Monthly Immigration Newsletter - the Law Office of Jocelyne J. Kim Lew, APC

New Appointment Service for U.S. Consulates in Canada
The U.S. Mission in Canada is transitioning to a new appointment service for applicants applying for nonimmigrant visas to come to the United States.
As of September 1, 2010, the following changes are implemented:
· Al services including calling for information and scheduling an appointment will be provided for no additional cost with no requirement that applicants pay phone charges or PIN numbers to access such services.
· Applicants will visit CSC Visa Information Services to either obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada.
Applicants who have already scheduled an appointment at a U.S. Consulate on or after September 1, 2010 through NVARS, must pay their MRV fees and bring their Scotiabank receipt with them to the appointment.
For applicants who have paid their MRV fee prior to September 1, 2010 but have not scheduled an appointment, there will be a grace period from September 1, 2010 until October 1, 2010 during which time they can still use the MRV fee for appointment scheduling. If an applicant has not scheduled an appointment prior to October 1, 2010, he/she will have to pay the MRV fee again through the new service in order to schedule an appointment.
Please visit CSC Visa Information Services for assistance: http://www.consular.canada.usembassy.gov/new_appointment_service.asp

Unannounced Telephonic Contact of Employers Filing Nonimmigrant Visa Petitions
The Department of State (DOS) has confirmed that the Kentucky Consular Center (KCC) has begun verification of information contained in nonimmigrant visa (NIV) petitions (H-1B/L-1 etc.) received from the U.S. Citizenship and Immigration Services. Verification of information includes telephonic contact with petitioners related to factual aspects contained in the petition.
On November 17, 2007, DOS instructed Consulates that verification of details on NIV petitions must be done through the Petition Information Management Service (PIMS) via the Consular Consolidated Database (CCD) created by the KCC.
DOS created a base petitioner record as part of the PIMS report for all first time petitioners. To create this record, the KCC verifies petitioner information contained in the petition including, but not limited to, review of the company website, company contact information, and use of Google Earth to confirm that the office exists in an appropriate physical location. Once the base petitioner record is complete, the KCC will not normally re-verify the petitioner information for two years.
KCC has also initiated a pilot program for verifying information related to beneficiaries and proposed U.S. employment. These checks are completed at random and are primarily completed through telephonic contact with petitioners. The telephonic contact by KCC is unannounced and should be anticipated to occur shortly after the petition is transferred to the KCC from the USCIS.
DOS has designated 15 contractors who have been authorized to conduct these telephonic reviews with the petitioners (employers). These contractors are authorized to contact the Employer and may request to speak to an authorized official. They ask a series of questions verifying information contained in the approved nonimmigrant visa petitions:
1. Has the employer (petitioner) actually submitted the petition;
2. When was the employer (petitioner) incorporated;
3. Where is the physical location of the employer (petitioner);
4. Number of employees;
5. Names of shareholders;
6. Location of Attorney of Record;
7. General Information regarding the employer’s (petitioner’s) operations and business plan.
Prior to providing information to the KCC Contractor, an employer may want to verify the credentials of the contractor by calling KCC at (606) 526-7500.
If the KCC contractor requests information from the employer and the employer cannot provide accurate information without further research, the employer should indicate this to the KCC contractor and ask to call the Contractor later with the information.
Employers should remember that any derogatory information obtained during the telephonic contact could be used in relation to the previously approved petition in the post-adjudication process or could be referred to USCIS and ICE for further investigation, which could lead to civil penalties or criminal prosecution.

ESTA Fee Interim Rule
U.S. Customs and Border Protection (CBP) announced that as of September 8, 2010, travelers from Visa Waiver Program (VWP) countries must pay operational and travel promotion fees when applying for an Electronic System for Travel Authorization (ESTA).
Now the travelers will pay $4.00 fee, which will recover the costs incurred by CBP of providing and administering the ESTA system and is in addition to the mandatory $10.00 travel promotion fee established by the Travel Promotion Act of 2009. The total fee will be $14.00.
All electronic payments for payment authorization applications must be made by credit card or debit card when applying for or renewing an ESTA. The ESAT system currently accepts only the following credit/debit cards: MasterCard, VISA, American Express, and Discover.
Collection of the fees will begin for ESTA applications filed on or after September 8, 2010.
ESTA (Electronic System for Travel Authorization) must be obtained by all nationals of VWP countries prior to boarding a carrier to travel by air or sea to the United States under VWP.
ESTA applications may be submitted at any time prior to travel. Once approved, authorizations are generally valid for multiple entries into the U.S. for up to two years or until the applicant’s passport expires or other specific circumstances. Travelers with new passports and re-applying for an ESTA will need to pay the ESTA fees.

H-1B Cap Subject Filings in August 2010
During the month of August, 7,600 H-1B cap subject petitions were received by USCIS, so that the total has now reached 34,900 against the 65,000 cap - more than half of the numbers have now been allocated. Whereas, for the Master’s or higher degree cap, the total number of petitions received was 1,400, so that the total filings are 13,000 against the 20,000 limit.

Changing from B-1/B-2 visa status to F-1 status
Recently, USCIS posted on their website special instructions for visitor visa holders seeking student visa status. USCIS stated that INS regulations specifically prohibit studying in the U.S. while in B-1 or B-2 status. Before enrolling in classes, individuals who hold visitor status (B-1 or B-2) must first acquire F-1 (academic student) or M-1 (vocational student) status.
Enrolling in classes while holding B-1/B-2 status will result in a status violation. Individuals in B-1 or B-2 status, who have violated their nonimmigrant status by enrolling in classes, are not eligible to extend their B status nor change to F-1 or M-1 status. These INS regulations provide no exceptions.
If one currently holds B-1 or B-2 nonimmigrant status and would like to enroll in classes, he/she may apply for a change of status to F-1 or M-1, if:
1. One has not yet enrolled in classes;
2. One’s current status has not expired; and
3. One has not engaged in unauthorized employment.
To change one’s nonimmigrant status from B-1/B-2 to F-1 or M-1, one must file an Application to Extend/Change Nonimmigrant Status (Form I-539) and include the required fee and documents listed in the filing instructions.

Fee Increase for some H-1B and L-1A/B Visa Petitions
On August 14, 2010, Public Law 111-230 became effective. Some of its provisions affect certain H-1B and L-1A/B visa petitioners (sponsoring employers). The change in the law results in an additional fee for H-1B/L-1A/B visa petitioners, if they fall into the following category:
1. The petitioner (sponsoring employer) has 50 or more employees (full-time or part-time) in the U.S.; and
2. The petitioner’s (sponsoring employer’s) U.S. workforce consists of more than 50% of employees on H-1B, L-1A/B visas and L-2 visas with an EAD card (full-time or part-time).
A petitioner, who meets these two criteria, will then need to pay an additional fee each time it first files an H-1B or L-1A or L-1B for a beneficiary:
H-1B visa petition - $2,000
L-1A/B visa petition – $2,250
Any petitions filed after August 14, 2010, where the petitioner (sponsoring employer) may fall into the above-described category will be issued a Request for Evidence (RFE) to determine if this new additional fee is required. The petitioner (sponsoring employer) must pay the fee, the beneficiary (employee) may not pay this fee. USCIS will soon be publishing a new Form I-129, with instructions, which will address this new fee.

Employment Based Visa Number Availability for September 2010
The September 2010 Visa Bulletin released by the U.S. State Department shows continued availability for First Preference Employment for all countries and Second Preference Employment for the world except China and India. Another movement forward has occurred for India and China Second Preference Employment, so that the new cut off date is May 8, 2006 for both countries. Visa numbers have not yet been exhausted for this fiscal year which ends September 30 - thus this forward movement of the cut off date has resulted.
Third Preference India has remained unchanged with a cut off date of January 1, 2002. Third Preference for the World and the Philippines moves forward by 6.5 months from June 1, 2004 to December 15, 2004; whereas China moves one month from September 22, 2003 to October 22, 2003, while Mexico remains unavailable.

Number of H-1B Cap Filings Each Week Varies
At the beginning of July 2010, USCIS had received 24,200 H-1B cap subject petitions against the 65,000 cap. As for the 20,000 Master’s or higher cap, 10,400 petitions had been received. By the last count of July 23, 2010, USCIS had received 26,000 H-1B cap subject petitions against the 65,000 cap and 11,300 against the 20,000 Master’s or higher cap. Thus in three weeks, USCIS had received 1,800 new H-1B cap subject petitions and 900 petitions against the MS or higher cap. In about 4 months, forty per cent of the regular cap had been used while 57 per cent of the Master’s or higher cap had been used.

Changes to Electronic Signing and Storage of Form I-9
On July 21, 2010, U.S. Department of Homeland Security (DHS) finalized a regulation that provides greater flexibility for employers to electronically sign and store I-9 forms, which are used by U.S. Immigration and Customs Enforcement (ICE) to verify employment eligibility.
Previously, employers were required to store the paper forms for later inspection by DHS and ICE. In 2006, rules were implemented to permit the electronic storage of employment verification forms consistent with the electronic storage rules for tax records. Today’s new rule provides for additional flexibility for employers to electronically store I-9s, such as options for data compression, fewer storage requirements and more options for storage systems.
Information about I-9 forms and Employment Eligibility Verification is available at http://www.uscis.gov/I-9
For further guidance on the electronic signing and storage of I-9 forms and the current changes visit: http://www.ice.gov or http://www.gpoaccess.gov.

Employment Based Immigrant Visa Numbers for August 2010: continued forward movement
The August 2010 Visa Bulletin released by the U.S. State Department shows continued availability for First Preference Employment for all countries and Second Preference Employment for the world except China and India. However, a significant jump forward for India and China Second Preference Employment has occurred, so that the new cut off date is March 1, 2006 for both countries. The jump for India is from October 1, 2005 and for China from November 22, 2005. This is likely due to the fact that the Statement Department wants to ensure that visa numbers are allocated before the end of the year i.e. September 30, 2010. It will not be surprising that if USCIS adjudicates a number of pending I-485 cases, that the number will become unavailable in September or retrogress when the new year begins on October 1, 2010.
Third Preference India progresses more than one month from November 22, 2001 to January 1, 2002. Third Preference for the World and the Philippines moves forward by 9.5 months from August 15, 2003 to June 1, 2004; whereas China moves from August 15, 2003 to September 22, 2003, while Mexico remains unavailable.

Visa Appointment Information for China
Non-immigrant visa applicants may now book interview appointments at any U.S. Consular Section in China, regardless of the province or city where they live. Consular sections are located at the U.S. Embassy in Beijing and U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang.
For more information on how to schedule a visa interview appointment, please visit:
http://Beijing.usembassy-china.org.cn/niv_appointment.html

Filings of H-1B Cap Petitions Continue at a Steady Pace

As of June 25 2010, USCIS had received 23,500 H-1B cap subject petitions against the 65,000 cap. As for the 20,000 Master’s or higher cap, 10,000 petitions had been received. Thus in a one week, USCIS received 600 new H-1B cap subject petitions, this is slightly fewer petitions than the previous weeks, which had seen 700 petitions per week. The number of petitions filed against the MS or higher cap continues at the same rate i.e. 300 petitions per week.

New Schedule for Consular Fees

The U.S. Department of State has announced a new fee schedule for its consular services effective July 13, 2010.
The revised fees will cover actual operating expenses for the 301 overseas consular posts, 23 domestic passport centers and other centers that provide these services to U.S. and foreign citizens.
A list of adjusted fees is available at: http://www.travel.state.gov

USCIS Re-Designs E-Verify Website

USCIS has launched a completely redesigned web interface for employers using the E-Verify Program. (www.dhs.gov/E-Verify)
The new web interface includes improved navigational tools to enhance ease-of-use, minimize errors, support compliance with the terms of use, and enable real-time validation of employers enrolling in E-Verify against commercial data.
The new interface also has enhanced security features.
All current E-Verify users are required to complete an updated tutorial. The tutorial takes about 20 minutes to complete and serves as a “how-to” of the new system.
E-Verify is a free Web-based system – operated by USCIS in partnership with the Social Security Administration – that allows participating employers to electronically verify the employment eligibility of their newly hired employees. More than 208,000 participating employers at more than 762,000 worksites nationwide currently use E-Verify.

Employment Based Immigrant Visa Numbers for July 2010

The July 2010 Visa Bulletin released by the U.S. State Department shows a significant jump forward for India Second Preference Employment. The jump is from February 1, 2005 to October 1, 2005. This is likely due to the fact that the date had remained unchanged for many months. Now the Statement Department realizes that there are still visa numbers available and to ensure that these numbers are allocated before the end of the year i.e. September 30, 2010, a significant jump forward has occurred. It will not be surprising that if USCIS adjudicates a number of pending I-485 cases, that the number will become unavailable in September or retrogress when the new year begins on October 1, 2010 - but should not retrogress further than February 1, 2005.
First Preference Employment Visa Numbers remain current for all countries. Second Preference for all countries except China and India also remains current. Third Preference India progresses one month to November 22, 2001. Third Preference for the World, China and the Philippines moves forward by almost two months to August 15, 2003, while Mexico remains unavailable. China Second Preference remains unchanged at November 22, 2005.

“Green Card” Redesigned

USCIS redesigned the “Green Card” to incorporate several major new security features. State of the art technology incorporated into the new card prevents counterfeiting, obstructs tampering, and facilitates quick and accurate authentication.
The redesigned card will store biometrics for rapid and reliable identification of the card holder. Holographic images, laser engraved fingerprints, and high resolution micro-images will make the card nearly impossible to reproduce. Tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. Finally, a preprinted return address will enable the easy return of a lost card to USCIS.
USCIS will replace Green Cards already in circulation as individuals apply for renewal or replacement.
In keeping with the Permanent Resident Card’s nickname, the new card will now be colored green for easy recognition: USCIS To Issue Redesigned Green Card

H-1B cap filings continue but at a slower pace

As of May 21, 2010, USCIS had been received 19,600 H-1B cap subject petitions against the 65,000 cap; whereas 8,200 H-1B visa petitions had been received which count against the 20,000 Master’s cap. Thus as of the last released data, 45,400 H-1B cap subject numbers remain , while 11,800 Master’s degree numbers are still available.

Untimely completion of Form I-9 is Substantive Violation

Employers are required to prepare, retain and make available for inspection Form I-9 for any employee hired after November 1986. Form I-9 must be completed for each new employee within three business days from the date of hire, and each separate failure to properly prepare, retain or produce the forms upon request constitutes a violation.
The law provides that an entity, charged with technical and procedural failures in connection with the completion of Form I-9 must be allowed a 10 day period in which to correct technical and procedural errors after being advised. No such relief is available when the violation is substantive in nature rather than technical or procedural. Failure to properly complete Section 2 of Form I-9 within three (3) business days of hiring an employee is a substantive violation, not a technical nor procedural one.
Failure by the employer to sign the certification within three business days is a substantive violation, and failure to identify proper List A or List B and C documentation on the form and provide their titles, identification numbers and expiration dates, or alternatively attach copies of the documents to the form, is also a substantive violation. Failure to complete the form within three days of the employee’s hire is also a substantive violation, and is not cured nor “corrected” by related partial completion of the form.
The civil penalties related to failures in completing employment eligibility documentation are assessed using a number of factors such as: size of the business of the employer, good faith of the employer, seriousness of the violations, whether the individuals involved were unauthorized aliens and the history of previous violations. The penalty ranges between $110.00 to $1,100.00per violation.

Form I-94 for VWP (Visa Waiver Program) travelers to be eliminated

Department of Homeland Security announced the elimination of the paper arrival/departure form (Form I-94) for authorized travelers from nations participating in the Visa Waiver Program (VWP). The Electronic System for Travel Authorization (ESTA), which leverages the latest technology to bolster security, increase convenience for visitors and better protect privacy, will be used at all airports by the end of this summer. The Customs and Border Protection (CBP) will activate automated processing for U.S. airports on a rolling basis over the next several months. Applying for an ESTA became mandatory on January 12, 2009 for all nationals of VWP countries prior to boarding a carrier to travel by air or sea to the United States.
The elimination of the paper I-94W form enables travelers to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States – reducing redundancy and enhancing the security of sensitive personal information, as CBP stores and protects all VWP data electronically on secure servers.
CBP recommends that travelers submit ESAT applications as soon as an applicant begins making travel plans. ESTA applications may be submitted at any time prior to travel, and once approved, will be valid for two years or until the applicant’s passport expires.
For more information about ESTA, visit www.cbp.gov.

Employment Based Immigrant Visa Numbers inch forward in June 2010

The June 2010 Visa Bulletin has been released by the U.S. State Department; the Bulletin shows continued forward movement in most categories. First Preference Employment Visa Numbers remain current for all countries. Second Preference for all countries except China and India also remains current. Unfortunately, India Second Preference remains “stuck” on February 1, 2005, while Third Preference India progresses three weeks to October 22, 2001. Third Preference for the World, China and the Philippines moves forward two months to June 22, 2003, while Mexico remains unavailable. China Second Preference also gains two months to November 22, 2005. Visa numbers may continue to progress conservatively through the summer of 2010.

Update on H-1B Cap Subject Filings

On 04-08-2010, USCIS announced that it had received approximately 13,500 H-1B cap subject petitions which are being counted against the 65,000 cap. Additionally, they received approximately 5,600 H-1B visa petitions being counted against the 20,000 Advance Degree exception cap. Last year at this time, approximately 42,000 H-1B cap subject petitions had been received and the advanced degree exception cap had been almost reached. Thus the number of filings have fallen by about 60%. H-1B visa numbers should remain available for many months in the future.
On 04-19-2010, USCIS released additional information concerning H-1B cap usage. As of 04-15-2010, USCIS had received 13,600 H-1B cap subject petitions - an additional 100 H-1B cap subject petitions were filed during the previous 5 business days. Additionally, 5,800 H-1B petitions have now been counted against the Master’s or higher degree limit - an increase of 200 petitions during the previous 5 business days.
One week later, April 26, 2010, USCIS advised that 16,025 H-1B cap subject petitions had been received as of April 22, 2010. Additionally, 6,739 H-1B visa petitions against the Maser’s cap had been received. Thus, in one week, more than 3,360 H-1B cap subject petitions had been received by USCIS. This volume is more than ten times the previous week. A total of 22,764 H-1B cap/Master’s degree petitions have been received against a total cap of 85,000.

Employment Based Immigrant Visa Numbers continue move forward in May 2010

The May 2010 Visa Bulletin released by the U.S. State Department shows continued forward movement in most categories. First Preference Employment Visa Numbers remain current for all countries. Second Preference for all countries except China and India also remains current. Unfortunately, India Second Preference is “stuck” on February 1, 2005, while Third Preference India progresses about three weeks to October 1, 2001. Third Preference for the World, China and the Philippines moves forward almost three months to April 22, 2003, while Mexico now becomes unavailable. China Second Preference also gains one month to September 22, 2005. Visa numbers may continue to progress conservatively until at least the summer of 2010.

First Prevailing Wage Determination for PERM case received

On 04-06-2010, a Prevailing Wage Determination (PWD) was received from the Department of Labor (DOL) through the iCert Portal. The request was emailed to DOL on 02-10-2010 - so true to the projection from DOL, the PWD was issued in about 2 months.

How to Record Departure from U.S. after the Fact

If Form I-94 (white) or Form I-94W (green) is not surrendered at the time of departing the United States, it is possible that the departure was not recorded properly.
A departure by a commercial air or sea carrier (airlines or cruise ships) from the U.S. may be independently verified and in this case it is not necessary to take any action. However, having available the outbound (from U.S.) boarding pass may help expedite re-entry into the U.S. the next time.
In case of departures by land, private vessel or private plane, certain steps need to be taken to correct the record. If a timely departure cannot be validated or reasonably proven, upon seeking re-entry to the U.S. next time, a visa may be subject to cancellation or the visitor may be returned to his/her foreign point of origin.
Under the Visa Waiver Program (VWP), visitors who remain beyond their permitted stay in the U.S. cannot re-enter the U.S. in the future without obtaining a visa from a U.S. Consulate.
If Form I-94 was not retained by the U.S. Customs and Border Protection (CBP) upon a person leaving the U.S., the Form I-94 along with any supporting documentation to prove a timely departure should be sent to:

DHS – CBP SBU
1084 South Laurel Road
London, KY 40744

Only at this location, CBP is able to make the necessary correction to the record so as to prevent any inconvenience in the future. However, this office does not answer any correspondence nor will it confirm that the record is updated.
To validate departure, CBP will consider various documentation, including but not limited to:
1. Original boarding passes used to depart to another country;
2. Photocopies of entry or departure stamps in a passport indicating entry to another country after departure from the U.S.;
3. Photocopies of other supporting evidence, such as:
· Dated pay slips or vouchers from an employer indicating employment in another country after departure from the U.S.;
· Dated bank record showing transactions in a foreign country after departure from the U.S.;
· School records showing attendance at a school outside the U.S. after departing U.S.;
· Dated credit card receipts, showing name, for purchases made after departure from the U.S.
A letter of explanation, in English, should be submitted requesting that the record be corrected. Original supporting documentation should be provided whenever possible; a copy of the original documents should be kept and be available upon next entry sought to the U.S.
Delays beyond the travelers’ control, such as canceled or delayed flights, medical emergencies requiring a doctor’s care are not considered unauthorized overstays, however proof of the cause of overstay must be available for presentation at the time of next entry to the U.S. For airline delays, a letter confirming the delay or a copy of the canceled boarding pass should be obtained.

Third Country National Applications for Non-Immigrant Visas at U.S. Consular Posts in Canada

With increasing regularity, U.S. Consular posts in Canada are refusing to issue visas to Third Country National (TCN) applicants with foreign (not U.S. nor Canada) degrees, who have not been previously issued H-1B visas from their home posts. Such applicants are often times referred to their home countries for visa processing.
It is believed that the Canadian posts distrust degrees that are not from the U.S. nor Canada due to past discoveries of fraudulent degrees from certain parts of the world.
On its website, Mission Canada indicates under the H-1B section: “Evidence of qualifications must be original or certified copy. Consular officers in Canada may refuse to issue a visa to H-1B applicants if their education and/or work experience is solely or predominantly from a country other than the U.S. or Canada”.

Third Country Nationals Applying for Visas in Canada Who Last entered U.S. as Visitors

Mission Canada also discourages applicants, who last entered the U.S. as Visitors, to apply for different types of visas in Canada. The official website says: “ … persons applying for F, M, J, H, or L visas, who are presently in the United States on a B (tourist or business) visa or on a visa waiver, are strongly advised to apply for their new visas in the country of their permanent residence.”

Greece Joins Visa Waiver Program

On April 5, 2010, Greece will be eligible to participate in the Visa Waiver Program (VWP). Citizens and eligible nationals of participating Visa Waiver Program countries (see list below) may apply for admission to the United States at U.S. ports of entry as non-immigrant aliens for a period of ninety days or less for business or pleasure without first obtaining a non-immigrant visa, provided they are otherwise eligible for admission.
To travel to the United States under the VWP, an alien must be from a participating country and must satisfy the following:
1. Be seeking entry as a tourist for ninety days or less;
2. Be national of a program country;
3. Present an electronic passport or a machine-readable passport issued by a designated VWP participant country to the air or vessel carrier before departure;
4. Execute the required immigration forms;
5. Not represent a threat to the welfare, health, safety or security of the United States;
6. Have not violated U.S. immigration law during a previous admission under the VWP;
7. Possess a round trip ticket;
8. Waive the right to review or appeal a decision regarding admissibility or to contest, other than on the basis of an application for asylum, any action for removal; and
9. Obtain an approved travel authorization via the Electronic System for Travel Authorization in advance of travel.
Currently, the Visa Waiver Countries include:
Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland,
Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, the United Kingdom (England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man).

H-1B petition filings for Fiscal Year 2011 Begin April 1, 2010

On March 8, 2010, USCIS announced that it would start accepting H-1B visa petitions subject to the cap on April 1, 2010 for a start date of October 1, 2010. The Fiscal Year (FY) cap for 2011 is 65,000. An additional 20,000 H-1B visa petitions filed on behalf of individuals who have earned a U.S. Master’s degree or higher will also be accepted. USCIS will monitor the number of H-1B visa petitions filed and will notify when the cap is reached. On the day that the cap is reached, USCIS will randomly select the number of petitions required to meet the numerical cap.
H-1B petitions for new employment are exempt from the annual cap if the beneficiaries are seeking employment at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or government research organizations.
H-1B visa petitions filed on behalf of current H-1B workers are also not subject to H-1B visa cap including:
* H-1B visa extensions;
* Amended H-1B visa petitions requesting a change of terms of current employment;
* H-1B visa transfers requesting a change of employer;
* H-1B visa for concurrent employment requesting a second H-1B visa for a different employer.

Changes in filing location for USCIS Applications

USCIS is transitioning the location for accepting a number of application forms from the Service Centers to USCIS Lockbox facilities. The most notable changes for employment based cases are that Applications for Adjustment of Status (Form I-485), Employment Authorization Applications (Form I-765) and Advance Parole Applications (Form I-131) will now be filed with USCIS Lockbox Facilities in Arizona or Texas, depending on jurisdiction. It is critical to monitor the USCIS website Forms Section to obtain the most updated information about the location for filing the various forms. Employment Based Visa Petitions (Form I-140) continue to be filed at the Service Centers.

Employment Based Immigrant Visa Numbers move forward in April 2010

The April 2010 Visa Bulletin has been released by the U.S. State Department; the Bulletin shows continued forward movement in most categories. First Preference Employment Visa Numbers remain current along with Second Preference for all countries except China and India. Unfortunately India Second Preference remains on February 1, 2005, while Third Preference India progresses more than two months to September 8, 2001. Third Preference for the World, China and the Philippines moves forward six weeks to February 1, 2003, while China Second Preference also gains six weeks to August 22, 2005. Visa numbers may continue to progress conservatively until at least the summer of 2010.

180 Audit Notices Issued by ICE

U.S. Immigration and Customs Enforcement (ICE) is issuing Notices of Inspection (NOIs) to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. These notices alert the businesses that ICE will be inspecting their hiring records to determine if they have complied with employment eligibility verification laws and regulations.ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This is the first step in addressing the illegal employment problem.Employers are required to complete and retain a Form I-9 for each individual hired in the United States. This form requires employers to review and record each individual’s identity documents and authorization to work and determine if the documents reasonably appear to be genuine and related to the individual.In 2009, ICE implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers.

Employment Based Immigrant Visa Numbers inch forward in March 2010

The March 2010 Visa Bulletin has been released by the U.S. State Department; the Bulletin shows slight forward movement in essentially all categories. First Preference Employment Visa Numbers remain current as does Second Preference for all countries except China and India. Finally, after remaining at a stand still for five months, India Second Preference moves forward by nine days to February 1, 2005, while Third Preference also moves forward by nine days to July 1, 2001. Third Preference for the World and China moves forward almost three months to December 15, 2002, while China Second Preference moves forward six weeks to July 8, 2005. Now that the State Department is aware of the visa numbers needed to adjudicate Adjustment of Status cases pending with USCIS and also has a tally of the visa numbers needed at the US Consulates - numbers will move very slowly forward (if at all) - but there should be no retrogression until visa numbers are nearly exhausted in the summer toward the end of the fiscal year.

Little Movement in Employment Based Immigrant Visa Numbers for February 2010

The U.S. State Department released its February 2010 Visa Bulletin: First Preference Employment Visa Numbers remain current as does Second Preference for all countries except China and India. India sees no movement in its Third and Second Preference Visa cut off dates: Third Preference for India remains at June 22, 2001 and Second Preference remains at January 22, 2005. Third Preference for the World moves forward to September 22, 2002 (a seven week gain - the same for China Third). China Second moves forward by three weeks to May 22, 2005. Now that the State Department is aware of the visa numbers needed to adjudicate Adjustment of Status cases pending with USCIS - numbers will move very slowly forward (if at all) - but there should be no retrogression until visa numbers are nearly exhausted in the summer toward the end of the fiscal year.

H-1B Visa Cap Number Calculations

Each year, 6,800 H-1B cap numbers are reserved for Chile/Singapore H-1B1 visas. The unused Chile/Singapore numbers are then rolled over into the next fiscal year’s regular cap. For fiscal year 2009, there were approximately 6,100 unused Chile/Singapore H-1B1s which were added to the 58,200 regular cap numbers available for fiscal year 2010 (excluding the 20,000 master’s exemption), thus the regular H-1B cap was 64,300.

USCIS has historically accepted more H-1B petitions than available cap numbers based on the assumption that some petitions will be denied, rejected or withdrawn. However, this year was different from the previous years as USCIS was able to use actual data on approvals to determine when to end the filing period for the regular cap. USCIS applied approval, denial, withdrawal, etc. rates from the cases that had already been adjudicated to the pending cap subject petitions to estimate how many of the pending petitions may be eligible for a cap number. That number was added to the number of petitions that had already been approved for fiscal year 2010 cap number. When the estimated cap eligible number reached 64,300, USCIS closed the filing period. A lottery of the filings received on December 21, 2009 was run to accept only a portion of filings received on that date.

New Process for Obtaining Prevailing Wage Determinations

As of January 1, 2010, the Department of Labor (DOL) requires centralized filing (Washington, DC) of all Prevailing Wage (PW) Requests for H-1B, H-1B1, H-1C, H-2B, E-3 and Permanent Labor Certifications Programs. Previously, PWs were filed with the various State Workforce Agencies (SWAs) where the job function was to be performed. At this time, all PW Requests mmust be submitted electronically or by mail or comparable physical delivery service to the following address: U.S. Department of Labor - ETA, National Prevailing Wage and Helpdesk Center, Attn.: PWD Request; 1341 G. Street, NW., Suite 201, Washington, DC 20005-3142. DOL advised that mail (or other hard copy delivery) was the only option from January 1 through January 19, 2010 – they did not accept applications by fax or electronic means. To expedite return of the wage determination, if the completed form included an email address for the contact, DOL would email back a scanned copy of the completed wage request. DOL advised that an online prevailing wage system (as part of iCERT) will go live on January 20, 2010. Now that this prevailing wage system is up on iCERT, PW Requests may be completed online and submitted electronically.

H-1B cap reached as of 12-21-2009

USCIS announced on 12-22-2009 that the H-1B cap was reached on 12-21-2009. For those petitions received on 12-21-2009, a lottery will be conducted to determine which petitions will receive a number. New H-1B cap subject petitions can now only be filed on 04-01-2010 with a effective date of 10-01-2010.

LCA processing delays

The Department of Labor (DOL) office in Chicago having jurisdiction for processing Labor Condition Applications (LCAs) in support of H-1B visa petitions moved location the second week of December and only on 12-15-2009 did the phones and servers become available for responding to queries and processing requests for FEIN/employer name verification and adjudication of LCAs. Processing resumed as of 12-15-2009. This delay certainly impacted the ability of employers to timely file H-1B visa petitions.

Some Movement in Employment Based Immigrant Visa Numbers for January 2010

The U.S. Department of State’s Visa Bulletin for January 2010 shows more progressive movement for employment based visa numbers than last month. Third Preference Visa Numbers for the world have moved forward by two months so that the new cut off date is now 08-01-2002 instead of 06-01-2002. This movement is also reflected for Third Preference China. Although India Third Preference has not moved forward as much, it has still progressed by almost two months to 06-22-2001 from 05-01-2001. Second Preference for the world remains current, whereas Second Preference for China now moves forward one month to 05-01-2005 from 04-01-2005; however India Second Preference remains stagnant on 01-22-2005. First Preference for all countries remains current.

Vaccinations Requirements

Since November 13, 2009, USCIS has held certain applications to adjust status to permanent residence until new Center for Disease Control and Prevention (CDC) vaccination criteria become effective on December 14, 2009. CDC announced that it was developing new criteria for determining which vaccinations for applicants seeking to become lawful permanent residents would be required. Based on this new criteria, the vaccines for herpes zoster (zoster) and human papillomavirus (HPV) will no longer be required for immigration purposes as of December 14, 2009. As a result, any applications held since November 13, 2009 based on the applicant’s failure to show proof of having received the HPV or zoster vaccine will be adjudicated on December 14, 2009 using the new vaccination criteria. More information on the new criteria and changes to the vaccination requirements is available on CDC’s website: http://www.cdc.gov/ncidod/dq/laws_regs/fed_reg/vaccine/revised-vaccination-immigration.htm

58,900 H-1B cap subject petitions received as of 11-27-2009

As of 11-27-2009, USCIS had received 58,900 H-1B cap subject petitions. USCIS continues to accept H-1B cap subject petitions and will continue to accept filings until it has received a sufficient number of petitions to reach the statutory cap of 65,000 - no indication how many petitions it will ultimately accept nor when the cap may be reached. A week earlier, USCIS had received approximately 56,900 H-1B cap subject petitions; whereas by 11-13-2009 USCIS had received 55,600 petitions. In contrast, as of 11-06-2009, approximately 54,700 H-1B cap subject petitions had been filed. A month earlier (as of 10-25-2009), 52,000 H-1B cap subject petitions had been filed. Thus, in approximately one month (10-25-2009 to 11-27-2009), USCIS received 6,900 H-1B cap subject petitions in comparison to 5300 the previous month and only 1,600 in September 2009.

Employer Site Visits

The Department of Homeland Security established a program “2009 Government and Employers: Working Together to Ensure a Legal Workforce” aimed at fraud detection and ensuring national security. This program involves employer site visits to ensure compliance. Three types of visits are currently being conducted:

1. Risk Assessment Program Fraud Study. Applicable to any type of benefit including family or employment based; this study is part of a joint program between USCIS and ICE. Applications and petitions are chosen at random, usually on a post-approval basis, for visits to help in designing profiles of potential fraud.

2. Targeted Site Visits. These visits take place where fraud is suspected, and consist of a visit to ask questions. Advance notice, including notice to counsel, is supposed to be provided.

3. Administrative Site Visits. These relate to religious worker and H-1B petitions. They are generally conducted by contractors who know nothing about immigration law. The contractors are equipped with a set of specific questions, and all employers/beneficiaries should be asked essentially the same questions, primarily reaching the issues as to whether there is really an employer, if the employer knows it filed the petition, and if the beneficiary is doing the work and receiving the wage indicated on the petition. The H-1B visits are done on a post-adjudication basis and are randomly selected. Each employer should receive only one such visit, but may receive different visits for different sites.

I-9 Audits to Hold Employers Accountable

On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure. These business owners have been alerted that ICE will audit their hiring records to determine compliance with employment eligibility verification laws. These employers were selected for inspection as a result of investigative leads and intelligence and because of the business connection to public safety and national security.

An Audit involves a comprehensive review of Form I-9s, which an employer is required to complete and retain for each individual hired in the United State. An Audit may result in civil penalties and lays the groundwork for criminal prosecution of an employer who knowingly violates the law.

STATISTICS SINCE THE IMPLEMENTATION OF THE NEW ICE WORKSITE ENFORCEMENT STRATEGY ON APRIL 30, 2009:

* 45 businesses and 47 individuals debarred; For comparison: 0 businesses and 1 individual were debarred during the same period in 2008;
* 142 Notices of Intent to Fine (ITF) totaling $15,865,181; For comparison: 32 NIF totaling $2,355,330 in all of 2008;
* 45 Final Orders totaling $798,179; For comparison: 8 Final Orders totaling $196,523 during the same period in 2008;
* 1,897 cases initiated; For comparison: 605 cases initiated in the same period of 2008;
* 1,069 Form I-9 Inspections; For comparison: 503 Form I-9 Inspections in all of 2008.

In July 2009, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today.

STATISTICS RESULTING FROM THE 654 AUDITS ANNOUNCED IN JULY 2009:

* More that 85,000 Form I-9s were reviewed and more than 14,000 suspect documents were identified (approximately 16% of the total number reviewed);
* 61 NIFs have been issued, resulting in $2,310,255 in fines. 267 cases are currently being considered for NIFs;
* 326 cases were closed after businesses were found to be in compliance with employment laws or after businesses were served with a warning notice in expectation of future compliance.

Little Change in Employment Based Visa Numbers for December 2009

The U.S. State Department has now published the Visa Bulletin for the month of December 2009 - the only change is with Third Preference India which has inched forward by 8 days to 05-01-2001 - whereas the rest of the Bulletin remains the same. First Preference for all countries continues to be current and Second Preference for the world also remains current. No change for Second Preference China - remains on 04-01-2005 and India also remains at 01-22-2005. Third Preference for all countries except India is stagnant at 06-01-2002.

Approval for January 2009 PERM filing

On 11-09-2009, an approval for a PERM filing in January 2009 was received - it appears Department of Labor is starting to make some progress in moving the PERM cases. This may be in large part due to the drop in number of cases which have been filed. However, the progress in adjudicating Audited PERM cases is still very slow.