LitwinLaw-Newsletter May 1, 2010

May 1, 2010

Headlines:

1. Few H-1 Petitions Filed So Far - USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap.

2. USCIS Discusses Extension of Post-Completion Optional Practical Training and F-1 Status for Students Under H-1B Cap-Gap Regulations - The Q&A explains the cap-gap and other details.

3. Dept. of State Discusses Visa Number Availability - The Mexico employment third and "Other Worker" categories have become "unavailable," and a cut-off date may need to be established for the employment fourth preference category as early as June.

4. Controversial New Arizona Statute Signed Into Law - The governor of Arizona signed a law that directs local police to make immigration status determinations and makes it a misdemeanor to lack proper immigration documents. This is an article about a state that has run amuck because the federal government won't deal with the immigration issue.

5. USCIS Conducts Comprehensive Policy Review, Holds Session on RFEs - USCIS has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public. USCIS is talking to the immigration's stakeholders to see how they can serve better.

6. ICE Plans More Visa Security Units - The program is intended to maximize the visa process as a counter terrorism tool.

7. DOS Requests Comments on SEVIS - The SEVIS forms have been revised to clarify language used and remove unnecessary data collection.

8. USCIS Advises Foreign Nationals Whose Work Permits Expire Before CNMI-Only Visa Categories Are Available - Certain foreign nationals without umbrella permits whose work permits expire before new visa categories are available to them may be eligible for an interim status.

9. Global: The Scope of Immigration Laws for International Investors in Brazil - The entrepreneur has to convince the Brazilian authorities that his or her work will bring new jobs to Brazilians and develop the Brazilian market.

Also in this issue:

Publications and Items of Interest

Government Agency Links

Details...

1. Few H-1B Petitions Filed So Far

U.S. Citizenship and Immigration Services (USCIS) announced on April 22, 2010, that it continues to accept H-1B nonimmigrant petitions subject to the fiscal year (FY) 2011 cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master's degree or higher educational exemption.

USCIS has received approximately 16,025 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 6,740 petitions for individuals with advanced degrees. This is lower than the number of H-1B petitions USCIS had received by the same date in 2009. If this trend continues, H-1B numbers may be available for some time.

When USCIS receives the necessary number of petitions to meet the cap, it will issue a public update that the FY 2011 H-1B cap has been met as of a certain date (the "final receipt date"). The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition has been postmarked. The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.

USCIS said it may randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.

For cases filed for premium processing during the initial five-day filing window of April 1-7, 2010, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date that the petition is physically received at the correct USCIS Service Center.

Petitions filed by employers who are exempt from the cap or petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years will not count toward the congressionally mandated H-1B cap.

USCIS keeps a weekly update of the number of H-1B petitions filed under the FY 2011 H-1B cap here.

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2. USCIS Discusses Extension of Post-Completion Optional Practical Training and F-1 Status for Students Under H-1B Cap-Gap Regulations

U.S. Citizenship and Immigration Services (USCIS) released a Q&A (questions and answers) document on April 2, 2010, that addresses the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2010, under the fiscal year (FY) 2011 H-1B cap.

The Q&A notes that an employer may not file, and USCIS may not accept, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary's services or training. As a result, the earliest date that an employer can file an H-1B petition for the following fiscal year is April 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is the first day of the new fiscal year, October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, must leave the U.S., apply for an H-1B visa at a consular post abroad, and then seek readmission to the U.S. in H-1B status for the dates reflected on the approved H-1B petition.

H-1B petitions must be timely filed on behalf of an eligible F-1 student, the Q&A notes. Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student's authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the "grace period").

Once a timely filing has been made, the Q&A notes, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student's H-1B petition is selected and approved, the student's extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student's H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or his or her program or OPT end date, whichever is later, to prepare for and depart the U.S.

USCIS strongly encourages students "to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing."

The Q&A, which includes details about how to obtain proof of continuing status under the cap-gap extension, limitations on travel and unemployment, and other information, is available here.

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3. Dept. of State Discusses Visa Number Availability

Due to continued heavy applicant demand, primarily by U.S. Citizenship and Immigration Service offices for adjustment of status cases, the annual limits for the Mexico employment third and "Other Worker" categories have been reached. As a result, both categories have become "unavailable," the Department of State Visa Bulletin for May 2010 notes. Visa numbers will become available once again in October with the start of the new fiscal year.

The Visa Bulletin for May 2010 also notes that applicant demand for employment fourth preference numbers remains very heavy. It is likely that a cut-off date will need to be established in an effort to keep number use within the annual limits. Depending upon number use, this action could occur as early as June, the Visa Bulletin warns.

The May Visa Bulletin also notes that during the past 15 months, the demand for numbers in the family-sponsored preference categories has been very low. As a result, cut-off dates for most family preference categories have been advancing at a very rapid pace in an attempt to generate demand so that the annual numerical limits may be fully used. The Visa Office warns that if demand for family-sponsored green cards begins to materialize, cut-off date movements may begin to slow or stop.

The May Visa Bulletin includes a reminder that any changes of address for applicants processing their case overseas should be reported to the National Visa Center so that information regarding the processing of the case at an overseas post may be sent to the applicant. The May Visa Bulletin notes:

When contacting the National Visa Center (NVC) directly about an immigrant visa application case, always include the following information:

· The NVC case number

· Name of the principal applicant

· Principal applicant's date of birth

· Name of the petitioner

· Petitioner's date of birth

E-Mail

The public may submit inquiries to the NVC via e-mail at: nvcinquiry@state.gov.

To ensure a prompt response:

· Provide the relevant NVC Case Number on the subject line of the e-mail.

· Provide the applicant's name and date of birth, and the petitioner's name and date of birth.

· Provide the name of the law office requesting information.

· Provide the name of the employer if the petition is employment based.

· Refer to only one case per e-mail message.

Customer Service

Telephone operators are available to respond to inquiries Monday through Friday from 7:30 am until 12:00 am (EST). Please call (603) 334-0700

Postal Mail

National Visa Center
Attn: WC
31 Rochester Avenue, Suite 200
Portsmouth, NH 03801-2915

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4. Controversial New Arizona Statute Signed Into Law

On April 23, 2010, Governor Jan Brewer of Arizona signed a tough new measure (S.B. 1070) into law that directs local police to make immigration status determinations if there is a "reasonable suspicion" a person may be undocumented, and makes it a misdemeanor to lack proper immigration documents. The law is scheduled to take effect by August.

Gov. Brewer said the new law "represents another tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix." Sen. John McCain (R-Ariz.), who is campaigning in a primary against a challenger who has made immigration a main issue, came out in favor of the law only hours before its passage by the state Senate.

Controversy and protests have swirled around the new law. Those opposed are especially concerned about racial and ethnic profiling and the effects of criminalizing a person's failure to carry immigration documents. "A lot of U.S. citizens are going to be swept up in the application of this law for something as simple as having an accent and leaving their wallet at home," warned Alessandra Soler Meetze, president of the American Civil Liberties Union (ACLU) of Arizona. The ACLU plans to sue to block the legislation.

The American Immigration Lawyers Association (AILA) stated that, in addition to being unconstitutional under the Supremacy Clause of the U.S. Constitution, the law effectively authorizes police to engage in racial profiling and permits citizens to sue any state or local agency if they believe it is failing to enforce the law. On top of making laws that will be struck down in the courts, it will hurt business and even bankrupt local municipalities. We've seen this happen in other localities trying to be tough on immigration but in the end hurting their own economies. AILA cited the example of Tulsa, Oklahoma, where two months after a harsh 2008 law went into effect, construction work was being left unfinished and local businesses were losing customers. AILA also noted that such laws add enforcement of federal immigration law to already overburdened local police departments. Police unions backed the new law, but the state police chief's association opposed the bill, noting that it could damage trust in immigrant communities among potential witnesses.

PolitiFact recently published a fact-checking article examining the issue of racial or ethnic profiling with respect to the new law. The article is available here .

The text of the new Arizona law is here A summary of the law is here.

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5. USCIS Conducts Comprehensive Policy Review, Holds Session on RFEs

U.S. Citizenship and Immigration Services (USCIS) has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public. USCIS invited outside stakeholders to identify their highest priorities for the policy review through a two-week survey that ended on April 29, 2010. USCIS said it will publish a summary of the results later this spring.

Throughout the policy review, USCIS said it will continue to seek feedback from its workforce and external stakeholders to ensure that the resulting policies are "informed, responsive, and effective."

As part of USCIS' overall efforts to review agency policies, on April 12, 2010, USCIS Director Alejandro Mayorkas and the head of the Service Center Operations Directorate, Donald Neufeld, held a listening session for U.S. national stakeholders to review and revise the Request for Evidence (RFE) templates. This was the first time that the USCIS held a dialogue with stakeholders to obtain their feedback on how to improve the RFE process and to clarify any concerns that have arisen due to recent changes, the Alliance of Business Immigration Lawyers noted. The reviewed types included the O (extraordinary ability or expertise), P (athletes and entertainers), Q (cultural exchange), and EB-1 (first preference extraordinary ability) visa categories.

At the session, a number of people asked about a January 8, 2010, guidance memorandum by Mr. Neufeld, and expressed unease about the number of RFEs that are being issued on cases that used to be approved. Mr. Mayorkas and Mr. Neufeld replied that they would offer more opportunities for the public to understand the adjudication process while taking into account the needs of employers, attorneys, and immigrants.

USCIS' announcement is available here.

A related Q&A is available here.

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6. ICE Plans More Visa Security Units

U.S. Immigration and Customs Enforcement (ICE) recently announced that the agency plans to expand its visa security units from 12 countries to 16 this year and an additional country next year. ICE works with the Department of State to identify high-risk posts to receive visa security units. The program, intended to maximize the visa process as a counter-terrorism tool, assigns experienced special agents to visa security units overseas to review visa applications, initiate investigations, and provide advice and training to consular officers.

The list of countries to be added has not been announced, but the Department of Homeland Security separately has identified 14 nations whose citizens underwent mandatory secondary screening for a temporary period after the Christmas Day bombing attempt: Afghanistan, Algeria, Cuba, Iran, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia, Sudan, Syria, and Yemen. Currently, ICE has visa security units in Canada, Egypt, Germany, Hong Kong, Indonesia, Jordan, Morocco, Pakistan, Philippines, Saudi Arabia, United Arab Emirates, and Venezuela.

Sen. John Cornyn (R-Tex.) and Rep. Lamar Smith (R-Tex.) introduced companion bills on March 4, 2010, in the House and Senate to fund 16 visa security units in high-risk nations, including Algeria, Colombia, India, Iraq, Jerusalem, Kuala Lumpur, Kuwait, Lebanon, Mexico, Nigeria, South Africa, Syria, Tel Aviv, Turkey, United Kingdom, and Yemen.

The Department of Homeland Security's Office of Inspector General released a report in 2008 on the visa security unit program.

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7. DOS Requests Comments on SEVIS

The Department of State has issued a request for comments on the recording, reporting, and data collection requirements under the Student and Exchange Visitor Information System (SEVIS). SEVIS is used to monitor foreign students and exchange students in the United States. The forms have been revised to clarify language used and remove unnecessary data collection. Comments will be accepted up to 60 days from April 22, 2010, and may be submitted by e-mail, mail, or online to the location named in the notice, which is available here

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8. USCIS Advises Foreign Nationals Whose Work Permits Expire Before CNMI-Only Visa Categories Are Available

U.S. Citizenship and Immigration Services (USCIS) announced on April 21, 2010, that it will grant parole-in-place status to certain foreign nationals in the Commonwealth of the Northern Mariana Islands (CNMI). Foreign nationals without umbrella permits whose work permits expire before new visa categories are available to them under federal immigration laws may be eligible for this interim status.

Certain employers and their foreign national employees did not apply for umbrella permits covering the two-year transition period to federal immigration law. They may have planned to apply for CNMI-only transitional worker visas immediately after the transition period began in November 2009. However, a court ruling that month stopped this nonimmigrant category from being available. As a result, some foreign nationals face losing their legal immigration status because of a gap between the expiration of their current CNMI work permit and the availability of the new "CNMI-Only Transitional Worker" status.

Certain foreign nationals with CNMI investor permits may also face a gap between the expiration date of their CNMI investor permit and the availability of the "CNMI-Only E-2 Investor" status.
Parole-in-place would give affected foreign nationals authorization under federal immigration law to remain in the CNMI and permit continued employment authorization until the CNMI-only transitional worker program and the CNMI investor status are implemented.

USCIS' announcement includes details about how and where to apply for parole-in-place and what documents to submit. The announcement is available here.

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9. Global: The Scope of Immigration Laws for International Investors in Brazil

In the last 11 years, the Brazilian Entrepreneurs' Visa had three different normative resolutions with their respective minimum investment. Normative Resolution N. 28, from November 25, 1998, originally defines that the foreign investment has to be US$200,000.

On October 6, 2004, the Brazilian legislature altered the requirements and modified this resolution. The new Normative Resolution, N. 60, established the foreign investment as US$50,000.

Recently, a new resolution, Normative Resolution N. 84, was established in February 10, 2009, with a minimum investment of R$150,000 (about US$80,000). This new resolution includes more detailed procedures related to the current and sustainable Brazilian economy.

In both cases, an absorption plan of Brazilian manpower must be presented. In addition to this requirement, the sponsor of the visa is always the Brazilian company of which the foreign national is partner.

The Brazilian company must open a Brazilian bank (in Reals) account in order to receive the foreign investment. The entrepreneur needs to send the money in his or her own name (individual) for the bank account of the Brazilian company. It is not mandatory that all the money be invested at the same time, but the money must be registered with the Brazilian Central Bank. To certify this investment, the articles of Incorporation must include a clause stating that the foreign money is integrated into the Brazilian company.

Subsequent to the investment, the entrepreneurs must obtain a conditional permanent visa, valid for three years. During this three-year period, the foreign national may only provide services for the Brazilian company that sponsored the visa. This condition is written in his or her Brazilian ID Card.

The creation of employment and revenue in Brazil is the most important condition for obtaining this visa. Related to that, the absorption plan of Brazilian manpower must be executed in the first year of the Brazilian company after the arrival of the entrepreneur. The company may hire and/or employ Brazilian manpower other than its stated direct absorption plan of the investor program, but it is mandatory to fulfill the original numbers.

For the investor program, it is mandatory to present the number of employees and posts, the salaries that will be paid, and the amount of investment in the capacity and qualifications of the Brazilian employees in the first three years. It is also necessary to include information about the economic section and localization of the Brazilian company and its importance for the development of the relevant region. Due to a diversified Brazilian social structure, the investment will have a different effect according to the region.

In this connection (Investment-Social Impact), it should be emphasized that it is not mandatory to invest the amount of R$150,000 but a foreign investment is mandatory. Specifically, the social interest issue is considered very important, and the entrepreneur has to convince the Brazilian authorities that his or her work will bring new jobs to Brazilians and develop the Brazilian market; i.e., improve the life of the Brazilian people. If the entrepreneurs are from South America, they will receive special consideration from the members of the National Immigration Council.

There are no minimum qualifications to apply for an investor visa except for the investment. The foreign national may be accompanied by his or her family (spouse and children), who will receive the status of dependents. Once the application is filed with the Ministry of Labor, the processing time is usually 30 days, while the processing time with the National Immigration Council is about 5 months.

The global economic crisis did not affect investments in Brazil. In fact, it made foreign entrepreneurs see that Brazil is a very good country in which to invest, with its stable economy, democracy, consumer market, and natural resources. Unfortunately, we should not forget the Brazilian bureaucracy and its effects on the timeframe of the constitution of a Brazilian company. However, Brazil is improving and let us not forget that the country was built by foreign nationals and will only become a much more developed country with their efforts.

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New Publications and Items of Interest

Immigration and occupations. The New York Times recently analyzed Census data and surveys of American attitudes about immigration. The analysis found that although the common perception is that a surge in immigration has overwhelmed the U.S. with low-wage foreign laborers, in reality the 25 million immigrants who live in the largest metropolitan areas in the U.S. are nearly evenly distributed across jobs and incomes, and in 14 of the 25 largest metro areas, more immigrants are employed in white-collar occupations (e.g., professionals, technicians, administrators) than in lower-wage work (e.g., construction, manufacturing, cleaning). The conclusions were based on Census data, a survey published in February's American Political Science Review, and data analysis conducted by the Fiscal Policy Institute for the New York Times.

The New York Times article is available here.

Green card statistics. The Department of Homeland Security's Office of Immigration Statistics released its Annual Flow Report in April 2010. The report shows that in 2009, a total of 1,130,818 persons became legal permanent residents (LPRs) in the U.S. Nearly two-thirds were granted green cards based on a family relationship. The leading countries of birth of new LPRs were Mexico (15 percent), China (6 percent), and the Philippines (5 percent). Legal immigration increased 2.1 percent from 1,107,126 in 2008 to 1,130,818 in 2009. LPR adjustments of status increased 4.2 percent from 640,568 in 2008 to 667,776 in 2009. Adjustments of status in 2009 were driven by a decrease in applications pending a decision rather than an increasing number of applications received during 2009. Fifty-nine percent of new LPRs in 2009 were adjustments of status and 41 percent were new arrivals. California was the state of residence of one-fifth (20 percent) of persons gaining LPR status in 2009. Other leading states of residence included New York (13 percent), Florida (11 percent), Texas (8.4 percent), and New Jersey (5.2 percent).

The report is available here.

Labor certification planning guidance for SWAs. The Department of Labor's Employment and Training Administration released a guidance letter on April 6, 2010, to State Workforce Agencies (SWAs). The letter defines the roles SWAs play in programs administered by the Office of Foreign Labor Certification (OFLC), among other things. The letter notes that labor certification programs are undergoing a number of changes in fiscal year 2010, such as the inclusion of the Commonwealth of the Northern Mariana Islands under U.S. immigration laws; centralization of prevailing wage determinations in the National Prevailing Wage and Helpdesk Center; and the effects of the amended H-2A regulations on SWA responsibilities.

The letter is available here.

Evaluation of limited English proficient and Hispanic Worker Initiative. This report by the Department of Labor's Employment and Training Administration discusses the design of the five Limited English Proficient and Hispanic Workforce Initiative (LEPHWI) projects; describes implementation activities to recruit participants and employers and to develop and deliver training; and describes partnerships to address the needs of LEP individuals during training and placement. The report presents the outcomes for each project, draws comparisons across all five projects in key program areas, and identifies promising practices. The LEPHWI was a strategic effort to improve access to employment and training services for LEP persons and to better serve Hispanic workers through workforce investment programs that address their specific employment challenges, including language and occupational skills.

The report is available here.

International education and immigration reform. There is near-universal agreement that the U.S. immigration system is broken, but much less agreement on how to fix it. NAFSA: Association of International Educators argues that Congress must recognize the pivotal role of international education and include reforms that expand the United States' ability to attract foreign students and scholars from around the world. NAFSA urges Congress to adopt the following reforms:

  • Address the visa and immigration challenges foreign students and scholars continue to face in coming to study in the United States.
  • Provide short- and long-term options for foreign students to work after they graduate from U.S. colleges and universities, including a direct path to green card status for sought-after graduates.
  • Increase the number of employment-based green cards available annually so that talented foreign faculty, researchers, and scientists no longer face long delays and unnecessary wait periods while trapped in short-term immigration status.

NAFSA's statement is available here. A recent report, A Visa and Immigration Policy for the Brain-Circulation Era: Adjusting to What Happened in the World While We Were Making Other Plans, is available here .

GAO report on American Samoa and CNMI minimum wage increases and effects. The Government Accountability Office (GAO) issued a report in April 2010, entitled American Samoa and Commonwealth of the Northern Mariana Islands: Wages, Employment, Employer Actions, Earnings, and Worker Views Since Minimum Wage Increases Began. The report discusses employers' cost-cutting measures and worker reactions.

The full report, GAO-10-333, is available here.

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplayInit.do

Department of Labor processing times and information on backlogs: Foreignlaborcert

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