VISANOW Voice Newsletter - April 2007

FY 2008 H-1B Cap Update

On April 12, 2007, the United States Citizenship and Immigration Services (USCIS) conducted its computer-generated random selection process to determine which H-1B petitions would fall under the cap for fiscal year 2008. The H-1B petitions that were accepted for adjudication will receive a receipt notice. All other petitions, along with any enclosed fees, will be returned to the petition’s authorized representative. The total process is expected to take four weeks. For cases initially filed with premium processing, the guaranteed 15 calendar day processing time started on April 12, the day the H-1B petitions were randomly selected. USCIS Associate Director Michael Aytes has confirmed that the only way for an H-1B petition to be included is through the random selection process.

The USCIS also confirmed that of as of April 21, 2007, they have received 18,649 H-1B U.S. Master’s degree cases. Although the cap is still open for H-1B petitions filed on behalf of holders of Master’s degrees (or higher) from U.S. universities, the limit of 20,000 will likely be met very shortly. Foreign nationals who wish to submit evidence of their Master’s degree completion (but who do not yet have a degree) must provide a letter from the office of the Dean or its equivalent, as proof that the foreign national has completed all the degree requirements. Employers and foreign nationals should be mindful that use of such documentation when the student has not yet completed the program could be considered fraudulent and may result in the loss of the client’s chance at a slot in the U.S. Master’s cap, since the petition would be denied on the basis of ineligibility at the time of filing.

High Tech Worker Relief Act

On April 11, 2007, Senator Chuck Hagel (R-NE) introduced the “High-Tech Worker Relief Act of 2007” to the U.S. Congress. This Act was introduced to provide relief for those employers that were unable to file H-1B applications before the Fiscal Year 2008 H-1B cap closed and also those that wish to employ individuals with advanced degrees from U.S. universities.

If passed, the Act would make an additional 130,000 H-1B visas available for Fiscal Year 2008. The Act would also eliminate the H-1B cap altogether for individuals that have obtained a Master’s degree at a U.S. university. In addition, it would eliminate retrogression of immigrant visas (i.e. green card applications) for individuals that have obtained a Master’s degree at a U.S. university in the fields of science, technology, engineering, or mathematics, and have been working in a related field for the past three years.

Extension of Filing Time for O and P Visas

As of April 16, 2007, employers may now request an O or P nonimmigrant petition for a foreign worker with extraordinary ability up to a year in advance of a scheduled event, competition or performance. Previously, employers were allowed to bring these foreign workers into the United States only six months in advance of their approaching event. With only a six month filing window, case processing was not always completed until after the worker was needed at the event.

The O temporary worker visa status is designated for individuals of extraordinary ability in the sciences, education, business, arts or athletics and individuals of extraordinary achievement in the motion picture and television industries. O visas are valid initially for up to 3 years, with the possibility of additional extensions in one year increments to continue the same work.

The P visa is reserved for those aliens who will be coming to the United States to perform in athletics or entertainment, and who do not meet the extraordinary ability standard required for classification in the O category. The category covers alien athletes who compete individually or as part of a team at an internationally recognized level. Also included are aliens who perform with or are an essential part of the performance of an entertainment group that has received international recognition.

May 2007 Visa Bulletin Shows Significant Forward Movement in EB-3 Preference Category

After months of little to no advancement in the priority dates published by the U.S. Department of State (DOS) in its Visa Bulletin, the May 2007 bulletin shows an astounding leap of one year in the third employment-based preference category (EB-3) for nationals from the Philippines and from all other countries except for China, India, and Mexico. Both entries moved from August 1, 2002 to August 1, 2003.

The DOS confirms that the U.S. Department of Labor (DOL) has been clearing its backlog of labor certification applications at a much slower pace than expected; thus, the massive demand forecasted in late 2006 has not materialized. The advancement of these two entries is a method of testing the level of response. If the resulting demand is not overwhelming, the DOS projects that movement can also be expected for nationals of China, India, and Mexico sometime in the upcoming months.

USCIS Announces Flexible Response Times for Notices of Intent to Deny and Requests of Evidence

The Starting June 16, 2007 the USCIS will be implementing a Final Rule of “Removal of the Standardized Request for Evidence Processing Timeframe” to the Federal Registrar. This rule was proposed on November 30, 2004, in an attempt to eliminate the established requirements and fixed times for a Request for Evidence (RFE) and a Notice of Intent to Deny (NOID). RFEs and NOIDs are issued by the USCIS when it is determined that the evidence submitted with the application or petition does not establish eligibility for the requested case.

This new ruling has established that the maximum response time will stay at 12 weeks for RFEs and 30 days for NOIDs. This new rule will not permit extensions of the response time to be submitted as evidence beyond USCIS specified deadlines. Although the maximum response time will remain at 12 weeks, the rule will amend the Department of Homeland Security’s regulations by giving the USCIS flexibility in setting an appropriate length of time. If an applicant or petitioner does not respond in a timely manner to an RFE or NOID, the USCIS reserves the right to deny the case.

I-693 Examinations: Tuberculosis Skin Testing Suggested

The American Immigration Lawyers’ Association (AILA) recently announced that the USCIS has been issuing Requests for Evidence (RFEs) on many recent I-693 filings. The I-693 is the form completed by a civil surgeon and filed with the USCIS in connection with I-485 filings pursuant to pending Green Card cases. The recent RFEs have reportedly been explicitly directing I-485 applicants to re-visit their civil surgeons for tuberculosis skin tests.

AILA’s release notes that I-485 applicants 2 years of age or older are required to obtain a tuberculosis skin test by the U.S. Department of Health and Human Services.

Any individual about to prepare their I-485 will also be undergoing an I-693 examination as required. While doctors often utilize an X-ray test in lieu of the skin test, the USCIS’ recent actions indicate that this may not be sufficient and individuals should choose to request a full tuberculosis skin test from their examining civil surgeon. Individuals who have recently obtained I-693 evaluations which did NOT include a tuberculosis skin test may choose to undergo such testing before filing and to include evidence of the testing with their I-485 filings.

Requesting and undergoing the tuberculosis skin test should not unduly delay I-693 preparations and greatly reduces the chances that the USCIS will issue an RFE relating to the I-485 filing.

FYI…RECENT PERM STATISTICS

The DOL has published a fact sheet providing statistics on PERM processing between 3/28/2005 and 3/2/2007. Some highlights include:

§  Total applications received since March 28, 2005 is 182,411. Of the 171,750 cases completed, 75% were certified, 22% denied, and 3% were withdrawn.
§  Approximately 28,000 cases were certified during the first quarter of fiscal year 2007. The top 5 states of intended employment for these permanent labor certification were California (5,494), New York (3,508), New Jersey (2,633), Florida (2,021), and Texas (1,873).
§  Distribution of active cases is: 40% Appeals, 33% Final review, 20% Audit Review, and 7% Sponsorship.
§  Alien beneficiaries representing 160 different countries were certified for permanent employment in the U.S. The top 10 countries of citizenship of alien beneficiaries included India (8,354), China (2,170), Mexico (1,891), South Korea (1,507), Canada (1,474), Philippines (1,340), Ecuador (621), United Kingdom (595), Brazil (594), and Colombia (544).
§  Top 10 job titles certified for permanent employment included Computer Software Engineers (5,066), Computer Systems Analysts (1,469), Restaurant Cooks (887), Electronics Engineers (741), Computer and Information System Managers (680), Financial Analysts (635), Market Research Analysts (507), Electrical Engineers (488), Computer Programmers, (482), and Mechanical Engineers (407