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

United States Citizenship and Immigration Services (USCIS) announced on Monday that it received approximately 124,000 H-1B petitions during the first week of the FY2014 filing period, which ran from April 1, 2013, to April 5, 2013. As the FY2014 H-1B cap is officially oversubscribed by approximately 39,000 petitions, USCIS will no longer be accepting H-1B cap cases.

On Sunday, April 7, 2013, USCIS conducted a computer-generated random selection process (also known as the "Lottery"), first on U.S. Master’s Degree exemption petitions and then on cases filed under the 65,000 regular category, to select a sufficient number of petitions for the cap. USCIS is now starting to send out rejection notices on cases that were not selected, as well as receipt notices for cases that were selected. Companies should expect to start receiving electronic receipt notices this week on any H-1B petition filed via premium processing. Receipt notices for non-premium processed cases will be received via regular mail during the next 7-14 days. Rejected cases will be returned with uncashed checks at some point over the next 7-21 days.

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By Ian Macdonald

The 2014 H-1B cap will open on April 1, 2013 and demand is expected to be the highest since FY2009. It is anticipated that sufficient H-1B filings will be received by the U.S. Citizenship and Immigration Services (USCIS) within four to five weeks of the cap opening, so all employers considering H-1B filings should act immediately.

The H-1B program is used by U.S. businesses to employ foreign workers in specialty occupations, such as scientists, engineers, or computer programmers. The number of initial H-1B visas available to U.S. employers (the H-1B cap) is 65,000, with an additional 20,000 set aside for individuals who have obtained a U.S. master's degree or higher (85,000 total). When the H-1B cap is met, USCIS stops accepting new H-1B petitions and employers have to wait until the next fiscal year opens to file new H-1B petitions. This year, it is likely that the 2014 H-1B cap will close by the end of April 2013, leaving employers unable to file new H-1B petitions until April 1, 2014.

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By Suzanne Potter-Padilla

On February 27, 2013, the House Judiciary Committee’s Subcommittee on Immigration and Border Security heard testimony regarding improvements made to E-Verify. While committee members acknowledged that E-Verify still suffers from some shortcomings, the message coming out of the hearing was clear that businesses in the U.S. had adapted to using E-Verify and are happy with its results. A representative from U.S. Citizenship and Immigration Services (USCIS) testified that E-Verify use has expanded to 432,000 employers, compared to only 24,000 in 2007. She also testified that surveys taken of its employer users indicate that the majority are confident in E-Verify’s accuracy and would recommend it to other employers.

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By Suzanne Potter-Padilla

On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) published an announcement in the Federal Register advising employers that Employment Eligibility Verification Form I-9 has been revised. The key changes to the newly-revised form include new data fields requiring an employee’s foreign passport information (if applicable), and the employee’s telephone number and email address. The format has also been expanded from one to two pages, such that Section 1 (Employee Information and Attestation) takes up the entire first page of the form, and Sections 2 and 3 (Employer Authorization and Reverification) are found on the second page.

The new form, which is available on USCIS’s website, denotes a revision date of March 8, 2013 in the lower left hand corner of the form. Although the form is available for immediate use, USCIS will not require employers to use the form until May 7, 2013. After May 7, 2013, all prior versions of Form I-9 cannot be used. Employers should take steps now to ensure that they are using the newly-revised form after May 7, 2013 to avoid civil penalties.

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By Avani Patel

United States Citizenship and Immigration Services (USCIS) recently announced that it has expanded its e-Request system services. The e-Request system allows individuals to submit electronic requests to inquire about applications and petitions that were previously submitted to USCIS. The expanded services include:

• Enabling individuals to create service requests for all forms to inquire about the status of submitted applications and/or petitions. Inquiries may only be made on applications or petitions that are outside of normal processing times.
• Allowing individuals to create service requests to notify USCIS about administrative errors in notices or documents sent by USCIS to the individual.
• Allowing for inquiries about an Application Support Center appointment notice or other notices the individual expects to receive with respect to Forms I-90 and N-400 only.
• Allowing for accessibility to individuals with disabilities, in order to remain compliant with Section 508 of the Rehabilitation Act.

The previous version of the e-Request service only allowed inquiries about Forms N-400 (Application for Naturalization) and Forms I-90 (Application to Replace Permanent Resident Card) that were outside of normal processing times. E-Request response times can take up to 30 days and subsequent requests should not be placed before the allotted 30 days have passed. E-Requests can be made at the USCIS website.

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By Kendra Baisinger

On July 23, 2012, U.S. Citizen and Immigration Services (USCIS) issued a Policy Memorandum to its employees and contractors outlining its policy for accommodating religious beliefs while at the same time complying with its legal obligation to photograph and to capture the fingerprints of individuals who file applications and petitions with USCIS.

The Memorandum reiterated that, under its policy regarding photographs, USCIS will ask individuals to remove non-religious headwear but that it will allow religious headwear to be worn “if a reasonable likeness can be obtained, . . . the full face is visible and the religious headwear does not cast a shadow on the face.” If the religious headwear does not allow for the required level of visibility, USCIS will ask the person to remove or to adjust his or her headwear. However, in an effort to accommodate the individual’s religious beliefs, USCIS will offer the person a private room or screened area to take the photograph if such a location is available. Additionally, USCIS will attempt to use a photographer who is the same gender as the person being photographed. If neither of these options is available, USCIS will reschedule the appointment. USCIS will not, however, waive the photograph requirement based on a religious objection.

The Memorandum also made clear that USCIS would take steps to accommodate an individual’s religious beliefs during the fingerprinting process. It acknowledged that many religions prohibit their members from physically touching a person of another gender. However, fingerprint technicians and officers often must hold the person’s hand to obtain a usable print. Accordingly, USCIS will accommodate people who request a same-gender fingerprint technician or officer, and if no such person is available at that time or at that location, the appointment will be rescheduled for a different day and/or office. 

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On May 22, 2012, the United States Citizenship and Immigration Services (USCIS) launched the first stage of USCIS ELIS—its new online immigration benefits system. Individuals are now able to set up an account and apply to extend or amend their nonimmigrant status for certain visa types, including foreign citizens who come to the United States to conduct business, study abroad, receive medical assistance, and go on vacation. USCIS ELIS is just the first step in the gradual transition to a comprehensive electronic immigration benefits system capable of processing the filing and adjudication of all immigration benefits electronically.

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On May 23, 2012, U.S. Citizenship & Immigration Services (USCIS) announced that recently it has received an unexpectedly high number of I-129 petitions. As a result, it will take longer than usual for USCIS to issue receipt notices to customers. USCIS has indicated that the standard wait time, within 30 days of delivery confirmation, has been extended by two to four weeks. Customers should contact the appropriate USCIS service center if they have not received notification of receipt of an I-129 petition within 60 days of their delivery confirmation date.

Photo credit: Tom Ventura

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On June 1, 2012, U.S. Citizenship & Immigration Services (USCIS) announced an update to the number of H-1B petitions received to date for the FY2013 cap: 55,600 petitions under the 65,000 regular H-1B cap, and 18,700 petitions under the 20,000 H-1B U.S. Master’s Degree Exemption. This means that approximately 14.5% of regular H-1B petitions and about 6.5% of U.S. Master’s Degree Exemption petitions remained available as of June 1. Employers should also note that it is currently taking seven days to obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor, which is a prerequisite to filing an H-1B petition. Consequently, as the cap is expected to be met at some point during the next seven to ten days, employers that plan on filing H-1B petitions should act quickly.

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On May 11, 2012, U.S. Citizenship & Immigration Services (USCIS) announced an update to the number of H-1B petitions received to date for the FY2013 cap: 36,700 petitions under the 65,000 regular H-1B cap, and 8,200 petitions under the 14,800 H-1B U.S. Master’s Degree Exemption. This means that approximately 44% of regular H-1B petitions and about 26% of U.S. Master’s Degree Exemption petitions remain available. As previously discussed, employers would be wise to initiate H-1B cap cases as soon as possible, as the historical filing data suggest that the cap is very likely to be met earlier than it was in 2010 and 2011.

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By Michelle Valerio

The Department of Homeland Security (DHS) has announced it is extending the designation of Somalia for Temporary Protected Status (TPS) for an additional 18 months, from September 18, 2012, to March 17, 2014. Eligible Somali nationals who currently have TPS status can re-register for TPS status from May 1, 2012, through July 2, 2012. In addition, Somali nationals who do not have TPS status may apply under the re-designation from May 1, 2012, through October 29, 2012. DHS’s most recent extension of TPS for Somalia is the eighth time it has been extended since 2001.

At the time of hire, TPS beneficiaries may present any combination of documents from the List of Acceptable Documents to complete Form I-9. Employees do not have to provide proof that they are a national of a country that has been designated for TPS. USCIS issues a Form I-766, Employment Authorization Document (EAD), to an individual who has been granted TPS. Although TPS status is not currently a path to permanent residency in the United States, it does allow an individual to obtain employment authorization for a temporary period.

While DHS occasionally issues an automatic extension of expiring EADs for TPS beneficiaries to allow time to issue EADs with new validity dates, DHS did not grant an automatic extension to Somali TPS holders, as it deemed sufficient time was available to issue new EADs.  

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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

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 Emily Liss

Validation Instrument for Business Enterprises (VIBE) is a web-based adjudication tool used by U.S. Citizenship and Immigration Services (USCIS) to validate basic information about companies or organizations petitioning to employ certain alien workers. The information in VIBE is provided by Dun & Bradstreet (D&B). USCIS has announced a streamlined process, iUpdate, by which companies can register online with D&B. Registration allows companies to see how their business is represented in VIBE before they file with USCIS, which can decrease the number of unnecessary VIBE Requests for Evidence (RFEs) issued because of incorrect company information. USCIS may issue an RFE to obtain additional information after initial case submission. RFEs can delay processing of the case.

The iUpdate online service tool is free, password-protected and encrypted. Users are asked a series of short challenge questions, based on geographical and demographic data, for the purpose of authenticating and establishing an ID and password. iUpdate is available at: https://iupdate.dnb.com/iUpdate/mainlaunchpage.htm.

Photo credit: doram

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By Michael J. Lehet

Launched in March 2011, and subsequently available in 21 states plus the District of Columbia, E-Verify Self Check is now accessible in all other states plus Guam, Puerto Rico, the U.S. Virgin Islands, and the Commonwealth of Northern Mariana Islands. Self Check is available in both English and Spanish.

A part of E-Verify, Self Check allows individuals to confirm their eligibility to work in the United States by entering the same information used by employers in performing E-Verify inquiries (i.e., name, address, date of birth, Social Security Number, citizenship, and identity and work authorization credentials). Self Check compares this information against the same databases utilized by E-Verify to confirm employment eligibility. According to U.S. Citizenship and Immigration Services, Self Check benefits both workers and businesses, taking the “mystery” out of the employment eligibility verification process and allowing workers to resolve records discrepancies before accepting a new job. Importantly, Self Check is voluntary. Therefore, employers are prohibited from requiring applicants or employees to use the system.

A recent survey found an increase in the percentage of employers using E-Verify to confirm the work authorization of employees. Of those surveyed in 2011, 51% indicated they use E-Verify, as opposed to 28% in 2010.
 

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By Ian Macdonald

U.S. Citizenship and Immigration Services ("USCIS") announced on November 23, 2011, that the statutory H-1B cap for FY 2012 was met. USCIS will reject any cap-subject petitions for new H-1B workers that are received by USCIS after November 22, 2011, regardless of when they were postmarked. As a result, employers will be unable to obtain new H-1B petitions with start dates between now and September 30, 2012. The filing period for FY 2013 will open on April 1, 2012, for H-1B petition start dates that will be effective on October 1, 2012, the beginning of FY 2013.

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By Shin-I Lowe

The Department of Homeland Security (DHS) has announced an extension of Temporary Protected Status (TPS) for eligible nationals of Honduras and Nicaragua for an additional 18 months, beginning January 6, 2012, and ending July 5, 2013. Eligible applicants must re-register during the 60-day re-registration period that runs from November 4, 2011 through January 5, 2012.

The 18-month extension also allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Eligible Honduran and Nicaraguan TPS beneficiaries who timely re-register will receive a new EAD with an expiration date of July 5, 2013. U.S. Citizenship and Immigration Services (USCIS) recognizes that all re-registrants may not receive their new EADs until after their current EADs expire. Therefore, USCIS is extending the current TPS Honduras EAD bearing a January 6, 2012, expiration date for an additional six months, through July 5, 2012.

TPS is a temporary immigration status that allows eligible individuals to remain and legally work in the United States for a set time period. Information from DHS about completing an Application for Temporary Protected Status and other requirements relating to TPS are available at the TPS landing page.

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United States Citizenship and Immigration Services (USCIS) released updated H-1B visa petition numbers for Fiscal Year (FY) 2012, as of October 7, 2011. Since we last discussed H-1B petition numbers (based on filings as of August 26, 2011), 12,000 H-1B regular cap petitions were filed, bringing the total to 41,000. During the same period, 3,300 H-1B Master’s Exemption petitions were filed, bringing that total to 19,100 and very near to the cap amount of 20,000. The H-1B regular cap petitions filed thus far constitute approximately two-thirds of the 65,000 cap amount. Please note that once the Master’s Exemption cap is met, all petitions filed under this category will be applied to the general 65,000 cap automatically by USCIS.

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U.S. Citizenship and Immigration Services (USCIS) has published a final rule establishing a Transitional Worker (CW) classification for workers in the Commonwealth of the Northern Mariana Islands (CNMI). The CW classification will allow CNMI employers to hire nonimmigrant workers who are otherwise ineligible to work. In Fiscal Year 2012 (October 1, 2011 to September 30, 2012), 22,416 CW visas will be available, and the number of available visas will decrease each year. The visa will not permit the holder to travel or work in any other part of the United States, except for nationals of the Philippines who may, via the Guam airport, travel between the CNMI and the Philippines.

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Throughout September, U.S. Citizenship and Immigration Services (USCIS) will offer free webinars on the following subjects:

• Form I-9: An overview of the process, including step-by-step instructions on completion, retention and storage of Form I-9’s.
• E-Verify Self Check: An overview of the program that allows employees, at no charge, to check their employment eligibility.
• E-Verify: An overview and demonstration of the program, along with examining the enrollment process and employer responsibilities.
• Federal Contractor E-Verify: A general program overview for those awarded a federal contract containing the FAR E-Verify Clause.
• E-Verify for Current Users: A detailed program overview discussing user roles, common mistakes, and case alerts.

Webinar dates and registration links are available on the USCIS website. While some topics are offered multiple times, the webinar on E-Verify for current users is only offered once this month, on September 29. A computer with internet access and a telephone are required for viewing and listening. 

Photo credit: Matthew Bowden

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The Department of Homeland Security (DHS) has issued a final rule, published in the Federal Register on August 29, which will enable U.S. Citizenship and Immigration Services (USCIS) to transition from a paper-file-based systems environment to an “electronic customer-focused, centralized case management environment for benefit processing.” The transition will be a multi-year project that will allow USCIS to:

• streamline benefit processing;
• eliminate the capture and processing of redundant data; and
• reduce the number of and automate forms.

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On August 17, 2011, United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum (pdf) to its staff concerning nonimmigrants regularly residing in the same dwelling as a principal nonimmigrant (i.e., a visa holder who is in the United States on a status such as H-1B or F-1). The Memorandum clarifies that nonimmigrant spouses, children, parents, cohabitating partners, and other “household members” of principal nonimmigrants may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal nonimmigrant visa holder for the duration of their authorized period of stay. The Memorandum defines a “household member” of a principal nonimmigrant as “an alien who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.”

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa petition numbers for Financial Year (FY) 2012, as of August 26, 2011. Since data were last updated (based on filings as of August 12, 2011), 3,700 H-1B regular cap petitions were filed, bringing the total to 29,000. During the same period, 1,100 H-1B Master’s Exemption petitions were filed, bringing that total to 15,800. Although the number of H-1B regular cap eligible petitions filed is less than half of the cap amount – 65,000 – the cap eligible H-1B Master’s Exemption petitions filed constitute more than 75% of the cap amount – 20,000.

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On August 16, 2011, President Obama issued a memorandum extending the September 30, 2011 expiration of Deferred Enforced Departure (DED) applicable to Liberians. The memorandum’s effect is to defer for 18 months the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who is under a grant of DED as of September 30, 2011.

Following the President’s action, U.S. Citizenship and Immigration Services (USCIS) announced a 6-month extension, through March 31, 2012, of employment authorization for qualifying Liberian nationals covered under DED. Qualifying individuals will be permitted to continue working as they file applications for new Employment Authorization Documents (EADs), which will cover the full 18 months of the DED extension.

Not all Liberians qualify under DED; for example:

• Liberians without Temporary Protected Status (TPS) on Sept. 30, 2007 are not covered under the current DED;
• certain criminals;
• persons subject to the mandatory bars to TPS; and
• other ineligible persons described in President Obama’s memorandum.

USCIS will publish in the Federal Register a notice with instructions on obtaining employment authorization for the remainder of the DED extension.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa petition numbers for Financial Year (FY) 2012. Since data were last updated (based on filings as of July 29, 2011), 2,600 H-1B regular cap petitions were filed, bringing the total to 25,300 as of August 12, 2011. During the same period, 900 H-1B Master’s Exemption petitions were filed, bringing that total to 14,700.

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In March 2011, the Department of Homeland Security launched the E-Verify Self Check Program, a secure web portal that allows an individual to verify his or her work authorization status. When unveiled, the program’s availability was limited to a handful of states. However, as of August 15, 2011, Self Check is available in 21 states, including the nation’s three most populated: California, Texas, and New York. Additionally, Self Check is now available in Spanish.

Self Check, which is a free service, allows individuals to compare their information to the same databases that E-Verify accesses, giving them the chance to address any existing data mismatches before they are hired by an employer that participates in E-Verify. United States Citizenship and Immigration Services will continue to evaluate and improve Self Check, which it intends to expand nationwide by spring 2012.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa petition numbers for Financial Year (FY) 2012: 22,700 H-1B regular cap petitions and 13,800 H-1B Master’s Exemption petitions were filed as of July 29, 2011. USCIS began accepting FY 2012 H-1B petitions on April 1, 2011. Limitations for FY 2012 are 65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas.

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U.S. Citizenship and Immigration Services (USCIS) has published a revised employer handbook on Form I-9 completion. The handbook guides employers through the process step by step and features:

• expanded guidance on how to enter names on Form I-9;
• more examples of acceptable documents;
• additional information regarding employment-authorized nonimmigrants; and
• other clarifications.

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Building on changes made in June 2010 to enhance the E-Verify web interface’s usability, security, accuracy and efficiency, U.S. Citizenship and Immigration Services (USCIS) recently announced further improvements, including:

• the ability to verify applicants’ driver’s license information;
• less strict entry requirements for U.S. passport and visa number information;
• improved messages that guide employers towards creating qualifying passwords;
• upgrades to the user registration process concerning additional users;
• the ability to select a future hire date;
• a “help” icon linking to instructions and information;
• an upgraded “case details” screen, making it easier to locate detailed case information;
• interface enhancements, e.g., sorting client companies alphabetically, to increase the efficiency of the case creation process for E-Verify employer agent users.

An employer’s existing user ID and password remain valid, and all pre-update case information will be available upon login. However, upon the first login to the enhanced website, users will be required to take a short tutorial to learn about the changes.

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The Immigrant Investor Program (“EB-5 Program”) makes available 10,000 visas annually to immigrant investors who invest in commercial enterprises creating at least 10 full-time jobs for U.S. workers. However, the annual cap has never been met in the two decades since the program’s creation.

In a move designed to maximize utilization of the Immigrant Investor Program and respond to President Obama’s call to promote immigrants’ entrepreneurial spirit, U.S. Citizenship and Immigration Services (USCIS) has announced proposed enhancements to EB-5 visa processing, consisting of three main elements (pdf):

1. USCIS will accelerate processing for applications involving job-creating projects that are fully developed and ready to be implemented. Applicants and petitioners will have the option to request Premium Processing Service, which, for an additional fee, guarantees processing within 15 calendar days.
2. USCIS will create new intake teams with expertise in economic analysis and EB-5 Program requirements. Moreover, applicants submitting Form I-924 (i.e., applying to participate under a USCIS-designated Regional Center) will be able to directly communicate via email with the team to streamline issue resolution and rapidly address applicants’ questions or needs.
3. USCIS will convene an expert Decision Board, composed of an economist and adjudicators supported by legal counsel, to render an enhanced decision process concerning Form I-924 applications. For example, interviews will be available in instances where the Board’s preliminary recommendation is to request further information or to deny the application.

USCIS will accept public comment on the proposals until June 17, 2011.

Image credit: StudioX

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The Department of Homeland Security has published a final rule (pdf) amending the filing locations for a Petition for Alien Relative (Form I-130) or a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). Under the final rule, a petitioner living outside the United States can:

• mail the petition to the United States Citizenship and Immigration Services (USCIS) Chicago Lockbox, if he or she resides in a country without a USCIS office; or
• file the petition at a USCIS international office, if he or she resides in a country with a USCIS office.

Previously, if a petitioner lived in a country without a USCIS office, petitions could be accepted and approved by a consulate, and USCIS reimbursed the U.S. Department of State for processing those petitions. Establishing the Lockbox as a filing option is intended to save costs and increase efficiency.

Written comments on the rule will be accepted until July 18, 2011, and the rule’s effective date is August 15, 2011.

Photo credit: bioraven

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United States Citizenship and Immigration Services (USCIS) has announced the launch of I-9 Central, a website dedicated to providing resources, tips and guidance on proper completion of Form I-9, which employers must complete for each worker hired after November 6, 1986. Highlights of the site, which is designed for use by both employers and employees, include:

• Overviews of employer and employee rights and responsibilities
• Step-by-step instructions for completing Form I-9
• Information on acceptable identity and employment authorization documents
• A discussion of common mistakes, and guidance on how to correct errors
• Answers to employers’ frequently asked questions about the Form I-9 process

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On April 15, 2011, United States Citizenship and Immigration Services (USCIS) published a final rule (pdf), effective May 16, 2011, governing the types of acceptable identity and employment authorization documents and receipts that an employee may present to an employer when completing Form I-9. The final rule adopts without change an interim rule (pdf) that was published on December 17, 2008, and has been in effect since April 3, 2009.

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By Jorge Lopez

Over the past few months, United States Citizenship and Immigration Services (USCIS) has been applying a more restrictive definition of “affiliation” for health care institutions. An affiliation with a university exempts hospitals from having to wait until October to apply for H visas. This exemption is especially advantageous in the health care setting, since many hospital residency and fellowship programs start in June and July, considerably earlier than the October application date.

USCIS’s narrow interpretation of “affiliation” has resulted in visa applications—for extensions as well as for new visas—being denied to health care professionals working in hospitals affiliated with universities, which has in turn impacted graduate medical education programs and the allied health care positions of many health care institutions. The net result has been the reduction in staffing and interruption of graduate medical education programs, among others. Accordingly, on March 16, 2011, USCIS announced interim procedures that will be in effect while the agency reviews its policy on H-1B exemptions for entities affiliated with or related to an institution of higher education. 

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United States Citizenship and Immigration Services (USCIS) has announced a proposed rule designed to decrease administrative and employer costs associated with the H-1B petition process. Under the proposed rule, employers would electronically register with USCIS during an enrollment period of at least two weeks in March of each year, prior to the April 1 filing period start date. Participating employers would file a single registration for each prospective H-1B worker they seek to hire (i.e., multiple prospective H-1B workers could not be listed on a single registration). Unlike current requirements, procuring a Labor Condition Application (LCA) prior to filing a petition would not be required.

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United States Citizenship and Immigration Services (USCIS) announced that it has begun issuing employment and travel authorization on a single card for certain applicants filing a Form I-485, Application to Register Permanent Residence or Adjust Status. This new card replaces the paper Advance Parole documents formerly issued to such applicants and offers increased security and durability. The card serves to verify a cardholder’s legal work status in the United States; specifically, employers may use the card as a List A document when completing a Form I-9. Additionally, cardholders can travel abroad and return to the United States without abandoning their pending adjustment application. Cardholders must present the card to request parole through the U.S. port of entry, at which point immigration officials will determine whether to grant parole (i.e., individuals who were unlawfully present in the United States may be denied re-admission).

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On February 10, the House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement held a hearing, “E-Verify – Preserving Jobs for American Workers,” in which it considered whether to make E-Verify mandatory for all employers. House Judiciary Committee Chairman Lamar Smith (R–TX ) favors the idea, as does the Subcommittee’s Chairman, Representative Elton Gallegly (R–CA). In introducing his reasons for supporting the expansion of E-Verify electronic employment verification program, Representative Smith stated: “With unemployment over 9% now for 21 months, jobs are scarce and families are worried. According to the Pew Hispanic Center, seven million people are working in the U.S. illegally. These jobs should go to legal workers.”

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The Department of Homeland Security (DHS) has announced that, on March 18, 2011, it will launch the E-Verify Self Check Program, a secure web portal that allows an individual to verify his or her work authorization status. Previously, only employers could conduct E-Verify checks, and, in the event of a possible mismatch, the prospective employee needed to resolve the matter, thereby delaying his or her possible hire and/or start date. The Self Check Program will allow individuals to correct any identity information errors that the E-Verify system might contain, thereby “provid[ing] a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.”

The Self Check program is a two-stage process: Stage 1 requires users to verify their identities; Stage 2 examines whether the individual is legally authorized to work in the United States.
 

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USCIS has announced that it is beta testing a web-based tool – Validation Instrument for Business Enterprises (VIBE) – designed to enhance the agency’s adjudications of certain employment-based immigration petitions by using commercially available data to validate basic information about companies or organizations petitioning to employ a foreign worker.

VIBE will relieve some burdens associated with USCIS’s paper-intensive petition review process by allowing its service centers to electronically receive information about a petitioning entity (e.g., current physical address, ownership, and legal status) from an independent information provider (IIP).

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United States Citizenship and Immigration Services (USCIS) has announced that the cap for H-1B petitions (65,000) has been met for FY 2011. Accordingly, USCIS will not consider petitions received after January 26, 2011. However, the agency will continue to accept and process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the United States;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in a second H-1B position.

As previously noted, the 20,000 petition cap for H-1B Master’s Exemption visas was reached on January 7.

USCIS will continue to receive and process petitions that are otherwise exempt from the caps.

April 1, 2011 is the first day that petitions may be received for FY 2012 with an October 1, 2011 start date.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa numbers for Financial Year 2011. As of January 7, 2011:

• the 20,000-petition cap for H-1B Master’s Exemption visas has been met; and
• 58,700 H-1B regular cap petitions have been filed, 6,300 petitions shy of the cap amount.

Although the H-1B Master’s Exemption visa cap has been met, USCIS will continue to accept these petitions and count them against the regular cap until said cap is reached.

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United States Citizenship and Immigration Services (USCIS) announced that employers submitting petitions for visas will not be required, until February 20, 2011, to complete Part 6 of Form I-129 (Petition for a Nonimmigrant Worker). The updated Form I-129 replaced the previous version on December 23, 2010. According to Fox News, the delay in requiring employers to complete Part 6 was caused by confusion over recently implemented USCIS regulations that impose increased obligations under two older laws: The Export Administration Regulations (EAR) (15 C.F.R. Parts 770-774) and the International Traffic in Arms Regulations (ITAR) (22 C.F.R. Parts 120-130).

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United States Citizenship and Immigration Services has released updated H-1B visa numbers for Financial Year (FY) 2011: 53,900 H-1B regular cap petitions and 19,700 H-1B Master’s Exemption petitions were filed as of December 17, 2010. Limitations for FY 2011 are 65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas. In the past three months, 15,600 regular cap and 5,700 Master’s Exemptions petitions were filed.

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United States Citizenship and Immigration Services (USCIS) has announced that two decisions from its Administrative Appeals Office (AAO) will be binding precedent for the agency, i.e., USCIS must follow the decisions’ holdings when evaluating future petitions. AAO precedent decisions result from a collaboration between the Department of Homeland Security and the Department of Justice. The two decisions are not new, having been decided in 2005 and 2006, but it was not until October 20, 2010, that both were deemed binding.

The first decision, Matter of Al Wazzan (pdf), affirms USCIS’s denial of an application to adjust status to permanent residence and holds that an employment-based petition must be "valid" initially if it is to "remain valid with respect to a new job."

The second decision, Matter of Chawathe (pdf), reverses USCIS’s denial of an application to preserve residence for naturalization purposes and clarifies the definition of employment by an "American firm or corporation."

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United States Citizenship and Immigration Services has released updated H-1B visa numbers for Financial Year (FY) 2011: 38,300 H-1B regular cap petitions and 14,000 H-1B Master’s Exemption petitions were filed as of September 17, 2010. Limitations for FY 2011 are 65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas. Filing numbers were strong initially, with 19,000 petitions filed in the first week, but slowed afterwards, as we noted in April and June.

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U.S. Citizenship and Immigration Services (USCIS) announced that, as of August 13, 2010, H-1B and L-1 visa application fees increased by $2,000 and $2,250, respectively, for certain businesses. The fee increases, as previously discussed, are mandated by the recently enacted border security law (Public Law No. 111-230) (pdf). Accordingly, petitioning businesses with 50 or more employees in the United States and with 50% or more of its employees in the United States on H-1B or L visas must submit the additional fees:

• initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15); or
• to obtain authorization for an alien having such status to change employers.

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Employers using E-Verify to authenticate employees’ work authorization status are subject to the Three-Day Rule, which requires an employer to create an E-Verify case no later than three business days after an employee first works for pay (commonly referred to as the Hire Date). Confusion sometimes arises, however, because the Hire Date differs depending on whether the E-Verify case is created before or after the first day an employee works for pay. To clarify the matter, United States Citizenship and Immigration Services (USCIS) created a webpage explaining how to determine the Hire Date, and how to calculate the compliance deadline.

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United States Citizenship and Immigration Services (USCIS) has announced the June 13 launch of a newly-designed E-Verify website. Highlights of the redesign include:

• icons accompanying case statuses to make it easier to identify cases requiring attention;
• the ability of businesses to view their Memorandum of Understanding (MOU) electronically; and
• simplified terms to better guide users through the process.

Existing users’ IDs and passwords remain valid, and all open cases will be accessible via the new platform. When users log on to the new E-Verify website, they will be required to take a short tutorial about the changes.

E-Verify is an electronic employment verification system, operated by the U.S. government, allowing employers to verify that individuals are legally permitted to live and work in the United States.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa numbers for Financial Year (FY) 2011: 20,800 H-1B regular cap petitions and 8,700 H-1B Master’s Exemption petitions have been filed as of May 28, 2010. As discussed previously, initial filing numbers were impressive, with 19,000 petitions submitted in the first week. Since then, however, per week filings have decreased in volume.

65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas are available for FY 2011.

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United States Citizenship and Immigration Services (USCIS) has unveiled a new, more technologically advanced and secure Permanent Residence Card. The card, commonly known as the “Green Card,” authenticates an individual’s authorization to live and work in the United States on a permanent basis. The intention behind the redesign, which is a collaboration between USCIS and various Department of Homeland Security agencies, is to deter fraud and more quickly authenticate identification. USCIS contends the new card is “nearly impossible to reproduce.”

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U.S. Citizenship and Immigration Services announced that, as of April 22, 2010, it has received 16,025 H-1B Regular Cap and 6,739 H-1B Master’s Exemption petitions for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). Petition filing slowed after an active first week in which over 19,000 petitions were submitted. In weeks two and three, combined, only 2,525 Regular Cap and 1,139 Master’s Exemption petitions were filed.

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U.S. Citizenship and Immigration Services (USCIS) announced that it is continuing to accept H-1B nonimmigrant visa petitions for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). The agency began accepting petitions on April 1, 2010, and after one week had received approximately 13,500 petitions subject to the general cap and 5,600 petitions subject to the advanced degree exception. It took approximately nine months for USCIS to receive enough applications to meet the FY 2010 cap, with the bulk of petitions being filed by the end of October 2009.

The H-1B program allows businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, e.g., science, engineering, computer programming. The program allows for 65,000 regular-cap visas, and an additional 20,000 visas for petitioners with advanced degrees (master’s degree or higher).

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The United States Citizenship and Immigration Services (USCIS) recently issued a guidance memo to its adjudication officers, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third Party Site Placements. The Memo clarifies what constitutes a valid employer-employee relationship in the context of petitions for H-1B visas, which are commonly used by IT staffing agencies and consulting groups for placing skilled workers at third-party worksites. For an analysis of the Memo and its implications for employers, continue reading Littler's ASAP Recent USCIS Memo on Employer-Employee Relationship Requirements for H-1B Visa Petitions: Regulation by Memorandum? by Jorge R. Lopez, Shin-I Lowe and Neil Grindstaff.

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On Wednesday, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice’s Civil Rights Division (CRT) announced that the two agencies have collaborated on a series of initiatives to “strengthen the efficiency and accuracy of the E-Verify system.” The first component of this effort is a Memorandum of Agreement (MOA) (pdf) that establishes the relationship and process for case referrals between the two agencies with respect to allegations of discrimination arising out of employer use of E-Verify, and information regarding the misuse, abuse, or fraudulent use of E-Verify. The MOA details the agencies’ respective responsibilities, authority, and points of contact, and outlines how future exchange and disclosure of information should occur. According to a fact sheet, on the MOA, the CRT’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) will receive referrals of potential discrimination that come to USCIS; in turn, USCIS will receive from OSC referrals of potential employer misuse of E-Verify that does not fall within DOJ’s enforcement arena. Moreover, according to the fact sheet, the MOA provides USCIS with a more efficient process to assist the DOJ in pending E-Verify-related investigations.

In addition to the MOA, the agencies have created two training videos that explain E-Verify procedures, policies, employee rights and employer responsibilities in English and Spanish. These videos

“are designed to help employers understand their responsibilities under E-Verify and to inform employees of their rights when working for employers enrolled in E-Verify.”

Finally, the agencies have established an E-Verify employee hotline for employee inquiries, issues and complaints.

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According to the Wall Street Journal, an independent report commissioned by the Department of Homeland Security (DHS) found that E-Verify, the federal electronic employment verification system, may be failing to detect 54% of unauthorized workers processed. According to the 338-page report (pdf), E-Verify experienced difficulty confirming that workers’ identities were their own. The purported reason: identity theft.

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U.S. Citizenship and Immigration Services announced that approximately 500 Notices of Approval (Form I-797) issued between January 20 and January 27, 2010 contained incorrect or missing information. The deficient notices were sent to applicants who had submitted a Form I-129 (Petition for Nonimmigrant Worker to Come to U.S. to Perform Services or Labor) or a Form I-539 (Application to Extend/Change Nonimmigration Status).

The agency has started mailing revised notices and advises recipients not to attempt to use deficient notices. Recipients can contact USCIS if they believe a notice contains missing or incorrect information, or should a revised notice not be received.

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The United States Citizenship and Immigration Services’ (USCIS) Associate Director for Service Center Operations has issued a detailed memo (pdf) regarding how to determine, when evaluating H-1B visa petitions, whether an employer-employee relationship exists and will continue to exist. The memo, which is addressed to USCIS Service Center Directors, discusses:

• scenarios that do and do not represent a valid employer-employee relationship;
• documentation to establish the employer-employee relationship;
• requests for evidence to establish the employer-employee relationship; and
• regulatory compliance.

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The United States Citizenship and Immigration Services (USCIS) has published a Q&A webpage concerning vaccination requirements for immigrants. The webpage provides general information concerning:

• vaccination requirements;
• procedural requirements; and
• required forms (e.g., Form I-693 - civil surgeon endorsement);

The webpage also includes telephone numbers and links to websites for obtaining further information regarding vaccination requirements.
 

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A recent U.S. Citizenship and Immigration Services (USCIS) memo (pdf) directs field offices, when evaluating adjustment of immigration status petitions decided before January 1, 2011, to accept as valid a Form I-693 (pdf) civil surgeon endorsement that was signed more than one year prior to the evaluation if:

• the endorsement was included with the initial adjustment status application; and
• no Class A or B medical condition is listed in sections 2, 3 or 4 of Part 2.

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U.S. Citizenship and Immigration Services (USCIS) has announced that, as of December 21, 2009, it has received sufficient petitions to reach the statutory cap for fiscal year 2010. Also, USCIS has received more than 20,000 H-1B petitions on behalf of applicants exempt from the cap under the advanced degree exemption. USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. Employers should note that even those petitions that were filed before the cap closed may be returned by USCIS once the final cap count is completed.

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It is expected that the H-1B cap will be reached this week, if it has not been reached already. USCIS announced on December 17 that, as of December 15, 64,200 of the available 65,000 H-1B numbers for this year had been used. The agency will notify the public once it has received the necessary number of petitions to meet the H-1B cap, known as the “final receipt date.” To ensure a fair system, USCIS will, if needed, implement a lottery system to randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date.

New H-1B cap-subject petitions cannot be filed until April 1, 2010 for an October 1, 2010 start date. Employers should start assessing alternative visa options for affected foreign nationals right away.

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The U.S. Citizenship and Immigration Services has indicated that nearly 62,500 of the available 65,000 H-1B cap-subject petitions have been used for the current fiscal year. Further, it appears that the demand for such H-1B petitions has been increasing in recent weeks, with approximately 1,000 petitions being utilized in the two days prior to the government's most recent tally, which was posted on December 10, 2009. In the prior week, 2,200 petitions were filed. With this trend appearing to continue, it is anticipated that the H-1B cap will be reached within the next week.

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The United State Citizenship and Immigration Services (USCIS) announced that, as of December 10, 2009, 62,500 H-1B petitions had been filed for fiscal year 2010, inching closer to the general H-1B cap of 65,000. Although the H-1B cap of 20,000 for petitioners with advanced degrees already has been reached, USCIS will continue to accept those applications until the general cap is met.

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The Department of Homeland Security (DHS) has released its Semiannual Regulatory Agenda (pdf) for the coming year. Rules addressing the H-1B lottery process and I-9 forms are among the Agency’s regulatory priorities. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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U.S. Citizenship and Immigration Services announced (pdf) that since November 13, 2009, it has temporarily held certain applications of individuals seeking to become lawful permanent residents until the new Centers for Disease Control and Prevention (CDC) vaccination criteria becomes effective on December 14, 2009. Under the new CDC criteria, vaccines for herpes zoster (zoster) and human papillomavirus (HPV), will no longer be required for immigration purposes. The held applications were submitted by applicants who would have been denied a visa because they failed to demonstrate that they had received the zoster or HPV vaccination.

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On November 23, 2009, January Contreras was appointed as the U.S. Citizenship and Immigration Services (USCIS) Ombudsman. As Ombudsman, Contreras will be responsible for helping USCIS resolve obstacles to accessing services, identify areas in need of improvement, and recommend actions that will improve services. Previously, Contreras was a Senior Adviser to Department of Homeland Security Secretary Janet Napolitano.

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It appears that the economy continues to show signs of recovery. U.S. Citizenship & Immigration Services (USCIS) announced that it had received approximately 2,000 H-1B cap-subject petitions in a week. This brings the number of filed H-1B cap-subject petitions to about 58,900. This leaves approximately 6,000 H-1B petitions remaining from the 65,000 general H-1B cap. The 20,000 H-1B advanced degree exemption closed several weeks ago. As reported previously on this blog, employers should immediately assess whether they have any H-1B needs--including whether to file H-1B petitions for F-1 students working pursuant to OPT status early, as well as other candidates who may require H-1B processing--as next year the cap may be reached early if the economy continues to improve.

This entry was written by Ian Macdonald.

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As reported previously on this blog, U.S. Citizenship & Immigration Services (USCIS) officially announced the opening of a new Verification Operations Center in Buffalo, NY. This center will employ approximately 135 people with the sole objective of performing immigration status verification for the Systematic Alien Verification for Entitlements (SAVE) and E-Verify systems. Specifically, the new center will run verification checks of employee work authorization status for companies enrolled in E-Verify, and it will confirm immigration status inquiries for government entities using SAVE. This is the first USCIS field office dedicated to monitoring compliance and ensuring the correct use of the SAVE and E-Verify programs. The Buffalo Verification Operations Center will spearhead USCIS's initiative to stop employers and third-party "investigation" companies from using E-Verify improperly. This development is the government's attempt to improve the integrity of both SAVE and E-Verify. These efforts may also facilitate the reduction of potential discriminatory effect in the application of E-Verify procedures and safeguard privacy interests.

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The Houston Chronicle reports that with a budget shortfall of $164 million, U.S. Citizenship and Immigration Services (USCIS) is considering increasing the fees it charges for immigration applications. USCIS also is considering possible cost-saving measures, including staff layoffs. As this blog previously noted, immigration applications (e.g., citizenship, permanent residency), a revenue source for USCIS, have decreased in recent years, thereby straining USCIS’s budget. In fiscal year 2009, citizenship applications decreased by over 25% (1 million in FY 2008; 733,000 in FY 2009). Although USCIS improved its citizenship application processing time after the most recent fee increases (July 2007), it may experience difficulty maintaining the five-month average processing time if the Obama administration succeeds in implementing a legalization program for the estimated 12 million illegal immigrants in the United States.

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At a symposium in Washington, D.C., US Citizenship and Immigration Services (USCIS) announced that today (November 19, 2009), an additional 1,000 Notices of Inspection (NOI) will be issued. This is a significant move and reveals the administration's intent to increase enforcement actions against employers that engage in the unlawful hiring of undocumented workers. This year alone, Immigration Customs and Enforcement has issued 1,044 NOIs, which is three times as many NOIs than were issued in 2008. Adding another 1,000 NOIs drastically increases this statistic. To further illustrate the administration's aggressive pursuit of employers, Notices of Fines totaling $24 million have been issued in 2009, compared with $2.4 million in 2008. Also, during 2009, 100 companies and individuals have been barred from doing business with the federal government, whereas only one company was barred last year.

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U.S. Citizenship and Immigration Services (USCIS) recently announced that it would temporarily accept H-1B petitions for filing without a certified Labor Condition Application (LCA) from the Department of Labor (DOL). This action is being taken in response to public pressure and to the USCIS Ombudsman’s recommendation that USCIS reinstate its practice of accepting an H-1B petition with evidence of a timely filed LCA with DOL. USCIS had affirmed this practice in 1992, and then again in 2001. USCIS has granted this accommodation for a 120-day period, starting November 5, 2009 and ending March 4, 2010.

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The Wall Street Journal reports that thousands of H-1B visas for fiscal year 2010 remain available. Unlike previous years, when the 65,000 visas available for the year were scooped up by employers within days, factors such as the sagging economy and government investigations into visa fraud have resulted in companies underutilizing the program. Not since 2003—when 323 days elapsed before all fiscal year 2004 H-1B visas were awarded—have visas remained available at such a late stage.

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US Citizenship and Immigration Services (USCIS) has announced that as of October 30, 2009, approximately 53,800 H-1B cap-subject petitions had been filed and received. It also announced that the 20,000 H-1B Advanced Degree Exemption cap had been met, and that all petitions filed for an individual with an advanced degree from a US academic institution will now be counted towards the general H-1B cap of 65,000. 

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The U.S. Citizenship and Immigration Services (USCIS) Ombudsman has discovered (pdf) that iCert, the certification process for Labor Conditions Applications (LCA) operated by the Department of Labor, has been generating false mismatches of Federal Employer Numbers. After examining applications filed between April and August 2009, the Ombudsman found that 7% of denials (approximately 2,900 applications) were incorrect. These errors can hinder the ability to timely file original or extension H-1B visa petitions.

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On October 21, 2009, Roxana Bacon became Chief Counsel for U.S. Citizenship and Immigration Services. Ms. Bacon is an employment and immigration law practitioner with over 30 years’ experience. Her professional experience includes:

• serving as a lawyer representative to the Ninth Circuit Judicial Conferences (the first woman to have this role);
• being the first woman elected President of the Arizona State Bar Association;
• teaching at the Arizona State University Sandra Day O’Connor College of Law; and
• chairing the American Immigration Lawyer's Association's (AILA) Enforcement Liaison Committee.

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According to The Los Angeles Times, a legislative mandate that the United States Citizenship and Immigration Service (USCIS) be a self-sustaining agency may result in application fee increases. USCIS faces a $118-million deficit, partially due to decreased volume of applications. In Southern California alone, the number of citizenship applications in 2008 fell by more than 75% compared to 2007 (from 254,000 to 58,000). USCIS has requested $206 million from Congress to help offset the shortfall.

Officials claim the fee increase is necessary because a special congressional appropriation to help reduce application backlogs has run out. Immigrant advocates, however, contend that increased fees will deter legal immigrants from pursuing citizenship. Citizenship application fees were previously increased in 2007 (a 69% increase, bringing the total application cost to $675).

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The United States Citizen and Immigration Services (USCIS) reported promising news for foreign nonagricultural workers who possess valid, temporary labor certificates and who are seeking a fiscal year 2009 H-2B visa. Due to a decrease in requests, approximately 25,000 visas remain available for 2009, more than one-third of those available under the Congressionally mandated cap. Therefore, USCIS has reopened the filing period.

The H-2B nonimmigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peak load or intermittent basis.

To obtain a fiscal year 2009 H-2B Visa, Form I-129 (PDF) petitions must be received and approved by USCIS before October 1, 2009. Because the average processing time is two months, it is unlikely that regularly submitted petitions would be approved before the October 1 deadline, so USCIS is recommending that petitioners use its premium processing service which has an average processing time of 15 calendar days.

Petitions for a fiscal year 2009 H-2B visa must include the following:

• A mark in red ink that the petition requests a 2009 fiscal year start date.
• An employment start date before October 1, 2009.
• A valid, temporary labor certificate issued by the U.S. Department of Labor indicating a fiscal year 2009 employment start date that is valid for the entire period of requested employment.
  • NOTE: The U.S. Department of Labor advises employers to file temporary labor certificate requests at least 60 days before the need for the employee. If a certificate is not presently possessed, it would appear unlikely, even if using premium processing, that one could be obtained in time to submit with a fiscal year 2009 H-2B petition.

Petitions requesting an employment start date before October 1, 2009 that are received on or after October 1, 2009, or petitions that are incomplete, will not be approved. Petitions requesting an employment start date on or after October 1, 2009 will be considered for a fiscal year 2010 H-2B visa.

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On Friday the Senate confirmed the nomination of Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS), the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. In addition to establishing immigration-related policies and services, the USCIS adjudicates the petitions and applications of potential immigrants and guest workers. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.

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The nomination of Alejandro Mayorkas as director of the Department of Homeland Security’s Citizenship and Immigration Services was recommended by the Senate Judiciary Committee and the matter now goes to the full Senate for consideration.

Mayorkas served as U.S. Attorney for the Central District of California for 12 years. He has proposed an overall review of the agency, improving the department’s fraud prevention and detection operations, increasing interdepartmental cooperation, and improving E-Verify’s efficiency.

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A recent USCIS study reports that American businesses authenticate 1 in 4 new hires’ work status using E-Verify. According to a Homeland Security Insight & Analysis article, in 2009 there have been about 6 million E-Verify queries, a considerable increase from previous years. E-Verify boasts a 96.9% accuracy rate, and the program is frequently analyzed and updated. Substantial improvements are scheduled to occur in August 2009.

Although E-Verify has been praised by many in the business community, caution over mandating usage among all employers, particularly smaller employers, has been expressed. Others, however, believe that the system represents an efficient and effective way to curb illegal immigration, and are hoping that Congress increases funding and expands the program.

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The H-1B and permanent residency programs are, as reported by Computerworld, under “assault” by the US Citizenship and Immigration Services and other agencies, which have “dramatically increased” the documentation requested of employers seeking to hire workers under the programs. In recent months, requests for evidence are becoming significantly more frequent and expansive, seeking information such as corporate payroll records, zoning maps and building fire-safety plans. 

Among the possible explanations for the stepped-up enforcement are the increased scrutiny required as part of the Troubled Asset Relief Program (which set new H-1B restrictions on firms that received bailout funds) and findings of various problems, including fraud, in nearly one in five H-1B applications (according to a USCIS study (PDF) released in fall 2008).

Crystal Williams, co-director of the American Immigration Lawyers Association (AILA), commented that the document requests are "on the border of harassment," and that the agency is "attempting to build a barrier, to make it as difficult as it possibly can be to get a visa." AILA is gathering evidence to demonstrate that the government is overstepping its authority in this area.

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The United States Citizenship and Immigration Services recently changed its procedures regarding the issuance of ADIT stamps. Local USCIS offices will no longer automatically provide an ADIT stamp to an approved permanent resident applicant waiting for his or her green card.

An ADIT stamp is temporary proof of residence in the United States that is generally placed on a passport or an I-94, an Arrival-Departure Record. Previously, USCIS would automatically provide an ADIT stamp to approved applicants because of an almost eight-week delay between approval and receipt of a green card.

ADIT stamps will continue to be provided on a case-by-case basis if applicants can show they need a stamp to be issued.
 

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U.S. Citizenship and Immigration Services (USCIS) has announced that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS website will continue to be valid for use beyond June 30, 2009.

USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire.

When the extension is approved, USCIS will update Form I-9. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form. 

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U.S. Citizenship and Immigration Services (USCIS) has announced that, working together with the Federal Bureau of Investigation (FBI), it has eliminated the FBI National Name Check Program (NNCP) backlog. The final goal of an April 2008 joint business plan was to achieve a sustainable performance level by the NNCP of completing 98% of name check requests submitted by USCIS within 30 days, and the remaining 2% within 90 days. This performance level will become the new standard.

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U.S. Citizenship and Immigration Services (USCIS) has announced that, as of June 19, 2009, approximately 44,500 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

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U.S. Citizenship and Immigration Services (USCIS) announced (PDF) today that it will resume premium processing of I-140 immigrant visa petitions effective June 29, 2009. This new policy will allow for the premium processing of I-140 immigrant petitions for alien workers filed under the following categories: EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

At this time premium processing is not available for I-140 petitions filed under the EB-1 Multinational Executives and Managers or EB-2 Members of Professions with advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Premium processing is a service offered by the USCIS that allows petitioners to pay an additional $1,000 fee in exchange for a guarantee that the USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation within 15 days of receipt of the application and premium processing request. In addition to the accelerated processing time, petitioners also have access to a dedicated premium processing telephone line and email address to check on the status of a petition or ask other questions relating to their petition.

Given current USCIS processing times for I-485 Adjustment of Status applications and immigrant visa retrogression in many categories, it is not likely that this service will have a significant impact on overall green card processing times for most applicants. However, it may in some circumstances benefit petitioners and beneficiaries of I-140 applications.

This entry was authored by Sam Adair.

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On May 11, the U.S. Citizenship and Immigration Services (USCIS) issued an announcement reminding customers that Public Law 111-9 extends—until September 30, 2009—the date by which international medical graduates must have be granted J-1 nonimmigrant status in order to later qualify for the “Conrad 30” program. Before this latest extension, the most recent sunset date for qualifying J-1 admission was March 6, 2009.

The current sunset date of September 30, 2009 applies to the date the medical doctor originally entered the United States in J-1 status or received a change of status to J-1 to complete a residency program in the United States. Doctors who acquired J-1 status before September 30, 2009 may pursue a waiver of the two-year foreign residence requirement under the Conrad 30 program, if they meet all the eligibility requirements
 

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Department of Homeland Security Secretary Janet Napolitano, speaking at a Senate Judiciary Committee hearing, stated that ensuring jobs for U.S. workers is one of her "top obligations," and that the DHS is increasing its enforcement of the H-1B visa program. As reported by Computerworld, Napolitano cited new fraud prevention tactics—including visits to work sites—implemented over the past month as an example of measures being taken to prevent abuses of the H-1B program. A 2008 study (PDF) by the U.S. Citizenship and Immigration Service, found that as many as one in five H-1B applications were affected by either fraud or "technical violations" of the program.

Napolitano’s comments were in response to a question from Sen. Richard Durbin (D.-Ill.) raising concerns about H-1B visa holders displacing American workers. Durbin is co-sponsor of the H-1B Visa Fraud and Abuse Protections Act (S. 887) (see our previous post), which includes several enforcement provisions such as audits of employers. Napolitano stated that "our top obligations are to American workers, making sure American workers have jobs."
 

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On April 27 the U.S. Citizenship and Immigration Services (USCIS) announced that it has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated cap of 65,000 for the fiscal year 2010 program. The agency continues to accept petitions subject to the general cap.

In addition, USCIS has received approximately 20,000 petitions for aliens with advanced degrees. Congress has mandated that the first 20,000 of these petitions are exempt from any fiscal year cap on available H-1B visas. Even though the numbers are close, USCIS will continue to accept advanced degree petitions, since experience has shown that not all petitions received are approvable.

Regular updates on the processing of FY2010 H-1B petitions are available at the USCIS website.
 

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President Obama has announced his intent to nominate Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS).   The USCIS is the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. To that end, the USCIS adjudicates, among other things, the petitions and applications of potential immigrants and guest workers.  Continue reading this entry on Littler's Washington DC Employment Law Update blog.

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On April 20, 2009, U.S. Citizenship and Immigration Services (USCIS) provided its second update regarding the H-1B cap count. USCIS has received approximately 44,000 H-1B petitions subject to the regular cap of 65,000. This represents only 1,000 additional filings since April 13th and means that new H-1B petitions may still be filed.

In addition, USCIS has received approximately 20,000 H-1B petitions eligible for the U.S. advanced degree exemption. Although the exemption is limited to 20,000 H-1Bs, USCIS continues to accept petitions since prior experience has shown that a certain percentage of submissions will be denied. Therefore, to reach the 20,000 petitions actually approved, USCIS must accept additional petitions.

This entry was written by Aimee Clark Todd.

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Yesterday the immigration community was surprised to learn that while the 20,000 H-1B numbers set aside for the advanced U.S. degree cap were nearly all accounted for, only two-thirds of the 65,000 regular H-1B cap numbers were used up. This means that the U.S. Citizenship and Immigration Services (USCIS) continues to accept applications for initial H-1B status more than a week after the H-1B filing season opened up on April 1st. This is in stark contrast to the 133,000 H-1B petitions received within the first two days of filing last year.

This scenario is not surprising because of the available H-1B numbers. Indeed, the battered U.S. economy coupled with the recent legislative action against recipients of Troubled Assets Relief Program (TARP) funding foreshadowed less demand for H-1Bs this year.

The intriguing part is the inversion of the regular and advanced U.S. degree caps. From the time the 20,000 set aside came into existence for those holding advanced U.S. degrees, it has always taken longer to exhaust than the 65,000 regular H-1B numbers. This indicates that similar numbers of foreign students getting U.S. masters and doctorate degrees are being sponsored for H-1B status, while the demand for those holding bachelors degrees or foreign degrees has dropped significantly.

This does not mean that petitions should not be filed on behalf of individuals possessing advanced U.S. degrees. It simply means that their H-1Bs will now be drawn from the remaining regular cap numbers.

On the day USCIS determines that sufficient petitions have been received to meet the annual limit, a random selection lottery will be conducted for all cases received on that day. Cases not selected in the lottery will be rejected.

This entry was authored by Chad Graham.

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U.S. Citizenship and Immigration Services (USCIS) has announced that on April 1, 2009 it will begin accepting H-1B petitions for the fiscal year 2010. Petitions will be considered accepted on the date that USCIS takes possession of the petition, not the date that the petition is postmarked. H-1B petitions cannot be filed more than six months in advance of the requested start date.

The H-1B program allows businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The 2010 fiscal year numerical cap for H-1B petitions is 65,000, but the first 20,000 H-1B petitions filed on behalf of foreign citizens who have earned a U.S. masters’ degree or higher will be exempt from the cap. H-1B petitions for employment at institutions of higher education or related or affiliated nonprofit organizations, nonprofit research organizations, or governmental research organizations also will be exempt from the cap.

Detailed information, including a processing worksheet, to assist in the completion and submission of fiscal year 2010 H-1B petitions is available on the USCIS web site www.uscis.gov or by contacting the USCIS National Customer Service Center at (800) 375-5283.
 

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As discussed in our previous entry, the new Form I-9 (revision date 2/02/2009) is currently scheduled to go into effect on April 3, 2009. The new I-9 form is available on the U.S. Citizenship and Immigration Services website. The new I-9 and the interim rule creating it were originally published in the Federal Register on December 17, 2008, with a correction published on January 16, 2009. However, on January 30, 2009, the U.S. Department of Homeland Security (DHS) announced that implementation of the new I-9 would be postponed until April 3, 2009. Notice of the delay appeared in the February 3, 2009 edition of the Federal Register. Continue reading Littler ASAP "Countdown to Effective Date of New I-9" by Jorge R. Lopez and Lisa A. Cottle.

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On Friday, the United States Citizenship and Immigration Services (USCIS) announced that employers receiving funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funds) must meet additional requirements before hiring foreign nationals to work in the H-1B specialty occupation category. Continue reading on Littler's Washington DC Employment Law Update blog. 

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U.S. Citizenship and Immigration Services (USCIS) has provided the new Form I-9 in its recently published “Handbook for Employers”—with the express caveat that it may only be used on or after April 3, 2009. As discussed in a previous entry, USCIS originally planned to implement the new I-9 on February 2, 2009, but interest group pressure resulted in a last-minute postponement. For more insight into this development, see Littler’s ASAP “USCIS Issues Interim Final Rule on I-9 Employment Verification” by Jorge R. Lopez and Chadwick M. Graham.

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As of March 2, the U.S. Citizenship and Immigration Services (USCIS) has expanded Premium Processing Service for designated Forms I-140 (Immigrant Petition for Alien Worker) to include alien beneficiaries who have reached, or are reaching, their limitation of stay in H-1B nonimmigrant status.  Previously, only certain alien beneficiaries who were in H-1B nonimmigrant status at the time of filing were able to request premium processing for Form I-140. 

As a result of this action (further details are available in a fact sheet), USCIS will accept Form I-907 (Request for Premium Processing Service) for alien worker petitions filed on behalf of alien beneficiaries who, as of the date of filing the Form I-907:

• are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
• have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
• are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
• are ineligible to extend their H-1B status under section 106(a) of AC21.

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Embedded in the massive House Appropriations bill (H.R. 1105) that was approved on Wednesday by a vote of 245-178 are provisions extending the E-Verify and EB-5 investor visa programs until September 30, 2009. Both programs are set to expire on March 6, 2009.  Continue reading about this development on Littler's Washington DC Employment Law Update blog.

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U.S. Citizenship and Immigration Services (USCIS) Acting Director Michael Aytes issued a memorandum [PDF] responding to the CIS Ombudsman’s recommendations regarding processing delays for Employment Authorization Documents (EADs).  The CIS Ombudsman had recommended that USCIS:

• Adhere to regulations that state USCIS shall issue EADs within 90 days, or issue interim EADs to prevent unnecessary loss of employment;

• Expeditiously provide information to the public stating the cause of EAD processing delays and how the delays will be addressed;

• Provide consistent guidance to the public regarding EADs pending more than 90 days; and

• Reconsider Ombudsman recommendation FR2006-25 to issue multi-year EADs.

In his memo, prior to responding to each recommendation in detail, Aytes states: 

“We acknowledge that, unfortunately, there is a small percentage of applicants whose cases are not adjudicated timely, and we understand that this imposes a significant burden on them, but we respectfully disagree with the perception that EAD processing, as a whole, is a significant issue.”

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A press release issued by the office of Senator Barbara A. Mikulski (D-Md.) states that Senator Mikulski, along with Senator Benjamin L. Cardin (D-Md.) and Congressman Frank M. Kratovil, Jr. (D-Md.), sent a letter to the Department of Labor and the Department of Homeland Security urging them to “use all means necessary” to protect small businesses throughout the country so they can keep their doors open this year. The reason for their concern is that, as of January 8, 2009, the U.S. Citizenship and Immigration Services (USCIS) had already received enough applications to exceed the cap for H2B visas for the second half of fiscal year 2009.

Senator Mikulski said,

Companies in Maryland and around the country are unable to get the H2B visas, and workers, that they need and depend on because of bureaucratic slowdowns. Small and seasonal businesses are counting on us. We need this problem resolved quickly so we can reward people who are playing by the rules, instead of letting them down.
 

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On January 8, 2009, US Citizenship and Immigration Services (USCIS) announced that it had reached the congressionally mandated H-2B cap for the second half of Fiscal Year 2009. Accordingly, January 7, 2009 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2009. USCIS states that it will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2009, that arrive after January 7, 2009.

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