Business Immigration Monthly - March 2011

Date: 3/3/2011
 Business Immigration Monthly for the Month of March 2011

USCIS Proposes New Pre-Registration Procedure for H-1B Quota Cases

The U.S. Citizenship and Immigration Services (USCIS) recently released a proposed regulation which would establish an advance registration system for H-1B quota cases. The advanced registration system would only apply to H-1B quota cases and would not apply to H-1B petitions not subject to the quota. The USCIS indicated that it was proposing this new system in order to save U.S. businesses more than $23 million over the next ten years by minimizing administrative burdens and expenses related to H-1B quota petition filings.

Under the proposed system, employers seeking to petition for H-1B workers subject to the H-1B quota would first register certain information electronically with the USCIS. The USCIS indicated that the process would take only 30 minutes to complete. After the electronic registration period ended, the USCIS would then select the number of registrations estimated to exhaust all available visa numbers under the H-1B quota. This selection process would be completed before the H-1B filing period would commence. Employers who then had their registration selected would have to file H-1B petitions with all supporting documentation (including an approved Labor Condition Application (LCA) approved by the U.S. Department of Labor (DOL)) with the USCIS by a certain deadline. It is assumed that the USCIS would allow sufficient time for employers to process the petitions after being selected.

The USCIS emphasized that this is a proposed regulation. The regulation will not go into effect for the fiscal year 2012 H-1B quota which opens on April 1, 2011 (with petitions with start dates of October 1, 2011). Instead, the USCIS will allow a 60 day comment period. The USCIS will then release a final regulation. The USCIS indicated that if the final regulation is published by January 2012, the USCIS could implement the new registration system for the fiscal year 2013 H-1B quota season which would open on April 1, 2012.

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

Fiscal Year 2012 H-1B Quota to Open on April 1, 2011 – Employers Should Now Be Preparing Their H-1B Quota Petitions for Foreign National Employees who are Subject to the H-1B Quota

The H-1B Quota for Fiscal Year 2012 (October 1, 2011 through September 30, 2012) will open on April 1, 2011. The initial filing period for the new quota season will be April 1, 2011 through April 7, 2011. If the USCIS receives more than 65,000 petitions subject to the H-1B regular quota or more than 20,000 petitions requesting the U.S. Master's or higher degree exemption from the H-1B quota, the USCIS will then conduct random selection processes on the petitions received during the initial filing period. If this occurs, the USCIS will only then adjudicate petitions that are selected in the random selection process. Petitions that are not selected through the random selection processes will then be returned unadjudicated.

For the past two fiscal years, the H-1B quota has not been met during the initial filing period due in part to the country's depressed economy and the more aggressive review of H-1B petitions by the USCIS. However, as the country's economy improves, there is a greater likelihood that the H-1B quota will be met sooner. Please note that in fiscal year 2009, more than 166,000 petitions were filed against the regular H-1B quota and the U.S. Master's or higher degree exemption from the quota. Therefore, our firm encourages employers with foreign national employees who are subject to the quota to file H-1B petitions during the initial filing period in order to increase the likelihood that the petition will be selected under the H-1B quota.

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 March 2011 Visa Bulletin – Slow Movement Continues in Most Employment-Based Immigrant Visa Categories

The U.S. Department of State (DOS) recently released its March 2011 Visa Bulletin. Most of the employment-based immigrant visa categories either slowly advanced or did not advance at all. The greatest advancement was in the EB-3 World Category which advanced from April 2005 to July 2005. However, as has been the case for the past few months, the EB-2 Indian national category did not advance. This is consistent with guidance previously provided by the DOS which indicated that this category will not be advancing for the foreseeable future due to increased demand in the category.

The following is a comparison of the movement in the employment-based Immigrant Visa categories since the inception of the current retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

Aug 2009

Jan 2011

Feb 2011

Mar 2011

EB-3 World

03/01/01

09/01/02

03/01/06

U

03/22/05

04/01/05

07/01/05

EB-2 China

05/01/00

01/01/03

04/01/04

10/01/03

06/22/06

07/01/06

07/08/06

EB-3 China

05/01/00

10/15/01

03/22/03

U

12/15/03

01/01/04

01/22/04

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

02/01/02

02/22/02

03/15/02

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

U

04/22/03

05/01/03

06/15/03

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

USCIS Modifies Filing Location for Change of Address Forms

The USCIS recently indicated that it will be changing the filing address of all Change of Address forms (Form AR-11 and Alien's Change of Address forms (Form AR-11SR) for Special Registrants) effective March 15, 2011. All non-U.S. citizens (including lawful permanent residents) must notify the USCIS of address changes within ten days of moving. Foreign nationals may notify the USCIS online at www.uscis.gov/ar-11. However, foreign nationals do have the option to mail the Form AR-11 to the USCIS at the following new filing address effective March 15, 2011:

DHS/USCIS

Harrisonburg File Storage Facility

Attention: AR-11

1344 Pleasants Drive

Harrisonburg, VA 22801

DOS Begins Site Visits at Academic J-1 Exchange Visitor Programs

The DOS has recently commenced onsite reviews of the largest academic and private sector exchange visitor programs. These onsite reviews are being funded using a portion of the J-1 program designation re-designation fee increase that occurred last October. Several schools have received notice of the onsite reviews along with a check list with the items that the DOS' Exchange Visitor Program (EVP) is requesting from the programs before the site visit. It has been announced that the site visits will take place at the 21 largest academic and government programs sponsors which account for approximately 25% of the total J-1 participants. According to the notice that has been sent out by DOS, the visits will last approximately two days and the programs have been asked to make staff available for interviews and to review documents.

USCIS Announces the Issuance of a Single EAD and Advance Parole Card

The USCIS has indicated that it will begin issuing to certain adjustment of status applicants a single card evidencing employment authorization and Advance Parole travel authorization. Applicants will still be required to file to separate applications with the appropriate fees (if required). However, if both applications are submitted concurrently, the USCIS may issue the single card. The USCIS has cautioned that applicants may only apply for either an EAD renewal or Advance Parole renewal four months prior to the expiration of their current documents. Therefore, if the documents do not expire around the same time, the applicants will be unable to concurrently file for the new single document. If applicants are not eligible for the new single card, they will still continue to receive separate EAD and Advance Parole documents.

USCIS Continues with VIBE Beta Testing

As discussed in our firm's Immigration Update dated February 1, 2011, the USCIS is currently beta testing the Validation Instrument for Business Enterprises (VIBE) program. The VIBE program accesses the Dun & Bradstreet database to obtain information about companies during the adjudication of both immigrant and nonimmigrant employment-based immigrant visa petitions. The USCIS has developed a VIBE Request for Evidence (RFE) template when the program can not verify the existence of a company based upon information or lack of information in the Dun & Bradstreet system. Our firm has begun to receive numerous VIBE RFEs for both small companies and also companies that are publicly traded and have revenues in access of $1 billion. These companies are being asked to update their information in Dun & Bradstreet in order to avoid future VIBE RFEs pertaining the existence of the company. Some of these companies have contacted Dun & Bradstreet and have verified that their information is accurate in the Dun & Bradstreet system. However, it is unclear if the USCIS is receiving complete and accurate information from Dun & Bradstreet and populating it into the VIBE system. So far, it appears that the beta testing for Form I-129 petitions is occurring at the USCIS Vermont Service Center and the beta testing for the Form I-140 petitions is occurring at the USCIS Texas Service Center.

MFEM News

MFEM 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.

Additional information about the USCIS implementation of the VIBE program and its effect on the adjudication of employment-based petitions will be contained in our firm's future Immigration Updates when it becomes available.