As of April 1, 2011, USCIS has begun accepting H-1B petitions subject to the FY 2012 cap of 65,000.
PowerPoint available at www.klaskolaw.com.
Some attorneys have reported that the VIBE system, which is based on publicly available information, too often contains inaccuracies, is unreliable, and requires a significant effort to update.
Additional requirements under the Employ American Workers Act no longer apply to any H-1B petition requesting an employment start date of February 17, 2011, or later.
Among other things, the DOL is revisiting the use of attestations.
Those who have exceeded or are about to exceed their authorized stay in the U.S. may be permitted up to an additional 30 days to depart.
New H and L interviews may be scheduled at other U.S. Consulates in India or at the U.S. Embassy in New Delhi.
As of March 25, applications and petitions previously accepted by the USCIS Ho Chi Minh City Field Office may be filed with the U.S. Department of State Consular Section there.
President Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and will no longer defend it in court.
Noteworthy news, upcoming and recent speaking engagements, and recent publications.
1. USCIS Begins Accepting H-1B Petitions
As of April 1, 2011, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the fiscal year (FY) 2012 cap of 65,000. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted, not the date that the petition is postmarked.
USCIS will monitor the number of H-1B petitions received and will announce when the H-1B cap has been met. If USCIS receives more petitions than it can accept, it may on the date the cap is met (the “final receipt date”) randomly select the number of petitions that will be considered for final inclusion within the cap. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.
The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt from the cap. Certain other petitions also are exempt from the congressionally mandated cap. Exempt petitions include those for which the beneficiaries will work at:
- institutions of higher education or related or affiliated nonprofit entities;
- nonprofit research organizations; or
- governmental research organizations.
Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until December 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FYs 2011 or 2012.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count toward the H-1B cap. USCIS will continue to process petitions filed to:
- extend the amount of time a current H-1B worker may remain in the United States;
- change the terms of employment for current H-1B workers;
- allow current H-1B workers to change employers; and
- allow current H-1B workers to work concurrently in a second H-1B position.
In the last few years the H-1B cap has not been reached for several months. As of April 7, 2011, USCIS has received 5,900 petitions subject to the H-1B regular cap and 4,500 petitions subject to the H-1B Master’s exemption cap.[Back to Top]
2. 2011 Annual Spring Seminar
Our annual Spring Seminar, “Immigration 2011: Spring Thaw or More Deep Freeze?” was held on April 12, 2011 at the Union League of Philadelphia. This year’s seminar focused on the prospects for legislative changes, a report from AILA Chair of the USCIS Liaison Committee, sessions on the new export control act attestation requirements, trends in regular and special handling labor certification applications, issues at the borders and ports of entry, worksite enforcement – 2011, EB-2 or EB-3 – strategies and issues, a corporate roundtable and much more.
The PowerPoint used during the seminar is 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 firstname.lastname@example.org.[Back to Top]
3. New Validation Instrument for Business Enterprises Giving Off Bad VIBE
U.S. Citizenship and Immigration Services (USCIS) has begun “beta-testing” the Validation Instrument for Business Enterprises (VIBE) System, which is run by Dun & Bradstreet. VIBE allows USCIS to receive commercially available information about companies or organizations filing certain employment-based petitions. If the U.S. business entity’s information on the petition is inconsistent with what is in VIBE, USCIS issues a request for evidence (RFE).
Some attorneys have reported that the VIBE system, which is based on publicly available information, too often contains inaccuracies, is unreliable, and requires a significant effort to update.
VIBE allows USCIS to electronically receive commercially available information about a petitioning company or organization, including:
- Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive)
- Financial standing, including sales volume and credit standing
- Number of employees, including on site and globally
- Relationships with other entities, including foreign affiliates
- Status; for example, whether it is a single entity, branch, subsidiary, or headquarters
- Ownership and legal status, such as LLC, partnership, or corporation
- Company executives
- Date of establishment as a business entity
- Current physical address
A USCIS officer reviews all information received through VIBE along with the evidence submitted by the petitioner. Adjudicators use information from VIBE to verify the petitioner’s qualifications. For example, if a petitioner seeks L-1 status for a beneficiary, VIBE will help adjudicators confirm that the petitioner has a foreign affiliate, a requirement for granting L-1 status. In cases where petitioners must establish ability to pay, information from VIBE will assist in confirming the petitioner’s financial viability.
USCIS said it will not deny a petition based upon information from VIBE without first giving a petitioner “the opportunity to respond to USCIS’s concerns.” USCIS will issue an RFE or a Notice of Intent to Deny (NOID) “if it is necessary to resolve relevant inconsistencies or other issues that emerge upon review of information supplied by VIBE that are material to the benefit requested.” The Immigration Services Officer (ISO) will make a final decision “based on the totality of the circumstances,” the agency said.
Immigrant Classifications Included in VIBE
The following I-140 employment-based immigrant classifications are included in VIBE:
- E12 Outstanding professor or researcher
- E13 Multinational executive or manager
- E21 Member of professions holding an advanced degree or an alien of exceptional ability (with the exception of National Interest Waiver petitions)
- E31 Skilled Worker
- E32 Professional
- EW3 Unskilled/Other Worker
Additionally, the following I-360 employment-based immigrant classifications are included in VIBE:
- SD1 Minister of Religion
- SR1 Non-minister in a religious occupation or vocation
Nonimmigrant Classifications Included in VIBE
The following I-129 employment-based nonimmigrant classifications are also included in VIBE:
- E-1 Treaty Trader
- E-2 Treaty Investor
- E-3 Member of specialty occupation who is a national of the Commonwealth of Australia
- H-1B Specialty occupation worker
- H-1B1 Specialty occupation worker from Chile or Singapore
- H-1B2 Worker performing services related to a Department of Defense (DOD) cooperative research and development project or co-production project
- H-1B3 Fashion model of distinguished merit and ability
- H-2A Temporary or seasonal agricultural worker
- H-2B Temporary non-agricultural worker
- H-3 Trainee or special education exchange visitor
- L-1A Intracompany transferee in a managerial or executive position
- L-1B Intracompany transferee in a position utilizing specialized knowledge
- LZ Blanket L petition
- Q-1 International cultural exchange visitor
- R-1 Religious worker
- TN North American Free Trade Agreement (NAFTA) professional from Canada or Mexico
Classifications Not Included in VIBE
The following employment-based classifications are not included in VIBE currently “due to the very unique eligibility requirements for these classifications”:
- E11 Individuals of extraordinary ability
- E21 National interest waiver
- EB-5 Immigrant investor
- O Individuals with extraordinary ability or achievement (including essential support personnel)
- P Internationally recognized athletes and entertainment groups, performers under a reciprocal exchange program, and artists or entertainers under a culturally unique program (including essential support personnel)
Klasko recommends that clients check their profile and make sure that the major areas (company address for example) are correct to avoid RFEs in the future.
USCIS said it encourages petitioners to bring to the agency’s attention any questions related to RFEs or NOIDs involving information USCIS received through VIBE, as well as suggestions for improving the program, by e-mailing VIBE-Feedback@dhs.gov.[Back to Top]
4. USCIS Updates I-129 Instructions for TARP Funding
Employers who received funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (“covered funding”) are no longer required to answer Question 1d in Part A of the H-1B Data Collection and Filing Fee Exemption Supplement. The Employ American Workers Act (EAWA) had mandated additional requirements on H-1B petitioners who received covered funding. These requirements ended on February 16, 2011. The additional requirements under EAWA no longer apply to any H-1B petition requesting an employment start date of February 17, 2011, or later.[Back to Top]
5. DOL Issues Proposed Rule on H-2B Temporary Nonagricultural Employment
The Department of Labor’s (DOL) Employment and Training Administration and Wage and Hour Division have proposed a rule to revise and solicit comments on the process by which employers obtain temporary labor certifications from the DOL for use in petitioning the Department of Homeland Security (DHS) to employ nonimmigrant workers in H-2B status. The DOL also proposes “to create new regulations to provide for increased worker protections for both U.S. and foreign workers and enhanced enforcement under the H-2B program.”
Among other things, the DOL is revisiting the use of attestations. The DOL said it is interested in receiving comments on the alternative of maintaining the current or some modification of the current attestation-based program design. Specifically, the DOL seeks comments on whether it should develop certain attestations that can be required of all employers (such as an attestation for certain kinds of recruitment), or for only certain program compliance requirements. The DOL proposes to bifurcate the current application process into a registration phase that addresses the employer’s temporary need and an application phase that addresses the labor market test.
The rule also proposes substantive changes to several terms; for example, clarifying what non-agricultural employment is and adding a definition of “area of substantial employment” to the H-2B program. The rule also proposes to amend the definition of “full time” in the H-2B program to mean 35 or more hours per week, instead of the current 30. The DOL said it welcomes comments regarding whether extending the definition of a full-time workweek to at least 40 hours for the H-2B program would better protect U.S. workers and whether it conforms better to employer standards and needs.
Comments on the proposed rule may be submitted by May 17, 2011.[Back to Top]
6. USCIS Announces Relief for Japanese, Pacific Nationals Stranded in U.S. Following Quake, Tsunami
U.S. Citizenship and Immigration Services announced on March 11, 2011, the following relief for Japanese and other nationals from the Pacific stranded in the U.S. due to the earthquake and tsunami disasters in Japan:
[Back to Top]
This advisory is for Japanese and other foreign nationals from the Pacific stranded in the United States due to the earthquakes and tsunami devastation. If you have exceeded or are about to exceed your authorized stay in the U.S. you may be permitted up to an additional 30 days to depart.
Visitors traveling under the Visa Waiver Program (VWP):
- If you are at an airport, contact the U.S. Customs and Border Protection office at the airport.
- All others, please visit the local U.S. Citizenship and Immigration Services office.
Visitors traveling under a nonimmigrant visa:
- Visit the local U.S. Citizenship and Immigration Services office.
- Bring your passport, evidence that you are stranded (such as an itinerary for the cancelled flight), and your I-94 departure record.
7. New Mumbai U.S. Consulate to Open Later in 2011; H and L Interviews Limited in Meantime
A new U.S. Consulate is being constructed for Mumbai, scheduled to open later in 2011. No new H and L appointments are being made at the current Mumbai Consulate, which has limited interview capabilities due to aging infrastructure. New H and L interviews may be scheduled at other U.S. Consulates in India or at the U.S. Embassy in New Delhi.
For more information, see http://www.vfs-usa.co.in/USIndia/news.html.[Back to Top]
8. USCIS to Permanently Close Vietnam Office on March 31
U.S. Citizenship and Immigration Services (USCIS) announced that it will permanently close its field office in Ho Chi Minh City, Vietnam, on March 31, 2011. As of March 25, applications and petitions previously accepted by the USCIS Ho Chi Minh City Field Office may be filed with the U.S. Department of State Consular Section there. Where authorized, the Consular Section will assume responsibility for processing certain cases.[Back to Top]
9. Obama Won't Support DOMA in Court Challenges: Business Immigration Implications
The Justice Department announced in February that based in part on the recommendation of Attorney General Eric Holder, President Barack Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and will no longer defend it in court. The Justice Department is facing litigation within the jurisdiction of a circuit court of appeals (the Second Circuit) that has never ruled on the appropriate standard of review to be applied to laws concerning sexual orientation. The administration determined that a heightened standard of review is appropriate, and that Section 3 of DOMA cannot withstand review under such a standard (although the Justice Department had previously argued that Section 3 could survive the looser rational-basis test applicable under the precedent of some courts of appeals).
Many people in same-sex marriages file business immigration applications because they have no alternative. Their applications may be backlogged due to numerical limitations. This issue is also important from a business immigration perspective because many beneficiaries of both I-140 immigrant visa petitions and nonimmigrant visa petitions may be in same-sex marriages that have been legally recognized in other countries and some states within the U.S., but they cannot avail of derivative status, such as H-4 or L-2 (which also carries with it work authorization privileges) or even derivatively obtain permanent residence with the principal.
Such people, along with their employers, should be advised about the paradigm shift in the administration’s position on DOMA, and the potential to challenge existing Department of Homeland Security (DHS) policy in litigation, which the Department of Justice will no longer oppose. Even if an affected individual chooses not to litigate, it is expected that someone will eventually challenge DHS policy, and if it succeeds, which is more likely now than ever before, it will benefit everyone in the same situation.
On the other hand, given the uncertainty regarding the timing and nature of final judicial action on this subject, it would be extremely risky for same-sex married couples to affirmatively seek immigration benefits in reliance on this announcement. It could even be risky for same-sex couples to marry in reliance on the announcement, if the current status of one of the spouses depends on showing a foreign residence and no intent to abandon it (such as with a B-1/B-2 visitor or F-1 student).[Back to Top]
10. 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/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
11. New Publications and Items of Interest
Data on EB-5 approvals and Regional Center filings. U.S. Citizenship and Immigration Services (UCSIS) released its latest data on EB-5 filings and Regional Centers (RCs) at its March 17, 2011, EB-5 Stakeholders Meeting held at the California Service Center. USCIS figures show a steep increase in the number of RC filings and EB-5 visa approvals in the first quarter of fiscal year 2011.
GAO on export controls. The U.S. Government Accountability Office (GAO) has published Export Controls: Improvements Needed to Prevent Unauthorized Technology Releases to Foreign Nationals in the United States. The report notes that four factors together may indicate the risk that foreign nationals could gain unauthorized access to controlled dual-use technology. First, foreign businesspeople, scientists, engineers, and others have gained unauthorized access in the United States to controlled dual-use technologies. Second, during fiscal years 2004 through 2009, the Department of Commerce suspended the export privileges of three violators and fined 14 U.S. companies about $2.3 million for allowing foreign nationals unauthorized access to controlled technologies. Third, Commerce’s screening of overseas visa applications for potential unlicensed deemed exports dropped from 54,000 in fiscal year 2001 to 150 in fiscal year 2009. Fourth, from fiscal years 2004 to 2009, the United States issued about 1.05 million specialty occupation visas in high-technology fields to foreign nationals from 13 countries of concern, while Commerce issued deemed export licenses authorizing transfers of technology to about 3,200 foreign nationals from these countries. The report notes that Commerce and U.S. Immigration and Customs Enforcement have not implemented prior recommended changes to the deemed export licensing process, and that confusion remains. As a result, employers may not be aware of deemed export licensing requirements and how to obtain the licenses required.
OIG report on WHTI. The Department of Homeland Security’s Office of Inspector General has published Customs and Border Protection Needs to Improve Its Inspection Process for the Western Hemisphere Travel Initiative. The report finds that generally, U.S. Customs and Border Protection (CBP) has successfully implemented the Western Hemisphere Travel Initiative (WHTI) in the air environment, reporting high compliance rates among air passengers. The new documentation requirements have improved CBP officers’ ability to validate the identity and citizenship of compliant air passengers, allowing officers to spend more time inspecting travelers without passports.
The report notes, however, that there is inadequate assurance that CBP officers verified the identity and citizenship of all individuals who failed to provide a passport or other WHTI-compliant documentation; CBP officers did not always document the basis for their decisions to admit air passengers who were noncompliant with the new document requirements. Also, they did not always follow CBP policy for referring all such noncompliant passengers to a secondary inspection area for a more thorough review. The report says that these shortfalls may be attributed to inadequate officer training and oversight, and a lack of guidance. “Failure to establish the identities and citizenship of all air passengers is a vulnerability that could be exploited by individuals intent on harming this country,” the report warns, making four recommendations to improve the agency’s implementation of the WHTI’s new documentation requirements. The report also includes the CBP’s responses to the OIG’s recommendations.[Back to Top]
12. Klasko News
News and Noteworthy
We are proud to announce that William A. Stock (Bill) was nominated for the Executive Committee of the American Immigration Lawyers Association. He was nominated for the position of National Secretary, a primary representative of AILA and, with the Board of Governors, leads the national AILA organization. The election will take place in May, with the results announced at the AILA National Conference in June.
We are also happy to announce that Kate Kalmykov (Kate) was awarded the Outstanding Subcommittee Chair for the 2010-2011 Bar Year by the American Bar Association’s Litigation Section. As Programs Chair of the Immigration Litigation Subcommittee of the American Bar Association’s Section of Litigation, Kate was selected for this honor in recognition of her hard work on behalf of the Section during this leadership year.
Upcoming Speaking Engagements
H. Ronald Klasko (Ron) will be speaking at Thomas Jefferson Hospital, Abington Memorial Hospital, the Montgomery County Economic Development Corporation, and at the NAFSA 2011 Annual Conference in the coming weeks.
On May 12, 2011, Bill and Elise Fialkowski (Elise) will discuss “Employers Under Siege: I-9 Audits, FDNS Investigations and Increased Discrimination Claims – Strategies to Protect Your Company” at the DELVACCA Chapter of the Association of Corporate Counsel. Topics to be discussed include increased I-9 enforcement and penalties, criminal enforcement by ICE, DOL audits and investigations, E-verify and data mining, immigration compliance and international transfers and practical strategies and best practices to protect your company. For more information on this program, please contact Bill at email@example.com or Elise at firstname.lastname@example.org.
Recent Speaking Engagements
On April 28, 2011, Ron along with three other members of the NAFSA Healthcare Institutional Interest Group (HIIG) hosted a webinar entitled “Beyond the Two Year Home Rule: Advising J-1 Residents and Post-Docs.” The following topics were discussed:
- determining whether the two year home rule applies
- clinical and research-based waivers
- visa options for academic healthcare institutions to consider when recruiting physicians and postdoctoral fellows
- pathways to permanent residence and the USCIS standards for EB-1 and the EB-5 – and more.
The NAFSA Healthcare Institutional Interest Group (HIIG) also hosted another webinar entitled “2011 Hot Issues in H-1B Filings by Healthcare Institutions.” The topics that were covered are questions on the I-129 form regarding export control act, new interpretations of quota exemption based on affiliation with an institution of higher education and new I-129 questions on off-site employment. For more on this webinar or the HIIG, please email Ron at email@example.com.
On April 16, 2011, Bill discussed “International Medical Graduates and Hospitalist Positions: Opportunities and Challenges” at the Association of Osteopathic Directors and Medical Educators. Bill discussed J-1, H-1B, O-1 visas, the two-year return requirement, waivers of two-year return requirement, clinical waiver options, and permanent residence. For more on these topics, please email Bill at firstname.lastname@example.org.
On April 4, 2011, Bill discussed “Birthright Citizenship” at Rutgers/Camden Law School. Bill presented arguments for keeping the United States’ 300-year old tradition of birthright citizenship in a debate with opponents of the rule that birth in the United States automatically makes one a U.S. citizen.
Bill presented “Immigration Options for Students and Scholars” at The Catholic University of America on April 2, 2011. Bill discussed H-1B visas and quota, options for dealing with H-1B quota, quota-exempt employment, strategies to enhance chances of getting H-1B, other visa options as well as permanent resident status. To view the PowerPoint used at this talk, please click here.
On April 1, 2011, Ron discussed “Extraordinary and Outstanding – What’s Changed Under New CIS Guidelines” at the NAFSA Texas State Conference. Ron discussed strategies for filing EB-1 and NIW petitions under new government adjudication standards.
Ron discussed “Permanent Residence Options for Clinicians and Researchers” at MD Anderson Cancer Center on March 31, 2011. Ron talked about various topics, such as permanent residence status, EB-1 for researchers and clinicians, what questions clients should ask in choosing an EB-1 law firm, clinical national interest waivers, and special handling labor certification (PERM). Click here to view the PowerPoint presentation used at this talk.
Speaking also at the Midwest Regional Conference, Bill served as discussion leader for “What to do When Your Immigration Application is Denied.” Bill discussed how even good cases are denied sometimes, along with options for reopening, appealing and challenging denials before USCIS, the Department of Labor, and in the federal courts. For more information on reopening, appealing or challenging your case, please email Bill at email@example.com.
On March 25, 2011, Bill discussed “Counseling Entrepreneurial Students: Options for F-1s” at the North Carolina Association of International Educators. This session discussed ways to advise foreign students considering their own businesses, from the EBay store run online from their dorm room to founding a startup after graduation, about complying with F-1 employment restrictions and visas they may have available to them. For more information, please contact Bill.
On March 24, 2011, Ron along with three other panel members discussed “U.S.A. and Canadian Immigration Business and Investor Visa Options and U.S.A. Tax Considerations” at the New England-Canada Business Council. The panel discussed various types of U.S. and Canada immigration, business and investors visas, with the accompanying U.S. tax implications, and E-1, E-2, EB-5, TN, H-1B and L visas. If you would like to learn more on these topics, please contact Ron at firstname.lastname@example.org.
On March 24, 2011, Kate discussed “Immigration Options for International Students and Scholars” at Rutgers University. Kate discussed H-1B and other nonimmigrant options available to recent graduates, among other topics. To view the PowerPoint used at this talk, please click here.
On March 23, 2011, Bill talked about “International Medical Graduates and Hospitalist Positions: Opportunities and Challenges” at a Society of Hospital Medicine event. Bill discussed J-1, H-1B, O-1 visas, the two-year return requirement, clinical waiver and permanent residence options. For more information on this talk, please email Bill at email@example.com.
On March 22, 2011, Ron discussed “Visa and Permanent Residence Options for MBA Students” at the Wharton School of the University of Pennsylvania. Ron talked about various topics, such as employment options for the F-1 student, H-1B visas and quota, quota-exempt employment, strategies to enhance chances of getting H-1B, travel and status issues for H-1B approvals, other visa options, as well as permanent resident options. To view the PowerPoint used at this presentation, please click here.
On March 14, 2011, Kate presented “Preparing the EB-5 Case – Practice Tips and Documentation” at the 2011 AILA EB-5 CLE Conference. Kate participated in a fundamentals discussion providing practical information essential to preparing and filing a successful EB-5 case.
On March 9, 2011, Kate discussed “Post-Student Years: Immigration Options” at New York University. Kate discussed H-1B and other nonimmigrant options available to recent graduates, and an introduction to permanent residency options. Click here to view the PowerPoint used at this presentation.
“Foreign Investment: A Path to Permanent Residence Through Job Creation,” authored by Kate Kalmykov, provides 10 tips for preparing successful EB-5 applications. This article was published in the March/April 2011 AILA Voice.
“USCIS Issues New I-9 Guidance: What’s All the Fuss About?,” also written by Kate, was published in the March 1, 2011 issue of the Legal Intelligencer. In this article, Kate discusses updates to the USCIS “Handbook for Employers,” focusing on the changes that effect the process for completing the I-9, Employment Eligibility Verification Form.
Bill was quoted in an article entitled “How the American Visa System Keeps Skilled Workers Out” in the March edition of Today’s Machining World, which explored the problems some machining operations are having attracting U.S. citizens to the skilled trades, but how the limited options under current law prevent employers from hiring skilled trades workers from abroad.
Your questions and suggestions are welcome.
If you have an immigration question or a suggestion for a topic, please e-mail Jennifer Hermansky at firstname.lastname@example.org and we will try to cover it in the next newsletter.