Business Immigration Monthly - April 2011

Date: 4/11/2011
 Business Immigration Monthly - April 2011

Fiscal Year 2012 H-1B Quota Remains Open after the Initial Filing Period – USCIS Receives a Record Low Number of Petitions During the Initial Filing Period

The U.S. Citizenship and Immigration Services (USCIS) recently announced that the H-1B Quota for Fiscal Year 2012 (October 1, 2011 through September 30, 2012) was not met during the initial filing period (April 1, 2011 through April 7, 2011). Therefore, the USCIS stated that it continues to accept H-1B nonimmigrant petitions that are subject to the Fiscal Year 2012 H-1B cap.

Similar to previous years, the regular H-1B quota for fiscal year 2012 is limited to 65,000. The exemption from the H-1B quota for individuals who have earned U.S. Master's or higher degree is limited to 20,000. As of April 7, 2011, the USCIS received approximately 5,900 H-1B petitions counted against the regular H-1B quota. The USCIS also received approximately 4,500 petitions requesting the exemption from the U.S. Master's Degree quota. These numbers represent a significant decrease in the number of H-1B petitions filed against either the regular H-1B quota or the U.S. Master's exemption from the H-1B quota during the initial filing period of previous H-1B quotas. It is assumed that this significant decrease is due to multiple factors including, but not limited to, the fact that the fiscal year 2011 H-1B quota was only met on January 26, 2011; the continuing struggling U.S. economy; and the introduction of an enhanced H-1B Fraud Fee for companies that have significant number of H-1B or L nonimmigrants.

The USCIS indicated that it will continue to accept H-1B petitions subject to the H-1B quota for fiscal year 2012 until it receives a sufficient number of petitions to meet the statutory numerical limitation. The USCIS indicated that premium processing cases filed during the initial filing period are undergoing the 15-day processing period guaranteed by the premium processing program beginning at the end of initial filing period on April 7, 2011. Non-premium processing cases will be processed based on the date that they were physically received at the correct USCIS Service Center.

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 May 2011 Visa Bulletin – Advancement Occurs in all Employment-Based Immigrant Visa Categories including the EB-2 Indian National Preference Category

The U.S. Department of State (DOS) recently released its May 2011 Visa Bulletin. As discussed in our previous Immigration Updates, the DOS has advanced all of the employment-based immigrant visa categories. The employment-based immigrant visa category most significantly advanced is the Indian national EB-2 category. For approximately the past six months, the EB-2 preference category has not advanced. However, due to a lack of demand in the EB-1 category, the leftover numbers have been allocated to the EB-2 category. Therefore, the DOS was able to advance the EB-2 Indian national preference visa category by approximately two months to July 1, 2006.

In the May 2011 Visa Bulletin, the DOS also predicted movement in the employment-based immigrant visa categories for the next few months. In the EB-2 Chinese national category, the DOS stated that the category may either not advance or advance up to three weeks through July 2011. In the EB-2 Indian national preference category, the DOS stated that the category may advance by one or more weeks depending upon demand. The DOS stated that it is unable to predict longer term demand in the EB-2 Indian national category at this time due to an unknown number of "upgrades" from the EB-3 Indian national category to the EB-2 Indian national category. These upgrades may create significant demand in the EB-2 Indian national category and thus not allow the DOS to continue to advance the category.

In the EB-3 category, the DOS stated that it estimates that in the near future, it will advance the Worldwide category the 3 to 6 weeks; the Chinese national category 1 to 2 weeks; the Indian national category from none to 2 weeks; and the Filipino national category 3 to 6 weeks. The DOS could not provide specific projections for the EB-3 Mexican national category.

The following is a comparison of the employment-based priority date movement since the inception of the current retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

Aug 2009

Feb 2011

Mar 2011

May 2011

EB-3 World

03/01/01

09/01/02

03/01/06

U

04/01/05

07/01/05

08/22/05

EB-2 China

05/01/00

01/01/03

04/01/04

10/01/03

07/01/06

07/08/06

08/01/06

EB-3 China

05/01/00

10/15/01

03/22/03

U

01/01/04

01/22/04

04/15/04

EB-2 India

11/01/99

01/01/02

04/01/04

10/01/03

05/08/06

05/08/06

07/01/06

EB-3 India

01/01/98

05/01/01

11/01/01

U

02/22/02

03/15/02

04/15/02

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

U

05/01/03

06/15/03

09/08/03

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

USCIS Implements Interim Procedures for Determining H-1B Cap Exemptions

The USCIS recently announced that in response to recent stakeholder feedback, that it is reviewing its policy on H-1B Cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. The USCIS stated that until further guidance is issued, the USCIS will temporarily apply interim procedures to H-1B non-profit entity petitions filed seeking an exemption from the H-1B quota based on an affiliation with or a relation to an institution of higher education.

Pursuant to this interim guidance, the USCIS stated that it will give deference to prior determinations made since June 6, 2006 that a non-profit entity is related to or affiliated with an institution of higher education, absent any significant change in circumstances or clear error in the prior adjudication. The petitioner has the burden to show its organization previously received approvals of its request for H-1B cap exemptions as a non-profit entity that is related to or affiliated with an institution of higher education. This burden may be satisfied by providing the USCIS with a copy of previous approval notices issued since June 6, 2006 with any documentation that was submitted with the underlying petition in support of the claimed cap exemption. Additionally, the USCIS recommended that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

The USCIS emphasized that this procedure will only remain in place on an interim basis and that the USCIS will engage the public on any forthcoming guidance on this issue.

DOL Imposes Significant Penalty Against Public School District Charged with Violating Provisions of the H-1B program

The U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) recently concluded that Maryland's Prince George's County Public School District System willfully violated the H-1B program regulations. The WHD Investigators found that the school district illegally reduced the wages of H-1B teachers by requiring them to pay the fees and costs in the program. The DOL stated that all employers, including school districts, are required to follow the law and had the duty to pay every teacher hired the full wages. Because the DOL determined that the violations were willful in nature, the DOL assessed Civil Monetary Penalties (CMP) in excess of $1.7 million. The CMPs were in addition to ordered back wages in access of $4.2 million. The WHD also recommended that the school district be debarred from filing new petitions, requests for H-1B extensions or "green card" application.

USCIS Indicates that TARP Question on the H-1B Data Collection Filing Fee Exemption and Supplement Form is No Longer Required

The USCIS recently announced that employers no longer have to complete the Trouble Asset Relief Program (TARP) question in Part A of the H-1B Data Collection Filing Fee Exemption Supplement Form. The USCIS indicated that the Employ American Workers Act (EAWA) had mandated additional requirements on H-1B petitioners who receive covered funding. However, the EAWA requirements ended on February 16, 2011. Therefore, the USCIS indicated on its website that petitions requesting employment start dates of February 17, 2011 or later no longer have to contain information about the petitioner's compliance with the EAWA.

DOL Proposes Revisions to H-2B Program

The DOL recently released a proposed regulation to "improve" the H-2B program. The DOL stated that the proposed rule includes changes to several aspects of the program to "ensure" that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program and to provide better access for employers with legitimate labor needs.

The DOL stated that in order to "streamline and improve" the program for employers, the proposed rule would create an H-2B registration process that will allow employers to conduct labor market tests closer to their date of need before applying for a temporary labor certification. The proposed rule would also eliminate job contractors as users of the program.

The proposed rule would also "improve U.S. worker's access to jobs and increase worker protections" by: 1) Creating a national job registry for all H-2B job openings; 2) Requiring employers to provide documentation that they have taken appropriate steps to recruit U.S. workers, rather than permitting employers to attest to such compliance as contained in the current program; 3) Enhancing transparency by requiring employers to submit agency agreements for the use of foreign recruiters; 4) Reinstating the role of state workforce agencies in providing expertise on local labor market conditions and recruitment patterns to the federal DOL; and 5) Increasing the amount of time during which U.S. workers must be recruited. The proposed rule also enhances the DOL's WHD by giving it independent debarment authority of employers found violating the H-2B program during its enforcement actions.

Additional information about any final changes to the H-2B program will be contained in our firm's future Immigration Update when it becomes available.

USCIS Implements Validation Instrument For Business Enterprises ("VIBE") Program

As previously reported in Masuda Funai's Immigration Update, USCIS has implemented the Validation Instrument for Business Enterprises ("VIBE") Program. The VIBE Program accesses the Dun & Bradstreet ("D&B") database to obtain independent information regarding companies filing nonimmigrant and immigrant petitions with USCIS. D&B is a public company that provides information on business and corporations for use in credit decisions and maintains a database on more than 190 million companies globally using a variety of sources including public records, trade references, telephone interviews, newspaper publications and other sources. However, D&B's database is not 100% accurate and has resulted in the USCIS sending Requests for Evidence ("RFE") to petitioning companies when the information in the VIBE Program cannot verify certain company information. Unfortunately, the use of the VIBE Program by USCIS now results in the issuance of RFEs based upon inaccurate and inconsistent information. These RFEs then result in delays in the adjudication of the company's petition.

For these reasons, we recommend the following actions:

  1. If your company is already registered with D&B, procure a copy of the company's D&B report at http://www.dnb.com through the "Update your Company's Profile" tab. Please carefully review and correct any inaccuracies in the D&B information. (Please note that our firm can only review whether the company is listed in the D&B database and we are unable to view and correct the company's information.)
  2. Companies should assure that the information submitted with the petitions filed on behalf of their employees is consistent and updated with the D&B information to the extent possible.
  3. Companies are not required to register with D&B, therefore, if your company is not listed in the database, the company will have to provide documentation to the USCIS evidencing the company's existence and information submitted in the petition.
  4. Companies with approved L-1 blanket petitions should consider using the approved blanket petition to process individuals for L-1 status because the individual can apply for the L-1 visa stamp directly at the U.S. Embassy or Consulate without the need to have a petition first reviewed by USCIS. A company that does not have an approved L-1 blanket petitions may wish to consider whether the company and its transferees can qualify for such benefits.
  5. For those companies and their employees that may qualify, as an alternative to L, H or similar visa petition, the company should consider applying for E visas directly with the U.S. Embassy or Consulate and avoid the need to seek USCIS prior review and approval.

If you have any questions or require further assistance, please contact the Immigration Practice Group at Masuda, Funai, Eifert & Mitchell, Ltd at 847.734.8811.

U.S. Embassy/Consulate in Japan Update

The U.S. Embassy in Tokyo continues to be burdened with the emergency situation in Japan. As of March 18, 2011, non-immigrant visa applicants are advised of the following:

If you are a nonimmigrant visa applicant, have already scheduled an interview appointment in March and the following applies to you, you should attend your scheduled interview:

  • F, M or J classification and must register with their educational institutions before the end of March
  • H, L or E classification

Tourist or Transit visa applicants who have scheduled interviews are being advised that they may not be interviewed.

All applicants that have still not scheduled interviews are being advised to schedule their interviews after April.

Workers will be Soon Able to Verify their Own Work Authorization through E-Verify Self-Check

The federal government will institute the E-Verify Self-Check program allowing individual workers to check their own employment eligibility via a link on the E-Verify, USCIS website and Department of Homeland Security website. The program will begin on Monday, March 21, 2011 initially in five states: Arizona, Colorado, District of Colombia, Idaho, Mississippi and Virginia. The Self-Check program uses identity information that is publicly and privately known (similar to running a credit report) to first ensure the identity of the individual accessing the system. The program will then provide the individual with confirmation as to any inconsistencies in their authorization to legally work in the United States.

The goal of the Self-Check program is to ensure greater transparency by giving the individual worker more access to his/her own information that is kept in government databases. The federal government hopes that this will result in less tentative nonconfirmations (TNCs) for employers who use E-Verify. However, because the program relies solely on the individual worker's motivation to check his/her employment authorization, the use for employers is limited. The individual must access the system out of their own accord and if any inconsistencies are found, the individual must voluntarily visit their local Social Security or US Citizenship and Immigration Services field office to resolve it. Further, the system is useful only to individuals who have been present in the United States for a significant period of time since the identity assurance process pulls information kept by private credit agencies. Therefore, a foreign national newly arrived in the United States may not have sufficient identity markers to get past the identity assurance process.

The Self-Check program will be instituted in phases. Please continue to follow our posts for updated information.