H-1B Cap Update: Less Than 7,000 H-1Bs Left for FY2011

The U.S. Citizenship and Immigration Services (USCIS) has announced that as of December 31, 2010, it has accepted 57,300 cap-eligible H-1B petitions, leaving approximately 7,250 available.*  This benchmark came a week ago, so it is likely that there are now fewer than 7,000 H-1Bs left for FY2011. 

USCIS has also indicated acceptance of 20,000 petitions filed under the advanced U.S. degree set-aside.  This means that the advanced U.S. degree cap has been exhausted.

Graham Adair advises clients to file all necessary H-1B petitions as soon as possible to avoid missing the FY2011 cap.  On average, approximately 6,000 H-1B petitions have been accepted by USCIS every month, although the general rate seems to have increased over the recent months.  If the cap is missed for this year, clients will have to wait until April 1, 2011 to file new H-1B cases, which if accepted would become valid on October 1, 2011.

Please contact Graham Adair for assistance: info@grahamadair.com.

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*Every year, up to 6,800 H-1B numbers are set aside for citizens of Chile and Singapore.  Any unused numbers are rolled over to the following year’s H-1B cap.  This means that in any given year, the regular H-1B cap consists of 58,200, plus any carry over from the unused Chile/Singapore set-aside of H-1Bs from the previous year.   There were 6,350 unused from FY2010, which have been rolled into the FY2011 cap.  This means that at total of 64,550 (58,200 + 6,350) H-1Bs were actually available in FY2011 for those not citizens of Chile or Singapore.

USCIS Updates Case Processing Times

The four U.S. Citizenship and Immigration Services (USCIS) regional offices have issued updated processing times.  Generally, processing times have remained consistent this month from last month, with some improvement in H-1B processing times at the California Service Center.  The processing of H-1B extensions at the Vermont Service Center continues to be extremly slow, with processing times at about five and a half months.  This estimated five and a half month processing time can have a significant impact on foreign national employees.  This is why it is imperative that employers file H-1B extensions as close to the six-months-from-current-expiration-date mark as possible.  Otherwise, employees could encounter travel restrictions and have problems renewing driving privileges.  The California Service Center processing of H-1B extensions is still around 2 months. 

 

California Service Center

From an employment-based immigration perspective, the California Service Center (CSC) primarily processes non-immigrant petitions.  CSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY.

The processing time for most I-129s, including TNs and E-1/2s, is 2 months.  L-1s and H-2A/Bs are being processed within a 1-month timeframe, while O-1s are moving at a blistering 2-week pace. 

H-1Bs are being processed in around two months, which is an improvement over last months report. 

Applications for employment authorization for L-2 dependent spouses have a processing time of 3 months. 

Vermont Service Center

Under the bi-specialization initiative, the Vermont Service Center (VSC) is the other regional processing center that focuses on petitions for non-immigrant, employment-based cases.  VSC processes cases filed for individuals whose worksites are in one of the following states: AL, AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI, and WV.

For employment-based cases, VSC’s processing times mostly mirror CSC’s processing times.  The exceptions, again, are H-1B cases.  New H-1Bs (visa to be issued abroad) and H-1B change of status cases have improved and are now being processed in about 2 months.    H-1B extensions are still being processed at around five and a half months; we anticipate that this processing time will improve over the next couple of months.   

Nebraska Service Center

For employment-based immigration cases, the Nebraska Service Center (NSC) processes I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).  NSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY.

All I-140 petitions continue to have a processing time of 4 months.  This includes petitions sponsoring Outstanding Researchers or Professors, those with Extraordinary Ability, and Multinational Managers. 

I-485 applications for adjustment of status continue to be processed in about four months time.  

The processing times of applications for EAD work authorization and advance parole (AP) travel authorization remain at a troubling 3 months.  The concern here is for those who filed I-485 applications in the summer of 2007 when all priority dates became current, and whose priority dates then retrogressed.  Applications to extend EAD and AP can only be filed 4 months in advance.  With a processing time of 3 months, any delay in filing could result in a gap of work and travel authorization.

Texas Service Center

Under the bi-specialization initiative, the Texas Service Center (TSC) is the other regional processing center that focuses on I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).  TSC processes cases filed for individuals whose worksites/residences are in one of the following states: AL, AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI, and WV.

The processing times at TSC are the same as those listed above for NSC.  With the exception that employment based I-485 applications are taking right around 6 months, with a specific processing date of June 5, 2010 being given, which is an indication that the USCIS is working to bring this processing time down to its stated goal of four months.   

To view the processing time of other case types not discussed here, please visit: https://egov.uscis.gov/cris/processTimesDisplayInit.do.

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* Please note that the processing time for an I-485 only applies to applicants whose priority dates are current. 

U.S. Ambassador to India Announces Simpler U.S. Visa Application Process

The U.S. Embassy in New Delhi and the Consulates General in Mumbai, Chennai, Kolkata, and Hyderabad will now accept visa applications from individuals whose home residence is in any other Indian jurisdiction.  This is being done in an ongoing effort by Mission India to facilitate legitimate travel to the United States. 

After the Consulate General in Hyderabad opened in 2008, the U.S. Mission has looked for ways to best capture the unique nature of India’s growth across the country.  This resulted in a re-designation of consular districts.  Effective immediately, the consular districts in India will be organized as follows: 

U.S. Embassy in Delhi: Bihar, Delhi, Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttarakhand, Uttar Pradesh, Bhutan; 

U.S. Consulate in Mumbai: Goa, Gujarat, Madhya Pradesh, Maharashtra, Diu and Daman, and Dadra and Nagar Haveli; 

U.S. Consulate in Hyderabad: Andhra Pradesh, Orissa; Consulate Chennai: Karnataka, Kerala, Puducherry, Lakshadweep, Tamil Nadu, Andaman and Nicobar Islands; 

U.S. Consulate in Kolkata: Arunachal Pradesh, Assam, Chhattisgarh, Jharkhand, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, and West Bengal. 

These changes will create a much more convenient and supportive process for U.S. visa applicants in India.

USCIS Updates Case Processing Times

The four U.S. Citizenship and Immigration Services (USCIS) regional offices just issued updated processing times.  As a general trend, processing times for employment-based immigrant visa cases and most non-immigrant visa cases have improved, significantly in some categories.  The exceptions are H-1B petitions.  For example, an H-1B extension filed at the Vermont Service Center would need to have been filed by June 5th to be processing at this time.  This estimated five and a half month processing time can have a significant impact on foreign national employees.  This is why it is imperative that employers file H-1B extensions as close to the six-months-from-current-expiration-date mark as possible.  Otherwise, employees could encounter travel restrictions and have problems renewing driving privileges.

California Service Center 

From an employment-based immigration perspective, the California Service Center (CSC) primarily processes non-immigrant petitions.  CSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY.

The processing time for most I-129s, including TNs and E-1/2s, is 2 months.  L-1s and H-2A/Bs are being processed within a 1-month timeframe, while O-1s are moving at a blistering 2-week pace.  

H-1Bs are a different story.  Instead of being listed within a monthly timeframe, they have specific dates listed.  This means that CSC is beyond USCIS’s normal case processing goal.  All H-1B petitions have a date of July 1, 2010, which means the average processing time is currently around four and a half months. 

Interestingly, most applications for dependent spouses and children are at 2.5 months.  However, if it is an H-4 dependent, the case should not be approved before the principal’s H-1B petition.  Applications for employment authorization for L-2 dependent spouses currently have a processing time of 3 months. 

Vermont Service Center 

Under the bi-specialization initiative, the Vermont Service Center (VSC) is the other regional processing center that focuses on petitions for non-immigrant, employment-based cases.  VSC processes cases filed for individuals whose worksites are in one of the following states: AL, AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI, and WV. 

For employment-based cases, VSC’s processing times mostly mirror CSC’s processing times.  The exceptions, again, are H-1B cases.  New H-1Bs (visa to be issued abroad) and H-1B change of status cases list a date of July 10, 2010, while H-1B extensions list June 5, 2010.    To reiterate, specific dates are listed where the case type is beyond USCIS’s normal processing goals. 

Nebraska Service Center 

For employment-based immigration cases, the Nebraska Service Center (NSC) processes I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).  NSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY. 

All I-140 petitions continue to have a processing time of 4 months.  This includes petitions sponsoring Outstanding Researchers or Professors, those with Extraordinary Ability, and Multinational Managers.  

I-485 applications for adjustment of status have dropped significantly to 4 months.*  This is a 6-month improvement from the 10-month processing time in April of this year.  

The processing times of applications for EAD work authorization and advance parole (AP) travel authorization remain at a troubling 3 months.  The concern here is for those who filed I-485 applications in the summer of 2007 when all priority dates became current, and whose priority dates then retrogressed.  Applications to extend EAD and AP can only be filed 4 months in advance.  With a processing time of 3 months, any delay in filing could result in a gap of work and travel authorization. 

Texas Service Center 

Under the bi-specialization initiative, the Texas Service Center (TSC) is the other regional processing center that focuses on I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).  TSC processes cases filed for individuals whose worksites/residences are in one of the following states: AL, AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI, and WV. 

The processing times at TSC are the same as those listed above for NSC, except that I-485 applications for adjustment of status are taking just over 6 months.*  This is not necessarily surprising, since this is virtually the same processing timeframe as earlier this year.  What is noteworthy is that while TSC previously had the shorter processing time for employment-based I-485s, NSC is now the regional office with the greater efficiency on these cases.  

To view the processing time of other case types not discussed here, please visit: https://egov.uscis.gov/cris/processTimesDisplayInit.do

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* Please note that the processing time for an I-485 only applies to applicants whose priority dates are current. 

New USCIS Fee Schedule Goes Into Effect This Month

As a reminder, the new fee schedule for U.S. Citizenship and Immigration Services (USCIS) goes into effect on November 23, 2010.  Petitions postmarked on or after this date must include the new fees.  Without the new fees cases will be rejected and sent back.

USCIS published the new fee schedule in the Federal Register on September 24th.  Graham Adair also published a detailed analysis: http://www.grahamadair.com/news-updates/uscis-announces-fee-increases/.

The new fee schedule increases application and petition fees by an average of about 10 percent.

Department of Labor Issues FY 2009 Annual Foreign Labor Certification Report

 The U.S. Department of Labor (DOL) just issued its 2009 Annual Report on Foreign Labor Certification.  The figures are intriguing and noteworthy, but not surprising.  In 2007, there were very few audits issued and most cases were quickly certified, often just days from the date of filing.  From FY2007 to FY2008, the number of audits rose and there was a staggering 42% decrease in cases certified.  From FY2008 to FY2009, there was another significant decrease of 40% in certified cases.  Indeed, the total number of permanent labor certification cases approved in FY2009 was 29,502.  California was the largest draw, with 6,155 cases; New York was a distant second with 3,093.

Interestingly, the DOL report does not spend much time discussing the increase in audits.  It does, however, acknowledge that the enhanced audit effort has led to longer processing times.  While the increase in audits is certainly a significant factor in the dramatic decrease of certified cases, it is not the only culprit.  The financial crisis that took hold in the United States in 2008 and continued through 2009 was a major contributor.  The large number of unemployed looking for positions resulted in many tests of the labor market finding qualified and available U.S. workers for specified positions.  When a test of the labor market for a specified position turns up a willing and qualified U.S. applicant, it may prevent a bona fide permanent labor certification from being filed for a minimum period of six months.

Furthermore, with companies looking to reduce spending, the sponsorship of immigration benefits is one area that experienced cutbacks.  And because attorney fees for permanent labor certification require payment by the sponsoring company, this case type was probably impacted more than others.

The other significant factor in reduced certifications over the past few years is layoffs.  Many U.S. companies were compelled to reduce their workforce due to decreases in demand for their products and services.  When a U.S. citizen employee is laid off, permanent labor certifications for the position held by the U.S. worker cannot be sponsored for a minimum of six months.  Some very large U.S. companies experienced widespread rolling layoffs, inhibiting their ability, in some cases, to file permanent labor certifications for extended periods of time.

The decline in the number of certifications was experienced across all occupations, with agriculture experiencing the biggest slide – a decrease of over 83 percent from FY2008 to FY2009. Several other industries saw significant drops of over 50 percent, including retail trade, construction, waste management and remediation support services, and mining.

From a demographic standpoint, India and China remained the two top countries of origin for foreign workers in the PERM program.  India far exceeded any other country, however, accounting for nearly 39% of certified cases.  At number two, China only accounted for 7% of certified cases.  South Korea and the Philippines joined the top four, while Mexico dropped out of this top grouping.  Canada came in at number five, with nearly 5.5%.

We anticipate that, for the reasons discussed above, the downward trend of certified permanent labor certifications has continued in FY2010.

2012 Diversity Visa Lottery

The U.S. Department of State’s 2012 Diversity Visa Lottery online registration process begins at 12:00 p.m., Eastern on Tuesday, October 5, 2010.  It will be available until 12:00 p.m., Eastern on Wednesday, November 3, 2010.  Paper entries will not be accepted; applications must be submitted electronically. The electronic entry form is available at: www.dvlottery.state.gov.

The Department of State’s Diversity Immigrant Visa Program provides 50,000 diversity visas every year.  These visas are selected through a lottery system from entries by persons who meet stipulated eligibility requirements from countries with lower levels of immigration to the United States. Diversity visa applicants must have at least a high school education or two years of work experience in an occupation requiring at least two years of training or experience.  In the latter case, the experience must have been gained within the past five years.

Diversity Visa lottery winners will be notified through the Entry Status Check at: http://www.dvlottery.state.gov. It should be noted that those selected in the random drawing are not notified by email.  Those selected through the lottery system will receive further instructions, including information on fees for immigration to the United States.

It is best to apply early in the process, as there tends to be heavy demand for the Diversity Visa Lottery.  Applying early helps to avoid delays in processing due to high demand.  For further information, please contact us at: info@grahamadair.com.

USCIS Announces Fee Increases

Today the U.S. Citizenship and Immigration Service (USCIS) announced that it will raise the filing fees for most immigration benefits. The new fees will take effect on November 23, 2010. The final rule announcing the fee increases will be published in the Federal Register on September 24, 2010. The final fee increases are very similar to what was initially proposed by USCIS in June. The fees for most petitions will increase by a weighted average of 10%. The filing fee for an I-129 petition will be raised by five dollars, while the filing fee for the I-140 Immigrant Visa Petition increases by $105. Some petitions, including the N-400 naturalization application will have no fee increase.

In addition to the increase in filing fees for standard forms and applications, USCIS will increase the fees for its premium processing service. The premium process fee (currently set at $1000) will go up to $1225. The USCIS attributes this increase to the change in the Consumer Price Index since the premium processing fee was first introduced in 2001.

USCIS has justified the fee increases as being necessary to meet budgetary and funding requirements. Ninety percent of the USCIS operating costs are to come from collected petition fees. The additional premium processing fees have been justified as necessary to help improve technology and customer service initiatives at USCIS.

Any application filed with the USCIS prior to November 23, 2010 will still be subject to the current fee schedule. Applications submitted on or after November 23, 2010 will be subject to the new fees. If you have any questions about these fees please feel free to contact Graham Adair for more information (info@grahamadair.com).

UNITED STATES – ICE Will Serve More Than 500 Notices of Inspection

The American Immigration Lawyers Association (AILA) has reported that U.S. Immigration and Customs Enforcement (ICE) plans to serve more than 500 new Notices of Inspection to U.S. companies within the next few days. According to ICE, the planned audits were triggered by information received about companies that are believed to be engaging in the hiring of unauthorized workers and/or paying unfair wages.

If you receive a Notice of Inspection, please contact us right away at: info@grahamadair.com.

UNITED STATES – U.S. Department of State Issues August 2010 Visa Bulletin

The U.S. Department of State has issued the August 2010 Visa Bulletin.  There has been some solid forward movement in a number of categories, while other categories crept forward only slightly.  The good news is that everything is currently moving in the direction of less retrogression.

The first preference category (EB-1) remains current for all countries.

The second preference category (EB-2) remains current for all countries, except for India and China.  EB-2 India moved from October 1, 2005 to March 1, 2006, a positive change of five months.  EB-2 China also advanced several months from November 22, 2005 to March 1, 2006, a change of more than three months.  Because these categories moved more than one month, it signifies a slight erosion of immigrant visa retrogression.

In July, the EB-3 category for Dominican Republic, Philippines, and All Chargeability Areas Except Those Listed had an effective date of August 15, 2003.   These categories moved an impressive nine and a half months to June 1, 2004.

EB-3 India and EB-3 China were equally disappointing.  Each only moved a month and one week, which is barely ahead of month-to-month improvement.  EB-3 India moved from November 22, 2001 to January 1, 2002, and EB-3 China moved from August 15, 2003 to September 22, 2003.

EB-3 Mexico is the only category that did not move, as it currently remains “unavailable.”

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