LewsLaw Monthly Immigration Newsletter October 2009 Volume 1, Number 8
USCIS Conducts Unannounced Audits of H-1B Visa Employers
USCIS through its Office of Fraud Detection and National Security (FDNS) has recently started conducting unannounced H-1B site visits.
These visits occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the H-1B visa petition. The H-1B employer may request that its immigration attorney be present during the visit. However, the officer will not typically reschedule a site visit so that an attorney may be present. It was stated that the counsel’s presence may be allowed by phone.
During the H-1B site visit, an officer will normally verify information contained in a specific H-1B visa petition filed by the H-1B employer. A request is usually made to speak with the employer’s representative who signed the H-1B petition and ask for specific information about the company (sponsoring the H-1B visa employee) such as:
* H-1B employer’s type of business;
* H-1B employer’s locations;
* Number of employees;
* A copy of H-1B employer’s tax returns;
* A copy of H-1B employer’s Quarterly wage reports;
* Other documentation to evidence the H-1B employer’s bona fide business;
* Verify that the signature on the H-1B visa petition is genuine;
* Information about the H-1B visa employee (title, job duties, work location, salary, copy of most recent paycheck stubs and last Form W-2);
* Number of H-1B visa petitions filed by the employer; and
* Information about H-1B employer’s immigration counsel.
The officer may request a tour of the H-1B employer’s facility during which the officer may take photos of the facility and request to interview the H-1B employee. The H-1B employee may be asked the following questions: job title, job duties, responsibilities, employment dates, position location, requirements for the position, academic background and previous employment experience, current address, and information about dependents, if any.
After speaking with the H-1B employee, the officer may speak with a colleague of his or the manager. The officer will verify the information about the H-1B employee’s title, position duties, and requirements for the position. The H-1B visit usually lasts less than an hour.
USCIS Vermont Service Center indicated that it has transferred approximately 20,000 cases to the FDNS as part of the H-1B assessment program. It is assumed that the USCIS California Service Center has also forwarded a comparable number of cases for review.
USCIS Case Status Online Delays
USCIS announced that there is a several day delay in the system update to the USCIS Case Status Online. It may take up to a week to have an approval reflected in USCIS Case Status Online. USCIS is working to correct the problem as quickly a possible.
Annual Diversity Immigrant Visa Program
In the first week for the 2011 Diversity Immigrant Visa Program (DV-2011) registration, applicants from around the world submitted over 900,000 entries – a 63% increase over the same time period last year. More than 13,000,000 entries are expected before the registration period ends on November 30, 2009.
This congressionally mandated program makes available 55,000 immigrant visas annually, drawn randomly from all entries and issued to persons who meet strict eligibility requirements from countries with low rates of immigration to the United States. Successful DV-2011 entrants will receive notification of their selection via mail between May and July 2010, and will be permitted to commence the Immigrant Visa application process in October 2010. The deadline for visa issuance is September 30, 2011.
Entries must be submitted online. Paper entries are not acceptable. All successful entrants will be notified by mail, but entrants who retain their online confirmation page will be able to check their entry status through the Internet.
Employment Based Immigrant Visa Numbers for November 2009
The Department of State has now issued the Visa Bulletin for the month of November 2009. For the most part, there has been little movement forward but there has been no retrogression. First Preference Visa Numbers continue to be current along with Second Preference for the “world”. Unfortunately, Third Preference for the world has remained at 06-01-2002. The biggest move forward was China Third Preference which now matches the world at 06-01-2002 (a gain of 3 months), while Second Preference China has moved forward one week to 04-01-2005. Second Preference India has remained at 01-22-2005, whereas Third Preference has moved forward one week to 04-22-2001. Due to the number of cases in the queue - progression of visa numbers is not expected to move forward quickly, if at all.
Updates from Department of Labor
During a meeting on 09-22-2009, Department of Labor (DOL) confirmed that Audits of PERM Labor Certification Applications will definitely continue. Of the pending 65,800 PERM cases, 24,600 are in the Audit queue. The cases being worked on in this queue are cases filed in October 2007. There are 37,500 cases in the Final Review queue and DOL is working on December 2008 filings. Approximately 3,000 cases are in the Request for Review and Request for Reconsideration queues. DOL priorities for implementing future online systems are currently Prevailing Wage (scheduled for January 1, 2010), then the H-2B program and lastly the PERM filings. Thus PERM cases to be filed thru the iCERT portal may be many months away.
46,700 H-1B cap-subject visa petitions received as of 09-25-2009
Within one week (09-18-2009 to 09-25-2009), USCIS reported receiving an additional 700 H-1B cap-subject visa petitions so that the total number of petitions received as of 09-25-2009 totaled 46,700. This is a significant increase in that the previous three week period, 900 petitions had been filed. Although many H-1B cap numbers remain - if the number of filings continues to increase - the H-1B cap subject numbers may certainly be exhausted by the end of this calendar year 2009.