases application and petition fees by an average of about 10%. However, the USCIS continues to emphasize that it is not modifying its naturalization application fee. The USCIS last modified its fees in July 2007 when it significantly increased all of its fees.

USCIS Will Cease To Accept Concurrently Filed Adjustment Of Status Applications In Religious Worker Program Effective November 8, 2010

USCIS recently announced how it will be implementing a court decision overturning a previous different court decision requiring the USCIS to accept the concurrent filing of adjustment of status applications with pending religious worker applications. The USCIS stated that as of November 8, 2010, it will no longer accept any Form I-485 adjustment of status applications, as well as Applications for Employment Authorization (Form I-765) and/or Applications for Travel Documents (Form I-131) filed concurrently with or based upon pending Form I-360 Petition for Amerasian, Widow(er) or Special Immigrant from individuals seeking classification as special immigrant religious workers. Since August 5, 2009, the USCIS has accepted concurrent adjustment of status filings from religious workers. However, due to a court decision reversing a different court decision requiring the USCIS to accept such concurrent filings, the USCIS stated that it will return to its previous policy which did not allow for concurrent filings in this type of case. However, instead immediately implementing the change, the USCIS indicated that the change will not become effective until November 8, 2010. After November 8, 2010, religious workers will only be able to file adjustment of status applications after their Form I-360 petitions are approved.

DOL Releases Statistics in its Temporary and Permanent Labor Certification Programs

The U.S. Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) recently released its processing statistics for fiscal year 2009 (October 1, 2008 through September 30, 2009). OFLC reviews and processes employer labor certification and labor condition applications under the H-1B, H-1B1, H-1C, D-1, H-2A, H-2B, E-3 and permanent labor certification programs.

In the permanent program, OFLC stated that there was a 40% decrease in fiscal year 2009 from the number of cases certified in fiscal year 2008. OFLC stated that the most significant decreases occurred in California, Texas and Illinois where the number of petitions approved declined over 45% from fiscal year 2008. Although the OFLC had a significant decrease in filings, its processing times increased in fiscal year in 2009 due to the "limited number of federal staff available to make final adjudicatory decisions."

In fiscal year 2009, there was a 35% decrease in the overall number of H-1B petitions certified. Positions in systems analysis in programming represented nearly 41% of the total H-1B certified positions. The top five states with the most approved LCAs were California, New York, New Jersey, Texas and Illinois. The largest decline in H-1B certified positions was seen in Michigan which experienced a 45% drop compared to fiscal year 2008. The DOL attributes the decrease in filings in its permanent and many of its temporary labor certification programs to the declining economy which has had an impact on employment throughout the United States.

DOS Release November 2010 Visa Bulletin – Little Movement in the Employment-Based Immigrant Visa Categories

The DOS recently released its November 2010 Visa Bulletin. Similar to the October 2010 Visa Bulletin, there is little advancement in all of the employment-based immigrant visa categories. It is assumed that this slow movement in the priority dates will continue to for at least for the first quarter of fiscal year 2011 as the DOS assesses the demand created by its rapid advancement of many of the employment-based immigrant visa categories in the last few months of fiscal year 2010.

The following is a comparison of the priority date movement since the beginning of the current regression in October 2005:

Oct 2005

Dec 2007

Jun 2008

Aug 2009

Sep 2010

Oct 2010

Nov 2010

EB-3 World

03/01/01

09/01/02

03/01/06

U

12/15/04

01/08/05

01/22/05

EB-2 China

05/01/00

01/01/03

04/01/04

10/01/03

05/08/06

05/22/06

06/01/06

EB-3 China

05/01/00

10/15/01

03/22/03

U

10/22/03

11/08/03

11/22/03

EB-2 India

11/01/99

01/01/02

04/01/04

10/01/03

05/08/06

05/08/06

05/08/06

EB-3 India

01/01/98

05/01/01

11/01/01

U

01/01/02

01/15/02

01/22/02

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

U

03/22/03

03/22/03

04/01/03

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

DOJ Reaches Largest Civil Settlement of Allegations of Immigration-Related Discrimination

The U.S. Department of Justice (DOJ) recently announced a settlement agreement with Catholic Health Care West (CHW) to resolve allegations that CHW engaged in a pattern or practice of citizenship status discrimination by imposing unnecessary and discriminitory hurdles to employment for work-authorized individuals.

According to the DOJ's findings, CHW required non-U.S. citizen and naturalized U.S. citizen new hires to present more and specific work authorization documents than required by federal law and permitted native born U.S. citizens to provide documents of their own choosing in the Form I-9 employment eligibility verification process. Under the terms of the settlement, CHW agreed to pay $257,000 in civil penalities and $1,000 in back pay to the charging party. Additionally, CHW also agreed to review its past I-9 practices at all of its 41 facilities in order to identify and compensate any additional victims of overdocumentation in the I-9 process who have lost wages as a result of the overdocumentation. Further, CHW agreed to train its recruitment personnel on its responsibilties not to discriminate and provide periodic reports to the DOJ for three years. CHW is the eighth largest hospital provider in the nation operating facilties in California, Nevada and Arizona. DOJ announced that the civil monetary penalities assessed against CHW were the largest amount of CMPs ever paid to resolve citizenship status employment discrimination.

USCIS Processing Times Exceed Stated Processing Times on the USCIS Website

The U.S. Citizenship and Immigration Services (USCIS) recently confirmed that processing times for some of its application types are currently exceeding the standard processing times indicated on the USCIS website. It appears that this is the case in particular with the adjudication of H-1B petitions, EAD applications and advance parole applications. The USCIS National Customer Service Center (NCSC) will not take a status inquiry if the application being inquired about is within the USCIS current processing times. The NCSC appears to have a different set of current processing times than what is stated on the USCIS website. USCIS headquarters has indicated that it will be investigating why the NCSC has a different set of processing times than what is indicated on the USCIS website so that information provided to the public is consistent with the information that the NCSC has. However, for many years, it appears that the NCSC has had a different processing times information than the USCIS has put on its website. The USCIS has indicated that it assumes that processing times for the back-logged applications will be reduced within the next few months as the number of filings has decreased within the past few months.

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

MFEM NEWS

Mr. Bob White to Speak at the NAFSA Region V Conference

Mr. Bob White of the MFEM Immigration Group will be speaking on a panel at the NAFSA Region V Conference being held in Detroit, Michigan. Mr. White will be participating on a panel discussing prevailing wage issues and trends in the H-1B and Permanent Labor Certification process. The other panelist who will be speaking during this session include Ms. Kara Johnson, Assistant Director in the International Student and Scholar Services Department at the University of Illinois at Urbana-Champaign and Mr. David Muusz, Assistant Director for Employee Services in the Office of International Affairs at the University of Chicago.