Business Immigration Monthly - February 2011

Date: 2/4/2011
 Business Immigration Monthly - February 2011

USCIS Announces that H-1B Quota has been Met for Fiscal Year 2011

On January 27, 2011, the U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B quota for Fiscal Year 2011 (October 1, 2010 through September 30, 2011) was met on January 26, 2011. Any petitions subject to the Fiscal Year 2011 H B quota will be rejected if received on or after January 26, 2011. Petitions subject to the Fiscal Year 2011 H-1B quota which were received on January 26, 2011 will be subject to a random selection process in order to ensure that the USCIS does not accept more than the statutorily available number of H-1B petitions for Fiscal Year 2011.

The H-1B quota for Fiscal Year 2011 was met approximately one month later than the H-1B quota for fiscal year 2010. The H-1B quota for fiscal year 2010 was met on December 23, 2009. However, the H-1B quotas for Fiscal Year 2008 and Fiscal Year 2009 were technically met in one day during the initial filing period. In Fiscal Year 2009, 166,000 H-1B petitions were received against the regular H-1B quota of 65,000 and the U.S. Master's exemption to the H-1B quota of 20,000.

The H-1B quota for Fiscal Year 2012 (October 1, 2011 through September 30, 2012) will open on April 1, 2011. The USCIS has unofficially indicated that it will be changing the submission process for petitions filed against the Fiscal Year 2012 H-1B quota. However, the USCIS still has not released official guidance about this change. Similar to Fiscal Years 2008 and 2009, if the USCIS receives more than the statutorily available number of H-1B quota petitions during the initial filing period, the USCIS will conduct a random selection process of all of the petitions received. The number of available quota petitions for Fiscal Year 2012 will remain the same as with the H-1B quotas for the past seven years.

Additional information about the Fiscal Year 2012 H-1B quota will be contained in our firm's future Immigration Updates when it becomes available.

DOS Releases February 2011 Visa Bulletin – Most of the Employment-Based Immigrant Visa Categories Continue to Slowly Advance

The U.S. Department of State (DOS) recently released its February 2011 Visa Bulletin. All of the employment-based immigrant visa categories (except for the EB-2 Indian national preference category) continued to slowly advance by a few weeks in the February 2012 Visa Bulletin. The most significant advancement occurred in the EB-3 Mexican national category which advanced from April 2003 to July 2003. As previously predicted by the DOS, the EB-2 Indian national preference category did not advance in the February 2012 Visa Bulletin. The DOS previously predicted that this category will not advance in the foreseeable future due to increased demand in this category.

The following is a comparison of the priority cut-off dates since the inception of the current retrogression in October 2005: 

Oct 2005

Dec 2007

Jun 2008

Aug 2009

Dec 2010

Jan 2011

Feb 2011

EB-3 World

03/01/01

09/01/02

03/01/06

U

02/22/05

03/22/05

04/01/05

EB-2 China

05/01/00

01/01/03

04/01/04

10/01/03

06/08/06

06/22/06

07/01/06

EB-3 China

05/01/00

10/15/01

03/22/03

U

12/08/03

12/15/03

01/01/04

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

01/22/02

02/01/02

02/22/02

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

U

04/22/03

04/22/03

05/01/03

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

DOS Sends Cable to Overseas Posts to Clarify the Adjudication of L-1B Blanket Visas

The DOS recently sent a cable to all of its posts providing additional guidance on the adjudication of L-1B Blanket visa applications. The DOS stated that it was releasing this guidance because it believed that clearer standards would allow for more consistent adjudications and to address the concern about the potential for inconsistent adjudicatory standards at different posts.

The cable confirmed that the statutory language defining L-1B "specialized knowledge" is not simple or clear. The DOS adopted the USCIS' standards for making specialized knowledge determinations. These include whether the knowledge is proprietary, whether the knowledge requirement was intended for "key" personnel, and whether the knowledge is "more than ordinary." Additionally, the cable addressed the issue of "job shops" in addition to the specialized knowledge criteria. The potential restriction for "job shops" in the L-1B category was added by the L-1 Visa Reform Act of 2004. The cable stated that in these types of situations, the determination of whether an employer-employee relationship exists is critical. The DOS stated that the essential element in determining the existence of an "employer-employee" relationship is the right of control. The cable reviews the two ways of determining this control for the posts.

The release of this cable may be seen by posts as a directive to more aggressively review L-1B Blanket visa applications. Employers that process L-1B blanket visa applications (especially employers that are consulting companies or could be classified as "job shops") may encounter additional issues and hurdles in processing L-1B visa applications for their employees.

ICE Opens New Employment Compliance Inspection Center – More I-9 Audits May Be on the Horizon

Immigration and Customs Enforcement (ICE) recently announced the creation of an Employment Compliance Inspection Center. The Center will be staffed by 15 auditors who will support ICE's worksite enforcement strategy by helping field offices around the country expedite Form I-9 audits of businesses. From Fiscal Year 2009 to present, ICE has initiated Form I-9 inspections against 3,769 businesses. The Center is being created to support field offices in their Form I-9 audits, in particular with audits of large businesses with a significant number of Form I-9s. It is assumed that ICE will be commencing more I-9 audits in the near future across the United States as part of its larger work site enforcement strategy.

USCIS Begins to Implement New VIBE Program

The U.S. Citizenship and Immigration Services (USCIS) recently announced that it would be beta-testing its new Validation Instrument for Business Enterprises (VIBE) Program. The USCIS stated that the web-based VIBE is a tool designed to enhance USCIS' adjudications of certain employment-based immigrant petitions. The USCIS has previously indicated that VIBE will be developing profiles of companies based in part upon information provided by Dun & Bradstreet. VIBE allows USCIS to electronically receive commercially available information including business activities, financial standing, number of employees, foreign affiliates, ownership and legal status, company executives, date of establishment as a business, and current physical address, to name a few. The USCIS stated that adjudicators will use the information provided from VIBE to verify the petitioner's qualifications. The USCIS has previously indicated that it will not summarily deny petitions based exclusively on information in the VIBE Program. Instead, if information provided by a petitioner is inconsistent with the information contained in the VIBE Program, the USCIS will issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) to resolve any inconsistencies. The USCIS stated that decisions will be based on the totality of the circumstances. The USCIS indicated that petitioners may now begin to see VIBE-related RFEs and NOIDs as part of the beta-testing. However, these RFEs or NOIDs may not specifically reference the inconsistent or adverse information contained in the VIBE Program. It is assumed that if a petition is denied based upon these inconsistencies or adverse information, the USCIS will provide this information to the petitioner so that it can fully assess whether to appeal a denial based upon faulty information contained in the VIBE Program.

Additional information about the further roll-out of the VIBE Program will be contained in our Firm's future Immigration Updates when it becomes available.

ICE Closes a University in California Based Upon Alleged Immigration Fraud – Approximately 1500 International Students Possibly Left Without Status

On January 19, 2010, Immigration and Customs Enforcement (ICE) agents raided Tri-Valley University (TVU) in Pleasanton, California. The ICE agents said the raids were linked to an ongoing criminal investigation into the school and its administration. According to a complaint filed in federal court, ICE's Student Exchange and Visitor Program (SEVP) approved the TVU's Form I-17 in February 2009. The complaint alleges that the Form I-17 contained false statements and misrepresentations. The complaint also alleges that the university is a sham university which is providing visa-related documents to foreign nationals in order to obtain student visas in return for tuition fees.

The complaint states that a site visit was completed as part of the Form I-17 petition process. The agent who completed the site visit confirmed capacity for approximately 30 students. However, as of January 2011, the University had approximately 1,555 active international students. Additionally, as of December 30, 2010, the TVU had an additional 969 international students in Initial status pending for the spring semester. Approximately 95% of the international students are Indian nationals. Additionally, according to the complaint, TVU indicated in the SEVIS System that most of the international students lived in one single apartment in California. The complaint alleges that TVU indicated this information in the SEVIS system because it knew that the students were not living in California. ICE agents have alleged that many of these students were actually "illegally" working in various parts of the country as far as Maryland, Virginia, Pennsylvania and Texas.

Since the raid and the filing of the complaint in federal court, ICE agents have met with some of the international students who were admitted to the United States to attend TVU. According to some of these students, their passports have been impounded and a tracking device has been fitted on their leg so that ICE agents can keep track of them. Because a majority of these students were from India, the Minister for Overseas Indian Affairs contacted the Department of State (DOS) and requested that ICE take a "lenient view because all of the students are innocent." SEVP was contacted by NAFSA: Association of International Educators to seek guidance from SEVP to assist advisors at other schools in responding to TVU's students seeking assistance in transferring to their schools. SEVP indicated that they anticipate providing more information on their website "soon". However, the SEVP website has not yet been updated. It is assumed that ICE is having internal discussions about whether the TVU's students were maintaining their status and are eligible for either transfer to other schools or to apply for a change of status.

The raid and immediate closure of the University is not consistent with the F-1 regulations regarding withdrawing universities from SEVIS authorization. Therefore, ICE may not be willing to provide the students with the opportunity to transfer to another university or change status as provided by the F-1 regulations as part of the SEVIS withdrawal process.

Additional information about the TVU closure and its effect on its international students will be contained in our Firm's future Immigration Update when it becomes available.

MFEM NEWS

Masuda Funai Successfully Defends School Against SEVP's Withdrawal on Notice from SEVIS Program

Masuda Funai has successfully defended a school against SEVP's attempt to withdraw the school from the SEVIS program.

In 2008, SEVP issued a 24 page Withdrawal on Notice (WON) against a school alleging numerous violations of the F-1 Program. With the assistance of Masuda Funai, the school responded to the WON stating that the violations alleged in the WON either were not supported by the F-1 regulations and/or were not intentional and thus should not result in the school being withdrawn from the SEVIS program.

In January 2011, the SEVP Appeals Team issued a decision agreeing with the school's (and Masuda Funai's) contention that it did not violate the F-1 regulations. The Appeals Team condensed the 24-page WON into 7 primary allegations. The Appeals Team concluded that six of the seven allegations were not supported by the F-1 regulations as they existed when the WON was issued. On the last allegation, SEVP decided in its discretion that the severity of the offense was not such to warrant the withdrawal of the school from the SEVIS program. Therefore, SEVP agreed to withdraw the WON and to allow the school to continue in the SEVIS program.

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 in the Immigration Group Section of our Firm's website at www.masudafunai.com.