Business Immigration Monthly - April 2012

Date: 4/9/2012
 Business Immigration Monthly - April 2012

DOS Releases May 2012 Visa Bulletin – EB-2 Category for Indian and Chinese Nationals Severely Retrogressed – Additional Retrogression May Occur in the Upcoming Months

The U.S. Department of State (DOS) recently released its May 2012 Visa Bulletin. As discussed in our firm's Immigration Update dated March 19, 2012, the DOS has severely retrogressed the EB-2 Indian and Chinese national categories from May 2010 to August 15, 2007. The severe retrogression was caused by an "unexpected" increase in demand for immigrant visas from U.S. Citizenship and Immigration Services (USCIS) to complete the adjudication of adjustment of status applications in the EB-2 category for Indian and Chinese nationals. Even before the release of the Visa Bulletin, the DOS ceased as of March 23, 2012 the issuance of immigrant visas for any case with a priority date after the August 15, 2007. Although the DOS ceased issuing immigrant visas for these cases, the USCIS decided to honor the April 2012 Visa Bulletin and continue to accept adjustment of status applications filed by individuals in the EB-2 Indian and Chinese national preference categories with priority dates prior to May 2010. Indian and Chinese nationals who are able to file adjustment of status applications prior to April 30, 2012 or who have pending adjustment of status applications which have priority dates after August 15, 2007 and which were not able to be closed out by the USCIS prior to March 23, 2012 will be able to continue to extend their Employment Authorization Documents (EADs) and Advance Parole documents until their priority dates become available again and the USCIS is then eligible to complete the adjudication of their adjustment of status applications.

The DOS hopes that by retrogressing the EB-2 Indian and Chinese national preference categories to August 15, 2007, it will be able to keep the approval of immigrant visas for these categories within the statutory limitations. However, the DOS does not have accurate information from the USCIS as to the number of adjustment of status applications that it has pending with priority dates before August 15, 2007. Therefore, there is a likelihood that the DOS may have to further retrogress these categories or make them Unavailable at least until the beginning of the government's next fiscal year on October 1, 2012 in order to ensure that the statutory limitations on these categories are honored not exceeded.

Additionally, in the Visa Bulletin, the DOS for the first time has indicated that a priority date cut-off may have to be established for the EB-2 World Category. Except during fiscal year 2008 when the DOS had to make all employment-based immigrant visa categories Unavailable due to extreme over demand when it made all of the employment-based immigrant visa categories Available in the month of July 2007, the EB-2 World category has never retrogressed but has always been Available. Increased demand in all of the employment-based immigrant visa categories may be causing the DOS to reconsider the availability of immigrant visas in the EB-2 World category. Finally, the DOS stated that it is unable to predict future movement in the EB-2 Indian and Chinese national categories at this time and will not be able to predict when the categories will be able to return to the May 2010 priority date cut-off .

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

Mar 2012

Apr 2012

May 2012

EB-3 World

09/01/02

03/01/06

U

12/15/02

03/15/06

04/08/06

05/01/06



EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

05/01/10

05/01/10

08/15/07



EB-3 China

10/15/01

03/22/03

U

12/15/02

01/01/05

03/01/05

04/01/05



EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

05/01/10

05/01/10

08/15/07



EB-3 India

05/01/01

11/01/01

U

07/01/01

08/22/02

09/01/02

09/08/02



EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

03/15/06

04/08/06

05/01/06



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

Demand for H-1B Quota Numbers Significantly Increases in the Fiscal Year 2013 H-1B Quota – Quota Will be Met Much Sooner than During the Last Fiscal Year

The USCIS began accepting H-1B petitions filed against the H-1B quota for Fiscal Year 2013 (October 1, 2012 through September 30, 2013) on April 2, 2012. Employers are able to file H-1B petitions up to six months prior to the beginning of the government's next fiscal year on October 1, 2012. The H-1B quota for Fiscal Year 2013 is limited to 65,000. An additional 20,000 number are available to individuals who have earned a U.S. Master's or higher degree. As of April 6, 2012, the USCIS indicated that it had received approximately 17,400 petitions counted against the regular H-1B quota and approximately 8,200 petitions filed against eh U.S. Master's or higher degree exemption. This number of filings represents approximately double the number of filings received in the same period during the fiscal year 2012's quota. The quota during Fiscal Year 2012 was met on November 22, 2011. It is estimated that the quota for Fiscal Year 2013 may only remain available until the end of May. However, this will depend on whether demand continues to for the next few weeks. Once the H-1B quota for fiscal year 2013 is met, the earliest date upon which employers will be able to file H-1B quota petitions for their current and/or potential employees will be April 1, 2013 (for an H-1B employment start date of October 1, 2013). Due to the significant increase in demand, employers who have either current or potential employees that are subject to the H-1B quota should file their H-1B quota petitions as soon as possible before the quota for Fiscal Year 2013 is met.

Additional information about the Fiscal Year 2013 H-1B quota will be contained in our firm's future Immigration Updates when it becomes available.

DOL Commences an Integrity Review Process in the PERM Program

The U.S. Department of Labor (DOL) has informally indicated that it is commencing an integrity review process of the PERM program. As part of this process, many employers are beginning to receive more audits of their PERM applications with detailed requests about their compliance with certain aspects of the PERM program. Additionally, some employers are starting to also see an increase in the number of PERM applications selected for Supervised Recruitment after responding to a PERM audit. As discussed in our Immigration Update dated February 27, 2012, more than 55% of the PERM applications selected for an audit are denied. Additionally, only approximately 25% of the PERM applications selected for Supervised Recruitment are ultimately approved.

DOS Revises its Fee Schedule

The DOS recently revised its Fee Schedule. The new fees become effective for applications processed on or after April 13, 2011. Although most applicants will see an increase in their filing fees, there was a decrease in certain select filing fees. The following is a list of the current and new filing fees:

NONIMMIGRANT VISA PROCESSING FEES

Type of Visa

Previous Fee

New Fee

Tourist, Business, Transit , Crew Member, Student, Exchange Visitor, and Journalist visas

$140

$160

Petition-Based Visas (H, L,O, P Q and R)

$150

$190

Treaty Investor and Trader Visas (E)

$390

$270

Fiance (e) visas (K)

$350

$240

Border Crossing Cards (age 15 and older)

$140

$160

Border Crossing Cards (under age 15)

$14

$15

IMMIGRANT VISA PROCESSING FEES

Type of Visa

Previous Fee

New Fee

Immediate Relative and Family Preference Applications

$330

$230

Employment-Based Applications

$720

$405

Other Immigrant Visa Applications

$305

$220

Diversity Visa Program Fee

$440

$330

Determining Returning Resident Status

$380

$275

DOJ Settles Discrimination Case Alleging Discriminatory Job Advertisements

The U.S. Department of Justice (DOJ) recently reached a settlement agreement with Onward Health Care, a health care staffing company, resolving allegations that the company posted discriminatory job advertisements on its home page and third party websites that limited jobs to U.S. citizens. Over a period of one year, the DOJ alleged that thousands of the company's postings impermissibly limited applications to U.S. citizens, even though work-authorized immigrants, such as lawful permanent residents, asylees and refugees, should have been allowed to apply as well. The DOJ reminded employers that the Immigration and Nationality Act (INA) generally prohibits employers from discriminating on the basis of citizenship status unless required by law, regulation or government contract. The DOJ determined that the company had no legal basis for its stated citizenship preference. As part of the settlement agreement, the company agreed to pay $100,000 in civil monetary penalty and to change its internal policies and manuals to incorporate the law's protection. The company also agreed to be subject to DOJ reporting and compliance monitoring for a period of three years.

DOL Makes List of E-Verify Employers and Federal Contractors Available

The USCIS has recently updated its website to include a list of enrolled employers, including Federal Contractors, in the E-Verify system. The list provides the business name, city, state and zip code used during registration with E-Verify. The list also indicates which businesses are federal contractors, the businesses' registration status in E-Verify and other information, such as workforce size. The lists are available at www. www.uscis.gov/e-verify. The lists include employers and federal contractors enrolled in the E-Verify system through March 15, 2012. The lists indicate that approximately 345,000 employers are now enrolled in the E-Verify system.

Employers may want to check their E-Verify registration status in the lists to confirm that it is accurately reflected. Some employers may have to correct their registration status with E-Verify (e.g. if the employer is a federal contractor and never agreed to reverify its entire existing workforce when it registered in the E-Verify system although E-Verify list indicates that they did agree to such process). Employers with information inaccurately indicated in this list should contact E-Verify to have the information corrected.