USCIS Releases Helpful Information on Filing FY 2009 H-1B Cap Cases

In anticipation of the imminent filing of thousands of petitions for new H-1B non-immigrant visas for Fiscal Year (FY) 2009, the U.S. Citizenship and Immigration Services (USCIS) released a series of FAQs titled “Helpful Information for Completing and Submitting a FY 2009 H-1B Cap Case.” The FAQ document is available to the public on the Internet at the following link:

http://www.uscis.gov/files/pressrelease/Q_and_A_H1B.pdf

Topics cover the basics of filing a FY 2009 H-1B petition, including:

• when and where to file an H-1B petition

• suggestions on how to structure an H-1B filing

• recommendations on ensuring an H-1B filing is not rejected, including common errors

Shortly after releasing the FAQ document, the USCIS spoke with the liaison committee of the American Immigration Lawyers Association (AILA) and offered further, more advanced advice concerning FY 2009 H-1B filings. The liaison committee’s questions included:

“Should Premium Processing be used for cap-subject filings?”

The USCIS advised that it should be anticipated that the H-1B quotas will be filled as quickly, if not more quickly, than last fiscal year. (For FY 2008, the 65,000 annual quota was exceeded in just the first day of filing; the 20,000 set-aside for those with advanced degrees from a U.S. college or university was filled within 30 days.) Accordingly, Premium Processing Service may be suspended temporarily as it was for a short time in FY 2008.

Thus, even if one requests Premium Processing Service with an FY 2009 H-1B petition filed on April 1, 2008, it is not guaranteed that immediate e-mail notification of the case number will be received, nor can they guarantee that such petitions will be adjudicated within 15 calendar days of filing per usual Premium Processing procedures.

“Can a petitioner file duplicate H-1B filings to increase chances of obtaining a cap number?”

The USCIS revealed that they are currently drafting a regulation that will prohibit the practice of filing duplicate petitions for the same beneficiary employee. In FY 2008, there was anecdotal evidence that a number of beneficiaries had multiple duplicate petitions filed on their behalf in order to increase their chances of being selected in the random lottery. The CIS has indicated that they are instituting measures to stop this practice, which prejudices those without the resources to file multiple copies of the same petition.

The definition of a duplicate petition will be described in the proposed regulation. AILA has taken the position that a petition filed under both the regular and the U.S. Master’s caps would not be considered a duplicate, but acknowledged that this could not be confirmed as correct without the release of the regulation.
 

Changes in Passport Options, Fees and Regulations

Beginning Feb. 1, 2008, the Department of State will institute a new fee schedule for passport services. Passport fees are being adjusted to cover the cost of providing efficient and secure passport services including infrastructure, technology and staff. The Passport Execution fee collected by passport acceptance centers and U.S. consular sections abroad is being reduced from $30 to $25.

Additionally, at this time applicants will also have the option of pre-ordering a new Passport Card. The card will be provided for limited use (land and sea only) at a low cost. The Passport Card is an alternative to the Passport Book designed for those living along the border.

In addition, on the passport application the age for which both parents must appear and sign on behalf of a child will increase from 14 to 16 years old.

New application forms and updated information on applying for a Passport and Passport Card will be available Feb. 1 at http://travel.state.gov/passport.

Updated Filing Location for H-1B Cap Exempt Petitions

In order to make the adjudication of H-1B Cap Exempt petitions more efficient, the U.S. Citizenship and Immigration Services (USCIS) will utilize a special unit to process only these types of petitions. Those in the cap exempt category are identified as educational, nonprofit, or government organizations. More specifically, institutions of higher education, nonprofit organizations or entities related to or affiliated with institutions of higher education, and nonprofit research organizations or governmental research organizations.

The USCIS has designated the California Service Center (CSC) to receive these petitions. Petitioners are asked to indicate that the case is exempt on the outside of the envelope and the top margin of the I-129 form, by marking “EXEMPT.” This will make certain that the employees at the CSC will identify the petitions as exempt. If a cap exempt H-1B petition is sent to the wrong Service Center, that Service Center will immediately send the petition to the CSC for processing.
H-1B Cap Exempt petitions will be sent to the California Service Center in Laguna Nigel, CA. They have provided one address for direct mail and one for private carriers.
 

Visa Bulletin Reveals Leaps Forward for Employment-Based Preference Immigration Categories

The March 2008 Visa Bulletin published by the U.S. Department of State (DOS) shows significant leaps forward in the priority dates for all retrogressed employment-based preference immigration categories. The greatest benefit goes to foreign nationals born in all chargeability areas (except for China (mainland), India and Mexico) that are in the third preference (EB-3) category, where priority dates leapt from November 1, 2002 to January 1, 2005. (The second preference (EB-2) category for Indian nationals remains unavailable.)

The forward movement comes after months of little to no movement due to concerns of excessive demand. The DOS has apparently changed its position, now reporting that its intent is to avoid a situation similar to last fiscal year’s situation, where large amounts of immigrant visa numbers were available towards the end of the fiscal year without sufficient time to use them. This led to the well-known July 2007 Visa Bulletin situation which culminated in all employment-based immigrant visa categories becoming current.

Forward movement may continue in the next few months if the level of demand is not higher than expected. However, it should be assumed that retrogression (the backward movement of priority dates) will be required by the summer or fall of 2008. We advise that one takes advantage of this new momentum and be prepared to file Form I-485 (Application to Register Permanent Residence or to Adjust Status) on March 1, 2008, or as soon thereafter as possible.
 

EMPLOYMENT-BASED VISA BULLETIN FOR MARCH 2008

For additional information, please post a question in your online account folder or contact us at customersupport@visanow.com.

Case Delays: Causes, Consequences, and Solutions

On Jan. 17, 2008, Emilio T. Gonzalez, Director of the U.S. Citizenship and Immigration Services (USCIS), discussed how they are managing the dramatic increase in applications and petitions received in the summer of 2007. In June, July and August over three million immigration benefit applications and petitions of all types were received, compared to 1.8 million applications and petitions received in the same period the previous year. In Fiscal Year 2007, USCIS received nearly 1.4 million applications for naturalization, nearly double the volume received the fiscal year before.

To date, what has the USCIS have done to accommodate such jump in workload?

• Their first priority was to accept filings and provide applicants with proper receipt notices as quickly and efficiently as possible. In an average month, USCIS receipts are about 530,000. To accommodate the three million applications and petitions received in June, July, and August which exceeded their capacity, USCIS has expanded work hours, added shifts, and detailed 84 staff to its Service Centers.
   

• In addition, the USCIS has begun hiring 1,500 new employees of which 723 are adjudicators. To date, USCIS has hired more than 580 permanent staff including more than 274 adjudicators.
   

In the future, USCIS plans to transform the agency from a paper-based environment to an electronic environment. In Fiscal Year 2008, USCIS plans to expand on the Systems Qualified Adjudication process, an automated process for certain application where individuals are already qualified and in the USCIS database. These will include, for example, replacement of an expired permanent resident card or temporary employment authorization. Other technology enhancements include improving the background check process and the capability to produce system-generated Naturalization Certificates. USCIS will also adjust some administrative procedures to streamline naturalization process.

With respect to resources, USCIS plans to utilize and spend over two years worth of fee revenue generated by surge applications estimated at $450 million and $480 million. Unfortunately, due to such significant changes that will be made to their staffing, technology and process, USCIS expects that people may wait longer to have their applications completed for the next couple years.

USCIS Revises Security Check Policy

The U.S. Citizenship and Immigration Services (USCIS) released a new memo changing their security check guidelines. An FBI and Interagency Border Inspection Services (IBIS) name check must be obtained and cleared before an I-485 Application for Adjustment of Status can be approved. The USCIS has no control over the speed of these name checks, but many I-485 cases have been pending for several years due to the slowness of the process. The USCIS has stated that where the I-485 application is otherwise approvable and the name check has been pending for over 180 days, the I-485 will be approved, and the green card will be issued. The FBI has committed to finishing the security check within this time frame.

The USCIS will be issuing a Q&A regarding their new security check policy, which should be available on their website in the next few days.

H-2B “Returning Worker” Issues Explained

Employers seeking to file H-2B petitions for the upcoming fiscal year are facing a very different situation than they have for filings made in the past several years. Recent events have changed the landscape of the H-2B process, making filing a more arduous task than it has been in recent years.

H-2B visas for employees engaging in temporary non-agricultural labor are, and have been, subject to a numerical cap of 66,000 per fiscal year. In 2005, President Bush signed into law the Save Our Small And Seasonal Business Act. This act had the effect of exempting from the annual cap any “returning worker”. Returning workers are defined as those who have been counted under the cap (i.e. – subjected to the cap) in any of the three preceding fiscal years. This legislation benefited both H-2B workers and their employers by ensuring available visas for H-2B employees already counted under the cap and leaving additional space under the cap for new H-2B workers. Since the Act went into effect, it has been a required that Congress extend the “returning worker” provision each year, exempting such workers from the cap on an annual basis.

However, the most recent extension of this provision did not occur. As such, the effective period of the “returning worker” provision expired on Sept. 30, 2007. As such the provision is no longer in effect. This means that workers who have previously been subjected to and counted under the cap are no longer cap-immune. This has an adverse effect on the H-2B labor force. As returning workers are now subject to the annual numerical cap, returning workers face uncertainty in their efforts to obtain H-2B work authorizations for the upcoming fiscal year. Further, counting returning workers against the numerical cap will drastically reduce the number of new H-2B visas available to employees who have not previously been subjected to the cap.

Efforts to further extend the returning worker provisions are ongoing. Those in favor of the extension are calling on employers to urge politicians to take the necessary steps to revive the exemption, allowing for a larger and stronger H-2B labor force to support small American businesses.

The VISANOW Voice is published monthly by VISANOW. VISANOW streamlines the immigration process for corporations and their foreign employees. Our superior client support and innovative technology have changed the way immigration legal services are delivered with a process that consistently delivers faster responses, provides greater access to information and increases efficiency. Any legal analysis or comments contained herein have been provided by American Services Network, P.C. and do not constitute the provisions of legal services and, therefore, should not be relied upon as legal advice. If you believe that any of the information contained in this newsletter relates to your immigration status or to your company's immigration issues, you should consult your immigration legal services provider. © 2008 VISANOW.com, Inc. VISANOW, 350 North LaSalle Street, Suite 1400, Chicago, IL 60610 (888) 4-VISANW Please send comments and questions to info@visanow.com