Global Immigration News

UK Changes Immigration Process for Corporations Sponsoring Foreign Nationals

The UK has undergone significant changes to their immigration processing system. A critical component of the new system requires a company to be registered with the UK Border Agency (“UKBA”) prior to sponsoring any employee to work in the UK. The UKBA articulates two basic principles of the sponsorship program. The first principle is to ensure those who benefit most from migration carry out their responsibilities in a proper manner and do not abuse the system. The second principle is to make certain that applicants who desire to work or study in the UK are not only eligible but have a reputable sponsor.

UKBA has explicit guidelines for the duties of a sponsor which include:

To be an effective sponsor, it is imperative to co-operate fully with the UKBA. This can be done by allowing UKBA staff access to your company, following the sponsorship action plan, and being proactive to minimize immigration abuse.
The UKBA awards sponsorship ratings with either an A or B Rating. An “A” Rating is the term applied to a sponsor who joins the register of sponsors, and a “B” rating is given to sponsors who the UKBA deem a risk to immigration control or those that do not have appropriate documenting systems in place.

Once a company is officially registered with the UKBA as a sponsor, it can then file for Certificate of Sponsorships which allows the company to sponsor a foreign worker. In addition to a obtaining a Certificate of Sponsorship, foreign workers must also pass a point based assessment. Workers may also need an Entry Clearance Visa and biometric identity card before entering the UK.

We strongly urge companies who anticipate hiring foreign workers and have not registered in the UK, to begin the process as soon as possible. The processing time to become registered as a sponsor in the UK can take up to 8 weeks. Thus, this process can cause a significant delay to the immigration process.

Call us to get started.

More information: http://www.ukba.homeoffice.gov.uk/

U.S. Immigration Updates

H-1B Cap Still Open

On April 27th, the U.S. Citizenship and Immigration Services (USCIS) have announced that the H-1B cap was still not met for 2010. The USCIS states that out of the 65,000 available petitions only 45,000 were received for the cap. USCIS also stated that the cases filed with premium processing during the initial filing days for the cap began being processed on April 7th, 2009.

Furthermore, the USCIS has stated that 20,000 advanced-degree cases such as master’s degree cases were received. However, more advanced degree petitions are still being accepted since experience has shown that not all petitions received are approvable.

With the cap not being reached, the USCIS has announced that it will keep taking applications until it has reached the cap.

The new I-9 has updated categories of documents acceptable for employment verification. Employers are strongly urged to read the new I-9 handbook for clarification on what documents are currently acceptable for employment verification. One important change for employers is the new requirement that an H-1B nonimmigrant transferring to a new employer must present a Form I-797C receipt notice as evidence of employment authorization for employment verification. This specific requirement in the I-9 handbook differs from the previous USCIS position that evidence of the H-1B petition receipt by USCIS (e.g., FedEx/UPS delivery confirmation) was sufficient for employment verification. As such, employers with an H-1B workforce should be mindful that new H-1B transfer employees may no longer begin employment immediately. Recently, the USCIS has been taking several days to a few weeks to issue H-1B receipt notices, so H-1B employers need to factor in this wait time before scheduling new employee start dates.

The Handbook also institutes new documentary requirements for F-1 students authorized to work during the “cap gap” period between the expiration of optional practical training (OPT) and the start date of a new cap-subject H-1B (October 1). These students are now required to present Form I-20, their expired EAD (Form I-766 issued for OPT), and, if available, an I-797C receipt notice showing receipt of the H-1B petition. This combination of documents is acceptable until the expiration date on Form I-20 or September 30, whichever is earlier. If Form I-20 has expired, then the student will need the I-797C receipt notice to obtain an updated I-20 from the Designated School Official (DSO) in order to verify employment for the I-9. Thus, employers will also need to factor in this wait time for student employees who are waiting for their H-1B receipt notices.

Employers are strongly urged to consult the USCIS’s new I-9 website and Handbook for further guidance on completing the new I-9 form.

New I-9 Handbook: http://www.uscis.gov/files/nativedocuments/m-274.pdf
USCIS Q&A on new I-9: http://www.uscis.gov/files/article/revised-i-9-q-a.pdf 

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USCIS Pre-adjudicating Non-current I-485s for Faster Green Card Approval

The USCIS limits the number of green cards that can be issued each year to 140,000 for employment-based immigration cases. Obviously, the demand for green cards far exceeds the supply of 140,000 green cards which forces people to wait in line. A foreign worker’s place in the waiting line is determined by his/her priority date, preference category and country of birth. A green card is considered available when the foreign worker has a “priority date” that is earlier than the date listed in the Department of State’s Visa Bulletin for the applicant’s particular “preference category” and country of birth.

The USCIS’ existing policy until now has been that it will not even review Form I-485 application for adjustment of status, which if approved gives the foreign worker his immigrant green card, unless the foreign worker’s priority date is current; namely, there is a green card immediately available for him/her.

Recently, we received a call from the Texas Service Center – which is one of the two USCS’ Service Centers that process immigration applications. The officer was adjudicating one of our clients’ I-485 application. He asked for a copy of the client’s latest H-1B approval notice which was previously filed with the I-485, but somehow did not make it to the officer’s desk. We were surprised that the officer appeared to be working on the client’s I-485 application when his priority date is not current. In fact, as a Korean in an EB-3 classification, no one in his preference category is current at least for the month of May.

When we asked why the officer is reviewing an I-485 application for a client whose priority date is not current, the officer said that the USCIS is “pre-adjudicating” I-485s that are not current so that when the foreign workers eventually becomes current, then, the USCIS can immediately approve the I-485 applications. He said that very often, by the time the USCIS issues a Request for Evidence, and the attorneys submit the response, the foreign worker’s priority date retrogresses again, preventing the USCIS from approving the I-485 application. Surprised and pleased, we asked the officer if that’s the new policy of the Texas Service Center, and to our delight, he confirmed. Thus, if you get a Request for Evidence for your I-485 when your priority date is not current, take it as a good sign that the USCIS is diligently working on your green card case so that when your priority date does eventually become current, the USCIS will immediately issue a green card to you.

May 2009 Visa Bulletin

The U.S. Department of State (“DOS”) has recently released its Visa Bulletin for May of 2009. As has been the case in recent months, the EB-1 category remains current for nationals of all countries. Likewise, the employment-based second (EB-2) filing preference category numbers remain unchanged from last month, listing 02/15/2004 and 02/15/2005 dates for nationals of India and China respectively. Numbers remain immediately available for EB-2 nationals of the Philippines, Mexico and all other countries.

However, EB-3 is currently listed as “unavailable” for all foreign nationals. The current unavailability is the result of very high demand for numbers within the EB-3 filing preference, as well as a high concentration of current cases within the EB-3 category bearing older priority dates. Furthermore, the current unavailability of numbers in the EB-3 filing preference serve to indicate that the supply of EB-3 visas has now been exhausted for the remainder of fiscal year 2009. As these numbers are regulated by fiscal year, it is expected that EB-3 numbers will not again be made available until the beginning of fiscal year 2010: October 1, 2009.

Substantial changes in the May 2009 bulletin also include a change to “current” for published numbers within the category reserved for Religious Workers. Numbers within that category are now immediately available.

Employment-Based Visa Bulletin for May 2009