Business Immigration Monthly - August 2011

Date: 8/8/2011
 Business Immigration Monthly - August 2011

ICE Raids Another University and Withdraws SEVIS Access

On Thursday, July 29, 2011, Immigration Custom Enforcement's (ICE) Homeland Security Investigation (HSI) Agents raided offices of the University of Northern Virginia. The University of Northern Virginia is an unaccredited for-profit private university. According to news reports, the University calls itself "the most popular American University for students from India" and thousands of students are registered at three locations in Northern Virginia.

ICE Agents removed boxes of documents from one of the University's campuses. Additionally, ICE served school officials with a Notice of Intent to Withdraw (NOIW) its SEVIS certification. ICE's Student Exchange Visitor Program (SEVP) also terminated the school's access to the SEVIS system. According to its regulations, in most instances, SEVP will not terminate SEVIS access until a school has had a chance to respond to an NOIW, a Withdraw on Notice, any subsequent appeals and is given a time frame to transition students who would like to be transferred to another SEVIS certified institution. However, in this case, SEVP terminated the school's SEVIS access at the initial stages of attempting to withdraw the school's SEVP certification. Upon terminating its access, SEVP sent a blast notice through the SEVIS system to other SEVIS certified institutions. In this notice, SEVP stated that the University of Northern Virginia's students had two choices: 1) continue to attend classes and maintain active status in a manner required by the regulations; or 2) transfer to another SEVP certified institution. SEVP also stated that students who are not continuing to attend classes or transferring to another SEVP certified institution must immediately depart the United States. Because the school's officials no longer have access to the SEVIS system, SEVP stated that students with questions about their options should contact the SEVP Response Center at (703) 603-3400

This is the second school that has been raided and had its SEVIS access terminated upon issuance of an NOIW within the past nine months. In January 2011, ICE raided Tri-Valley University in California and upon serving the school with the NOIW, it withdrew the school's SEVIS access. In the Tri-Valley case, the University President has been charged criminally and arrested for allegedly violating various F-1 regulations. ICE HSI has indicated that no charges has been filed nor individuals arrested yet in the University of Northern Virginia case. However, ICE HSI indicated that the school is still being investigated to confirm whether it has violated various federal regulations in the administration of the F-1 student visa process. ICE HSI is currently actively contacting University of Northern Virginia students to discuss the University and its F-1 program.

Additional information about the University of Northern Virginia case will be contained in future Immigration Updates when it becomes available.


Entrants in the Fiscal Year 2012 Diversity Visa Lottery Can Now Determine if They "Won" the Lottery

Entrants in the Fiscal Year 2012 (October 1, 2011 through September 30, 2012) Diversity Visa Lottery can now access the Department of State's (DOS) website in order to determine whether they have "won" the lottery. As indicated in our firm's previous Immigration Updates, the DOS will not be notifying "winners" of the fiscal year 2012's visa lottery by mail. Instead, the only way to determine if an entrant in the lottery has actually "won" the lottery is to access the DOS' Diversity Visa website at www.dvlottery.state.gov. Entrants will need to use the information from their Diversity Visa Lottery confirmation pages saved at the time of the entry. The results of the lottery will be available on the DOS website through June 30, 2012. If an entrant has lost his/her confirmation information, he/she will not be able to check his/her lottery entry status. The DOS' indicated that it will not be able to resend the confirmation page information.

There are numerous fraudulent companies that are sending emails indicating that for a fee they can determine if an entrant has "won" the fiscal year 2012 visa lottery. However, these companies are engaged in a scam because the DOS has not release this information to any outside entity. Entrants should not pay a company in order to determine whether they have "won" the visa lottery. Instead, entrants must access the DOS' Diversity Visa Lottery website as indicated above to determine if they have "won" and if so, how they should proceed to complete the "green card" process. All entrants of the Fiscal Year 2012 Diversity Lottery who have "won" must complete the "green card" process by September 30, 2012, if otherwise eligible.

The next visa lottery for Fiscal Year 2013 will most likely open in October 2011. Please check our firm's Immigration Updates in August or September 2011 for detailed information about the Fiscal Year 2013 Diversity Visa Lottery.

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 July 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 22,700 petitions filed against the regular H-1B quota with an additional approximately 13,800 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.

DOS Releases August 2011 Visa Bulletin – Most Employment-Based Immigrant Visa Categories Continue to Progress

The U.S. Department of State (DOS) recently released its August 2011 Visa Bulletin. Most of the employment-based immigrant visa categories continue to progress because the DOS wants to ensure that all of the available employment-based immigrant visa numbers available in Fiscal Year 2011 (October 1, 2010 through September 30, 2011) are used. The most significant advances again occurred in the EB-2 category for Indian and Chinese nationals. These categories moved to April 15, 2007. It is assumed that the categories will again advance next month as the DOS is using numbers in the EB-1 category which have gone unused. However, it is assumed that at the beginning of the government's next fiscal year beginning on October 1, 2011, the advancement in these categories will significantly diminish (if not stop) due to the heavy demand in these categories.

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



Dec 2007

Jun 2008

Aug 2009

Mar 2010

June 2011

July 2011

Aug 2011

EB-3 World

09/01/02

03/01/06

U

12/15/02

09/15/05

10/08/05

11/01/05

EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

10/15/06

03/08/07

04/15/07

EB-3 China

10/15/01

03/22/03

U

12/15/02

05/15/04

07/01/04

07/08/04

EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

10/15/06

03/08/07

04/15/07

EB-3 India

05/01/01

11/01/01

U

07/01/01

04/22/02

05/01/02

06/01/02

EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

09/15/05

11/22/04

05/01/05

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

DOL Appears to Have Temporarily Suspended Issuing Prevailing Wage Determinations for the H-1B and PERM Programs

The U.S. Department of Labor (DOL) has indicated that due to a recent court decision, it was required to change its methodology for determining prevailing wages in the H-2B program. In its H-2B regulation released on August 1, 2010, the DOL stated that it is required to reissue approximately 4,000 H-2B prevailing wage determination which meet the new wage methodology ordered by the court. The DOL indicated that it is required to issue supplemental prevailing wage determinations using the new methodology not only for all applications received after the new effective date but also for existing certifications for which work is to be performed on or after the effective date. The DOL stated that there is no automated method for it to connect prevailing wage determinations with H-2B applications which were subsequently filed and approved.

Therefore it will have to manually issue the supplemental determinations. Due to the amount of manual work which will be required to issue these more than 4,000 H-2B supplemental prevailing wage determinations, it is assumed that the DOL will not be processing prevailing wage determinations for PERM and H-1B applications in the near future. However, the DOL has not confirmed if it has temporarily suspended the processing of prevailing wage determinations in the H-1B and PERM programs. The last prevailing wage determination for a PERM application that was received by our office was filed with the DOL on June 7, 2011.

Additional information about the status of the DOL's prevailing wage determination process will be contained in our firm's future Immigration Updates when it becomes available.

ICE SEVP Clarifies Previously Allowed Exemption from the Full Course of Study Requirement for Certain Colleges

ICE SEVP recently provided clarification as to an exception that it made to the full course of study requirement in the F-1 program. Due to significant budget decreases in 2008 and 2009, the California Community Colleges requested that SEVP allow its students to take more than one on-line course of study in order to meet their full course of study requirement in the F-1 program. The F-1 regulations prohibits students from taking more than one on-line course of study (or three credit hours) per term. On October 2, 2009, the SEVP Director issued a formal decision allowing F-1 students enrolled in SEVP-certified California Community Colleges to take more than one on-line course towards meeting the full course of study requirement. In its response to a Notice of Intent to Withdraw (NOIW), Tri-Valley University cited to this decision as legal justification for allowing its students to take more than one on-line course as part of their full course of studies. However, SEVP recently clarified that the SEVP Director decision only applied to the Fall 2009 term for F-1 students enrolled in the California Community College system. The recent SEVP notice indicated that the California Community Colleges did not seek to renew this exemption in Spring 2010. Therefore, SEVP indicated that all F-1 students enrolled any of the California Community Colleges must meet the full course of study requirements as provided by the F-1 regulations.

BALCA Issues Decision Allowing Electronic Versions of Professional Journals in the PERM Optional Special Recruitment Procedures for University Teachers

The DOL's Board of Alien Labor Certification Appeal (BALCA) recently issued a decision expanding the advertising sources for Universities filing PERM applications for their college and university teachers through the optional special recruitment procedure. In the optional special recruitment procedure, an employer must document that the foreign national that was selected for the job opportunity through a competitive recruitment and selection process. The DOL's regulations require that the competitive recruitment and selection process include at least one advertisement placed in a national professional journal. The DOL has previously indicated in its Frequently Asked Questions (FAQs) that employers may not use an electronic national professional journal to satisfy this requirement. Instead, the DOL has stated that employers must use a print publication. However, BALCA disagreed with the DOL because it stated that the DOL may not impose a new requirement on employers that is not supported by the PERM regulations. Additionally, BALCA stated that the DOL has provided no rationale or explanation as to why an electronic professional journal is somehow inadequate to advertise positions. Therefore, BALCA determined that the DOL abused its discretion by denying a PERM application on the basis that the national professional journal which the employer placed its advertisement was only available electronically.

DHS Announces Initiatives to Promote Start Up Enterprises and Spur Job Creation

The Department of Homeland Security (DHS) and USCIS recently outlined a series of policy, operational and outreach efforts to attract foreign entrepreneurs to invest in the United States. The USCIS stated that entrepreneurs may now qualify for a national interest waiver under the EB-2 Immigrant Visa category if they can demonstrate that their business endeavors will be in the interest in the United States. The USCIS also clarified that an entrepreneur may be able to establish a valid employer-employee relationship in order to qualify for H-1B status. Additionally, USCIS has proposed enhancements to streamline the EB-5 immigrant investor visa program. The USCIS indicated that it will begin to implement the first of these enhancements to the EB-5 program within 30 days. Finally, USCIS announced that it is expanding the premium processing program to include EB-1 petitions for multi-national managers and executives.

Additional information about these initiatives to attract entrepreneurs to the United States will be contained in future Immigration Updates as they become available.

DOL Releases Selective Statistics for the PERM Program

The DOL recently released selective statistics for the PERM program. In fiscal year 2011, which commenced on October 1, 2010, the DOL indicated that there has been a 60% increase in the number of cases filed over fiscal year 2010. As of May 31, 2011, the DOL indicated that 44% of its cases are pending initial review. 29% are pending reviews of audits, and additional 24% are pending appeals of the denials of PERM applications. Of the 22,200 currently active PERM cases, 37% are requiring Master's Degrees for the offered position while an additional 37% are requiring Bachelor's Degrees. 12% of the cases did not require any degree. The DOL is currently reviewing applications which were selected for audit that were filed in November 2010.