News from the Alliance of Business Immigration Lawyers Vol. 5, No 12B • December 15, 2009
Headlines:
1. H-1B Cap Count Near Limit; File Now or Wait Until April – The pace of H-1B filings has increased significantly in recent weeks.
2. Self-Check Verification In the Works, USCIS Head Says; ‘Verification Initiative for Business Enterprise’ Discussed – The recent pace of filings suggests that H-1B numbers may be exhausted for this fiscal year very soon.
3. Visa Bulletin Issues Projections for FY 2010 Cut-Off Dates – The Visa Bulletin for January 2010 includes projections for cut-off dates that will be reached by the end of fiscal year 2010.
4. State Dept. To Deploy Web-Based Nonimmigrant Visa Application Worldwide – The DS-160 will be expanded in phases, with the goal of worldwide usage for all nonimmigrant visa applications, except K visas, by April 30, 2010.
5. CBP Launches H-2 Temporary Worker Exit Program in Arizona – Only H-2A and B temporary workers who enter the U.S. on a new work authorization will be required to register their final departure from the U.S. when their authorized period of stay expires.
6. Northern Marianas Update: Transitional Worker Injunction, Parole Status, P.O. Box Recommendation – USCIS announced, among other things, that it will grant parole status to eligible foreign nationals from certain groups in the CNMI affected by the transition.
7. CBP Announces ‘FAST’ Commercial Frequent Traveler Program Change – All old FAST cards will be deactivated on January 5, 2010.
8. ETA Announces Change in Address for Certain Temporary Labor Certification Filings – The Chicago National Processing Center has moved.
9. Publications and Items of Interest – Publications and Items of Interest
10. Recent News from ABIL Members – Recent News from ABIL Members
11. Government Agency Links – Government Agency Links
Details:
1. H-1B Cap Count Near Limit; File Now or Wait Until April
U.S. Citizenship and Immigration Services reported that as of December 10, 2009, approximately 62,500 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for workers with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS said it will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions has been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
The Alliance of Business Immigration Lawyers (ABIL) notes that the pace of H-1B filings has increased significantly in recent weeks, and predicts that the H-1B cap could be reached by the end of this year. Department of Labor delays in processing labor condition applications (LCAs) reportedly are complicating matters; the most prevalent problem in the new iCERT online system is the denial of LCAs when the Department cannot verify the employer’s Federal Employment Identification Number (FEIN). Once the employer locates the necessary documentation and sends it to the Department, it has been taking up to 10 additional business days to resolve the problem, according to reports. After it has been resolved, the employer can resubmit the LCA through iCERT; the resubmission is once again subject to the seven-day processing time.
USCIS recently issued an advisory noting that it will accept uncertified LCAs seven days after they were filed, even if they got denied due to lack of FEIN verification.
Companies that wish to sponsor an H-1B cap-subject employee for this fiscal year should contact their ABIL member immediately. Once the H-1B cap has been met, the earliest an employer can file an H-1B petition will be April 1, 2010, with an employment start date of October 1, 2010.
For more details on the H-1B count, see http://www.uscis.gov/h-1b_count. For information on the temporary acceptance of H-1B petitions without Department-certified LCAs, see http://www.uscis.gov/USCIS/Laws/Memoranda/2009/h-ib-petitions-temporary-acceptance.pdf. For a Q&A on the same topic, see http://www.foreignlaborcert.doleta.gov/pdf/FAQ_PERM_Appeals_Filing_Final_12012009.pdf.
2. Self-Check Verification In the Works, USCIS Head Says; ‘Verification Initiative for Business Enterprise’ Discussed
U.S. Citizenship and Immigration Services Director Alejandro Mayorkas announced at a press conference on December 10, 2009, that the agency plans to incorporate a self-check option in the E-Verify system some time in 2010. The capability is intended to allow workers to verify their employment authorization before applying for a job. Eight days are allowed currently to address a “tentative nonconfirmation”; Mr. Mayorkas said the new capability will give workers time to correct any errors before they apply for a job, without having to meet an eight-day deadline.
Mr. Mayorkas also noted that the Verification Initiative for Business Enterprise (VIBE) Web-based program is expected to be launched in spring 2010. In a letter sent to Sen. Charles Grassley on November 10, 2009, outlining the VIBE program and discussing other issues, Mr. Mayorkas said that VIBE will use “commercially available data from [Dunn and Bradstreet] to validate and verify information submitted by organizations that petition to employ alien worker.” Mr. Mayorkas said his agency believes VIBE “will provide adjudicators with a tool to accurately verify the financial viability and current level of business operations for employment-based petitions.
Others aren’t so sure that this program gives off such a good vibe. For a commentary, see http://blogs.ilw.com/angelopaparelli/2009/12/bad-bad-bad-immigration-vibrations-from-uscis.html
Mr. Mayorkas’ letter to Sen. Grassley is available at http://www.nationofimmigrators.com/wp-content/uploads/2009/12/Mayorkas%20letter%20to%20Grassley%20re%20H-1B%20visa%20fraud.pdf.
3. Visa Bulletin Issues Projections for FY 2010 Cut-Off Dates
The Department of State’s Visa Bulletin for January 2010 includes the following projections for cut-off dates that will be reached by the end of fiscal year 2010. The Department cautioned that the date ranges are only estimates and are subject to fluctuations in demand during the coming months. It is possible that some annual limits could be reached before the end of the fiscal year, the Department said:
Employment First:
It is unlikely that there will be any cut-off dates in the employment first preference categories, which are now Current.
Employment Second:
China: July through October 2005
India: February through early March 2005
(If Section 202(a)(5) were to apply:
China and India: October through December 2005)
Employment Third:
Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005
Additional details, including an explanation of INA section 202(a)(5) and other aspects of how cut-off decisions are made, are available in the Visa Bulletin for January 2010 at http://travel.state.gov/visa/frvi/bulletin/bulletin_4597.html.
4. State Dept. To Deploy Web-Based Nonimmigrant Visa Application Worldwide
The Department of State’s Bureau of Consular Affairs recently announced that it plans to deploy a fully Web-based Form DS-160 (Nonimmigrant Visa Application) worldwide. The Visa Office said that the DS-160, the first component or module of the Consular Electronic Application Center (CEAC), “has been used with great success at 24 posts so far” and will be expanded in phases, with the goal of worldwide usage for all nonimmigrant visa applications, except K visas, by April 30, 2010. TheDS-160 will replace the Electronic Visa Application Form (EVAF).
The Visa Office noted that although the target completion date is still five months away, it faces a technical challenge in meeting this deployment goal, involving development and testing of new foreign language translations. Sixty-four hours of development time are required to deploy a new translation of the DS-160 at a cost of $8,000 per language, which the Visa Office noted limits how quickly the DS-160 can be deployed to posts where English is not widely spoken. On October 29, Consular Affairs approved translation of 22 languages. The Visa Office said it will monitor this process carefully and will request additional funding and resources if necessary to avoid implementation delays.
The Visa Office strongly encouraged consular posts to consider developing an outreach plan to advise applicants and other stakeholders of the CEAC implementation. Posts listed in the Visa Office’s cable have been identified as priority posts to implement the DS-160 by March 1, 2010. The cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4601.html. Additional information on the DS-160, including frequently asked questions, is available at http://www.travel.state.gov/visa/frvi/forms/forms_1342.html.
5. CBP Launches H-2 Temporary Worker Exit Program in Arizona
U.S. Customs and Border Protection (CBP) launched a pilot program on December 8, 2009, for exiting H-2A and B temporary workers. The program will be tested at San Luis and Douglas land ports of entry in Arizona and the pilot phase is expected to last about a year. H-2A (agricultural) and H-2B (nonagricultural) visas are issued to temporary seasonal workers.
CBP’s goal is to ensure that temporary workers comply with the requirement to leave the U.S. when their work authorization expires. To verify their final departure, H-2A and B workers will be required to scan their visas and their fingerprints and return their I-94 Arrival-Departure Record at an exit kiosk located at the port of departure. The kiosk will provide instructions in English and Spanish. Under the pilot program, travelers admitted under the H-2A and B classifications at San Luis or Douglas ports of entry must depart through one of the two designated ports.
CBP noted that frequent border crossers or commuters do not need to register every departure, but only their final departure from the U.S. Only H-2A and B temporary workers who enter the U.S. on a new work authorization will be required to register their final departure from the U.S. when their authorized period of stay expires.
More than 205,000 H-2 temporary workers entered the U.S. in fiscal year 2009, CBP said. Of those, more than 147,000 were H-2A workers and more than 58,000 were H-2B workers.
CBP’s announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/12102009.xml.
6. Northern Marianas Update: Transitional Worker Injunction, Parole Status, P.O. Box Recommendation
In response to a preliminary injunction by the U.S. District Court for the District of Columbia, U.S. Citizenship and Immigration Services (USCIS) is not accepting any petitions for a Commonwealth of the Northern Mariana Islands (CNMI) transitional worker (CW-1) until further notice. The agency said that the injunction does not affect any aspect of the application of federal immigration laws to the CNMI other than the transitional worker nonimmigrant category. USCIS said it has decided to provide an additional opportunity for the public to comment on its proposed transitional worker classification provisions as set forth in an interim rule. USCIS reopened the public comment period for an additional 30 days, extended the original comment period until January 8, 2010, and said it will consider comments received throughout the entirety of the public comment period in development of its final transitional worker classification rule.
USCIS also announced that it will grant parole status to eligible foreign nationals from certain groups in the CNMI affected by the transition. The groups include CNMI permanent residents, their immediate relatives, and the immediate relatives of citizens of the Compacts of Freely Associated States (the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands).
USCIS also advised anyone living in the CNMI who submits an immigration application to list their P.O. Box where the form asks for a street or physical address. If an applicant has already filed an application using a street name, USCIS advises completing a change of address. The agency noted that applications that do not use post office boxes are being returned to the USCIS office.
The interim rule update is available at http://edocket.access.gpo.gov/2009/pdf/E9-29331.pdf. The USCIS announcement about the injunction is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b139f8b9f8555210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The USCIS announcement about post office boxes is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5a3cbd3241b65210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
7. CBP Announces ‘FAST’ Commercial Frequent Traveler Program Change
U.S. Customs and Border Protection announced on December 4, 2009, that members of its Free and Secure Trade (FAST) program will not be able to use their old FAST cards in passenger lanes, effective January 5, 2010. CBP has been issuing new cards with enhanced security features for current FAST members since March 16. All members are asked to activate their new cards using a global online enrollment system and to destroy their old ones. Anyone who has not received their new card should go immediately to their local enrollment center to pick up a new card or have one issued. CBP says it will take about two weeks to receive a new card. All old FAST cards will be deactivated on January 5, 2010. CBP said that officers “will allow a one-time entry into the U.S. to travelers with old FAST cards, but will seize the card from the traveler and refer the member to the Enrollment Center.”
The FAST program has more than 92,000 members, and is available to commercial drivers crossing both the northern and southern borders.
The CBP announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/12042009_2.xml.
8. ETA Announces Change in Address for Certain Temporary Labor Certification Filings
The Chicago National Processing Center (NPC) is responsible for adjudicating all employer applications for temporary labor certification under the H-1B, H-1B1, E-3, H-2A, H-2B, H-1C, and D-1 programs. The NPC address has changed as of December 4, 2009. For three weeks after that date, the Chicago NPC will receive via courier all written correspondence submitted to its former address. “This is to ensure a smooth transition and allow all interested parties to commence using the new address,” the Department of Labor’s Employment and Training Administration (ETA) said in a notice announcing the change. On January 6, 2010, the courier will cease to operate and all submissions to the former address of the Chicago NPC will be returned to the sender.
The new address is:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
536 South Clark Street
Chicago, IL 60605-1509
telephone: (312) 886-8000; facsimile: (312) 353-3352.
The following address is to be used for all invoices/fees submitted in connection with the H-2A and H-1C programs:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
P.O. Box A3804
Chicago, IL 60690-A3804.
The ETA’s notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-28954.pdf.
9. Publications and Items of Interest
PERM appeals best practices. The Department of Labor released a “Frequently Asked Questions” document on December 1, 2009, discussing best practices for filing PERM appeals. See http://www.foreignlaborcert.doleta.gov/pdf/FAQ_PERM_Appeals_Filing_Final_12012009.pdf.
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10. Recent News from ABIL Members
Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) spoke at a recent “off-the-record” roundtable at the Center for American Progress (CAP). CAP’s head of immigration issues, Marshall Fitz, wrote a paper suggesting ways to improve high-skilled immigration that was used as a backgrounder for the roundtable. The paper, “Prosperous Immigrants, Prosperous Americans: How to Welcome the World’s Best Educated, Boost Economic Growth, and Create Jobs,” was released in December 2009 and is available at http://www.americanprogress.org/issues/2009/12/pdf/highskilled_immigrants.pdf.
Recent postings on Charles Kuck’s (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) blog include an article about the booming fake identification business in North Carolina; commentary on Pat Buchanan’s recent editorial in the San Jose Mercury News recommending “halting immigration” as an “instant stimulus package”; an article on the new immigration reform bill; and “The Best (and Worst) of 2009.” The blog is available at http://www.immigration.net/Blog/?m=200912.
John Nahazjer (bio: https://www.abil.com/lawyers/lawyers-nahajzer.cfm) gave a presentation on I-9 audits, E-Verify issues, and Social Security No-Match Letters for Business and Legal Resources (BLR) on December 4, 2009.
Bernard P. Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) recently posted “Immigration and American Innovation” to the American Immigration Lawyers Association’s Leadership Blog. Among other things, his posting notes that the U.S. hasn’t changed the numerical limitation on the admission of scientists in 20 years. “America needs to wake up,” he warns. The blog is available at http://ailaleadership.blogspot.com/2009/12/immigration-and-american-innovation.html.
11. 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/frvi/bulletin/bulletin_1360.html