Business Immigration Monthly - September 2011

Date: 9/7/2011
 Business Immigration Monthly - September 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.

As of August 26, 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 29,000 petitions filed against the regular H-1B quota with an additional approximately 15,800 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 September 2011 Visa Bulletin – Little or No Movement in Most Employment-Based Immigrant Visa Categories

The U.S. Department of State (DOS) recently released its September 2011 Visa Bulletin. There was very little (if any) movement in the employment-based immigrant visa categories due to the fact that the government's fiscal year ends on September 30th and the DOS has estimated that most of the employment-based immigrant visas for fiscal year 2011 have already been used. Additionally, there has been significant advancement over the past few months in some of the employment-based immigrant visa categories, especially the EB-2 Chinese and Indian national preference categories. In September 2011, there was slight advancement of less than one month in the EB-3 World category and the EB-3 Indian national preference category. Because the government's new fiscal year begins on October 1, it is assumed that most of the employment-based immigrant visa categories will either slowly advance or not advance at all for at least the next few months as the DOS begins to determine current usage against availability in the employment-based immigrant visa categories in fiscal year 2012.

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



Dec 2007

Jun 2008

Aug 2009

Mar 2010

July 2011

Aug 2011

Sep 2011

EB-3 World

09/01/02

03/01/06

U

12/15/02

10/08/05

11/01/05

11/22/05

EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

03/08/07

04/15/07

04/15/07

EB-3 China

10/15/01

03/22/03

U

12/15/02

07/01/04

07/08/04

07/15/04

EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

03/08/07

04/15/07

04/15/07

EB-3 India

05/01/01

11/01/01

U

07/01/01

05/01/02

06/01/02

07/08/02

EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

11/22/04

05/01/05

08/01/05

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

DOJ Settles Allegations of Immigration-Related Employment Discrimination Against Manufacturing Company

The U.S. Department of Justice (DOJ) recently reached a settlement agreement with Kinro Manufacturing Inc. in Goshen, Indiana resolving allegations that the company engaged in a pattern or practice of discrimination against work-authorized non-citizens in the Form I-9 employment eligibility verification process. According to the DOJ findings, the company subjected newly hired non-U.S. citizens to excessive demands for specific documents as part of the Form I-9 process but did not require U.S. citizens to provide any specific documentation in the process. Under the terms of the settlement, the company has agreed to alter its practices to ensure that citizens and non-citizens are treated similarly in the Form I-9 process. The company is also required to pay the DOJ a $25,000 civil penalty and to pay $10,000 in back pay to the complaining party who is a permanent resident of the United States. The company also agreed to produce Forms I-9 for inspection and to provide periodic reports to the DOJ for one year.

USCIS Issues Policy Memorandum about B-2 Status for Cohabitating Nonimmigrant Partners and other Household Members of Principal Nonimmigrants

The USCIS recently issued a policy memorandum to clarify and ensure uniformity in the adjudication of applications requesting either a change of status or an extension of status in B-2 classification for elderly parents, cohabitating nonimmigrant partners and other household members of principal nonimmigrants who may be otherwise ineligible for derivative nonimmigrant status. The policy memorandum recognizes that the DOS guidance provides for issuance of B-2 visas to these types of household members. The DOS guidance further directs Consular Officers to notate the B-2 visa with the principal nonimmigrant's visa type and duration and to advise the B-2 visa holder to seek admission for one year at the port-of-entry, if the B-2 visa holder plans to stay in the United States for more than six months. The DOS guidance also indicates applicants may seek extensions in six month increments from the USCIS for the duration of the principal's nonimmigrant stay. However, in its policy memorandum, the USCIS acknowledged that its current guidance is silent on these types of extension requests. The USCIS emphasized that the policy memorandum does not change eligibility requirements for the B-2. Rather, the policy memorandum clarifies when a change of status and/or one or more extensions of stay are appropriate in the exercise of discretion for household members. In the policy memorandum, the USCIS stated that when considering a change of status and/or multiple extension requests for cohabitating partners or other household members, the finite nature of the stay, rather than the duration of the stay or number of extension sought, is controlling with respect to the applicant's intent. The USCIS stated that as an example, the visit may still be considered temporary even if the B-2 status is extended several times over several years in order to match an extended course of study or work undertaken and by the principal nonimmigrant. However, the USCIS did state that if it determines that the principal nonimmigrant lacks a nonimmigrant intent, it may be used as a negative factor in the exercise of its discretion in the adjudication of the B-2 change of status or extension of status application for the household number.

DOL Clarifies Implementation of the Acceptance of Electronic or Web-Based National Professional Journals in the PERM Optional Special Recruitment Procedure for College and University Teachers

The U.S. Department of Labor (DOL) recently confirmed how it will be implementing the holding of a recent Board of Alien Labor Certification Application (BALCA) case finding that the DOL's PERM regulations do not require a print media advertisement in a national journal as part of the PERM special optional recruitment procedure for college and university teachers. Additional information about this case was contained in our firm's Immigration Update dated July 25, 2011. In its guidance, the DOL stated that it will now accept an electronic or web-based national professional journal in the special optional recruitment procedure for college and university professors. However, the electronic or web-based journal's job listings must be viewable to the public without payment of subscription and/or membership charges. Additionally, the advertisement must be posted for at least 30 calendar days on the journals' website. During an audit, if a college university is relying on electronic or web-based national professional journal, the college or university will be required to provide evidence of the start and end dates of the advertisement placement and the text of the advertisement. However, if the college or university used a print media advertisement in a national journal instead of the electronic or web-based advertisement, the college or university will not have to evidence that the print media publication is available to the public without payment of a subscription and/or membership charges and that the publication was available for a period of at least 30 days.

DOJ Settles Allegations of Immigration-Related Employment Discrimination Against Missouri Pork Producer

The DOJ recently reached a settlement with Farmland Foods Inc., a major producer of pork products in the United States, resolving allegations that it engaged in a pattern or practice of discrimination by imposing unnecessary and excessive documentary requirements on non-U.S. citizens and foreign-born U.S. citizens when establishing their authority to work in the United States. The lawsuit alleged that the company required all newly hired non-U.S. citizens and foreign-born U.S. citizens in its Monmouth, Illinois plant to present specific and, in many cases, extra work-authorization documents beyond those required by the Form I-9 employment eligibility verification process. The DOJ stated that the company's demands for specific or excessive documents to establish work authorization violated the anti-discrimination provisions of the Immigration Nationality Act (INA). As part of the settlement, the company agreed to pay $290,400 in civil penalties to the DOJ. This penalty represents the highest civil penalty paid through settlement since the enactment of the INA's anti-discrimination provisions in 1986. The company also agreed to monitor and report on its I-9 practices to the DOJ. The company also agreed to train its Human Resource Personnel on the proper implementation of the Form I-9 process.

Certain Nonimmigrant Visa Processing Resumes at the U.S. Consulate in Mumbai, India

The U.S. Consulate in Mumbai, India has announced that it will be resuming nonimmigrant visa processing for certain nonimmigrant visa categories. Earlier this year, the Consulate ceased nonimmigrant visa processing while it constructed a new facility. However, due to the significant demand for H-1B and L visas in India, the Consulate has indicated that it will be resuming the processing of nonimmigrant visa applications only for L-1 and H-1B categories. The Consulate opened the appointment schedule for interviews for H-1B and L visas on August 26, 2011. The first interview appointments were available on September 6, 2011. However, the interviews are being conducted at the Lincoln House Consulate Building and will continue to be conducted at this building until further notice.

USCIS Expands E-VERIFY Self Check Program

The USCIS recently announced that it is expanding the E-VERIFY Self Check program to residents in 16 additional states. Residents of the following states may now check their employment eligibility information before the apply for employment: Arizona, California, Colorado, District of Columbia, Idaho, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah, Virginia and Washington. The USCIS stated that it intends to expand the self check service nationwide by Spring 2012. In addition to expanding the service to 16 additional states, the USCIS also announced that it is now offering the service in Spanish in addition to English. The self check service was first launched in March 2011. The USCIS stated that since its launch, more than 18,000 individuals have used it to verify their employment authorization status.

ICE SEVP Provides Update about the Recent Withdrawal of the University of Northern Virginia from the SEVIS System

The Immigration and Custom Enforcement's (ICE) Student and Exchange Visitor Program (SEVP) recently provided additional guidance about the withdrawal of the University of Northern Virginia from the SEVIS system. Additional information about the ICE's Raid of the University of Northern Virginia and SEVP's withdrawal of the University from the SEVIS system is contained in our firm's Immigration Update dated July 25, 2011. SEVP indicated that the University has appointed new Designated School Officials (DSO). Therefore, SEVP indicated that it is reinstating the University's access to the SEVIS system. Students whose SEVIS record requires action will now not have to contact the SEVP Response Branch in order to have their SEVIS record updated. Instead, students may now contact one of the University's new DSOs to complete the requested action.

The SEVP update did not provide any further information about the status of the ongoing investigation of the University. However, it appears that ICE is still gathering information about the University's practices because many current and former students who are applying for visas through the U.S. Consulates abroad are being requested to provide transcripts and/or more detailed information about their studies at the University as part of a nonimmigrant visa process.

Additional information about the investigation of University of Northern Virginia will be contained in our firm's future Immigration Updates as it becomes available.

Social Security Administration Implements Social Security Number (SSN) Randomization Initiative

The Social Security Administration (SSA) recently announced that it is implementing a Social Security Number (SSN) randomization initiative in order to protect the integrity of the SSN by establishing a new randomized assignment methodology and also to extend the longevity of the nine-digit SSN nationwide. The SSA implemented the new methodology on June 25, 2011. As part of the initiative, the SSA will eliminate the geographical significance of the first three digits of the SSN. Additionally, the significance of the highest group number (the fourth and fifth digits) for validation purposes will also be eliminated. Finally, randomization will also introduce previously unassigned area numbers (i.e. the first three digits of the SSN) for assignment. For SSN issued on or after June 25, 2011, the first three digits of the SSN may include numbers above 772 in the 700 series and the 800 series. The SSA will continue to never assign an SSN with the first three digits of 000, 666 or the 900 series. Additionally, the SSN will continue to never assign an SSN with the second two-digits of 00 or last four digits of 0000. The SSN number holders will not receive a new SSN or a new card as a result of the randomization. The new assignment process will only apply to those receiving an SSN for the first time on or after June 25, 2011. The SSA anticipates that randomization will provide the agency with enough new numbers to avoid the reassignment of SSNs in the near future.