Categories News & Updates USCIS

UNITED STATES – April 9, 2010 – H-1B Cap Remains Open

The U.S. Citizenship and Immigration Services (USCIS) has just announced that it has received 13,500 H-1B petitions under the regular H-1B cap of 65,000, and that 5,600 have been counted toward the 20,000 set aside for those with advanced U.S. degrees.? This means that USCIS continues to accept applications for initial H-1B status a week after the H-1B filing season opened up on April 1st.? This seems to be a reflection of the economy as it struggles to get back on track.?

Last year’s H-1B cap for FY2010 experienced a curious phenomenon wherein the 20,000 H-1B numbers set aside for those with advanced U.S. degrees were nearly used up within the first few days, but the 65,000 general H-1B numbers were available into December.? This was intriguing because of the inversion of the regular and advanced U.S. degree caps.? Ever since the 20,000 set aside came into existence, it has always taken longer to deplete than the 65,000 regular H-1B numbers.? This reflected a surplus of highly educated foreign graduates from U.S. universities who were hired in lieu of their bachelor’s or foreign degree counterparts.? Demand for H-1B numbers was certainly down last year overall, but the talent pool was larger and those with higher level degrees were still being pursued.

The lower demand of FY2010’s H-1B cap was in stark contrast to the FY2009 H-1B cap when 133,000 H-1B petitions were received within the first two days of filing.? Again, the usage of H-1B numbers appears to be in direct correlation with the health of the economy.

In light of the announcement today, H-1B petitions will continue to be accepted by USCIS.? If the 20,000 set aside for those with advanced U.S. degrees is exhausted first, H-1B numbers for these applicants will be taken from the regular cap of 65,000.? On the day USCIS determines that sufficient petitions have been received to meet the annual limit, a random selection lottery will be conducted for all cases received on that day. Cases not selected in the lottery will be rejected.

Categories Compliance News & Updates USCIS

DHS Getting More Customer Service Oriented With E-Verify

The U.S. Department of Homeland Security (DHS) has announced an initiative to enhance customer service in three areas:

1. Telephone hotline;
2. Training videos; and
3. Streamlined adjudication of discrimination complaints for misuse of E-Verify.

Telephone Hotline

On April 5, 2010, a new hotline (888-897-7781) will open for general inquiries, issues and complaints. It will be an automated phone line that will eventually take the caller to a live representative in one of four areas:

1. General E-Verify information;
2. Completing Form I-9;
3. Contesting an E-Verify case; and
4. Filing a complaint regarding possible discrimination or misuse of E-Verify.

The hotline presents a nice first option for those seeking general information or redress for issues raised during the E-Verify process. However, with more than 192,000 participating employers at more than 705,000 worksites nationwide currently use E-Verify, it remains to be seen whether the hotline will be properly staffed. If it is understaffed, long waits could dilute the utility of the hotline. Customer service can be improved with digital solutions, like Salesforce’s help desk, which maybe should be covered in the next enhancement initiative. If you’re asking “what is help desk?”, check out the Salesforce definition.

Training Videos

Training videos have been created by the DHS?s Office of Civil Rights and Civil Liberties and U.S. Citizenship and Immigration Services (USCIS). Each video is set up as re-enactments of real-world hiring scenarios in which the employees? rights are considered to avoid potential discrimination or misuse of the E-Verify process. For now, there are two videos available. Each video is approximately 20 minutes long and is available for immediate viewing online at: www.dhs.gov/e-verify or
www.youtube.com/ushomelandsecurity. The videos are intended to help employers understand their responsibilities under E-Verify and to inform employees of their rights.

Streamlined Adjudication of Discrimination and Misuse Complaints

The Department of Justice?s Office of Special Counsel (OSC) has begun a two-way referral program with USCIS on claims of E-Verify misuse. When USCIS receives complains of potential discrimination, it will refer them to OSC. And when OSC learns of potential employer misuse of E-Verify that does not fall within its enforcement area, it will refer the complaint to USCIS. This streamlined process is intended to move complaints more quickly to a final determination and, if required, an investigation. OSC may initiate investigations of: (1) discrimination based on citizenship, immigration status, or national origin; (2) document abuse as part of the I-9 process; and (3) retaliation.

Categories Department of State News & Updates Visa Bulletin

State Department Releases April 2010 Visa Bulletin

The U.S. Department of State has issued the April 2010 Visa Bulletin.? The good news is that the numbers show immigrant visa retrogression going in the right direction.? But this good news is tempered by the modest gains.

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 did not move at all.? It stayed put at February 1, 2005.? This is troubling because we had been seeing slow-but-steady positive movement in this category.? While the unchanged date only signifies a 1-month retreat, it ends the steady positive advancement.

EB-2 China moved forward by one and a half months, from July 8, 2005 to August 22, 2005.? This movement is very similar to the movement we have seen over the past few months.? While the general direction of the movement is beneficial, it is certainly not significantly helpful.? Indeed, the movement has only been slightly better than month-to-month.

The EB-3 category experienced similar modest gains.? For the “All Chargeability Areas Except Those Listed,” China, and the Philippines, retrogression was cut back by one and a half months, from December 15, 2002 to February 1, 2003.? EB-3 India did the best this month, moving more than 2 months, from July 1, 2001 to September 8, 2001.? For the second straight month, EB-3 Mexico remained unchanged at July 1, 2002.

Categories News & Updates USCIS

Ninth Circuit Court Rules Against USCIS?s Arbitrary RFE Thresholds

Yesterday, the Ninth Circuit Court of Appeals ruled against the U.S. Citizenship and Immigration Services (?USCIS?) in a case brought by the American Immigration Council challenging certain thresholds adopted in an EB-1 Extraordinary Ability immigrant petition case (Kazarian).? USCIS issued a request for evidence (?RFE?) and later denied the case.? In citing the basis for denial, USCIS stated that the petitioner had not sufficiently established that the beneficiary?s publications had received acclaim from the research community.? This standard is not required under the law.

The Ninth Circuit Court held that USCIS may not implement substantive or evidentiary requirements above what is established in the regulations.

The immigration community has seen an increase in requests for evidence over the past couple of years, including numerous instances in which novel and arbitrary standards have been listed in RFEs.? Perhaps this decision will send a message and reduce the incidence of such burdensome RFEs.? Although most cases are ultimately approved, it can create a significant hardship on petitioners/applicants and immigration practitioners to respond to requests that go beyond what is required under the law.

Categories Department of State News & Updates Visa Bulletin

U.S. Department of State Issues March Visa Bulletin

The U.S. Department of State has issued the March Visa Bulletin very early this month.? The good news is that the numbers show immigrant visa retrogression going in the right direction.? But this good news is tempered by the modest gains.

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 forward one week, from January 22, 2005 to February 1, 2005.? EB-2 China moved forward by one and a half months, from May 22, 2005 to July 8, 2005.

The EB-3 category experienced similar modest gains.? For the “All Chargeability Areas Except Those Listed,” China, and the Philippines, there was nearly a 3-month move, from September 22, 2002 to December 15, 2002.? EB-3 India moved one week, from June 22, 2001 to July 1, 2001.? EB-3 Mexico remain unchanged at July 1, 2002.