Business Immigration Monthly - May 2011

Date: 5/6/2011
 Business Immigration Monthly - May 2011

H-1B Quota for Fiscal Year 2012 Remains Available

The U.S. Citizenship and Immigration Services (USCIS) recently provided an update about the Fiscal Year 2012 (October 1, 2011 through September 30, 2012) H-1B quota. Similar to past years, the regular H-1B quota is limited to 65,000 with an additional 20,000 available for individuals who have earned U.S. Master's or higher degrees. Employers are allowed to begin filing six months prior to the beginning fiscal year 2012 on October 1, 2011, namely on April 1st, 2011. The initial filing period for the Fiscal Year 2012 H-1B quota was from April 1, 2011 through April 7, 2011. During this time, the USCIS receipted approximately 5,900 petitions as indicated in our firm's Immigration Update dated April 11, 2011. This number of filings received by the USCIS during the initial filing period were significantly less than the filings received during the initial filing periods of previous H-1B quotas.

On April 29, 2011, the USCIS provided an update on the number of filings that it has received against the quota. As of this date, the USCIS has received approximately 9,200 petitions filed against the regular H-1B quota with an additional approximately 6,600 petitions filed requesting the U.S. Masters or higher degree exemption from the quota. The USCIS is receiving approximately 1,200 petitions a week filed against the regular H-1B quota with an additional approximately 700 petitions filed requesting the U.S. Masters or higher degree exemption. The USCIS will continue to accept petitions until the regular H-1B quota and the U.S. Masters or higher degree exemption from the quota is met.

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

USCIS Expands its Secure Mail Initiative

The USCIS recently announced that it is fully implementing its Secure Mail Initiative (SMI) which uses U.S. Postal Service Priority Mail with delivery confirmation to deliver certain immigration documents in a safe, secure and timely manner. The USCIS was previously using SMI to deliver Permanent Resident Cards and Re-Entry Permits. The USCIS has now expanded the program to include Employment Authorization Documents.

Through SMI, USCIS customers may be able to track the delivery of the previously mentioned immigration documents. The USCIS encourages its customers to wait at least two weeks after being notified of an approval of one of these documents before contacting it to request delivery confirmation information. After two weeks, if the customer has not received the document, the customer may contact the USCIS' Customer Service Center to request the tracking information. The customer can then track the document through the U.S. Postal Service. If the document is lost by the U.S. Postal Service, the USCIS may be more willing to issue a duplicate document without fee if it can be evidenced that the document was lost in the mail.

OSC Announces Settlement of Allegations of Immigration-Related Employment Discrimination

The U.S. Department of Justice's (DOJ) Office of Special Counsel (OSC) recently announced that it has reached a settlement with the corporate owner of several Wendy's restaurants in Maine to resolve allegations that at least one of its restaurants engaged in employment discrimination by refusing to hire individuals believed to be non-U.S. citizens. According to the OSC, this owner instituted a policy refusing to hire work authorized individuals whom were believed to be non-U.S. citizens. The OSC stated that the Immigration Nationality Act (INA) generally prohibits discrimination in hiring against authorized workers on the basis of citizenship status. Under the terms of the settlement, the owner agreed to pay $14,500 in back wages plus interest to a victim of the owner's policies plus $3,200 in civil penalties.

DHS Effectively Ends Current NSEERS Program

The Department of Homeland Security (DHS) recently announced the elimination of a list of countries whose nationals have been subject to registration under the National Security Entry-Exit Registration System (NSEERS). NSEERS was first implemented in 2002 as a temporary measure after the September 11, 2001 terrorist attacks to record the arrival, stay and departure of certain individuals from countries chosen based upon an analysis of possible security threats. NSEERS required individuals from these countries to complete a special registration in secondary inspection during each arrival and to depart from one of 118 designated ports in order to check out of the system. However, DHS stated that since the creation of NSEERS, DHS has implemented several automated systems that capture arrival and/or exit information making the manual entry of data through NSEERS redundant. DHS stated that the improved and expanded systems capture the same information for visitors regardless of nationality. Therefore, DHS stated that nonimmigrant nationals and citizens who were previously subject to the NSEERS registration requirements are no longer required to comply with these requirements, including the requirement that they exit through the designated ports-of-entry. Therefore, DHS stated that citizens from these countries will no longer be registered under NSEERS and no longer subject to any of the NSEERS requirements. However, DHS did not withdraw the underlying NSEERS regulation in the event that a special registration program is again needed in the future.

School President Indicted for Student Visa Fraud Scheme

Immigration and Custom Enforcement (ICE) recently announced that a federal grand jury has indicted the President of Tri-Valley University on 33 criminal counts, including visa fraud, money laundering, and alien harboring. The indictment is a result in a two-year investigation by ICE's Homeland Security Investigations (HSI). As discussed in our firm's Immigration Update dated February 1, 2011, ICE closed Tri-Valley University in January 2011 for allegedly committing numerous violations of the F-1 regulations. After closing the school, ICE also filed a complaint in federal court to seize the real estate assets of the school and its President. In the indictment against the school's President, the President is accused of engaging in a scheme to defraud the Department of Homeland Security (DHS) by submitting phony documents in support of Tri-Valley University's application to admit foreign nationals on F-1 student visas in exchange for the students' tuition and fees. The President was taken into custody by ICE special agents. The 33 counts contained in the indictment carry maximum penalties ranging from 1 to 20 years of imprisonment.

Additional information about the closure of Tri-Valley University, the indictment of the University's President and its affect on the students previously admitted to the University will be contained in our firm's future Immigration Updates when they become available.

Staffing Companies Settles Allegations of Immigration-Related Employment Discrimination

A staffing company in Iowa has entered into an Agreement with the U.S. Department of Justice's (DOJ) Office of Special Council (OSC) to resolve allegations that it engaged in employment discrimination by improperly pre-screening job applicants and rejecting valid work authorized documents presented by immigrant workers. The OSC determined that the staffing company did not permit job applicants to begin the application process unless they were able to present documents sufficient to establish their employment eligibility and further failed to permit at least one individual who presented a valid Employment Authorization Document (EAD) to apply for employment. Under the terms of the settlement, the staffing company has agreed to pay a civil monetary penalty and full back pay to the injured party. The company also agreed to provide periodic reports to the OSC on its training of its human resources personnel about employers' non-discrimination responsibilities in the Form I-9 process.

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

Apr 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.