Update – 05/07/12

FY-2013 H-1B Petitions Coming In Fast

According to U.S. Citizenship and Immigration Services, over 25,000 cap-subject H-1B petitions have been filed as of April 20, 2012.  If this keeps up, the H-1B cap could be reached quickly.

Klasko Law recommends that employers file early and allow time for the labor condition application process.  Contact your Klasko Law attorney now for guidance and help with the H-1B process.

Federal Judge Chides USCIS for Denial of ‘Specialty Occupation’ H-1B Petition to Market Research Analyst with Related Bachelor’s Degree

In Residential Finance Corporation v. USCIS, Judge Gregory L. Frost of the U.S. District Court for the Southern District of Ohio chided U.S. Citizenship and Immigration Services (USCIS) for its faulty analysis of why it denied an H-1B petition to a market research analyst with a bachelor’s degree in that field.

The issue before the court was whether USCIS incorrectly concluded that a “specialty occupation” was not involved.  The court noted that a specialty occupation is one that requires attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.  A related definition provides that a specialty occupation requires theoretical and practical application of highly specialized knowledge.

Among other things, USCIS argued that although the Department of Labor’s Occupational Outlook Handbook (OOH) recognizes a baccalaureate degree as the minimum educational requirement for many market and survey research jobs, the OOH does not indicate that such a degree need be in a specific specialty directly related to market research.

In this case, the beneficiary had obtained a bachelor of science degree in marketing and finance.  The record indicated that a minimum requirement for entry into the position of market research analyst is the specialized course of study in which the beneficiary had engaged.

“Perhaps most bewildering is that Defendant [USCIS] rejected the evidence that [the beneficiary] would actually be performing these job duties if hired, despite no evidence to the contrary and no other apparent reason for failing to credit the evidence on this record,” the judge said.

Judge Frost continued:

Defendant continues to reject this record in favor of supporting a flawed denial.  What Defendant overlooks is that the illogical leaps about which Plaintiff complains in its thorough briefing cannot be separated from the process in which Defendant engaged in its decision making.  Stated simply, Defendant did a poor job of keeping the record straight and its focus on the actual inquiry involved.

The judge pointed out that USCIS expressly admitted “inexplicable errors” in its briefing, such as references to the wrong sections of the OOH, and that the agency’s decision appeared to identify the proffered position incorrectly as a marketing manager rather than a marketing analyst.

Judge Frost said that these errors were not the essentially inconsequential lapses that USCIS suggested.  Instead, he said, they constituted “a litany of incompetence that presents [a] fundamental misreading of the record, relevant sources, and the point of the entire petition.”  If USCIS wants to deny a petition that will send the beneficiary to another country after 21 years of living in the United States, the judge said, “it should afford Plaintiff and [the beneficiary] a bare minimum level of professionalism, diligence, and reasoning.”

According to the court, the record indicated that a market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields, that the beneficiary had completed such specialized study in the relevant fields of marketing and finance, and that Residential Finance Corporation had sought to employ him in such a position.  Judge Frost said that USCIS had “ignore[d] the realities of the statutory language involved and the obvious intent behind them.  The knowledge and not the title of the degree is what is important.  Diplomas rarely come bearing occupation-specific majors.”

Judge Frost concluded that USCIS failed to meet the “fundamental threshold for rational decision-making and has instead engaged in conduct that cannot be separated from the taint of the foregoing errors.”  He thus found that the denial of the petition was arbitrary, capricious, and an abuse of discretion, and ordered USCIS to grant the petition and change the beneficiary’s status to H-1B nonimmigrant.

May Visa Bulletin and India/China Eb-2 Retrogression Prediction

The State Department’s Visa Bulletin for April did not continue the dramatic forward movement of India and China EB-2 priority dates that has been observed for the past several months.  The May Visa Bulletin contained a retrogression of visa numbers for Eb-2 India and Chinese nationals to August 15, 2007.

Applicants for adjustment of status must have a priority date earlier than the priority date listed as “available” in the Visa Bulletin each month in order for their application to be filed, or for a pending application to be approved.  As of March 1, 2012, that priority date has been set at cases with a labor certification (or EB-2 I-140 not requiring a labor certification) filed prior to May 1, 2010 for natives of India and China.  The Visa Control Office rapidly advanced the priority dates in order to build an “inventory” of cases ready to be approved at the USCIS offices.  In the May Visa Bulletin, however, there was a significant back track on those numbers.

This retrogression means that new applications for adjustment of status will not be able to be filed as of May 1 for cases with priority dates in 2008, 2009 and early 2010.  Priority dates are not expected to advance again until October 1, 2012, at least, when the government’s new fiscal year begins.

It is very important to note that if an I-485 Application for Adjustment of Status is filed while the person’s priority date is current, it will remain pending until the priority date is current again.  Since the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, during the time the priority date is retrogressed.

Due to this recent announcement, we recommend that anyone with a priority date before May 1, 2010 who is eligible to apply for adjustment of status do so immediately, as their opportunity to file the application will end by May 1, 2012, and will not return until at least October 1, 2012 (and likely much later).

House Judiciary Committee Approves Bill Adding Israel to Nonimmigrant Investor Visa Eligibility List

The U.S. House of Representatives’ Committee on the Judiciary has approved legislation that would add Israel to the E-2 nonimmigrant visa eligibility list of countries.  The bill would allow Israelis to apply for E-2 visas if similarly situated U.S. nationals are eligible for such visas in Israel.  Rep. Howard Berman (D-Cal.), said the legislation would bring Israeli business and innovations in “security and defense technologies, medicine, agriculture, high-tech, and clean energy” to the United States.

Last May, the Senate introduced a companion bill but has not yet moved it through the Senate Judiciary Committee.

DOL Publishes Final Rule on Labor Certifications for H-2B Temporary Nonagricultural Employment

The Wage and Hour Division (WHD) of the Department of Labor’s (DOL) Employment and Training Administration published a final rule effective April 23, 2012, revising the process by which employers obtain a temporary labor certification from the DOL for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status.  WHD chose to revert to a compliance-based rather than the current attestation-based certification process.  The regulations are also intended to provide increased worker protections for both U.S. and foreign workers.

The final rule creates a national registry for all H-2B job postings and increases the recruitment period for U.S. workers.  The rule also requires the rehiring of former employees when available.  In addition, the rule extends H-2B program benefits, such as transportation costs and wages, to U.S. workers performing substantially the same work as H-2B workers.

WHD received a large number of comments from the ski industry requesting an exemption from the regulations.  Many of the commenters believed that because ski instructors require skills or experience, under the new rules they would be ineligible for the H-2B program.  Generally, job positions certified under the H-2B program are low-skilled, WHD explained, requiring little or no experience.  “We do recognize, however, that there are some occupations and categories under the H-2B program that may require experience and/or training.  Employer applicants demonstrating a true need for a level of experience, training or certification in their application have never been prohibited in the H-2B program, given the breadth of the definition of H-2B under the INA,” WHD noted.  The agency said it has determined that an exemption for the ski industry “is not appropriate as the commenters presented no valid argument as to why exemption is necessary.  There is nothing about the workers they seek to hire that prevents them from participating in the H-2B program.  Ski resorts are fixed-site locations that run on a seasonal basis with standard operating procedures.”

The H-2B program is limited by law to a cap of 66,000 visas per year.

U.S. Embassy in London Discusses Visa Availability for Olympics, Expansion of Visa Reissuance Program for H-1, H-4 Applicants

The U.S. Embassy in London has released a notification of limited nonimmigrant visa services during the Olympics and an expansion of the Visa Reissuance Program to include H-1 and H-4 visa applicants.

The embassy noted that visa services will be limited during July and August for all nonimmigrant visa categories.  The embassy encourages applicants “to apply for visas during the spring and early summer as appointment availability cannot be guaranteed.”  Appointments are scheduled through the Operator Assisted Information Service.

Also, the embassy noted that travelers planning on entering the United States visa-free under the Visa Waiver Program by air or sea carrier who do not have travel authorization approval under the Electronic System for Travel Authorization (ESTA) are encouraged to register now for summer travel.  If registration is denied, visas will be required.

The embassy also said that the Visa Reissuance Program has been expanded to include H-1 visa applicants and their derivatives who are renewing a visa of the same classification that has expired in the last 12 months.  Other qualifying criteria apply and can be found at http://london.usembassy.gov/visa-reissuance.html.  The Program continues to be available to O, P, J and C-1/D visa applicants.  Applicants must be physically present in the United Kingdom to use the Visa Reissuance Program, and a consular officer reserves the right to request that an applicant appear in person for an interview after reviewing his or her application.

Callers within the United Kingdom should dial 09042-450-100.  Calls to this line are charged at £1.23 per minute plus network extras.  Callers from the United States should dial 1-866-382-3589.  U.S. callers are charged a fixed rate of $16 payable by credit card (Visa, MasterCard, or American Express only).

USCIS Launches ‘Entrepreneurs in Residence’ Initiative at Silicon Valley Summit

U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas recently met with more than 150 Silicon Valley entrepreneurs, academics, and government officials at NASA Research Park in Moffett Field, California, to launch the Entrepreneurs in Residence (EIR) initiative and gather information.

USCIS said that the panel discussions and breakout sessions held at the summit would inform the work of a newly formed EIR tactical team, which will “work collaboratively over the next several months to ensure that immigration pathways for foreign entrepreneurs are clear and consistent, and better reflect today’s business realities.  The tactical team will identify ways to enhance USCIS policies, practices and training across a range of existing nonimmigrant visa categories used by entrepreneurs.”

Mr. Mayorkas also presented five naturalized immigrant entrepreneurs with USCIS’s “Outstanding Americans by Choice” awards.  One award recipient, Vivek Wadhwa, an entrepreneur and researcher at Duke University, said the EIR initiative cannot fix by itself the “reverse brain drain” of foreign-born entrepreneurs who receive an education in the United States and then leave to form companies in their home countries because of concerns about U.S. immigration laws and regulations.  “We will now have created competitors worldwide we didn’t need to create,” he warned.  A Scottish entrepreneur, Scott Allison, said at the summit that the immigration process “shouldn’t be something we have to worry about.  But we do have to worry about it.  I don’t know where my home is.”

DS-230 Expires for Certain Applicants, Online Forms Launched

A new DS-260 form has replaced the DS-230 for certain applicants.  The DS-260, Online Immigrant Visa Application & Registration, and DS-261, Choice of Address and Agent, are electronic visa application forms completed and submitted online to the Department of State via the Internet through the Consular Electronic Applications Center.  The forms may be partially completed, saved online to finish, and submitted later; or they can be completed and submitted in a single session.

The forms eventually will be implemented worldwide and required for all immigrant visa applications.  Additional information, such as the current conditions and limitations on applicability of the forms, is available at http://travel.state.gov/visa/immigrants/info/info_5164.html.

Over One Million Employers Use E-Verify; USCIS Announces Expansion of Self-Check

U.S. Citizenship and Immigration Services (USCIS) recently announced that in December 2011, E-Verify reached a milestone: employers are now using E-Verify at more than one million worksites.

Also, USCIS announced that Self Check, a free online service of E-Verify that allows workers to check their own employment eligibility status, is now available in all 50 states; Washington, DC; Guam; Puerto Rico; the U.S. Virgin Islands; and the Commonwealth of the Northern Mariana Islands.  Launched in March 2011, Self Check was developed through a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA) to provide a tool for workers to check their own employment eligibility status and guidance on how to correct their DHS and SSA records.  It is the first online E-Verify service offered directly to workers.  A Spanish version was added in August 2011.

Passenger Pre-Screening Initiative Expands to Additional Airports

The Department of Homeland Security (DHS) announced the expansion of TSA Pre✓™, a passenger pre-screening initiative, to additional airports across the country following its launch at seven pilot locations.

More than 336,000 passengers have been screened through TSA Pre✓™ lanes.  Under this initiative, the Transportation Security Administration (TSA) focuses its efforts on passengers the agency knows less about while providing expedited screening for travelers who volunteer information about themselves before flying.

TSA Administrator John S. Pistole said the agency is moving away from a one-size-fits-all approach to “a more intelligence-driven, risk-based transportation security system.”

TSA Pre✓™ is currently operating with American Airlines at airports in Dallas, Miami, Las Vegas, Minneapolis, and Los Angeles, and with Delta Air Lines at airports in Atlanta, Detroit, Las Vegas, and Minneapolis.  US Airways, United Airlines, and Alaska Airlines are all opting in new passengers and will begin operations later this year.  TSA will continue expanding TSA Pre✓™ to additional airlines and airports as they are ready.

Eligible participants include certain frequent flyers from participating airlines as well as members of U.S. Customs and Border Protection’s Trusted Traveler programs (Global Entry, SENTRI, and NEXUS) who are U.S. citizens and fly on a participating airline.  If TSA determines a passenger is eligible for expedited screening following the TSA Pre✓™ vetting process, information will be embedded in the barcode of the passenger’s boarding pass.  TSA will read the barcode at the security checkpoint and then may refer the passenger to a TSA Pre✓™ lane, where they will undergo expedited screening, which could mean no longer removing certain items, such as shoes, laptops, light outerwear, belts, and 311-compliant bags from carry-ons.

TSA said it will continue to “incorporate random and unpredictable security measures throughout the airport” and that no individual will be guaranteed expedited screening.  As part of the agency’s risk-based security initiative, TSA is testing several other screening initiatives related to providing positive ID verification for airline pilots and the use of expanded behavior detection techniques.

USCIS Ombudsman Recommends Improving Adjudication Quality for Extraordinary Ability and Other Employment-Based Adjudications

In a recent report, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman noted that stakeholders have raised concerns about consistency in adjudications of extraordinary ability and other employment-based petitions.  Recent concerns have focused on the subjective nature of final merits determinations.  Stakeholders report that an I-140 policy memo that USCIS issued in December 2010 has not resulted in a clearer adjudicatory standard.  The Ombudsman noted that USCIS has been challenged in identifying an objective standard and application for a final merits determination, and some Immigration Services Officers (ISOs) report that the I-140 policy memo did little to change their analysis of I-140 petitions.

The Ombudsman made the following recommendations to USCIS to improve fairness, consistency, and transparency in adjudications of these petitions:

1. Conduct formal rulemaking to clarify the regulatory standard and, if desired, explicitly incorporate a final merits determination into the regulations;
2. In the interim, provide public guidance on the application of a final merits determination; and
3. In the interim, provide ISOs with additional guidance and training on the proper application of the “preponderance of the evidence” standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions.

The Ombudsman gave the following reasons for these recommendations:

• Stakeholders are concerned that the current I-140 policy memo allows for too much subjectivity for adjudicative petitions.
• Stakeholders presented in an amicus curiae briefing to USCIS’s Administrative Appeals Office that the decision in Kazarian v. USCIS does not require USCIS to implement a two-part review as provided for in the I-140 memo, and that application of the I-140 policy memorandum has not resulted in a clearer adjudicatory standard.
• ISOs lack guidance that clearly demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability.”
• USCIS has not clearly explained the objective factors that USCIS adjudicators should consider when conducting a final merits determination.

Government 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/jsps/ptimes.jsp
• Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
• Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

New Publications and Items of Interest

Dramatic increase in denials of L-1, H-1B petitions.  An analysis of new data obtained from U.S. Citizenship and Immigration Services (USCIS) by the National Foundation for American Policy reveals a dramatic increase in denials of L-1 and H-1B petitions over the past four years, which the report concludes harms the competitiveness of U.S. employers and encourages companies to keep more jobs and resources outside the United States.  Data indicate that much of the increase in denials involves Indian-born professionals and researchers.  The report finds that adjudicators or others at USCIS “changed the standard for approving L-1B and other petitions in recent years, beginning in FY 2008 and FY 2009.”  The report says the high denial rates “belie the notion [that] adjudications have become more lenient.”  The report says that the dramatic increase in denial rates and requests for evidence “raises questions about the training, supervision and procedures” of the USCIS career adjudicatory bureaucracy and that denying employers the ability to transfer in key personnel or gain entry for a skilled professional or researcher “harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability.”

DOJ webinars on employment verification.  The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices has announced upcoming monthly webinars on employment verification issues.  Workers and worker advocates may join the monthly worker/advocate track webinar, and employers/HR professionals may join the monthly employer track webinar.  The next employer/HR webinars are scheduled for February 22, March 21, and April 30, 2012.  The next worker/advocate webinars are scheduled for March 13 and April 17, 2012.

Klasko News

2012 Annual Spring Seminar

Our annual Spring Seminar, “Immigration 2012: Year of the Dragon” was held on April 24, 2012 at the Union League of Philadelphia.  This year’s seminar focused on sessions including:

• USCIS Policies & Practices
• Current Issues in B-1
• Prevailing Over DOL’s Wage Determinations
• Corporate Roundtable
• University/Hospital Roundtable
• To Be or Not To Be: EB-2
• Worksite Enforcement Update
• Death and Taxes (and Moving Away): A Primer for Advising LPRs

The PowerPoint used during the seminar is now available on our website.  Click here to view the PowerPoint.

If you would like us to present a free abbreviated version of this seminar or any program at your organization, please contact Ron Klasko at rklasko@klaskolaw.com.

News and Noteworthy

1. Ronald Klasko (Ron) and William A. Stock (Bill) have been named among the world’s leading Corporate Immigration Lawyers by clients and peers in Who’s Who Legal.  The International Who’s Who of Corporate Immigration Lawyers 2012 and The International Who’s Who of Business Lawyers 2013 will be published in the Who’s Who Legal Magazine.  We congratulate Ron and Bill on once again being selected and honored as the world’s leading Corporate Immigration Lawyers.

Ron and Bill have been selected by their peers for inclusion in the 2012 edition of The Best Lawyers in America.  Selection to Best Lawyers® is based on an exhaustive and rigorous peer-review survey comprising more than 3.9 million confidential evaluations by the top attorneys in the country.  Because no fee or purchase is allowed, inclusion in Best Lawyers is considered a singular honor.  Congratulations Ron and Bill on being chosen by your fellow attorneys for inclusion in The Best Lawyers in America.

Upcoming Speaking Engagements

Ron will be at Thomas Jefferson University on Tuesday, May 8, 2012.  He will speak to researchers on H-1B visas and quota, J-1 visas and waivers, O-1 visas and other related topics of interest to scholars and researchers.

Nataliya Rymer will be speaking at multiple campuses at the University of Medicine and Dentistry of New Jersey on May 11 and 18, 2012.  Nataliya will discuss H-1Bs, travel updates, and permanent resident status, among other topics.  For more information on these topics, contact Nataliya at nrymer@klaskolaw.com.

Jennifer Hermansky will be presenting at the EB-5 Overseas Funding Conference on May 16-17, 2012 in New York.  The conference is sponsored by Overseas Funding, USAdvisors, and EB-5Info.com.  Jen also will present on EB-5 visas to the New York AILA Chapter on May 22, 2012.  She will discuss the designation of USCIS Regional Centers, Removal of Conditions and EB-5 related litigation.

Ron and Bill will be speaking at the NAFSA 2012 Annual Conference in Houston, TX from May 27 – June 1.

On May 30, Ron will chair the session “Creative Ways of Dealing with H-1B Extensions.”  H-1B scholars and employees in the United States often experience delays in obtaining green cards, which creates a need for multiple H-1B extensions.  This session examines the challenges and provides creative suggestions for designated school officials to meet the needs of departments and foreign national employees who may need extensions beyond six years.

Ron will also serve as discussion leader for “Hot Immigration Issues for Academic Healthcare Institutions,” a session on May 31.  This session will explore immigration issues the Healthcare Institution Interest Group (HIIG) identifies as being the hottest issues faced by academic healthcare institutions – advising medical, nursing and healthcare students, trainees, residents, faculty and allied healthcare professionals on B-1, F-1, J-1, H-1B, O-1, TN, J waivers and permanent residency.

Bill will be a panelist on “Best Practices Advising International Healthcare Students: Admissions, Graduation, and Beyond.”  This session for advisers from U.S. healthcare programs provides practice resources to assist the nonphysician healthcare student with admission, clinical practice training, unique credentials, and postgraduation immigration options.

Recent Speaking Engagements

Ron served as a faculty member for “Appeals to a Higher Authority: AAO and BIA,” an audio seminar on Thursday, May 3, 2012 sponsored by the American Immigration Lawyers Association (AILA) Education Department.  The Administrative Appeals Office of the USCIS and the Board of Immigration Appeals within the Department of Justice each have distinct authority for handling specific cases being appealed.  This audio seminar discussed which agency has jurisdiction over which appeals, address the mechanics of presenting an appeal and provide tips on presenting additional evidence, briefing issues, and where to find published and unpublished decisions.  Contact Ron for more information on the appeals process.

On Monday, April 30, Ron presented at the IIUSA EB-5 International Investment & Economic Development Forum in California.

On Friday, April 27, Ron was a keynote speaker at an EB-5 Investment Summit in New York City sponsored by the Artisan Business Group, Inc.

Bill attended the Alliance of Business Immigration Lawyers (ABIL) Conference in Miami from April 26-27.

• Permanent Residency updates: The latest on Kazarian and EB 1 Adjudications, PERM Updates and Visa Bridges over Troubled Backlogs
• Prevailing Wage Challenges: Processing Times, Safe Harbor, Surveys and a Discussion on ACWIA Wage data

Bill spoke to clinicians at Thomas Jefferson University on Monday, March 26.

On March 23, Ron served as a presenter at an EB-5 CLE Conference in Miami sponsored by Catholic Legal Services.  For more information on the EB-5 visa, visit our EB-5 Resource Center.

Ron visited the Wharton Business School on March 20, 2012 and spoke to MBA students on visa and permanent resident options available to them.  Topics discussed included strategies to enhance chances of getting H-1B, travel and status issues for H-1B approvals, H-1B issues for start-up Businesses and nonimmigrant (temporary) options including treaty (E) visas.  For more information on this talk, contact Ron at rklasko@klaskolaw.com.

Bill presented breakout sessions on “Immigration Considerations in Managing Residency Programs” for the Association of Osteopathic Directors of Medical Education at a conference in Orlando, Florida on March 18, 2012.  This session dealt with immigration options for medical residents, including pros and cons of F-1, J-1 and H-1B status.  For more information on this presentation, please contact Bill at wstock@klaskolaw.com.

On March 16, 2012, Elise Fialkowski (Elise) participated in a panel speaking about Administrative Agency Investigations – FDNS and DOL Wage and Hour at the AILA Philadelphia Chapter 2012 CLE Conference at the Union League.  For more on this, please contact Elise at efialkowski@klaskolaw.com.  Bill and Nataliya also presented “I-601 Waiver Adjudications and Trends.”  Likewise, Ron spoke on a panel entitled, “Dealing with Difficult RFEs,” where he discussed appeal options for employment based immigration cases.  Jen served as co-Chair of the AILA Philadelphia Chapter 2012 CLE Conference.

On March 9, 2012, Bill presented “When Students and Scholars Go Wild: Managing Breaches of Status for International Educators” at the North Carolina Association of International Education Annual State Conference at UNC-Charlotte in Charlotte, NC.  Details can be found at www.ncaie.org.

Recent Publications

Disclaimer/Reminder: This newsletter 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.  Copyright © 2012 Alliance of Business Immigration Lawyers and Klasko Immigration Law Partners, LLP.  All rights reserved.

Related Information:

• May 2012 Newsletter (PDF)