Global Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Immigration Counsel

By Ian Macdonald

On April 9, 2012, U.S. Citizenship & Immigration Services (USCIS) announced the number of H-1B petitions received to date for the FY2013 cap: 17,400 petitions under the 65,000 regular H-1B cap, and 8,200 petitions under the 20,000 H-1B U.S. Master’s Degree Exemption. This means that approximately 74% of regular H-1B petitions and about 59% of U.S. Master’s Degree Exemption petitions remain available. 

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By Michelle Valerio

U.S. Citizenship and Immigration Services (USCIS) has announced a proposed change that would shorten the time that U.S. citizens are separated from close family members who must obtain an immigrant visa abroad to become lawful permanent residents of the United States. The proposed change to the regulations would allow certain immediate relatives of U.S. citizens to apply for a provisional hardship waiver prior to departing the United States for consular processing of their immigrant visa applications. This change would benefit foreign nationals who are subject to 3-year or 10-year bars to re-entering the United States after departure because of periods of unlawful presence in the United States. Currently, foreign nationals who face a bar to re-entry can apply for a hardship waiver based on their qualifying relationship to a U.S. citizen, but only after they have departed the United States. Since the processing times for these waivers is very lengthy, applicants are often separated from their U.S. citizen relative for long periods of time without knowing if they will be able to return to the United States.

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By Michelle Valerio

The U.S. Embassy in New Delhi has announced that it is participating in a pilot program that will allow officers to waive an interview for a renewal visa in select circumstances. In order to qualify, individuals must have been interviewed and thoroughly screened during their initial application for a visa. The pilot program will not entitle any applicants to a waiver of an appearance and consulate officers have the authority to require individuals to appear for an interview if they deem it necessary.

The Embassy has not yet issued information on the process to apply for a renewal without an interview, but we expect guidance shortly.

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By Michelle Valerio

Employers who wish to sponsor H-1B workers for Fiscal Year 2013 can begin filing petitions on April 2, 2012. The H-1B visa is used by businesses who wish to employ foreign nationals to work in a specialty occupation requiring theoretical or technical expertise. For FY 2013, cases will be considered accepted on the date that U.S. Citizenship and Immigration Services (USCIS) takes possession of the petition, not on the date it was postmarked.

There is an annual limit of 65,000 visas available for H-1B petitions, with 20,000 reserved for individuals who have earned a U.S. master’s degree or higher. USCIS will continuously update the public on the number of petitions it has received. If USCIS receives more than 65,000 petitions, it will conduct a lottery and randomly select petitions to be adjudicated. Petitions that are not selected in the lottery will be rejected and returned to the petitioner.

In recent years, the cap has not been reached for several months after opening on April 1; however, it is impossible to predict when the cap will be reached and petitioners should file their H-1B petitions as soon as possible.

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By Michelle Valerio

As of March 5, 2012, U.S. Citizenship and Immigration Services (USCIS) has returned to its original process for mailing approval notices, meaning that the attorney or representative of record no longer needs to enter their address as the mailing address to receive the original I-797A Approval Notice. On September 12, 2011, without notice, USCIS began sending receipt notices and approval notices directly to the petitioners and beneficiaries listed in the petitions. A courtesy copy of the notice was sent to the attorney or representative of record.

USCIS rapidly reversed this change after several stakeholders informed USCIS of the negative consequences of this practice. Beginning on September 30, 2011, USCIS established an interim process, while its computer system was being reprogrammed, under which attorneys and representatives of record were prompted to enter their address as the mailing address on the Form G-28, Notice of Representation, to ensure receipt of original notices from USCIS. The computer system has been reprogrammed, with the result that attorneys and representatives listed on Form G-28 will now receive the original receipt and approval notices automatically.

Photo credit: bioraven

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By Michelle Valerio

The U.S. Department of State has released the April 2012 Visa Bulletin, which summarizes visa availability for individuals seeking U.S. Permanent Residence. As compared to the March 2012 Visa Bulletin, little movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories:

• EB-2 (professionals with advanced degrees or persons of exceptional ability): There was no progress in the oversubscription date for Indian and Chinese nationals; the priority date remains retrogressed at May 1, 2010. This category is current for nationals of all other countries.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of India advanced ten days, from August 22, 2002 to September 1, 2002. A two-month advance occurred for nationals of China, from January 1, 2005 to March 1, 2005. There was an advance of 24 days for nationals of all other countries, to April 8, 2006. 
• EB-3 (other workers): There were no changes concerning Chinese nationals (April 22, 2003); Indian nationals’ oversubscription date advanced 10 days, to September 1, 2002; and the oversubscription date for all other countries advanced 24 days, to April 8, 2006.

 Photo credit: David Franklin

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By Michelle Valerio

The House Judiciary Committee has approved legislation that would add Israel to the list of countries whose citizens are eligible for an E-2 nonimmigrant treaty investor visa. Senators Charles Schumer (D-NY), Mark Kirk (R-IL) and Jon Kyl (R-AZ) proposed a companion bill in May 2011, but that bill has not yet moved through the Senate Judiciary Committee.

The E-2 visa allows individuals who make a substantial investment in the United States to live in the United States on a temporary basis while they direct the operations of their investment enterprise. Currently, 79 countries have treaties with the United States that allow their citizens to apply for E-2 status.

Israeli nationals are currently eligible for E-1 treaty trader visas based on a separate reciprocal treaty between the United States and Israel. The E-1 visa is a nonimmigrant visa for a foreign national who is coming to the United States to conduct substantial trade between the United States and Israel.

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By Michelle Valerio

The Office of Foreign Labor Certification (OFLC) has released select statistics on the Permanent Labor Certification Program (PERM) for FY 2012. Notable statistics for FY2012 PERM applications include the following:

• Received: 17,700
• Processed: 16,555
• Certified: 12,350
• Denied: 3,312
• Withdrawn: 893
• Audit Review: 26%
• Appeal: 8%

According to the statistics above, approximately 20% of the PERM applications filed in FY2012 were denied.

The current PERM application processing priority dates, as of February 15, 2012, are as follows:

• Normal Review: October 2011
• Audit: June 2011
• Appeal: August 2011
• Government Error Appeals: Current

According to these priority dates, a PERM application under normal review will take, on average, four months to be certified. If the PERM application is selected for an audit, the processing time will increase by about four months, for a total processing time of eight months. Applications on appeal have a processing time of six months. If, however, the denial is a result of a government error, the application will be reviewed when it is received.

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By Emily Liss

The Department of Homeland Security has announced the publication of a final rule that will permanently establish the Global Entry program, effective March 7, 2012. The Global Entry program, which began as a pilot program, was created by U.S. Customs and Border Protection (CBP) to allow expedited entry into the United States for pre-approved, low-risk travelers. At the Global Entry Kiosk (found in most major U.S. airports), participants scan their passport or U.S. permanent resident card, scan their fingerprints for verification, and make a customs declaration. Upon issuance of a transaction receipt, the participant moves to baggage claim and the exit. On average, participation in the Global Entry program reduces waiting time by seven minutes.

U.S. citizens, lawful permanent residents, Dutch citizens, and Mexican nationals are eligible to participate in the Global Entry program. In addition, participants in the NEXUS (expedited crossing of the U.S./Canada border) and SENTRI (expedited entry into the United States from Mexico) programs may use the Global Entry Kiosks. In the future, other nonimmigrant aliens may be eligible to participate. To apply, eligible individuals must submit an online application, pay a $100 application fee, and undergo an interview with a CBP officer. Applicants may be deemed ineligible for the program if they have violated immigration laws, have been convicted of a criminal offense, are the subject of an ongoing government investigation, or are considered "high risk."

Photo credit: fotohunter

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