Latest News, Blogs, and Other Thoughts on Immigration

On August 13, 2010, President Barack Obama signed into law a border enforcement funding bill, H.R. 6080, that would offset certain border security costs by raising fees for certain H-1B and L petitions. The bill was passed in the House of Representatives by voice vote on August 10, and was passed in the Senate by unanimous consent on August 12. Many believe the new fees are targeted towards a perceived misuse of H-1B and L-1 visas by Indian IT companies.

A group of IT staffing firms and associations has filed a lawsuit challenging a memo issued in January 2010 by Donald T. Neufeld, Associate Director of Service Center Operations for U.S. Citizenship and Immigration Services (USCIS), that provided guidance on determining employer-employee relationships for H-1B purposes.

The Department of State has published an interim final rule, effective June 4, 2010, that raises from $131 to $140 the fee charged for processing an application for most non-petition-based nonimmigrant visas (Machine-Readable Visas or MRVs) and adult Border Crossing Cards (BCCs). The rule also provides new tiers of the application fee for certain categories of petition-based nonimmigrant visas and treaty trader and investor visas (all of which are also MRVs). Finally, the rule increases the $13 BCC fee charged to Mexican citizen minors who apply in Mexico, and whose parent or guardian already has a BCC or is applying for one, by raising that fee to $14 by virtue of a congressionally mandated surcharge that went into effect in 2009.

The rule reopens the comment period on these fees for an additional 60 days. Written comments must be received by July 19, 2010. The Department will consider any further comments, and whether to make changes to the rule in response to them, before publishing a final rule.

The DOL recently released information that shows they are currently adjudicating PERM filings filed in August 2009.

CIS recently announced plans to issue a proposed rule to streamline the H-1B cap petition process in an effort to efficiently manage the intake of H-1B cap petitions.

It looks lke the H-1B cap will be open for many months again this fiscal year. As of April 8th, CIS reported receipt of 13,500 Regular Cap H-1Bs and 5,600 Master's Exemption H-1Bs. See:

On March 3, 2010, the Alliance of Business Immigration Lawyers (ABIL), of which Serotte Reich Wilson, LLP is a member, met with Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS), and several members of his leadership team. ABIL said it believes that employment-based immigration reforms should encompass changes in both nonimmigrant and immigrant visa categories so that the U.S. becomes the most attractive global destination for highly skilled and essential workers.

On March 19, 2010, U.S. Citizenship and Immigration Services (USCIS) announced revised filing instructions and addresses for applicants filing an Application for Travel Document (Form I-131), which is used to apply for a travel document, reentry permit, or advance parole. The agency said the change of filing location is part of an overall effort to transition the intake of some USCIS forms from local offices and Service Centers to USCIS Lockbox facilities.

The Department of State's April 2010 Visa Bulletin, section D, contains information on "frequently misunderstood points." Topics include the reasons behind fluctuations in demand for visa numbers; per-country limits; and oversubscription.

A few minutes ago USCIS announced that as of December 21, 2009, it has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.

The Department of State has released the October 2009 Visa Bulletin which is the first bulletin of the new fiscal year and which bulletin makes EB-3 visa numbers available, although not with the cut-off dates as many EB-3 applicants have hoped for. Additionally, EB-2 notes small forward movement while EB-5 is now unavailable due to the expiration of the EB-5 Pilot program.

The Department of State (DOS) has released information and predictions that paint a grim picture for the movement of priority dates for the next few fiscal years. The speculation is partiuclarly bleak for Indian and Chinese nationals.

On April 27, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website.

Applicants must now file their Form I-90 and supporting documentation with the USCIS Lockbox facility in Phoenix.
This change in filing location affects all I-90 applicants filing a paper form, including those applicants filing the I-90 because their previously issued card was never received or because their existing card has incorrect data due to a USCIS error. This notice does not affect applicants filing an I-90 electronically or whose place of residence is outside the United States.

Green cards (immigrant visas) are limited to a fixed number each year. For family-based green cards (relatives of U.S. citizens and permanent residents), the quota is about 226,000. For employment-based green cards, the quota is about 140,000. The quota is further divided into separate categories (such as EB-2 and EB-3), each with a separate quota.

To complicate matters further, no more than about 25,000 visas can be issued to citizens of any one country.

The United States Department of State is in charge of keeping track of how many visas are issued in the various categories. Unfortunately, in my opinion, they do a terrible job of educating the public about how the quota system works. So I will try to explain the system in a few sentences.

The State Department tries to ensure that visas are issued based on first-come, first-served. The Visa Bulletin is a waiting list that tells applicants where they are on the list.

But it is an inexact waiting list. It doesn't indicate how many people are on the list before you.

Imagine being told at a busy restaurant that you must wait for a table, but the Maitre D' cannot tell you how many people are waiting before you. "You came at 7:00 P.M., and we are now seating people who arrived at 6:00 P.M. But we can't tell you how many people arrived between 6:00 and 7:00, or how long you will have to wait. Enjoy your evening."

It gets even worse. Sometimes, the government makes a mistake. "Sorry, we forgot about a number of customers who came at 5:00 P.M., so now you have to wait even longer."

So how does a rational person deal with this system? You need much patience and firm guidance. Here's what I tell my clients applying through their employers:

1. For EB-2 cases for citizens of every country except those born in India and China, there is no waiting list. Your case will get done as soon as Immigration processes the application (which can still take 1-2 years).

2. For EB-2 cases for persons born in China, the waiting list is about 4 years. This might speed up a little in the next year or two.

3. For EB-2 cases for persons born in India, the wait is about 5 years. This might speed up in the future, although I'm not optimistic because there is a very large number of Indian applicants in this category.

4. For EB-3 cases for citizens of every country except those born in India, China and Mexico, the wait is about 3-4 years. This probably will NOT speed up in the future.

5. For EB-3 cases for persons born in Mexico, India and China, the wait is currently about 8 years. This should speed up in the next 1-2 years.

6. Indians, Mexicans and Chinese can get into the faster quota for a different country if they are married to a person born in a different country.

All green cards are the same; they all give you the right to live and work permanently in the United States. But there are dozens of different paths to the green card. This article discusses the path most commonly used by foreign workers: the Labor Certification system, also known as PERM.

The labor certification process is a means by which an employer can show that there are no available United States workers for a position, so that a foreign worker can be admitted to the United States as a permanent resident.

A few basic points of the system:

The Vermont Service Center (VSC) Liaison Committee recently offered guidance on avoiding the all too common situation in which the B1/B2 extension is approved, but the processing time took so long that by the time the approval came, the beneficiary was already unlawfully present!

We are receiving more and more questions from foreign nationals about the ability to file for H-1B extensions beyond six years under AC21 if an I-140 has been appealed.

The Department of Homeland Security has published a final rule, effective January 18, 2009, that expands the population of those who will be subject to US-VISIT requirements to nearly all non-U.S. citizens, including lawful permanent residents. Exceptions include Canadian citizens seeking short-term admission for business or pleasure under B visas and individuals traveling on A and G visas, among others.

As the dust from the election starts to settle, we have started receiving inquiries about the changes in immigration policy which may be expected from the new Obama-Biden administration.