Business Immigration Monthly - May 2012

Date: 5/4/2012
 Business Immigration Monthly - May 2012

H-1B Quota for Fiscal Year 2013 Remains Available – USCIS Receives an Increased Number of Filings Over Last Year

The U.S. Citizenship and Immigration Services (USCIS) recently released updated information about the number of H-1B quota petitions that it has received under the Fiscal Year 2013 (October 1, 2012 through September 30, 2013) H-1B quota. Similar to past years, the H-1B quota for fiscal year 2013 is limited to 65,000. An additional 20,000 numbers are available for individuals who have earned U.S. Master's or higher degrees. As of April 27, 2012, the USCIS has received 29,200 petitions filed against the regular H-1B quota. The USCIS has also received an additional 12,300 petitions filed against the U.S. Master's or higher degree exemption.

The USCIS is currently receiving approximately 5,000 petitions filed against the Fiscal Year 2013 H-1B quota each week. This filing pace is approximately five times greater than the weekly filings that the USCIS received against last year's H-1B quota. Due to the significant increase in quota filings during this fiscal year, the H-1B quota may be met within the next one to two months. Therefore, employers who would like to file H-1B quota petitions for either current or future employees should immediately commence the process in order to ensure that their petitions will be accepted under the Fiscal Year 2013 H-1B quota. After the quota for Fiscal Year 2013 has been met, the H-1B quota will not become available again until April 1, 2013 (for positions with October 1, 2013 or later start dates), assuming that there is no legislative action to increase the H-1B quota.

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

DOS Announces that All Available Immigrant Visa Numbers in the EB-2 Indian and Chinese National Categories for Fiscal Year 2013 have been Issued – No Additional "Green Cards" will be Approved in the EB-2 Indian or Chinese National Preference Categories at least Until the Beginning of Fiscal Year 2013 on October 1, 2012

The U.S. Department of State (DOS) recently announced that the numerical limitations for issuing immigrant visas (a.k.a. "Green Cards") in the EB-2 Indian and Chinese national preference categories have been met for Fiscal Year 2012. The DOS notified the USCIS on April 11, 2012 that no further immigrant visas for the EB-2 Indian and Chinese national preference categories would be authorized in Fiscal Year 2012. Although the DOS retrogressed the EB-2 Indian and Chinese national preference categories from May 2010 to August 2007 in the May 2012 Visa Bulletin, the DOS indicated that the DOS still had to suspend the issuance of immigrant visas in these categories to ensure that the statutory numerical limitation in the categories was not exceeded.

The USCIS will continue to accept adjustment of status applications for EB-2 Indian and Chinese nationals who have priority dates prior to August 15, 2007 during May 2012. However, these cases will not be approved at least until priority dates become available again. The earliest date upon which priority dates may becomes available is the beginning of the government's Fiscal Year 2013 on October 1, 2012. Between now and October, the DOS will try to assess the number of individuals with pending adjustment of status and consular processing applications in the EB-2 Indian and Chinese national preference categories to establish a new priority date beginning on October 2012. This priority date may be even earlier than August 15, 2007 as indicated in the May 2012 Visa Bulletin if the DOS determines between now and October that there are more applications pending with earlier priority dates than is available under the statutory limitations.

Additional information about the movement of priority dates (especially the EB-2 Indian and Chinese national preference categories) will be contained in our firm's future Immigration Updates when it becomes available.

DOL Provides Additional Information about Its New PERM "Program Integrity Review"

The U.S. Department of Labor (DOL) recently released additional information about its new "Program Integrity Review" in its PERM program. In the November 2011 DOL Office of Inspector General (OIG) report, the DOL indicated that it was piloting a "risk management model" in the PERM program. Under the integrity review process, the DOL has indicated that it is shifting its focus to increasing audits and Supervised Recruitment in the PERM program. The DOL indicated that it has set a goal of 30% which constitutes (approximately 20,000 PERM applications each year) of the PERM applications will be subjected to an Integrity Check through either an audit and/or Supervised Recruitment . The DOL also indicated that the program integrity review commenced in October 2011. This is one of the principal reasons why employers (in particular consulting companies) are encountering a significant increase in the number of audits and Supervised Recruitment requests received within the past six months. This trend will most likely increase in the future as the DOL continues to shift additional resources to its program integrity review. It is also assumed that the number of denials will also significantly increase in the PERM program because currently approximately 55% of the audited PERM cases are denied and only approximately 20% of the applications which are subjected to Supervised Recruitment are ultimately approved.

Additional information about the DOL's Integrity Review process in the PERM program will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Releases Statistics in the EB-5 Immigrant Investor Program

The U.S. Citizenship and Immigration Services (USCIS) recently released statistics on the EB-5 Immigrant Investor Program. The USCIS indicated that it has experienced an approximately 30% increase in the number of petitions received from Fiscal Year 2010 to Fiscal Year 2011 in the EB-5 program. Of the petitions received, the approval rate in the EB-5 program decreased from 89% in Fiscal Year 2010 to 81% in Fiscal Year 2011. Additionally, the number of EB-5 Regional Centers significantly increased from 114 in Fiscal Year 2010 to 174 in Fiscal Year 2011. However, statistics indicate that USCIS is increasing its scrutiny of Regional Centers in the current Fiscal Year. Of the 60 Regional Center applications that were submitted in the first quarter of Fiscal Year 2012, only 14 were approved and 22 were denied. As the USCIS begins to implement a recertification process for Regional Centers in the future, it is assumed that some of the currently approved Regional Centers may have their designation revoked if they cannot evidence that they are currently complying with the terms of the EB-5 Regional Center program.

ICE Reminds Schools About the Limitations of Online and Distance Learning in the F-1 Program

Immigration and Custom Enforcement's (ICE) Student Exchange Visitor Program (SEVP) recently released its quarterly SEVP Spotlight. In the Spotlight was an article from ICE's Homeland Security and Investigation's (HSI) Counterterrorism and Criminal Exploitation Unit (CTCEU) reminding schools about their responsibilities in the F-1 program regarding online and distance learning. In January 2010, SEVP issued a Notice of Intent to Withdraw (NOIW) from the SEVIS program to Tri-Valley State University in part because it alleged that the University was not complying with the F-1 regulations regarding online and distance learning . In the Spotlight, the CTCEU reminds school administrators and officials to review 8 CFR 214.2 (f) and (m) which outlines the limitations of online and distance learning for F-1 students, even if such learning is offered to non-F-1 students. By highlighting this in the Spotlight, it is assumed that the CTCEU will be more aggressively reviewing schools use of online and distance learning in the F-1 program. However, if a school receives a NOIW on this issue, it should thoroughly review whether ICE is correctly interpreting the regulation as it applies to the school's offerings.

Court Enjoins DOL from Implementing H2B Regulations

A District Court recently enjoined the DOL from implementing its new H2B regulations. Additional information about the new H2B regulations is contained in our firm's Immigration Update dated February 27, 2012. The new regulations were to become effective on April 27, 2012. However, the District Court has prevented the DOL from implementing these regulations until it considers a lawsuit questioning the DOL's authority to issue such regulations.

Additional information about the implantation of the new H2B program will be contained in our firm's future Immigration Updates when it becomes available.

Arrival/Departure Form I-94 to be Automated Beginning This Summer

The Department of Homeland Security (DHS) has announced that it will begin automating the Form I-94 in an effort to curtail and eventually cease reliance on this form as proof of valid immigration status. This process has already been completed for Visa Waiver Program (VWP) travelers who no longer complete a paper I-94W when they are processed at the port of entry. Their passport and arrival stamp serve as evidence of lawful status. DHS claims that the automation process has saved both the agency and airlines approximately $19 million dollars a year since its implementation. The next step is to fully automate and eliminate the Form I-94 for all other nonimmigrants. Initially, travelers will continue to complete the Form I-94, but at the entry process, Customs and Border Protection (CBP) will create an electronic Form I-94 record. The paper I-94 and the electronic I-94 will not match. CBP will create a website where the traveler can enter certain biographical information to obtain their electronic I-94 number. The pilot program will commence at sea and air ports of entry.

This announcement has many implications for the multiple uses of the Form I-94, such as its use in employment verification for Form I-9 and E-Verify purposes, issuance of social security cards and driver's licenses, etc. The SAVE program now allows verification with the foreign passport information alone with the Form I-94 being an optional field. The E-Verify program apparently is also in talks with the CBP to ensure that changes are made to the program to incorporate the automation of the Form I-94. The goal is to completely eliminate dependence on the Form I-94 in the future and to solely rely on the foreign passport and the admission stamp.

MFEM expects that this process will be extremely confusing and disconcerting to our clients and other government agencies that are very familiar with the Form I-94, such as social security offices, state offices of driver and motor services and employers who are preparing Forms I-9.

Additional information about the elimination of the Form I-94 will be continued in our firm's future Immigration Updates when it becomes available.

Current Form I-9 Set to Expire on 8/31/2012

The USCIS is in the process of revising the Employment Eligibility Verification Form I-9 and has released a draft version of the new form. The new form will be two pages long and will feature larger fonts and new fields to facilitate the completion of the form. There will be no change in the documents that an employee can show to verify employment authorization.

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 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 April 11, 2012 the issuance of immigrant visas for any EB-2 Indian and Chinese national case. Additional information about this change is contained in the previous artciel in this compilation. Although the DOS ceased issuing immigrant visas for these cases, the USCIS decided to honor the May 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 August 15, 2007. Indian and Chinese nationals who are able to file adjustment of status applications prior to May 30, 2012 and which were not able to be closed out by the USCIS prior to April 11, 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.

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.