Headlines:
1. DOS Reports on Employment-Based Visa Demand; First Preference ‘Extremely Low’ – Demand in the employment first preference is extremely low; it also appears unlikely that a second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high.
2. Case Updates: El Badrawi; Arizona – An H-1B worker who had timely sought an extension could not be arrested or subjected to removal; the Ninth Circuit affirmed an injunction against several controversial aspects of Arizona’s S.B. 1070.
3. USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation – Until further guidance is issued, USCIS is applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory cap based on an affiliation with or relation to an institution of higher education.
4. USCIS Continues To Accept FY 2012 H-1B Petitions – The agency has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.
5. DOL Orders School District To Pay Foreign Teachers Millions in Back Wages – School authorities had required the teachers to cover expenses for their H-1B work visas, in violation of the law.
6. Foreign Affairs Manual Guidance Revised on License Requirements for H-1Bs – The manual was revised to better reflect actual USCIS practice.
7. USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under H-1B Cap-Gap Regs – Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.
8. USCIS Issues Guidance on Concurrent Advance Parole, EAD – USCIS released a guidance memorandum on issuance of employment authorization documents with advance parole endorsements.
9. El Paso Passport Agency Opens – The new agency is located at 303 North Oregon Street in the Anson Mills Building, a few blocks from the U.S.-Mexico border.
10. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.
11. ABIL Global Mobility Conference – This half-day free conference will help guide professionals involved in global mobility issues to be better equipped when conducting business transactions in another country.
12. New Publications and Items of Interest – New Publications and Items of Interest
13. Member News – Member News
14. Government Agency Links – Government Agency Links
Details:
1. DOS Reports on Employment-Based Visa Demand; First Preference ‘Extremely Low’
The Department of State’s Visa Bulletin for May 2011 notes that demand in the employment first preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category is expected to remain “Current” for all countries. It also appears unlikely, the Bulletin says, that a second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best-case scenarios for cut-off date movement each month during the coming months are as follows:
Employment Second: Demand by applicants who are “upgrading” their status from employment third to employment second preference is very high, but the exact amount is not known. Such upgrades are in addition to the known demand already reported. The Bulletin said this makes it difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. Although thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India employment second preference per-country annual limits, it is not known how the upgrades will ultimately affect the cut-offs for those two countries.
China: An advance in the priority date of zero to three weeks is expected through July. No August or September estimate is possible at this time.
India: An advance in the priority date of one or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.
Employment Third:
Worldwide: An advance in the priority date of three to six weeks may occur.
China: An advance in the priority date of one to three weeks may occur.
India: An advance in the priority date of zero to two weeks is likely.
Mexico: Continued forward movement is expected; no specific projections at this time.
Philippines: An advance in the priority date of three to six weeks is likely.
The Bulletin notes that the above ranges are estimates based on current demand patterns, and are subject to fluctuations during the coming months. “The cut-off dates for upcoming months cannot be guaranteed, and no assumptions should be made until the formal dates are announced,” the Bulletin warned.
Allocation of “Otherwise Unused” Numbers:
INA § 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an employment preference, the unused numbers may be made available without regard to the annual per-country limits. Based on current levels of demand, the Bulletin for May 2011 states that there will be otherwise unused numbers in the employment first and second preferences. Such numbers may be allocated without regard to per-country limits, once a country has reached its preference annual limit. Since under INA § 203(e) such numbers must be provided strictly in priority date order regardless of chargeability, greater number use by one country would indicate greater demand by applicants from that country with earlier priority dates. Based on the amount and priority dates of pending demand and year-to-date number use, a different cut-off date could be applied to each oversubscribed country for the purpose of assuring that the maximum amount of available numbers will be used. The Bulletin noted that a cut-off date imposed to control the use of “otherwise unused” numbers could be earlier than the cut-off date established to control number use under a quarterly or per-country annual limit. For example, at present the India employment second preference cut-off date governs the use of numbers under § 202(a)(5) because India has reached its employment second annual limit. The China employment second preference cut-off date governs number use under the quarterly limit because China has not yet reached its employment second annual limit.
The rate of number use under § 202(a)(5) is continually monitored to determine whether subsequent adjustments are needed in visa availability for the oversubscribed countries. The Bulletin said that this helps assure that all available employment preference numbers will be used and that numbers also remain available for applicants from all other countries that have not yet reached their per-country limits.
As noted above, the number of applicants who may be upgrading their status from employment third to employment second preference is unknown. As a result, the cut-off date that governs use of § 202(a)(5) numbers has been advanced more rapidly than normal, in an attempt to ascertain the amount of upgrade demand in the pipeline while at the same time administering the available numbers. “This action risks a surge in demand that could adversely impact the cut-off date later in the fiscal year,” the Bulletin warned, adding that it also limits the possibility that potential demand would not materialize and the annual limit would not be reached due to lack of cut-off date movement.
The Visa Bulletin for May 2011 is available at http://www.travel.state.gov/visa/bulletin/bulletin_5424.html.
2. Case Updates: El Badrawi; Arizona
In El Badrawi v. USA, 07-cv-1074 (D. Conn. Dec. April 11, 2011), the United States District Court in Connecticut ruled that an H-1B worker who had timely sought an extension of that visa status, and who was authorized to continue working under 8 CFR § 274a.12(b)(20), could not be arrested or subjected to removal. Although a district court decision may not have precedential value beyond the plaintiff in the case, it is nevertheless significant because it provides a stepping-stone for other courts to be similarly persuaded.
In U.S. v. Arizona (9th Cir. April 11, 2011), the U.S. Court of Appeals for the Ninth Circuit affirmed an injunction against several controversial aspects of Arizona’s S.B. 1070, which established a variety of immigration-related state offenses and defined the immigration enforcement authority of Arizona’s state and local law enforcement officers.
The district court had granted the United States’ motion for a preliminary injunction in part, enjoining enforcement of S.B. 1070 sections 2(B), 3, 5(C), and 6, on the basis that federal law likely preempts these provisions. Arizona appealed the grant of injunctive relief, arguing that these four sections are not likely preempted; the United States did not cross-appeal the partial denial of injunctive relief. Thus, the United States’ likelihood of success on its federal preemption argument against these four sections was the central issue the appeal presented.
Among other things, the Ninth Circuit noted that “Congress explicitly required that in enforcing federal immigration law, state and local officers ‘shall’ be directed by the Attorney General. This mandate forecloses any argument that state or local officers can enforce federal immigration law as directed by a mandatory state law.
The Ninth Circuit affirmed the district court’s preliminary injunction order enjoining the controversial provisions, with one partial dissent.
El Badrawi v. USA is available at http://bit.ly/eKuTqS. For a blog on that case, see http://cyrusmehta.blogspot.com/2011/04/victory-in-el-badrawi-v-usa-narrowing.html. U.S. v. Arizona is available at http://www.ca9.uscourts.gov/datastore/opinions/2011/04/11/10-16645.pdf.
3. USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation
U.S. Citizenship and Immigration Services (USCIS) announced on March 18, 2011, that it is reviewing its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.
Effective as of March 18 and during the interim period, USCIS will defer to prior determinations made since June 6, 2006, that a nonprofit entity is related to or affiliated with an institution of higher education (absent any significant change in circumstances or clear error in the prior adjudication) and, therefore, exempt from the H-1B statutory cap. USCIS noted, however, that the burden remains on the petitioner to show that its organization previously received approvals of its request for an H-1B cap exemption on this basis.
Petitioners may satisfy this burden by providing USCIS with evidence, such as a copy of the previously approved cap-exempt petition (i.e., a Petition for a Nonimmigrant Worker (Form I-129) and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, along with any documentation that was submitted in support of the claimed cap exemption. USCIS suggests that petitioners also include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.
USCIS emphasized that these measures will only remain in place on an interim basis.
Evidence of previous determinations of cap exemption will be considered on a case-by-case basis only when submitted with an I-129 petition for H-1B status requesting exemption from the numerical cap, or in response to a Request for Evidence or Notice of Intent to Deny for H-1B petitions currently pending with USCIS claiming exemption from the cap. USCIS accordingly advised petitioners not to send separate correspondence containing their cap-exemption evidence on this issue.
The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2eb0652c630ce210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
4. USCIS Continues To Accept FY 2012 H-1B Petitions
U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2011, that it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2012 cap. The agency began accepting these petitions on April 1.
USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master’s degree or higher cap exemption. The agency reported that it has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.
Cases for premium processing of H-1B petitions filed during an initial five-day filing window are undergoing a 15-day processing period that began April 7. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the petition is physically received at the correct USCIS Service Center.
Meanwhile, petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.
The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebbdb1a97a53f210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
5. DOL Orders School District To Pay Foreign Teachers Millions in Back Wages
The Department of Labor (DOL) recently ordered the school system in Prince George’s County, Maryland, to pay $1.7 million in penalties and $4.2 million in back wages and penalties to more than 1,000 teachers recruited from foreign countries, many from the Philippines. School authorities had required the teachers to cover expenses for their H-1B work visas, in violation of the law.
Superintendent William R. Hite, Jr., plans to appeal the findings. He noted that the fines “may have a devastating impact on [the Prince George’s County school system] and its employees and the school system’s ability to continue to place a highly qualified teacher in every classroom.”
Under the ruling, the Prince George’s system must pay $4.2 million in back wages to the foreign teachers and $1.7 million in penalties. DOL spokeswoman Elizabeth Alexander said that the school system “refused to acknowledge” the problem sufficiently or to negotiate a settlement. County schools spokesperson Briant Coleman countered that school authorities had been unaware of the requirement and, when informed, “we corrected it immediately and paid the fees ever since.” Ms. Alexander said cases involving other school systems are pending.
An AFL-CIO report found that in 2008, Prince George’s schools obtained approval for 239 petitions for H-1B visas. Baltimore schools obtained 229 such approvals, the report found, and East Baton Rouge Parish schools in Louisiana obtained 205, Dallas schools 105 and New York City schools 96.
6. Foreign Affairs Manual Guidance Revised on License Requirements for H-1Bs
On March 31, 2011, the Foreign Affairs Manual (FAM) was revised to better reflect actual practice by U.S. Citizenship and Immigration Services:
The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States. [9 FAM 41.53 N4.1]
The pertinent section of the FAM is available at http://www.state.gov/documents/organization/87226.pdf.
7. USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under H-1B Cap-Gap Regs
U.S. Citizenship and Immigration Services (USCIS) released a Q&A document on April 1, 2011, addressing the automatic extension of F-1 student status in the U.S. for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011, under the fiscal year (FY) 2012 H-1B cap. Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.
Once a timely filing has been made requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed, USCIS explained. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the U.S.
To obtain proof of continuing status, a student covered under the cap-gap extension should go to his or her designated school official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.
If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status, USCIS said.
USCIS strongly encourages students “to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.”
The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
8. USCIS Issues Guidance on Concurrent Advance Parole, EAD
U.S. Citizenship and Immigration Services (USCIS) released a guidance memorandum on issuance of employment authorization documents (EADs) with advance parole endorsements.
Traditionally, USCIS has issued two separate documents, an EAD (Form I-766) and an Authorization for Parole of an Alien into the United States (Form I-512). Although adjudication of an Application for Travel Document (Form I-131) and an Application for Employment Authorization (Form I-765) requires two separate determinations by USCIS adjudicators, USCIS noted that the information required from the applicant and the processes followed by the adjudicator are similar.
USCIS noted that approximately 15% of applicants filing an I-765 based on a pending I-485 also file an I-131 concurrently with, or shortly after filing, the I-485. USCIS said it approves approximately 93% of those applications for ancillary benefits.
The agency therefore determined that it was more cost-effective for the government and more convenient for the applicants to adjudicate the I-765 and I-131 simultaneously and, if both forms are approved, to issue a single document indicating that both ancillary benefits have been granted.
Whenever possible, USCIS said its adjudicators will simultaneously adjudicate concurrently filed applications for employment authorization and applications for advance parole authorization filed by applicants for adjustment of status under 8 CFR § 245 or to register status under 8 CFR § 249. If USCIS approves both applications, it will issue a single document, Advance Parole EAD (Form I-766). USCIS is also reviewing whether it is feasible to expand eligibility for an EAD with advance parole endorsement to other EAD recipients who are eligible for advance parole.
The memorandum is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/April/issuance-advance-parole.pdf.
9. El Paso Passport Agency Opens
The Department of State (DOS) held a ribbon-cutting ceremony on April 8, 2011, to mark the official opening of the El Paso Passport Agency. The new agency is located at 303 North Oregon Street in the Anson Mills Building, a few blocks from the U.S.-Mexico border. DOS said the new agency “alleviates the need for local residents with urgent travel plans to drive or fly to the Houston Passport Agency, approximately 750 miles away, or the Western Passport Center in Tucson, Arizona, approximately 300 miles away.”
The announcement is available at http://www.state.gov/r/pa/prs/ps/2011/04/159682.htm.
10. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals
A new three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest in the USA, the association of EB-5 regional centers, will help guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. The series will explain immigration options and offer practical real-world strategies:
- Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held April 13 at 12 noon (Eastern time). Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
- Session 2: EB-5 regional center applications and project pre-approval petitions, to be held July 6 at 3 pm (Eastern time). Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
- Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 pm (Eastern time). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.
The cost is $89 for an individual session or $249 for all three sessions. To register, go to the ABIL Webinars sign-up page at https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, e-mail Lauren Anderson at lauren@abil.com or visit http://www.abil.com.
11. ABIL Global Mobility Conference
The Alliance of Business Immigration Lawyers’ (ABIL) Global Immigration Network will present a Global Mobility Conference in London, England, on Thursday, May 5, 2011, from 2 to 5 pm. This half-day free conference will help guide professionals involved in global mobility issues to be better equipped when conducting business transactions in another country. The conference will look at the following areas:
- Compliance related to immigration and tax, as well as criminal liability
- Best practices in global mobility through a case study
- Global mobility trends and hot topics from multiple countries
The conference is presented by ABIL and co-sponsored by Baker Tilly International, a network of accountancy and business advisory firms. For more information, e-mail Lauren Anderson at lauren@abil.com.
12. New Publications and Items of Interest
House hearing testimony on the H-1B program: Testimony from the March 31, 2011, House Judiciary Subcommittee on Immigration Policy and Enforcement hearing, “H-1B Visas: Designing a Program to Meet the Needs of the U.S. Economy and U.S. Workers,” included Donald Neufeld, Associate Director of USCIS Service Center Operations; Bo Cooper, Partner, Berry Appleman & Leiden LLP; Ron Hira, Ph.D., Associate Professor of Public Policy, Rochester Institute of Technology; and Bruce A. Morrison, Chairman, Morrison Public Affairs Group. Lamar Smith (R-Tex.) chaired the hearing. The testimony is available at http://judiciary.house.gov/hearings/hear_03312011.html.
USCIS naturalization and permanent residence statistics: The Department of Homeland Security has released reports on naturalizations in 2010 and permanent residence in 2010. The reports are available at http://www.dhs.gov/files/statistics/immigration.shtm.
DOL FAQ on requesting an extension for submitting documents: The Department of Labor’s Office of Foreign Labor Certification released a FAQ on what an employer should do if it is unable to provide documentation in response to a decision or a request for information in a timely manner (i.e., before an established deadline), particularly in extenuating circumstances where the deadline is immediate. The FAQ is available at http://www.aila.org/content/default.aspx?docid=35039.
13. Member News
Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) has published a new blog entry. “Deporting A U.S. Citizen Child? Take a Leaf Out of the State Department’s Book on Birthright Citizenship” discusses the case of a four-year-old U.S. citizen child sent to Guatemala by U.S. Customs and Border Patrol, and dual nationality issues. The blog is available at http://cyrusmehta.blogspot.com/.
Mr. Mehta also recently did a podcast for the American Immigration Lawyers Association on “Terminating the Attorney-Client Relationship,” available at http://www.aila.org/content/default.aspx?docid=34999.
Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published several new blog entries. “Xeriscaped Immigration — With All the Juice Squeezed Out” discusses recent developments, including rumors that there will likely be no let-up in detentions, removals and worksite enforcement actions, and no legislative action or administrative relief on comprehensive immigration reform until after the 2012 elections. The blog also notes that U.S. Citizenship and Immigration Services recently announced that it had received just over 10,000 H-1B visa petitions for foreign workers in specialty occupations (about 5,900 petitions counting toward the 65,000 cap, and roughly 4,500 petitions toward the 20,000 cap for holders of advanced U.S. degrees). The blog is available at http://www.nationofimmigrators.com/xeriscaped-immigration—-with-all-the-juice-squeezed-out/index.html. “Immigration Punking — Left, Right and Center” discusses various tomfoolery and foolishness in the immigration field, some of which is related to April Fool’s Day and some of which is regrettably all-too-real. The blog is available at http://www.nationofimmigrators.com/immigration-reform/immigration-punking—-left-right-and-center/.
14. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
Department of State Visa Bulletin: http://travel.state.gov/visa/bulletin/bulletin_1360.html
