Business Immigration Monthly - March 2012

Date: 3/1/2012
 Business Immigration Monthly - March 2012

DOL Releases PERM Statistics for Fiscal Year 2012

The U.S. Department of Labor (DOL) recently released statistics about its PERM program for fiscal year 2012 (October 1, 2011 through September 30, 2012). Through February 15th, 2012, the DOL indicated that it has received 17,700 PERM applications, which appears to be less than the number received to this date during fiscal year 2011. The DOL indicated that it has processed 16,555 applications during fiscal year 2012 through February 15, 2012. Of these 16,555 applications, approximately 20% were denied. Of its pending cases, the DOL indicated that approximately 60% are awaiting initial review, 26% are waiting for review through an audit, 4% are waiting for processing through DOL's Supervised Recruitment procedure, and approximately 8% are pending reconsideration and/or appeals. The DOL also indicated that the current denial rate on PERM audits is approximately 55%. The DOL also indicated that the current approval rate on supervised recruitment cases is approximately 25%.

USCIS Announces Expansion of the E-VERIFY Self Check Nationally

The U.S. Citizenship and Immigration Services (USCIS) recently announced that the E-Verify Self Check is now available to workers located throughout the United States and is no longer limited to workers in particular states. The E-Verify Self Check allows individuals to check their own employment eligibility status, as well provides guidance on how to correct their Department of Homeland Security (DHS) and/or Social Security Administration (SSA) records, if necessary. The service is available in both English and Spanish. Since the program's inception in March 2011approximately 67,000 individuals have used the E-Verify Self Check to verify that their records are correct in the E-Verify System. The USCIS also stated that the system has provided information to thousands of individuals about how to correct their records through DHS and SSA. The USCIS has indicated that employers may not require potential applicants to run an E-Verify Self Check query prior to extending an employment offer. The USCIS stated that a positive E-Verify Self Check result should not be a condition of employment, condition of membership in any group or organization, and should not be required for the receipt of any benefit, service or good from any governmental or private party. The E-Verify Self Check is available at www.uscis.gov/selfcheck.

U.S. Embassy in China Announces New Interview Waiver Pilot Program

The U.S. Ambassador to China recently announced a new interview waiver pilot program for the U.S. Embassy in Beijing. As part of the Obama Administration's efforts to significantly increase travel and tourism to the United States, the administration indicated a goal of increasing visa processing capacity in China by up to 40% in fiscal year 2012. As a result of efforts to decrease wait times, wait times at all posts in China are now less than six days. However, the Ambassador indicated that nonimmigrant visa demand in China is anticipated to continue to significantly increase in fiscal year 2012. The Ambassador indicated that in order to continue to meet the Obama Administration's initiatives to increase travel and tourism to the United States that it is implementing a new pilot program permitting consular officers to waive interviews for some qualified nonimmigrant applicants who are renewing their visas within 48 months of the expiration of their previously held visa and within the same classification as the previous visa. The Ambassador indicated that in China, many previous holders of B, C, D, F, J, M and O visas will be able to renew their visas if they have been expired less than 48 months without another interview. The Ambassador indicated that this new initiative should open as many as 100,000 appointments for first time nonimmigrant visa applicants. However, the Ambassador did indicate that consular officers will still have the authority to require an interview of any applicant who they determine requires a personal interview.

DOL Announces Significant Revisions to the H-2B Program

The DOL recently announced a final rule to "improve" the H-2B program. The H-2B program allows the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available and the employment of those foreign workers will not adversely affect the wages and working conditions of U.S. workers. The H-2B program is limited to 66,000 visas per year.

The final rule will adversely change every aspect of the H-2B program. Many business industry groups have indicated that this final rule will increase the expense and burden on small and seasonal businesses and make the H-2B program unworkable. The final regulation becomes effective on April 23, 2012, unless its implementation is delayed either by court action and/or legislative action.

Additional information about the implementation of the new H-2B program will be contained in our firm's future Immigration Updates when it becomes available.

DOS Releases March 2012 Visa Bulletin – All of the Employment-Based Immigrant Visa Categories Continue to Advance

The U.S. Department of State (DOS) recently released its March 2012 Visa Bulletin. All of the employment-based immigrant visa categories continue to advance. Similar to the Visa Bulletins for the past few months, the most significant advancement in these categories occurred in the EB-2 Indian and Chinese national preference categories. The DOS advances the EB-2 Indian national preference categories by five months in the March 2012 Visa Bulletin to May 1, 2010. Although the DOS has previously warned that these categories may either retrogress or become Unavailable in the future if demand in these categories significantly increase, the DOS did not include this warning in the March 2012 Visa Bulletin. However, advancement in these categories has slowed down in comparison to previous Visa Bulletins. At this time, it is unknown if the DOS will be able to continue to advance these categories in the future because it will depend on if demand in these categories significantly increases due to the rapid advancement of these categories within the previous months.

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

May 2011

Feb 2012

Mar 2012

EB-3 World

09/01/02

03/01/06

U

12/15/02

08/22/05

02/22/06

03/15/06



EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

08/01/06

01/01/10

05/01/10



EB-3 China

10/15/01

03/22/03

U

12/15/02

04/15/04

12/01/04

01/01/05



EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

07/01/06

01/01/10

05/01/10



EB-3 India

05/01/01

11/01/01

U

07/01/01

04/15/02

08/15/02

08/22/02



EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

09/08/03

02/22/06

03/15/06



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

Policy Brief Criticizes the USCIS for High Denial Rates for L-1 and H-1B Petitions

The National Foundation for American Policy (NAFP) recently released a Policy Brief criticizing the USCIS for high denial rates in the L-1 and H-1B programs over the past four years, even though there have been no regulatory or legislative changes in these programs during this time. The brief concluded that the dramatic increase in denials in these programs over the past four years harms the competitiveness of U.S. employers and encourages companies to keep more jobs and resources outside the United States. Additionally, the report concludes that employers report the time loss due to the increase in denials in Requests for Evidence (RFE) are costing them millions of dollars in project delays and contract penalties.

The report contains the following findings:

1. The denial rates for L-1B petitions filed with the USCIS rose from 7% in fiscal year 2007 to 27% in fiscal year 2011.

2. Denial rates for H-1B petitions increased from 11% in fiscal year 2007 to 17% in fiscal year 2011.

3. Denial rates for L-1A petitions increased from 8% in fiscal year 2007 to 14% in fiscal year 2011.

4. Requests for Evidence for L-1B petitions rose from 17% in fiscal year 2007 to 63% in fiscal year 2011. The report notes that in fiscal year 2004, only 2%of the L-1B petitions received RFEs. The report concludes that their appears to be no reasonable explanation for the rate of RFEs for L-1B petitions rising from 2% to 63% in just seven years.

5. The RFE rate for H-1B petitions rose from 4% in fiscal year 2004 to 26% in fiscal year 2011.

6. Country specific data on initial L-1B petitions indicates that the USCIS is more likely to deny a petition from an Indian-born professional than nationals of other countries. The report indicates that the denial rate for Indian-born applicants for new L-1B petitions rose from 2.8% in fiscal year 2008 to 22.5% in fiscal year 2009. The report indicates that the denial rate for new L-1B petitions for Canadians rose from 2% in fiscal year 2008 to only 2.9% in fiscal year 2009.

MFEM NEWS

Registration Continues for the MFEM Annual Immigration Seminar Being Held on Thursday, March 8, 2012

Registration continues for the MFEM complimentary annual Immigration Seminar being held this year on Thursday, March 8, 2012 at the Doubletree Hotel in Arlington Heights, Illinois. The MFEM complimentary immigration seminar is one of the larger immigration seminars held each year in the Midwest. This year's immigration seminar will be featuring presentations on the following topics: A 2012 update about current issues in the H-1B and PERM programs; immigration employment discrimination; immigration worksite enforcement actions; international travel issues; state immigration restrictions; and drivers license issues. Although the seminar is complimentary, pre-registration is required. Additional information (including registration information) about the complimentary seminar is available at www.masudafunai.com/events.aspx.

Mr. Bob White and Mr. Bryan Funai are Recognized in the International Who's Who of Corporate Immigration Lawyers 2012 and the International Who's Who of Business Lawyers 2013

Mr. Bob White and Mr. Bryan Funai of the MFEM Immigration Group were once again recognized by Who's Who Legal. For the seventh consecutive year, Who's Who Legal has recognized Mr. White and Mr. Funai in the International Who's Who of Corporate Immigration Lawyers 2012. The organization is also recognizing Mr. White and Mr. Funai in the International Who's Who of Business Lawyers 2013. The organization has identified only 438 lawyers around the world for recognition in these publications.