Fiscal Year 2012 Cap for H-1B Visa Petitions Reached on November 22, 2011

Posted on November 29, 2011 by Immigration/Global Migration Group

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.

The H-1B "cap" limits new H-1B approvals to 65,000 each fiscal year. Of this amount, 6,800 are set aside for the H-1B1 visa program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Each year, any unused 6,800 Chile/Singapore H-1B1 visas are reserved for use during the next fiscal year. In addition to the standard 65,000 H-1B cap pool, there are 20,000 additional H-1B numbers made available for foreign workers with a master’s or higher degree from a U.S. academic institution. As of October 19, 2011, sufficient numbers of applications were received by USCIS to meet the 20,000 advanced degree exemption cap also.

It is important to note that only NEW H-1B petitions are subject to the cap. The following H-1B filings are NOT subject to the cap:

  •  H-1B petitions for an extension of status;
  • H-1B change-of-employer petitions;
  • H-1B amendment petitions; 
  • H-1B concurrent employment petitions; 
  • H-1B petitions filed by cap-exempt organizations, including:
    • institutions of higher education; 
    • nonprofit research organizations; and
    • entities related or affiliated with an institution of higher education, a nonprofit research organization or a governmental research organization; 
  • H-1B petitions for J-1 nonimmigrants who received a waiver of the two-year foreign residency requirement based on certain interested state or federal agency requests; and
  • H-1B petitions for beneficiaries who were counted against the cap within the preceding six years, unless the beneficiary is entitled to request a new six-year period.

Employers should discuss alternative visa options with experienced immigration counsel now that the H-1B cap for FY 2012 has been met.
Tags: , , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Releases FY 2012 H-1B Visa Petition Numbers Updated as of October 7, 2011

Posted on October 14, 2011 by Immigration/Global Migration Group

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.

Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

Office of Foreign Labor Certification FAQ on Prevailing Wage Determinations Sends Mixed Message

Posted on September 19, 2011 by Immigration/Global Migration Group

By Ian Macdonald

The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has released Frequently Asked Questions Regarding Delays Issuing Prevailing Wage Determinations and H-1B Labor Condition Applications (pdf).  OFLC’s current priority is to complete H-2B wage redeterminations, but it also notes that it receives voluminous requests for prevailing wage determinations (PWD) in connection with H-1B petitions. When filing an H-1B petition, the employer must pay to the H-1B employee 100% of the prevailing wage or higher. As OFLC points out in its FAQ document, an OFLC-issued PWD is not mandatory for H-1B petitions, and employers filing petitions may use the following alternative sources for determining a prevailing wage:

  • a wage rate included in a collective bargaining agreement;
  • a wage rate for the occupation and area of intended employment under the Davis-Bacon Act or the McNamara-O’Hara Service Contract Act;
  • a wage rate produced by a survey conducted by an independent authoritative source that meets DOL regulatory standards; or
  • a wage rate produced by another legitimate information source, such as the Bureau of Labor Statistics Occupational Employment Statistics Survey or a state-generated prevailing wage survey.

OFLC points out, however, that using an OFLC-issued PWD for an H-1B petition provides employers a “safe harbor” against claims that they failed to pay H-1B workers the required prevailing wage. If an employer uses an alternative source for determining the prevailing wage, it is at risk during a DOL wage and hour investigation and/or enforcement action of having to defend its asserted prevailing wage and demonstrate that the PWD meets the criteria dictated by H-1B regulations.

Consequently, should an employer use an alternative prevailing wage source (other than one issued by OFLC) when filing an H-1B petition, it is critical for the employer to ensure that the proper methodology is used by the person preparing the Labor Condition Application (LCA). An inaccurate representation on a LCA or the failure to be in full compliance with the required attestations may subject the employer to certain penalties, including fines, back pay and debarment from obtaining work authorization for foreign national employees. Further, the failure to comply with the DOL regulations regarding the employment of H-1B employees may result in a finding that the company is a “willful violator,” resulting in additional onerous attestation obligations regarding displacement of U.S. workers and recruitment of U.S. workers prior to the hiring of H-1B employees. Thus, it is very important to carefully review any such applications to be filed by the company to ensure accuracy, particularly the PWD used. 
Tags: , , , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Transitioning to Electronic Case Management System

Posted on September 6, 2011 by Immigration/Global Migration Group

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.

The background section of the final rule cites several reasons for the change. USCIS receives about 6 million immigration benefit requests per years, via more than 50 application and petition types, and USCIS’s paper-based process has become inefficient in light of technological developments. Although USCIS will not become completely paperless, completed paper filings will be digitally converted and the agency will operate electronically, thereby “fostering greater operational efficiency, provid[ing] transparency], and improv[ing] access to information through online accounts for those who do business with USCIS.”

Under the new system, USCIS will use online accounts. Applicants and petitioners will have access to individualized accounts that:

  • provide information on applying for benefits;
  • make filing easier; and
  • allow applicants, petitioners, and their representatives to track the status of applications and petitions.

Additionally, the electronic system will provide USCIS adjudicators a comprehensive view of an alien’s immigration history.

DHS also noted that it is finalizing interim rules to permit the submission of benefit requests with an electronic signature when submitted in electronic format.

Photo credit: Tom Ventura
Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Policy Memorandum Addresses B-2 Status for "Household Members" of Nonimmigrant Visa Holders

Posted on September 4, 2011 by Immigration/Global Migration Group

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.”

Pursuant to the Memorandum, USCIS will examine the B-2 visa applicant’s relationship to the principal, and the relationship will be considered a favorable factor when determining whether the applicant should be awarded, or have extended, a B-2 visa. Multiple extensions or a change of status will not negatively impact applications if the stay’s duration remains finite. However, if the applicant seeks a visa or extension with a date that goes beyond the expiration date of the principal’s visa, this will negatively impact the application, and will likely result in a denial.

Under a B-2 visa (nonimmigrant visitor), a qualifying individual can enter the United States for pleasure, tourism, or medical treatment. The individual’s stay in the United States must be for a specific, limited period (normally, visitors are limited to a six-month stay unless they applied for an extension upon entering the United States). Moreover, B-2 visa holders must demonstrate that they have:

  1. sufficient funds to cover their visit;
  2. social and economic ties abroad; and
  3. a residence outside the United States and other binding ties that insure they will return abroad after their visit is complete.

To extend, or change to, B-2 visa status, applicants must complete Form I-539 (Application to Extend/Change Nonimmigrant Status). USCIS provides guidance materials for those wishing to extend their B-2 visa, or change to B-2 status. 

Photo credit: Yuri Arcurs
Tags: , , , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Releases Updated FY 2012 H-1B Visa Petition Numbers

Posted on September 2, 2011 by Immigration/Global Migration Group

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.

Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Releases Updated FY 2012 H-1B Visa Petition Numbers

Posted on August 22, 2011 by Immigration/Global Migration Group

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.

Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Releases Updated FY 2012 H-1B Visa Petition Numbers

Posted on August 8, 2011 by Immigration/Global Migration Group

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.

Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Announces Proposed Enhancements to Immigrant Investor Visa Application Processing

Posted on June 3, 2011 by Immigration/Global Migration Group

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

Tags: , , , , , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

DHS Final Rule Amends Petition Filing Locations for Forms I-130 and I-360

Posted on June 3, 2011 by Immigration/Global Migration Group

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

Tags: , , , , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

Proposed Rule Would Streamline H-1B Petition Process Beginning 2012

Posted on March 9, 2011 by Immigration/Global Migration Group

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.

If USCIS anticipates that the filing cap (regular cap of 65,000; master’s degree exemption cap of 20,000) will not be reached by the first day of the filing period, the agency would notify electronic registrants of their eligibility to file a petition for the prospective H-1B workers named in the registrations. Petitioning employers would then proceed to submit the LCA. USCIS would continue to accept and select registrations until the cap is reached.

However, if USCIS anticipates the filing cap will be reached by the first day of the filing period, the agency would close the registration early and randomly select a “sufficient number” of timely filed registrations to meet the applicable cap. Only if a registration was among those randomly selected would the employer be able to file a petition for the person named in the registration. USCIS would place on a waitlist some (or all) remaining registrations based on agency estimates concerning the cap and anticipated filings.

USCIS contends that the proposed registration process will save the agency and H-1B filers as much as $23 million over ten years. The agency believes the registration process will only take employers 30 minutes, thereby reducing personnel, mailing and filing expenses normally incurred in the process.

According to a USCIS fact sheet on the proposed rule, the agency could implement the proposed registration system for the fiscal year 2013 H-1B season, which opens April 2012.

USCIS encourages formal comments on the proposed rule at www.regulations.gov. The comment period opened on March 3, 2011, and ends May 2, 2011. 
Tags: , , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Introduces Web-Based Tool to Validate Information About Companies Petitioning to Hire Foreign Workers

Posted on February 3, 2011 by Immigration/Global Migration Group

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).

Although VIBE does not completely remove paper from the adjudication process, it could potentially decrease the time and resources that petitioners expend to comply with initial filing requirements or Requests for Evidence (RFEs). However, for employers to completely take advantage of VIBE, they will need to ensure that information is complete and up-to-date with Dun & Bradstreet, the agency’s IIP.

USCIS notes that it will not deny a petition based upon information from VIBE without first giving the petitioner an opportunity to respond to USCIS’s concerns. Accordingly, petitioners now might receive RFEs related to VIBE information.
Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

Fiscal Year 2011 Cap Reached for H-1B Visa Petitions

Posted on February 1, 2011 by Immigration/Global Migration Group

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.

Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

FY2011 Petition Cap Met for H-1B Master's Exemption Visa; 6,300 Regular H-1B Visas Remain

Posted on January 14, 2011 by Immigration/Global Migration Group

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.

Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Delays Full Implementation of Updated Form I-129

Posted on January 7, 2011 by Immigration/Global Migration Group

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).

Prior to the November 2010 release of the updated Form I-129, which requires certification of compliance with EAR and ITAR, many employers may not have been familiar with these regulations. Part 6 of the revised Form I-129, titled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States,” requires petitioners to certify that they reviewed EAR and ITAR and that the “technology or technical data the petitioner will release or otherwise provide access to the beneficiary [visa holder]” either does not require a license from the U.S. Departments of Commerce or State, or that access will be denied until the required license or other authorization to release is granted.

Technology and technical data that are controlled for release to foreign persons are contained on the EAR’s Commerce Control List (15 C.F.R. Part 774), which is overseen by the Commerce Department’s Bureau of Industry and Security. The ITAR’s U.S. Munitions List (22 C.F.R. Part 121) is overseen by the State Department’s Directorate of Defense Trade Controls.
Tags: , , , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Releases Updated FY 2011 H-1B Visa Petition Numbers

Posted on December 23, 2010 by Immigration/Global Migration Group

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.

Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Issues Two Binding Precedent Appeals Decisions

Posted on November 4, 2010 by Immigration/Global Migration Group

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."

Matter of Al Wazzan

In Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010) [initially decided Jan. 12, 2005], the applicant’s employer filed an initial immigrant visa petition in 1998, which the director denied on February 2, 2000. An appeal was dismissed on January 8, 2001. The employer filed a second petition on August 26, 2002, and the applicant filed an application for adjustment of status on September 18, 2002 – both were denied over one year later, in August and September 2003, respectively.

The applicant argued that the director erred in denying his application for adjustment of status because resolution took over 180 days. This argument was based on a 2000 amendment to 8 U.S.C. § 1182(a)(5)(A)(iv), which stated that:

A petition . . . for an individual whose application for adjustment of status . . . has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

The applicant contended that the petition became “valid” if the agency did not resolve the matter within six months. The AAO noted that this interpretation would have immigration courts “construe the term ‘valid’ to include denied or unadjudicated petitions.”

The AAO found no basis for the applicant’s interpretation. After examining the statute’s plain language, legislative history, prior immigration decisions, and recognizing that petitions could only be approved after USCIS investigated a petition and determined eligibility, it concluded that it “would be irrational to believe that Congress intended to throw out the entire statutorily mandated scheme regulating immigrant visas whenever that scheme requires more than 180 days to effectuate.”

Concerning petitioner’s argument that the legislative intent was to alleviate immigration petition backlogs, the AAO held this interpretation “would create a situation where ineligible aliens would gain a ‘valid’ visa simply by filing frivolous visa petitions and adjustment applications, thereby increasing USCIS backlogs, in the hopes that the application might remain unadjudicated for 180 days.”

Accordingly, because the applicant’s visa petition had been properly denied, the applicant was ineligible to have his immigration status adjusted and denial of the applications was proper.

Matter of Chawathe

The primary question presented in Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) [initially decided Jan. 11, 2006], was “whether a publicly traded corporation may be considered an ‘American firm or corporation,’ [for immigration law purposes]... when its stock ownership is widely dispersed and there is no readily available means to determine the nationality of its owners.”

In Chawathe, the applicant was a U.S. permanent resident who intended to apply for U.S. citizenship, but would be working overseas for between two to three years. To qualify for citizenship, the applicant would need to reside continuously in the U.S. as a lawful permanent resident for the five years prior to filing an application, and be physically present in the United States for at least half of the residency period. However, the law provides that no period of absence from the United States will break the residency continuity if the individual was: (1) physically present and residing in the U.S., after gaining permanent residency, for an uninterrupted one-year period; and (2) employed by an “American firm or corporation” or subsidiary thereof.

Seeking to preserve his U.S. residency, the applicant filed the required preservation of residency petition. The director denied the petition based on two determinations: (1) that the applicant did not work for an American firm or corporation; and (2) that the applicant’s temporary overseas employer did not qualify as a subsidiary of an American firm or corporation. The applicant appealed both determinations.

American Firm or Corporation

The AAO held that a company’s incorporation in a U.S. state does not in itself establish the entity as an American firm or corporation. To qualify, more than 50% of the company must be owned by American citizens. In Chawathe, proving ownership would be an onerous task: the applicant’s employer was a publicly-traded company on the New York and San Francisco stock exchanges that could issue 4.1 billion shares, so the applicant would need to demonstrate that American citizens owned more than 2.05 billion shares. Understanding the difficulty of tracing nationalities and ownership interests of public companies, the AAO found it “reasonable to presume” a public company qualified as an American firm or corporation for immigration law purposes if the company was both incorporated in the United States and traded its stock exclusively on U.S. stock markets.

Subsidiaries

The AAO also concluded that the applicant had demonstrated that his temporary overseas employer was a subsidiary of an American firm or corporation. The temporary overseas employer was listed as a subsidiary in the company’s Securities and Exchange Commission (SEC) filings. Moreover, the applicant provided a letter from the American company’s Assistant to the President stating that the temporary overseas employer was a wholly-owned subsidiary, and that although the applicant would be working for the temporary overseas employer for two to three years his salary would be paid by the American company. The AAO held that, although the applicant could have provided more probative evidence of the temporary overseas employer’s subsidiary status, the SEC filing and corporate letter established, by a preponderance of the evidence, that the temporary overseas employer was a wholly-owned subsidiary of the applicant’s American employer. Because qualifying for citizenship based on permanent resident status only required the applicant to prove his eligibility by a preponderance of the evidence (compared to the heightened standard of “clear and convincing evidence” for petitions based on marriage), he provided sufficient evidence for the director to conclude that “more likely than not” the applicant satisfied his burden of proof.

Accordingly, the AAO sustained the appeal, finding the employer an American firm or corporation and the temporary overseas employer a qualifying subsidiary, and concluding that the applicant met the requirements for preserving his U.S. residency while abroad.
Tags: , , , , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Releases Updated FY 2011 H-1B Visa Petition Numbers

Posted on September 23, 2010 by Immigration/Global Migration Group

United States Citizenship and Immigration Services LogoUnited 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.

Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

H-1B & L-1 Visa Fee Increases Take Effect

Posted on August 27, 2010 by Immigration/Global Migration Group

Passport StampU.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.

USCIS is currently updating the Petition for a Nonimmigrant Worker (Form I-129) to comply with the new law. Moreover, USCIS recommends that petitioners include the additional fee(s) in their application packet(s) or include a statement or other evidence demonstrating why the fee does not apply. If USCIS does not receive the additional fee or a statement or evidence of why the additional fee does not apply, it may issue a Request for Evidence to determine whether, in fact, the new law applies to the petitioner.
Tags: , , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

Updated Numbers Released for Fiscal Year 2011 H-1B Visas

Posted on April 29, 2010 by Immigration/Global Migration Group

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.

Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Continuing to Accept Fiscal Year 2011 H-1B Petitions

Posted on April 19, 2010 by Immigration/Global Migration Group

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).

Tags: , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

Implications of USCIS Memo on H-1B Employment Relationship Requirements

Posted on March 30, 2010 by Immigration/Global Migration Group

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.

Tags: , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Memo Outlines Employer-Employee Relationship for H-1B Purposes

Posted on January 21, 2010 by Immigration/Global Migration Group

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.
Tags: , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Further Extends Validity Period of Medical Endorsements

Posted on January 11, 2010 by Immigration/Global Migration Group

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.

A medical examination and endorsement is required for adjustment applications. Normally endorsements are invalid after one year. However, because many applications have remained pending for more than one year, USCIS has extended their validity.

This is USCIS’s second extension in as many years. In December 2008, extensions were granted for cases decided before January 1, 2010 if: (1) the above-mentioned conditions were met, and (2) no Class B medical condition (e.g., hypertension, diabetes) was noted in Form I-693’s section 6. The latter requirement, however, is not included in the current extension.
Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

Fiscal Year 2010 H-1B Cap Has Been Reached

Posted on December 23, 2009 by Immigration/Global Migration Group

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.

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.

In addition, employers who have hired graduates from U.S. schools should keep in mind that they may be able to take advantage of the “cap-gap” provision or STEM provision to continue the employment of those graduates in the absence of H-1B numbers.
Tags: , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

H1-B Cap Count: Lottery System Possible on Final Receipt Date

Posted on December 17, 2009 by Immigration/Global Migration Group

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.

In addition, employers who have hired graduates from U.S. schools should keep in mind that they may be able to take advantage of the “cap-gap” provision or STEM provision to continue the employment of those graduates in the absence of H-1B numbers. The cap-gap provision will allow graduates who have Optional Practical Training (OPT) employment authorization that is valid on the date an H-1B cap-subject petition is filed (April 1, 2010 or later) to continue working through the date the approved H-1B becomes effective (which will be October 1, 2010). The STEM provision allows graduates who have OPT employment authorization based on a degree earned in a listed science, technology, engineering or math program to apply for a 17-month extension of their employment authorization, if their employer is enrolled in E-Verify. Employers will have to balance the risks and benefits of E-Verify participation when determining whether to take advantage of this provision.

This entry was written by Aimee Clark Todd.
Tags: , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

Filings of H-1B Cap-Subject Petitions Are on the Upswing

Posted on December 1, 2009 by Immigration/Global Migration Group

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.

Tags: , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Updates H-1B Petition Numbers for Fiscal Year 2010

Posted on June 25, 2009 by Immigration/Global Migration Group

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.

Tags: , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Issues Updated Count of Fiscal Year 2010 H-1B Petitions

Posted on April 30, 2009 by Immigration/Global Migration Group

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.
 

Tags: , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

H-1B Cap Still Not Reached

Posted on April 20, 2009 by Immigration/Global Migration Group

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.

Tags: , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

USCIS Reaches H-2B Cap for Second Half of Fiscal Year 2009

Posted on January 14, 2009 by Immigration/Global Migration Group

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.

Tags: , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link