USCIS announced on November 23, 2011 that the H-1B cap was reached on November 22, 2011.
USCIS seeks stakeholder input on “foundational issues” before providing greater detail.
USCIS will consider multiple applications grouped into “bundles” of L-1 petitions as part of an effort to streamline and improve the adjudication process.
During the past five years, visa issuances have increased 234 percent in Brazil, 124 percent in China, 51 percent in India, and 24 percent in Mexico.
DOL Releases New PERM FAQ on Listing Job Duties Not Normal to Occupation; Discusses Updates to SOC Codes
DOL has posted a revised FAQ sheet regarding the PERM labor certification program and listing job requirements not normal to the occupation; the agency also said it is working to incorporate new SOC codes into the online application system.
The agency anticipates that more than 1 million people will receive the new documents over the next year.
In FY 2011, ICE criminally arrested 221 employers accused of violations related to employment, which Secretary Napolitano noted was “an agency record.”
The U.S. Court of Appeals for the 11th Circuit issued an injunction pending appeal blocking certain provisions of Alabama's new immigration law.
Upcoming and recent speaking engagements and recent publications.
1. FY 2012 H-1B Cap Reached on November 22, 2011
Late Wednesday, November 23, 2011, USCIS Headquarters announced that it had received enough H-1B petitions to fulfill the H-1B quota for the fiscal year ending September 30, 2012. As of November 22, 2011, petitions for “new employment” of H-1Bs, that is, for employment of a person who is not yet in H-1B status for another employer, will not be accepted again until April 1, 2012. Those petitions received after April 1, 2012 must request employment starting October 1, 2012, so that they will be subject to next year’s cap (FY 2013). Please note that H-1B1 petitions for nationals of Chile and Singapore can still be approved due to free trade agreements with those countries, and that “cap exempt” employers (such as universities and nonprofit research organizations) can continue to seek H-1B status on behalf of their employees. In addition, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the FY 2012 H-1B cap.
The “final receipt date” for H-1B purposes is November 22, 2011. Regulations now provide that all H-1B petitions received by USCIS on or before November 22, 2011 have been submitted “under the cap,” but all H-1B petitions received by USCIS on or after November 23, 2011 will be rejected, as the cap was reached on November 22, 2011.
Klasko Law will be contacting employers about options for those beneficiaries of H-1B petitions that did not make the cut-off for the cap.
Additionally, as we reported in March 2011, USCIS previously sought public comment on the proposed “H-1B Pre-Registration Rule,” which would allow an employer to register online and wait for an H-1B number before filing the full H-1B petition with supporting documentation with USCIS. USCIS has stated that this electronic registration system will not go into effect until a final rule is published and becomes effective. If a final version of the rule is published by January 2012, USCIS could implement the proposed registration system for the fiscal year 2013 H-1B season, which opens in April 2012. As of now, however, USCIS has not given any indication of when the “Pre-Registration Rule” will become final and effective. Klasko Law will notify employers if and when a final rule is published that mandates electronic pre-registration with USCIS for cap-subject H-1B petitions.[Back to Top]
2. USCIS Issues Draft EB-5 Memo
U.S. Citizenship and Immigration Services (USCIS) recently released a draft memorandum to address “certain foundational issues” in the EB-5 immigrant investor program. USCIS seeks stakeholder input on these foundational issues before providing greater detail and addressing additional issues.
On a conference call held on November 9, 2011, to discuss the draft memo, Mr. Mayorkas said that it differs from other policy memos in that it gives adjudicators the context of the EB-5 program: that it is important because it creates jobs for U.S. workers. Mr. Mayorkas said that this context should guide adjudicators.
The memo also lays out the preponderance of evidence standard: “[T]he petitioner must establish each element by a preponderance of the evidence. That means that the petitioner must prove to us that what he or she claims is more likely so than not so. This is a lower standard of proof than the standard of ‘clear and convincing,’ and even lower than the standard ‘beyond a reasonable doubt’ that applies only to criminal cases. The petitioner does not need to remove all doubt from our adjudication, but must instead show that what he or she presents is more probable than not.”
In general, the memo will only take effect when USCIS finalizes it. However, effective immediately, USCIS generally will defer to a state’s targeted employment area (TEA) designation. The memo notes: “USCIS is to give deference to the state’s designation of the boundaries of the geographic or political subdivision that will be the targeted employment area.” It adds, however, that “USCIS must ensure compliance with the statutory requirement that the proposed area has an unemployment rate of at least 150 percent of the national average rate. For this purpose, USCIS will review state determinations of the unemployment rate and, in doing so, USCIS can assess the method or methods by which the state authority obtained the unemployment statistics.”
The memo also clarifies that while the immigrant’s investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs. An investor’s money that goes into a new commercial enterprise can be used in a variety of ways, including bridge financing, hiring personnel, or operating the company.
USCIS Director Alejandro Mayorkas said the draft memorandum is a “work in progress,” and that the agency is sharing it now “to obtain valuable real-time input and to define a collaborative approach with the stakeholder community.” He noted that the draft memorandum “is not operative and will not guide adjudication decisions until it is published in complete and final form. Current policy memoranda continue to guide our adjudications.” Mr. Mayorkas said that USCIS plans to consolidate all existing EB-5 memos into one. A second draft will incorporate comments received from stakeholders and add details from other existing EB-5 memos.
Comments on the memo will be accepted until December 9, 2011. Additional opportunity to comment will be available after the second draft is released, which Mr. Mayorkas said would be soon after the 30-day comment period ends.[Back to Top]
3. Employers May Bundle L-1 Filings, USCIS Announces
U.S. Citizenship and Immigration Services (USCIS) recently said it recognizes that businesses may need to temporarily move multiple employees to the United States for particular projects that require the employees’ specialized knowledge. To do this, USCIS said that employers may petition for their employees to obtain L-1 nonimmigrant classification by filing Form I-129, Petition for a Nonimmigrant Worker. While each L-1 petition must be considered on its own merits, USCIS will consider multiple applications grouped into “bundles” of L-1 petitions as part of an effort to streamline and improve the adjudication process.
For USCIS to consider the bundle, all included L-1B petitions must be related to employees on the same project, who will work at the same location, and who have the same specialized knowledge duties.
USCIS will also consider petitions for L-1A managers included with the bundle, if they will be managing the L-1B beneficiaries who will be working on the project. In addition, USCIS will consider Forms I-539, Application to Extend/Change Nonimmigrant Status, filed for a beneficiary’s qualifying dependents included in the bundle.[Back to Top]
4. State Dept. Releases Fact Sheet on Growing Demand for Visas; Greatest Increase from China, Brazil
In a fact sheet released on October 24, 2011, the Department of State said that demand for U.S. visas is growing, and that the agency is “committed to increasing visa adjudications by one-third in FY 2012 in both China and Brazil, two countries where we have seen the greatest increase in visa demand.” During the past five years, visa issuances have increased 234 percent in Brazil, 124 percent in China, 51 percent in India, and 24 percent in Mexico. In fiscal year 2011, consular officers processed more than one million visas in China, an increase of more than 35 percent over last year.
At the busiest U.S. consular posts, officers may interview more than 100 visa applicants per day. Preliminary numbers indicate that consular officers processed more than 9.6 million visa applications in FY 2011. Of those, the Department issued more than 7.5 million U.S. visas, an increase of more than 17 percent over the previous fiscal year, during which 6.4 million visas were issued. During the past five years, visa issuances have increased 234 percent in Brazil, 124 percent in China, 51 percent in India, and 24 percent in Mexico. In fiscal year 2011, consular officers processed more than one million visas in China, an increase of more than 35 percent over last year.
The Department of State noted that according to Department of Commerce figures, 60 million visitors entered the United States in 2010, and 35 percent of those visitors entered using visas issued by the Department of State. International travel to the United States generated $134 billion in revenue and supported 1.1 million U.S. jobs in 2010, the Department of Commerce reported. The Department of Commerce estimated that the number of potential visitors to the United States will increase six to nine percent annually for the next five years, and could reach 88 million visitors by 2016.
The Department of State said it is adding 98 visa adjudicators this year and next in China and Brazil. A number of these new adjudicators are being hired through a pilot program that targets applicants who already speak Mandarin or Portuguese. The Department expects the first group of these special hires to arrive at posts in China and Brazil in spring 2012. A second group will follow in summer 2012.
Some posts in China and Brazil are operating with extended hours to maximize use of existing facilities. Working bilaterally with host governments, the Department of State is also working to expand and improve visa processing facilities to allow for more applicant interviews.
Wait times for visa appointments can fluctuate significantly depending on seasonal demand, the Department of State noted, adding that “[a]t most posts around the world, visa applicants wait less than one week for an interview appointment. We will continue to send temporary duty officers to manage seasonal spikes in demand.”
Wait times for student visa interview appointments worldwide are less than 15 days, the Department said. Student visa appointments are prioritized “because of the tremendous intellectual, social, and economic benefits foreign students provide to the U.S. economy.” Department of Commerce figures show that international students contributed nearly $20 billion to the U.S. economy during the 2009-2010 academic year, the Department of State noted.
The Department of State said that U.S. embassies and consulates have established procedures to expedite interview appointments for urgent business travel. “U.S. officials work closely with American Chambers of Commerce in more than 100 countries to streamline the visa process for business travelers,” the fact sheet states.
The Department said its Business Visa Center facilitates visa application procedures for U.S. companies and convention organizers who invite employees or current and prospective business clients to the United States. The Center handled nearly 3,500 requests in FY 2011. U.S.-based businesses may e-mail email@example.com or call 202-663-3198 for more information.[Back to Top]
5. DOL Releases New PERM FAQ on Listing Job Duties Not Normal to Occupation; Discusses Updates to SOC Codes
The Department of Labor has posted a revised frequently asked questions (FAQ) sheet regarding the PERM program and listing job requirements not normal to the occupation on both the ETA Form 9141, Prevailing Wage Request, and the ETA Form 9089.
The brief FAQ states:
Does informing the National Prevailing Wage Center (NPWC) on a prevailing wage request (ETA Form 9141) that the job contains requirements not normal to the occupation meet an employer’s obligation to inform the Department of Labor (Department) of these requirements on the Application for Permanent Employment Certification (ETA Form 9089)?
No. Even if the employer has informed the NPWC of these requirements in a prevailing wage request (ETA Form 9141), the employer must still accurately outline its requirements on Questions H.12 or H.13 of the Application for Permanent Employment Certification (ETA Form 9089).
The Department also said it is working to incorporate new and/or revised Standard Occupational Classification (SOC) codes into the PERM online application system. Until the new codes are fully integrated, they may not be available in the online system and the Atlanta National Processing Center will accept the older SOC codes even though they may not match the code indicated on the prevailing wage determination. The Office of Foreign Labor Certification suggested that filers “may also consider placing the new SOC job title in section H.3, and the new SOC code in section H.14 of the ETA Form 9089.”[Back to Top]
6. Employment Authorization Document, Certificate of Citizenship Redesigned
U.S. Citizenship and Immigration Services (USCIS) announced a redesigned Employment Authorization Document (EAD) and Certificate of Citizenship (Form N-560) with new security features. USCIS began issuing the new EADs on October 25, 2011, and the new N-560s on October 30. The agency anticipates that more than 1 million people will receive the new documents over the next year.
USCIS will replace EADs already in circulation as individuals apply for their renewal or replacement. All previously issued EADs remain valid until the expiration date printed on the card. Previously issued Certificates of Citizenship remain valid indefinitely.
USCIS said the new features of the EAD will better equip workers, employers, and law enforcement officials to recognize the card as definitive proof of authorization to work in the United States. USCIS said it worked closely with the Immigration and Customs Enforcement Forensic Document Laboratory to incorporate technology and tactile features to deter counterfeiting, tampering, and fraud, and to facilitate card authentication.[Back to Top]
7. DHS Secretary Napolitano Testifies on E-Verify, Enforcement Efforts
Department of Homeland Security (DHS) Secretary Janet Napolitano testified at an oversight hearing on October 26, 2011, before the House Judiciary Committee on worksite enforcement and the E-Verify program, among other issues. She noted that since fiscal year (FY) 2009, U.S. Immigration and Customs Enforcement (ICE) has audited more than 6,000 employers suspected of hiring unauthorized workers, debarred 441 companies and individuals from receiving federal contracts, and imposed more than $76 million in financial sanctions, which she said was more than the total number of audits and debarments conducted during the entire previous administration. In FY 2011, ICE also criminally arrested 221 employers accused of violations related to employment, which Secretary Napolitano noted was “an agency record.”
As of FY 2011, she noted, more than 292,000 employers have enrolled in E-Verify, representing more than 898,000 locations. More than 1,000 new employers enroll each week, and the number of employers enrolled in E-Verify has more than doubled each fiscal year since 2007. In FY 2011 alone, E-Verify processed 17.4 million employment queries, she said.
To improve E-Verify’s accuracy, USCIS reduced mismatches for naturalized and derivative U.S. citizens by adding naturalization data and U.S. passport data to E-Verify, Secretary Napolitano said. Because of this enhancement, in FY 2011, “more than 80,000 queries that previously would have received an initial mismatch requiring correction at the secondary verification stage were automatically verified as work-authorized,” she said. USCIS also has added 80 staff positions to support monitoring and compliance since the beginning of FY 2010. Also, to counter identity theft, USCIS now allows for the verification of passport photos through the E-Verify system.
Judiciary Committee Chairman Lamar Smith (R-Tex.) said it was true that DHS has increased the number of audits of companies’ employment eligibility verification forms. However, he said, “these audits are of questionable benefit,” citing a U.S. Government Accountability Office report stating that ICE officials have said that fine amounts are so low that they are not a meaningful deterrent and “employers view the fines as a cost of doing business, making the fines an ineffective deterrent.” He called for more worksite enforcement actions, stating that when ICE does not arrest undocumented workers, “[t]hey go down the street and knock on the door of the next employer, and take jobs away from American workers.”[Back to Top]
8. Federal Court Halts Parts of Alabama Immigration Law
The U.S. Court of Appeals for the 11th Circuit issued an injunction pending appeal on October 14, 2011, blocking certain provisions of Alabama’s new immigration law, HB 56. The provisions blocked included requiring the immigration status of students to be checked in public schools and making failure to “complete or carry an alien registration card” a misdemeanor for immigrants. The court allowed Alabama to enforce other controversial provisions, such as requiring that police attempt to determine the immigration status of people stopped who they suspect are unauthorized; barring state courts from enforcing contracts with undocumented individuals if the hiring party knew that the person was in the U.S. unlawfully; and making it a felony for undocumented people to enter into business transactions in Alabama, including applying for a driver’s license or business license.
The Department of Justice had filed an appeal with the 11th Circuit because of potential negative consequences of the new state law both domestically and internationally, including conflicts with federal responsibilities, discrimination against those legally in the U.S., driving undocumented persons underground or to other states, and affecting diplomatic relations. Advocacy groups, including the American Civil Liberties Union, had filed a separate motion against Alabama’s new law.
The law is already having an impact in Alabama. For example, reportedly a quarter of commercial building workers have left the state, several thousand students have stopped going to school, and church attendance has dropped. Anecdotal evidence is piling up. The Alabama-based Southern Poverty Law Center, which set up a hotline, received about 2,000 calls so far from people with problems such as being afraid to drive their sick family members to the doctor, being unable to set up water service because water companies were requiring them to prove their legal status, or whose children were being bullied at school. The Department of Justice has also set up a hotline for complaints about the Alabama law, telephone: 1-855-353-1010; e-mail: Hb56@usdoj.gov.
Tomato farmer Jamie Boatwright reported that he has a large crop of tomatoes ripe and ready for picking, but most of his workers have left Alabama. Similarly, the owners of Smith & Smith Farms were struggling with three trucks of workers for harvesting instead of 12. Both farms reported that U.S. workers were mostly either not interested or started working but then quit after a few hours. Meanwhile, contractors are taking longer to rebuild after the spring tornadoes that devastated the Tuscaloosa area. “We’re seeing smaller crews and seeing work take longer to accomplish,” said Jimmy Latham, president of Alabama Associated General Contractors and a Tuscaloosa contractor.
Alabama state Senator Scott Beason, who sponsored the legislation, said he is receiving similar complaints from local businesses experiencing difficulties in finding workers and keeping their businesses going. He asserted that there are sufficient numbers of Americans willing to do the jobs abandoned by undocumented workers, and that the adjustment to the new law will take time. Mr. Boatwright begs to differ, noting that he hasn’t been able to attract or retain American workers to his tomato farm and that if he were to raise his wages in an attempt to do so, he would also have to hike the price of his tomatoes and would lose business to neighboring states.[Back to Top]
9. 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
10. Klasko News
Upcoming Speaking Engagements
Elise Fialkowski will be presenting at a CLE Employment Law seminar sponsored by Sterling Education Services, Inc. on December 15 in Wilmington, DE. The presentation entitled “Employment Law Beyond the Basics” will include such topics as employment based immigration, E-Verify, I-9 Forms and SSN mismatch/no match.
Recent Speaking Engagements
On November 17, 2011, Jennifer Hermansky (Jen) spoke on a panel entitled, “Recent Trends in Employment Based Immigration Adjudications” at the American Bar Association Administrative Law Conference in Washington, DC. Jen specifically discussed recent trends in Eb-5 immigrant investor visa adjudications. Other topics included recent trends in Department of Labor foreign labor certification adjudications and challenges to employment based immigration decisions in the federal courts. For more on these topics, contact Jen at firstname.lastname@example.org.
On November 3, 2011, H. Ronald Klasko (Ron) discussed “Immigration Options for Scholars and Researchers” at a program sponsored by the Biomedical Postdoctoral Programs at the University of Pennsylvania School of Medicine. Also in November, Ron spoke at Yale University and the Harvard Business School, among other scheduled programs. If you would like to arrange a free on-site program at your organization, write to Ron at email@example.com.
Elise was a panelist on “The Government is Watching – Site Visits, Audits, and Inspections” a session at the NAFSA Region VIII conference in Philadelphia on November 3. More than ever, universities have been facing site visits, audits, and inspections of their student/scholar programs. Visit www.worksite-compliance.com to learn more about site visits, audits, and inspections or contact Elise.
Bill presented at the MidAtlantic Employers’ Association (MEA) Fourth Annual Labor and Employment Law Conference on November 1. Bill discussed “Immigration: Ensuring a Legal Workforce: Update on Enforcement Activities & Tools.” As the Federal government has stepped up enforcement on I-9 compliance, Bill provided insight on what’s new and what employers may need to do. For more information on this topic, contact Bill.
Ron and Jen co-authored an article entitled, “Removal of Conditions to Avoid Removal of the Investor,” which appeared in the conference materials for the 2011 AILA Fall EB-5 CLE Conference, “EB-5 Investors & Regional Centers-Navigating Through New Challenges and Building a Sound Practice.” Their article discusses important issues for advising immigrants on Eb-5 investment projects to ensure that conditions are removed from permanent resident status under the Eb-5 regulations. To request a copy of this article, contact Jen directly at firstname.lastname@example.org.
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 © 2011 Alliance of Business Immigration Lawyers and Klasko Immigration Law Partners, LLP. All rights reserved.
- December 2011 Newsletter (PDF)