Business Immigration Monthly - April 2013

Date: 4/5/2013
 Business Immigration Monthly - April 2013

USCIS Announces That H-1B Quota for Fiscal Year 2014 Has Already Been Met

U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B quota for fiscal year 2014 (October 1, 2013 through September 30, 2014) was met during the initial filing period from April 1, 2013 to April 5, 2013.

Similar to previous years, the H-1B quota for fiscal year 2014 is limited to 65,000. An additional 20,000 numbers are set aside for individuals who have earned U.S. Master's or higher degrees. Although the USCIS announced that it had received a sufficient number of petitions for both the regular quota and the U.S. Master's Degree or higher degree exemption to be met, the USCIS did not indicate the exact number of petitions received. However, because the USCIS received more petitions than the statutory number allowed, the USCIS stated that it will conduct two random selection processes on the petitions received. The first random selection process will be for the petitions received requesting one of the 20,000 U.S. Master's or higher degree exemption numbers. The U.S, Master's or higher degree exemption requesting petitions that are not selected in this random selection process will then be added to the petitions considered in the second random selection process for the regular H-1B quota. Petitions that are selected in either random selection process will be adjudicated by the USCIS. Petitions which are not selected in either random selection process will be returned to the employer (or attorney of record).

The USCIS has estimated that it should take approximately one week to complete the random selection processes. Petitions which were filed requesting Premium Processing and which are selected in either random selection processes will be adjudicated beginning on April 15, 2013. The USCIS will then have 15 days from this date to complete its initial adjudication of the Premium Processing petition. As in previous years when the H-1B quota was met during the initial filing period, it is assumed that the USCIS will first issue receipt notices for all of the petitions which were selected in either random selection process. It is assumed that the USCIS will take at least two weeks to process all of these receipt notices. After the receipt notices are issued, the USCIS will then begin to return the petitions that were not selected in either random selection process to employers (or their attorneys of record).

Because the H-1B quota has been met for fiscal year 2014, the earliest date upon which employers may file H-1B quota subject petitions in the future will be April 1, 2014 (with an H-1B employment start date of October 1, 2014 or later). The USCIS will continue to accept H-1B petitions which are not subject to the H-1B quota. If legislation is enacted which increases the H-1B quota numbers available during the fiscal year prior to April 1, 2014, the USCIS would then resume accepting more H-1B quota petitions. Additional information about legislation which is pending in Congress to increase the H-1B quota is contained in our firm's Immigration Update dated January 30, 2013.

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

CBP Provides Additional Information About The Elimination and Automation of The Paper Form I-94

As previously indicated in our firm's Immigration Alert dated March 27, 2013, Customs and Border Protection (CBP) has indicated that it will be eliminating the paper Form I-94 and automating the Form I-94 process, except in limited circumstances, beginning on April 30, 2013. Once Form I-94 automation is fully implemented, international travelers arriving by air or sea will no longer be provided a paper Form I-94 (except in limited circumstances). Instead, an electronic admission record will be created. However, all travelers requiring a Form I-94 will still be provided a properly annotated admission stamp in their passports. Travelers who are placed in secondary inspection (including but not limited to refugees, asylees, parolees and F-1 students issued Forms I-515 to resolve admission missing documents) may still be issued paper Forms I-94 with the I-94 number crossed off the paper form and a new admission number entered into the paper form. Finally, travelers who enter at land ports will still be issued paper Forms I-94.

CBP has indicated that it will begin implementation of Form I-94 automation on April 30, 2013. It will be rolling out Form I-94 automation over a period of four weeks. Although international travelers will not receive a paper Form I-94 after Form I-94 automation is implemented, international travelers will be able to access and confirm their admission information on the CBP website at www.cbp.gov\I94 (with no hyphen between the I and the 94). When accessing this website, international travelers should enter all of the information requested based upon the information contained on their visa stamp, unless they are visa exempt. If the international traveler is visa exempt, the information should be provided from the international traveler's passport. If there is a discrepancy between the information contained on the international traveler's visa and the biographic page of the international traveler's passport, the international traveler must enter the information contained on the visa stamp. The following information will be required to retrieve Form I-94 information from the CBP website:

1. Family name.

2. First (Given) name.

3. Birthdate.

4. Passport number.

5. Country of issuance.

6. Date of entry.

7. Class of admission.

Tips for entering this information as provided by CBP are contained on our firm's website at http://www.masudafunai.com/Files/13406_I-94_Automation.pdf. After this information is entered, the international traveler's Form I-94 information should be provided on the CBP website and the traveler may print out this information which according to CBP will "serve the same purpose as any other paper Form I-94 version." Therefore, this printout should be accepted by employers in the Form I-9 employment eligibility verification process, by the Social Security Administration (SSA) as part of the Social Security Number (SSN) issuance process and states' Department of Motor Vehicles during the Driver's License issuance process. A quick reference guide for Local, State and Federal agencies and employers of all of the various versions (both paper and electronic) of the Form I-9 is available on our firm's website at http://www.masudafunai.com/Files/13404_I-94_Quick_Reference.pdf. International travelers who need to present the new website printout of the Form I-94 may want to also print out a copy of this quick reference guide issued by CBP in order to potentially resolve any issues or questions that a government agency and/or an employer may have with the new electronic Form I-94 record.

Although CBP has indicated that it is implementing automation of the Form I-94 in order to save approximately $15 million a year, CBP will not be establishing a Customer Service Call Center to resolve issues encountered by international travelers with the new CBP website. Therefore if an international traveler cannot access their automated Form I-94 record on the CBP website, we strongly recommend that the traveler first check the information entered into the CBP system to make sure that it is consistent with the information contained on the international traveler's visa stamp (or if the traveler is visa exempt, on the biographic page of his/her passport) and the admission stamp. Also, the traveler may want to attempt to enter variations on the class of admission, especially when the traveler was admitted in a category such as B-1/2 and the admission stamp does not indicate whether the CBP officer admitted the traveler as a B-1 or B-2. If the international traveler has entered all of the information correctly and has attempted different potential variations of admission class and the traveler still cannot access his/her admission record on the CBP website, the traveler will have to schedule an InfoPass appointment through the USCIS website at www.uscis.gov to attempt to correct his/her record at the local USCIS office. Alternatively, the traveler may attempt to return to the port of entry where he/she was admitted to inquire about the record. However, depending on the port, the traveler may still be instructed to schedule an InfoPass appointment at the local USCIS office.

We would strongly encourage international travelers to access the CBP website and print out the Form I-94 admission record with each entry into the United States. The international traveler should confirm that the information contained in this record is accurate, especially reviewing whether the class of admission and the expiration date is accurate. If information contained in the automated record is not accurate, the international traveler may have to follow the procedures indicated above to have their admission record corrected. The traveler should retain evidence of his/her admission for future use and reference.

Additional information about the implementation of Form I-94 automation (including how CBP will be implementing automatic visa revalidation through Form I-94 automation) will be contained in our firm's future Immigration Updates when it becomes available.

DOS Releases April 2013 Visa Bulletin – Little or No Movement in Most Employment-Based Immigrant Visa Categories

The U.S. Department of State (DOS) recently released its April 2013 Visa Bulletin. Similar to the past few Visa Bulletins, there is little (or no) movement in most of the employment-based immigrant visa categories. The biggest advancement in the categories is in the EB-3 World category from May 2007 to July 2007. The DOS continues to consistently advance this category. However, the DOS has not been advancing the EB-2 Indian national category for many months. The DOS has previously indicated that this category may not advance any time in the near future and may actually retrogress due to the number of cases being upgraded from the EB-3 Indian national category to the EB-2 Indian national category. Although the EB-2 Indian national category has not advanced for many months, the EB-3 Indian national category continues to advance by a few weeks each month.

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

Dec 2007

Jun 2008

Aug 2009

Mar 2010

Feb 2013

Mar 2013

Apr 2013

EB-3 World

09/01/02

03/01/06

U

12/15/02

03/15/07

05/01/07

07/01/07

EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

01/15/08

02/15/08

04/01/08

EB-3 China

10/15/01

03/22/03

U

12/15/02

11/15/06

01/22/07

04/22/07

EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

09/01/04

09/01/04

09/01/04

EB-3 India

05/01/01

11/01/01

U

07/01/01

11/15/02

11/22/02

12/08/02

EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

03/15/07

05/01/07

12/08/02

 

 

 

 

 

 

 

 

 

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

USCIS and DOL Halt the Processing of Certain H-2B Applications

The U.S. Department of Labor (DOL) and the USCIS has indicated that effective March 22, 2013, the DOL and USCIS are holding the adjudication of H-2B applications in light of a court order entered on March 21, 2013 granting a permanent injunction against the prevailing wage determination process in the H-2B program.

Although the DOL has stated that this hold will not affect H-2B applications with prevailing wages utilizing collective bargaining agreements, accepted private wage surveys, Service Contract Act or Davis Bacon Act wage determinations, the USCIS has indicated that it will not adjudicate H-2B applications until the DOL releases guidance addressing the court order. The Court gave the DOL 30 days to come into compliance with its order about wage determinations. The DOL has stated that it intends to promulgate a revised wage rule within 30 days of the court order which the USCIS indicated will allow it to continue with the adjudication of H-2B petitions. However, the DOL has been prevented from implementing a previous H-2B wage regulation by legislation which was enacted to prevent the DOL from using any of its funding to implement the regulation.

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

ICE SEVP Provides Policy Guidance About How Schools Should Report Instructional Sites

Immigration and Customs Enforcement's (ICE) Student Exchange Visitor Program (SEVP) recently provided guidance to its adjudicators about how schools should report instructional sites to SEVP. To ensure that an F or M student maintains nonimmigrant status, SEVP requires schools to notify it of the physical location where an F or M student may receive instruction. In 2008, SEVP introduced the term "instructional site" but failed to provide official guidance as to what constituted an instructional site. Therefore, schools were uncertain as to when to report new or existing locations where its students may receive instruction. This was further complicated by unofficial guidance provided by various SEVP officials which at times seemed to contradict previous unofficial guidance.

In the current official guidance, SEVP acknowledges that this lack of guidance caused confusion among schools. Therefore, the guidance defines what is an instructional site and what are the reporting requirements that a school has when notifying SEVP about new and/or existing sites. The guidance differentiates between public and accredited schools versus unaccredited schools. For public or accredited schools, SEVP indicated that school officials must submit and maintain SEVIS information for the main instruction site, all instructional sites where an F or M student may receive 50% or more of a program study, and all separate record locations. For unaccredited schools, school officials must submit and maintain SEVIS information for all instructional sites and any separate record locations. SEVP indicated that it still has discretion to require public or accredited schools to submit information on all instructional sites as well as separate record locations.

The guidance became effective on March 22, 2013. The guidance reminds adjudicators that SEVP-certified schools must update their Form I-17 within 21 days of a change regarding instructional sites and separate record locations. Schools that fail to do so may subject the school to withdrawal of certification. Therefore, schools that are not in compliance with this new guidance appear to have 21 days from March 22, 2013 to come in compliance with this new guidance. The guidance reminds schools that the burden remains with the school officials to accurately report instructional sites and separate record locations on the Form I-17.


New Employment Eligibility Verification Form I-9 Released

USCIS has released the new version of the Employment Eligibility Verification Form I-9. Prior versions of the Form I-9 are not valid for use after May 7, 2013. Employers are required to complete the Form I-9 to verify an employee's employment authorization with information and documents provided by the employee. The new version of the form is a two-page electronically fillable document with a revised format that should provide an employer with additional guidance in completing the form. Additionally, the revised Form I-9 now has fields for the employee's foreign passport, telephone and email addresses. A new Form I-9 does not have to be completed for current employees. However, after May 7, 2013, an employer who wishes to rehire or reverify an employee's employment authorization should not use the old version of the Form I-9, but should instead prepare a new Form I-9 using the revised version. The instructions to the revised Form I-9 also provide additional information for the types of documents that an employee can provide to demonstrate employment authorization. The USCIS has also issued a revised M-274, Handbook for Employers, and Guidance for Completing Form I-9, which we encourage all employers to review. The revised version of the Form I-9 as well as the revised M-274, are available at the USCIS website at www.uscis.gov

President of IT Company Convicted of H-1B Visa Fraud

The President of iFuturistics has pled guilty to five federal charges ranging from conspiracy to violate U.S. laws to money laundering to conspiracy for participating in a fraudulent scheme to obtain false H-1B nonimmigrant visas for foreign workers. According to court documents, the president signed false H-1B petitions to obtain H-1B nonimmigrant visas for foreign nationals. iFuturistics was a Delaware corporation with headquarters in Pineville, North Carolina. Court records indicate that the president and other employees falsely represented to the DOL and USCIS that the company was hiring H-1B nonimmigrants to work directly for the company. However, after the H-1B visas were approved, the company placed the H-1B nonimmigrants at work locations with various companies throughout the United States. Additionally, court records indicate that the company gave H-1B visa applicants a "cheat sheet" of questions and answers to assist them during nonimmigrant visa interviews. Also, court records indicate that the company on its H-1B petitions indicated that it would be paying a certain salary which was never paid to the nonimmigrants. Furthermore, the court documents indicate that the company attempted to hide its fraudulent activities during FDNS site visits by setting up temporary work desks, moving in furniture and recruiting people to present as company employees. When FDNS officers, ICE Homeland Security Investigations (HSI) investigators and law enforcement officials conducted a follow-up site visit approximately a month after one of the initial site visits, the company's supposed office space was dark and unoccupied.

The president of the company pled guilty to one count of conspiracy to violate U.S. laws, which carries a maximum prison term of five years and a $250,000 fine; one count of presenting fraudulent immigration documents, which carries a maximum prison term of ten years and a $250,000 fine; one count of hiring at least ten unauthorized immigrants within a one year period, which carries a maximum prison term of five years and a $250,000 fine; one count of hiring, recruiting and referring for a fee for employment an unauthorized immigrant, which carries a maximum prison term of six months and $100,000 fine; and one count of money laundering conspiracy, which carries a maximum term of 20 years in prison and a fine not to exceed the value of the funds involved (which the government is alleging is more than $13,000,000). The sentencing date for the president of the company has not yet been set.

USCIS Comments on CBP Form I-94 Automation

After CBP announced its Form I-94 automation which was previously discussed in this Immigration Update, the USCIS issued an announcement confirming that it will still require applicants to submit a paper copy of the Form I-94 when requesting certain benefits (including petitions requesting change of status or extensions of stay). This paper copy may be a printout from the CBP website of the Form I-94 admission record, as outlined in the previous article above. The USCIS also cautioned that other governmental agencies, such as DMVs, may also require a paper copy of the Form I-94. Finally, the USCIS indicated that nonimmigrants who are authorized to work in the United States may present a paper copy of the automated Form I-94 from the CBP website to their employers during the Form I-9 process.

MFEM NEWS

Mr. Bob White Travels to Washington, D.C. to Advocate for Reform of the Legal Immigration System

Mr. Bob White will travel to Washington, D.C. to meet with various Congressional leaders and their staff in both the House of Representatives and the Senate to encourage them to introduce and pass legislation which provides overdue reforms in the legal immigration system, especially in the employment-based nonimmigrant and immigrant visa categories. Mr. White will discuss with them the need to include a fair and robust legal immigration system in the Comprehensive Immigration Reform measures currently being drafted in both the House and the Senate. Mr. White will also be discussing how some legislation which has been introduced in Congress will ultimately harm legal immigration and adversely affect the overall goals of Comprehensive Immigration Reform. Mr. White will provide additional information about the progress of Comprehensive Immigration Reform and the legal immigration reform provisions which are either included in Comprehensive Immigration Reform or are moving through Congress outside of Comprehensive Immigration Reform in future Immigration Updates when they become available.

For more information about this or any other immigration law topic, please contact Bob White, at 847.734.8811 or via email at rwhite@masudafunai.com.

Weekly Immigration Updates are provided under the Legal Update link of the Immigration Group Section of our firm's website at www.masudafunai.com.