LitwinLaw Newsletter – 5/1/07
May 1, 2007
- 1. USCIS Completes FY 2008 H-1B Selections, Changes Procedures – USCIS has completed the random selection process to determine which FY 2008 H-1B petitions would be accepted for processing, and outlined new procedures. This process is a travesty and needs to be changed!
- 2. DHS Issues Final Rule on Petitioning Requirements for O and P Nonimmigrants – DHS issued a final rule to permit petitioners to file O and P nonimmigrant petitions up to one year before the petitioner’s need for the worker’s services. O visas have become very important, again, now that all H-1B visa numbers have been used.
- 3. DHS Revamping Electronic Verification System – DHS is updating its electronic records system to consolidate information from different systems of records notices and add new sources of data.
- 4. “Other Worker” Visa Category Becomes Unavailable; Some Categories Move Forward Significantly – The “other worker” category became unavailable beginning in May and will remain so for the remainder of fiscal year 2007.
- 5. USCIS Issues Final Rule Removing Standardized Request for Evidence Timeframe – The final rule maintains the current 12-week standard as a ceiling on the response time to be provided, and sets a maximum of 30 days to respond to a Notice of Intent to Deny.
- 6. Seventh Circuit Finds Labor Dep’t, Not DHS, Decides Job Requirements – The determination of what kind of training is required to classify someone as a “skilled” worker is made by the DOL, not the DHS.
- 7. Change in Agency Names – The Bureau of Immigration and Customs Enforcement has become U.S. Immigration and Customs Enforcement (ICE), and the Bureau of Customs and Border Protection is now U.S. Customs and Border Protection (CBP).
- 8. Map Shows State Ratio of H-1B Applications to Employment – Research on H-1B visas is still in an early phase but regional data show some interesting patterns.
Also in this issue:
U.S. Citizenship and Immigration Services (USCIS) announced on April 12, 2007, that it completed the computer-generated random selection process to determine which H-1B petitions subject to the congressionally mandated H-1B cap for fiscal year (FY) 2008 would be accepted for processing. Among other things, petitioners who received receipt notices dated before April 12, 2007, cannot assume that their H-1B petitions have been accepted for processing, USCIS said.
As a result of the high volume of petitions subject to the computer-generated random selection process, USCIS did not conduct data entry of all cap-subject filings. Rather, it developed new procedures that “enabled the agency to efficiently process cap-subject petitions.” As required, FY 2008 cap-subject H-1B petitions were stamped to reflect the time and date of actual receipt. USCIS assigned a unique numerical identification number to the 123,480 properly filed H-1B petitions received on April 2 and 3 and, on April 12, conducted a computer-generated random selection process to determine which petitions would be accepted for processing. USCIS did not issue receipt notices for all the petitions received on April 2 and 3. It did, however, conduct data entry and generate (and in some cases issue) receipt notices for a portion of cap-subject petitions before conducting the random selection process. The issuance of receipt notices before conducting the random selection process had “no impact whatsoever” on whether a petition was randomly selected for processing, USCIS said.
Acknowledging that the process “caused some confusion,” USCIS noted the following:
- Some cap-subject petitions were data-entered on April 2 and 3. Fees were deposited in connection with these petitions and receipt notices (Form I-797) were issued. USCIS cannot invalidate these receipt notices because the fees have been deposited. As noted above, petitioners who received receipt notices dated before April 12, 2007, cannot assume that their H-1B petitions have been accepted for processing. For cases that fall into this group, those that were not randomly chosen will be returned to petitioners and the filing fee will be refunded. Those that were accepted for processing will be processed under the original receipt notice.
- Some cap-subject H-1B petitions were data-entered on April 4 and receipt notices were generated but never issued to petitioners. USCIS did not deposit any of the fees submitted with these filings and these receipt notices have been voided. For cases that fall into this group, those that were not chosen will be returned to petitioners with the filing fees and those that were accepted for processing will be issued official receipt notices dated on or after April 12, 2007.
- Finally, a small number of cap-subject H-1B petitions, filed under premium processing, were also data-entered on April 4. In accordance with USCIS procedure, e-mail notification acknowledging receipt of these petitions was issued to petitioners. Official receipt notices were generated but never issued, and USCIS did not deposit any of the fees submitted with these filings. Thus, all generated receipt notices have been voided. For cases that fall into this group, those that were not chosen will be returned to petitioners with the filing fees and those that were accepted for processing will be sent a second e-mail confirmation of receipt and will be issued new receipt notices dated on or after April 12, 2007.
USCIS said it will return all petitions not randomly selected for processing, with the fee(s), to the petitioner or authorized representative. Final notification of those petitions is expected to occur in May.
USCIS continues to accept new FY 2008 H-1B petitions filed on behalf of aliens with U.S.-earned master’s or higher degrees. Those petitions have a separate cap of 20,000. Over 19,100 H-1B master’s degree petitions had been filed as of April 25, so that separate cap is likely to be reached very soon. USCIS plans to make a future announcement regarding the “final receipt date” for these petitions.
USCIS also announced that the 15-day premium processing period for petitions subject to the FY 2008 cap began after the computer-generated random lottery selected the petitions for processing. USCIS said that the large number of H-1B filings on April 2 and April 3 required placing conditions on the availability of the premium processing service. The agency’s ability to provide premium processing service to these petitions was affected by the fact that the cap was reached and exceeded the first day employers could file H-1B petitions.
Corporate clients may contact their members of Congress directly (by personalized letters, phone calls, or personal meetings) to let them know how the H-1B cap and employment-based (EB) backlog problems are hurting them. A model letter that client companies can personalize is located at: http://capwiz.com/aila2/issues/alert/?alertid=9589591. Also, the American Immigration Lawyers Association is collecting examples of how the inability to hire H-1B workers and the delays in getting EB green cards are adversely affecting companies, hospitals, and other entities. Examples (with or without attribution) may be e-mailed to .
USCIS’s announcement about the new H-1B procedures is available at http://www.uscis.gov/files/pressrelease/H1Bfy08CapUpdate041907.pdf. The agency’s announcement about the premium processing period is available at http://www.uscis.gov/files/pressrelease/H1Bfy08PremProc040907.pdf. The agency’s H-1B cap count page is at http://www.uscis.gov/portal/site/uscis/…
The Department of Homeland Security (DHS) issued a final rule effective May 16, 2007, to permit petitioners to file O and P nonimmigrant petitions up to one year before the petitioner’s need for the worker’s services. The rule is intended to enable petitioners who are aware of their need for the services of an O or P nonimmigrant well in advance of a scheduled event, competition, or performance to file their petitions under normal processing procedures. “This way, petitioners will be better assured that they will receive a decision on their petitions in a timeframe that will allow them to secure the services of the O or P nonimmigrant when such services are needed,” the DHS said.
Current regulations governing both O and P nonimmigrants preclude the petitioner from filing a Form I-129 (Petition for Nonimmigrant Worker) more than six months before the actual need for the alien’s services. The DHS noted that the timing of filings by petitioners, combined with current U.S. Citizenship and Immigration Services (USCIS) processing times, often result in USCIS completing the adjudication of such petitions at the same time as, or even later than, the date of the petitioner’s need for the worker. This created a hardship for petitioners seeking to employ a worker based on a scheduled performance, competition, or event, and who already may have booked a venue and sold advance tickets. If the petition is not approved by the time of the petitioner’s need for the worker’s services, the petitioner may be required to cancel a scheduled event or performance, lose funds advanced for booking a venue, and be liable for the costs associated with ticket refunds as well as other costs. If petitioners were able to file Forms I-129 for O or P nonimmigrant status more than six months in advance of the need for the worker’s services, the DHS reasoned, USCIS could ensure that the adjudication is completed in advance of the date of the scheduled event, competition, or performance. Moreover, a large percentage of O and P petitioners seeking performers or athletes often must plan for and schedule competitions, events, or performances more than one year in advance.
The final rule does not apply the one-year filing timeframe to other nonimmigrant classifications associated with Form I-129. The nature of O and P employment is different from other nonimmigrant visa classifications, the DHS explained. Extending the filing period for other nonimmigrant classifications using Form I-129 “may result in the increased potential for fraud and abuse as well as an increase in case filings where the need for the alien’s services has not fully materialized.”
The Department of Homeland Security (DHS) is updating its electronic records system to consolidate information from different systems of records notices and add new sources of data. The update includes Basic Pilot Program information used to determine whether a newly hired employee is authorized to work in the U.S.
The Department of State’s Visa Bulletin for May 2007 notes that the employment third preference “other worker” category for unskilled workers was expected to reach the annual numerical limit by the end of April. As a result, the category became unavailable beginning in May and will remain so for the remainder of fiscal year 2007.
Also, the Department noted that U.S. Citizenship and Immigration Services and the Department of Labor still have a significant number of backlogged cases. As a result, an anticipated increase in demand for visa numbers has not yet materialized and may not for some time. In an effort to maximize number use under the annual numerical limit, the Department said, the Worldwide and Philippines employment third preference cut-off dates have advanced by one year, to August 1, 2003. Eligible professionals and skilled workers with priority dates earlier than August 1, 2003, may apply for adjustment of status or consular processing in May. Unless there is a significant increase in employment visa demand, the Department noted, it will be necessary to continue this rate of movement during the upcoming months. Such movement may be expanded to include other chargeability areas and preference categories.
One consequence of rapid cut-off date advancement is the inevitable increase in demand for visa numbers as adjustment of status cases are brought to conclusion at USCIS offices. Such increased demand could have a dramatic impact on the cut-off dates, leading to retrogressions. The Department said it would provide as much advance notice as possible should this occur.
U.S. Citizenship and Immigration Services (USCIS) issued a final rule, effective June 18, 2007, to provide flexibility to the agency in setting the time allowed to applicants and petitioners to respond to a Request for Evidence (RFE) or to a Notice of Intent to Deny (NOID). Specifically, the final rule maintains the current 12-week standard as a ceiling on the response time to be provided, and sets a maximum of 30 days to respond to a NOID.
The rule also describes the circumstances under which the agency will issue an RFE or NOID before denying an application or petition, but USCIS said it will continue generally to provide petitioners and applicants with the opportunity to review and rebut derogatory information.
The rule also clarifies when petitioners and applicants may submit copies of documents in lieu of originals.
USCIS said it intends to issue policy guidance setting clear standards for when a timeframe less than these maximums will be afforded before the effective date of the rule.
USCIS noted that it recognizes the value of a predictable timeframe for responding to an RFE or NOID, and stated that it did not intend to make this an unpredictable, discretionary process with timeframes determined by individual adjudication officers. USCIS said it will set clear timeframes and standards for submission of different kinds of evidence in different circumstances. The timeframes will be set out in internal guidance to adjudicators. USCIS said it foresees no reason why this guidance also would not be publicly disclosed after it is developed or whenever it is adjusted.
USCIS noted that important processing steps (such as background checks) may need to be repeated if processing extends beyond certain timeframes. Repeating steps may significantly delay the eventual acquisition of an immigration benefit. Longer timeframes can work against a timely response also because applicants and petitioners given almost three months to respond may delay responding simply because they consider that additional time in the U.S. to be a benefit, USCIS pointed out. Recognizing that the majority of applications and petitions are eventually approved, USCIS said it does not want to restrict arbitrarily a reasonable opportunity to submit material to prove eligibility. USCIS added that it recognizes that documents from certain countries other than the U.S. are “occasionally difficult to obtain”; thus, the timeframe flexibility will take into account these situations. Nevertheless, USCIS asserted, most applicants and petitioners can provide required documents in fewer than 12 weeks.
In Hoosier Care, Inc., v. Chertoff, the U.S. Court of Appeals for the Seventh Circuit noted that the DHS’s Administrative Appeals Office (AAO) had ruled that two workers’ college majors were not relevant postsecondary education for prospective positions in a residential care facility for profoundly disabled children and adults, because neither agriculture nor transportation is a field of knowledge that relates to the care of such persons. Relevant majors, the AAO suggested, would include those in such fields as psychology and education. Although the court said that interpretation was not necessarily unreasonable, it noted that the determination of what kind of training is required to classify someone as a “skilled” worker is made by the Department of Labor (DOL), not the DHS, which determines whether the worker satisfies those requirements; that is, whether he or she has the training the DOL believes is required for the job.
The court said it did not know how closely the DOL examines the suitability of the job requirements specified in an employer’s application for labor certification, but that the DHS did not argue that in conducting such an investigation in this case it was simply doing the DOL’s work for it. “If it wants to do that it will have to change its regulation and probably also persuade Congress to change the statute,” the court said, reversing the judgment of the district court and returning the case to the DHS for further proceedings.
The full text of the case is available at http://www.bibdaily.com/pdfs/…
The Department of Homeland Security (DHS) has changed the name of the Bureau of Immigration and Customs Enforcement to U.S. Immigration and Customs Enforcement (ICE), and the name of the Bureau of Customs and Border Protection to U.S. Customs and Border Protection (CBP).
A color-coded map released by Global Insight shows the state-by-state ratios of H-1B applications to employment. The application numbers are broken down by state and then weighted by total employment (to control for size) to show which states are most active in seeking out foreign labor for technical service positions. The company noted that research on H-1B visas is still in an early phase but that regional patterns in labor condition application data show some interesting patterns. Global Insight noted a “clear trend” in coastal states using the H-1B program to a greater degree than inland states.
The map and accompanying report are available at http://www.globalinsight.com/Perspective/PerspectiveDetail9056.htm.
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:
This does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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