Latest News, Blogs, and Other Thoughts on Immigration

One of the key issues that will need to be addressed in any immigration reform legislation is the current priority date backlog problem. This issue is particularly vexing for Indian nationals, where there is little movement for either EB-2 or EB-3 dates.

AILA members Michael Nowlan and Roberta Freedman recently spoke with the Department of State's Visa Office Head Charlie Oppenheim about current priority date backlog issues. Below are notes from that call which represent Mr. Oppenheim’s impressions at this time, and are subject to change based on usage or new developments.

* Mr. Oppenheim’s office has spent considerable time over the past several weeks looking at the new legislative proposals for immigration reform, and how they would impact backlog numbers. They have not done a full review of the recent usage of the immigrant classifications and how the priority dates will move in March. The office plans to have predictions as to how the priority dates will move for the next four months in the March Visa Bulletin.

* India EB-2 continues to see very little movement due to upgrades (EB-3 to EB-2 while maintaining the earlier priority date). Even looking at the current 2004 cut off dates, EB-2 India could easily reach their annual limit. However, the fall down from EB-1 could allow for more numbers to be used for EB-2 India.

* USCIS does not appear to be working to develop any processes or procedures to better capture the number upgrade cases, and so there is no better information expected from that agency to assist Mr. Oppenheim’s office in better managing these numbers.

* Upgrades continue to be a tough issue to manage. In December 2012 alone, India EB2 had 125 cases approved that were from 2003 or earlier.

* EB-1 India and China appear to have used their numbers for this year, but the rest of open EB-1 numbers can “fall across” to satisfy the need from India and China for EB-1, so no retrogression is expected at this time.

The Department of Labor Office of Foreign Labor Certification (OFLC) released its 2011 Annual Report. The 2011 Annual Report presents information on the Prevailing Wage Determination Process, Permanent Labor Certification and Temporary Nonimmigrant Labor Certification for FY 2011. In addition, this report contains valuable information on the State Employment-Based Immigration Profiles, Permanent Education Certification Statistics, H-1B Education Certification Statistics and Country Employment-Based Immigration Profiles.

Click the link below to view the Annual Report.

For years it has been frustrating that spouses of those in L-1 status (L-2s) were authorized to work in the U.S. but spouses of those in H-1B status (H-4s) did not have that same privilege. It has affected how we analyze non-immigrant work options and affected L-2s whose L-1 spouse was running out of L-1 time before a priority date became current and therefore had to change to H-1B status.

That may change soon as some H-4 spouses may be eligible for work authorization in certain situations.

There are rumblings that CIS may be finalizing a rule that will allow work authorization for H-4s if their H-1B spouse has an approved I-140 process and has extended their H-1B status beyond six years under AC21 because of the current green card backlog problem.

See:

http://www.reginfo.gov/public/servlet/ForwardSe...

Many people had been anxiously awaiting to see what the priority dates would look like for the new fiscal year starting on October 1, 2012. The dates are out, and the retrogression for EB-2 India is even more discouraging than anticipated. See:

http://travel.state.gov/visa/bulletin/bulleti...

It was initially predicted that EB-2 India would start the new fiscal year with a priority date sometime in 2007. Speculation then changed to a date in 2006. The recent release shows that EB-2 India actually retrogressed back to 2004. This is disheartening as EB-2 India had made it up to 2010 as recently as March 2012.

EB-2 China also went backwards, but only until July 2007.

On Thursday, August 30, 2012, Roberta Freedman, AILA Students & Scholars Committee member, and Mike Nowlan, Chair of the AILA Business Committee, had discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 and FY2013 with Charlie Oppenheim of the Department of State’s Visa Office. (AILA InfoNet Doc. No. 12012349)

Immigration law has become more art than science, more speculation than certainty. In many scenarios there is no "right" answer, no simple yes or no. Many times there are only conservative and aggressive approaches to a certain case. That lack of certainty makes attorneys uncomfortable, and employers who want to be compliant with the law even more uncomfortable.

One example is whether an amended H-1B petition is required when the employee's worksite changes. This is a common scenario, so there should be a consistent and clear answer. There should be clear guidance from CIS. There is not.

There is guidance from legacy INS dating back to 2003 reading that an amended I-129 is not needed for geographic moves so long as the following conditions are met:

1) An LCA has been filed and certified for the new location prior to the employee’s move to the new location;

2) The LCA has been posted in accordance with DOL regulations;

At a Business Executive Program (BEP) meeting held in Bangalore last week, Minister Counselor James W. Herman, U.S. Embassy, New Delhi, India, notified BEP member companies of a recent trend in U.S. citizens receiving six-month business visitor visas from Indian Consulates in the U.S. Until recently, U.S. citizens customarily received five to ten year Indian business visas. Herman indicated that the U.S. Embassy is currently discussing the matter with the Indian Ministry of Home Affairs in an effort to resolve the issue. Herman noted that if this trend continued, U.S. Consulates could start issuing only six-month B-1 visas to Indian citizens.

Sponsored by Rep. Jason Chaffetz [R-UT3], H.R. 3012 would amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, to increase the per-country numerical limitation for family-sponsored immigrants.

H.R. 3012 passed the House back in 2011 by a vote of 389-15. Since that time, it has been blocked in the Senate by Senator Charles Grassley (R-IA). In his initial opposition, Senator Grassley stated:

"Mr. President, I rise to inform my colleagues that I am placing a hold on H.R. 3012, the Fairness for High-Skilled Immigrants Act. This bill would eliminate the per-country numerical limitations for employment-based visas and increase the numerical cap for family-based immigrants. I have concerns about the impact of this bill on future immigration flows, and am concerned that it does nothing to better protect Americans at home who seek high-skilled jobs during this time of record high unemployment."

Recently, on June 22, 2012, Senator Grassley proposed new H-1B enforcement language that if agreed to would allow him to lift his objections to the underlying measure and would be incorporated into a new Senate version of H.R. 3012. His recent amendment calls for increased DOL investigations of employers with respect to compliance with the H-1B program. The problem with increased DOL investigations is that the DOL and DHS does not always agree on guidance and proper procedures regarding certain H-1B issues (i.e. When an amended H-1B filing is required.) As usual, this can leave the employer in a difficult situation.

Below are notes from conversations between Mike Nowlan & Roberta Freedman, AILA liaison committee members, and Charlie Oppenheim of the Visa Office. Topics discussed include the Visa Bulletin, visa demand in employment preference categories, and predictions for FY2012. (AILA Doc. No. 12012349.)

On Tuesday, June 19, 2012, Roberta Freedman, AILA Students & Scholars Committee member, discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 and beyond with Charlie Oppenheim of the Visa Office. Here are notes from that discussion:

2012 and 2013 News

In October 2012 (beginning of the 2013 fiscal year), the EB-2 cut-off dates for China-Mainland born and India, which are currently "unavailable," will move to August or September 2007 (China may be slightly better). It is unlikely that the cut-off dates will move forward at all for the first two quarters of FY2013. If they do, it will only be if the Visa Office is convinced that there is insufficient demand for the rest of the year. Mr. Oppenheim's office already has 17,000 EB-2 cases for natives of India, China, and worldwide with priority dates after January 1, 2009, pre-adjudicated. There will be a lot of cases queued up for adjudication in October 2012, and it will take some time to get through them.

Charlie Oppenheim, Chief, Visa Control and Reporting at DOS, recently announced at a recent AILA conference that he will likely retrogress India and China-mainland born EB-2 priority dates to around August 2007. This is likely to happen within the next 1-2 months. He also commented that he expects that all EB-1 visas available in FY2012 will be used and that no EB-1 numbers will fall down to the EB-2 preference category.

A new Visa Pilot Program has been proposed to simplify visa processing at U.S. consulates in 3 out of the 4 BRIC countries--Brazil, India & China. The program's goal is to increase tourism and business travel to the U.S. for individuals from these countries. Specific benchmarks for the program include:

The November 2011 Visa Bulletin includes the following information:

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

There is some confusion surrounding a release from the U.S. Consulate in Mumbai on its web site regarding the February 2011 Immigrant Visa numbers. The consulate’s web site shows that EB-2 numbers for India are current. See http://mumbai.usconsulate.gov/cut_off...

This is incorrect as EB-2 numbers for India are not current. In fact, EB-2 numbers for India have not moved at all since January. The EB-2 priority date for India remains as May 8, 2006—the same date as in January 2011.

On January 5, 2011, some civics test answers will change due to the recent Federal elections.
If you take the test ON or AFTER January 5, 2011:
Answer civics test questions 20, 23, and 47 using the answers below.

US Department of Labor seeks nearly $1.9 million in back wages and penalties from Newark, NJ, computer consulting company following investigation.
Company could face a 2-year debarment from participating in H-1B program

Each year, 50,000 immigrant visas are made available through a Diversity Visa Lottery to people who are natives of countries (typically a person’s country of birth) with low rates of immigration to the United States. The State Department’s National Visa Center holds the lottery every year, and chooses winners randomly from all qualified entries.
Entries for this year’s Diversity Visa Lottery, for fiscal year 2012, must be submitted electronically between noon, Eastern Daylight Time, Tuesday, October 5, 2010, and noon, Eastern Standard Time, Wednesday, November 3, 2010.
A lottery applicant who is selected in the Diversity Visa Lottery will be given the opportunity to then apply for permanent residence on his/her own behalf and on behalf of his/her spouse and any unmarried children under the age of 21. If permanent residence is granted (i.e., the issuance of a “green card”) to a lottery winner, then the lottery winner will be authorized to live and work permanently in the United States.
A lottery applicant must possess either a high school diploma or two years of qualifying work experience within the past five years.
Please note that spouses can each file a lottery application if they each meet the eligibility requirements independently. If one spouse is selected, both will be eligible for green cards, as will all of their minor children.
Applicants currently possessing H or L visas need not worry about concurrently stating immigrant and nonimmigrant intent. Applicants currently possessing other types of visas should review this issue carefully before applying for the lottery.
Natives of the following countries are not eligible to apply for permanent resident visas through the Diversity Visa Lottery: Brazil, Canada, China (mainland-born), Columbia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
Please check out www.dvlottery.state.gov,for additional information on the Diversity Visa Lottery as well as the Lottery Entry Form that can be completed online.

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.