The National Visa Center (NVC) has released numbers and statistics on the immigrant visa numbers pending at NVC.   The information is as of November 1, 2009.  It is important to note that these numbers reflect immigrant visas which have chosen “consular processing” and not adjustment of status (I-485) applications filed from within the U.S.  Also, the numbers reflect all applicants, including derivative beneficiaries such as spouses and children.

Overall Pending Immigrant Visa

Family-based.  As of November 1, 2009, there are 245,516 family-based first preference category applications pending; 842,762 second category (324,864 in 2A and 517,898 in 2B sub-category); 553,280 in third category; and 1,727,897 in fourth category.  The total family-based NVC pending cases are 3,369,455.

Employment-based.   As of November 1, 2009, there are 3,601 employment-based first preference category applications pending; 6,295 second category; 119,759 in third category (103,448 in skilled workers and 16,311 in other workers sub-category); 529 in fourth category; and 325 in fifth category.  The total employment-based NVC pending cases are 130,509.

Distribution by Country

Thirteen countries represent 79% of the total NVC pending immigrant petitions.  Mexico is number one with 1,178,761 cases (most of which are family-based);  Philippines is second with 482,694, China-mainland is third with 197,559, while India is fourth with 194,954.

Please see the full report for more detailed statistics.  It is important to note that the annual FY-2010 maximum of family-based immigrant visas issued for any one country is 15,820.  The maximum employment-based immigrant visas issued for any country is 10,440.

Effective January 1, 2010, the Department of Labor (DOL) centralized all prevailing wage determinations needed in connection with certain programs – PERM, H-1B, H-2B and E-3.   All prevailing wage requests now must be submitted to DOL for processing and not to the state workforce agencies, as it was done before.

Because DOL was not ready to accept electronic submissions on January 1, it announced that it would accept paper prevailing wage submissions until the iCert system is modified to accept prevailing wage requests on Form 9141.   As a result, many prevailing wage requests from early this year were submitted via mail.  On or about January 15, 2010, DOL launched the online prevailing wage request form and is now accepting online submissions.

Prevailing Wage Determinations Currently Take Three to Four Weeks

Unfortunately, delays in the processing of the prevailing wage requests are widely reported.  In many instances, paper request forms submitted before January 15th took one or two weeks to be entered into the system and confirmed as submitted.  We are seeing that it currently takes between three and four weeks for DOL to provide prevailing wage determinations.

In communications related to the new system, DOL has indicated that prevailing wage determinations may take up to 60 days.  This is in a sharp contrast to the pre-January 1, 2010 system where state workforce agencies were often able to provide prevailing wage determinations within 1-2 days.

We hope that DOL is experiencing adjustment issues to the new system and once system glitches are ironed out, DOL will staff the prevailing wage determination bureau properly so that determinations can be issued promptly.   To avoid delays in H-1B petitions associated with prevailing wage determinations, our office uses alternative prevailing wage surveys.  However, for PERM labor certification applications, the new prevailing wage determination system adds one to two months of additional PERM preparation time.

The American Immigration Lawyers’ Association (AILA) has provided some guidance and information from Customs and Border Protection (CBP) at the Newark, New Jersey airport.

Background

Starting in December of 2009, our office has been receiving alerts from current and prospective clients about a number of incidents where holders of valid H-1B stamps were questioned and, in some cases, offered the opportunity to withdraw their request for admission into the U.S. or be subject to expedited removal proceedings;  in many cases, such H-1B holders were not admitted into the U.S. and sent back to their home country and have had their H-1B visas cancelled.

Due to the lack of information from CBP and the seriousness of the situation, a number of misleading and sometimes false rumors have began circulating among communities of H-1B holders on the Internet.    We hope that this alert will provide helpful information and understanding of what happens at Newarj, NJ airport and what can be done about it.

USCIS/ICE Employer Fraud Investigations Cause Scrutiny of H-1B Employees

CBP has confirmed that at least several of these cases involved companies which were under investigation by Immigration and Customs Enforcement (“ICE”) and/or USCIS for ongoing H-1B program fraud.  CBP noted that they use as much advance information as possible to target specific individuals who warrant additional inspection.  CBP also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.”

In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (“FDNS”) and the Department of Labor – Office of Investigations.  CBP stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed.  CBP confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

Newark, NJ Airport New Policy to Verify L-1 and H-1B Employees

CBP has also announced that the Newark, New Jersey airport has instituted a new policy which involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders.  Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

Public Information May be Consulted During or After Inspection

Employers should be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

Note the new fraud related language added to I-797 approval notices –

NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.

Conclusion: Proper Pre-Travel Preparation is Essential

It should be noted that although the recent news were linked with Newark, New Jersey airport, CBP may expand its policy and enforcement to other airports at any time.  In light of these developments, it becomes increasingly important for holders of H-1B and L-1 visas to prepare well for their return trip into the U.S., regardless of the port of entry they use to enter the U.S.

We advise all of our clients to thoroughly prepare for their trip to the U.S. and their inspection upon application for admission.  H-1B and L-1 visa holders should review all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer.  In addition, the H-1B or L-1 employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation.  Finally, employers should ensure that public information, such as websites and/or other materials, may be consulted by CBP agents to determine whether a particular H-1B or L-1 petition is valid.

We wrote in late October and early November of 2009 about the USCIS Ombudsman’s recommendation that USCIS (1) accept H-1B filings without a certified LCA but with a proof of filed and pending LCA and (2) to excuse late H-1B filings where the delay in filing was caused by pending LCA or employer’s Federal Employed Identification Number (“FEIN”) verification.

In November of 2009, USCIS agreed to temporarily (for a period of 120 days) create a policy in line with the USCIS Ombudsman’s recommendations.   In a Memorandum dated as of January 28, 2010, by Alejandro Mayorkas addressed to the USCIS Ombudsman, USCIS announces that it will make permanent policy changes in line with the October 2009 Ombudsman recommendations.

USCIS Will Accept H-1B Petition With Evidence of Initial LCA Filing

H-1B petitions will be accepted with evidence of initial LCA filing if the H-1B has been filed at least 7 calendar days after the LCA was filed with DOL.   The petitioner must include a copy of the LCA submission’s email confirmation as evidence.

Petitioners who seek to use this H-1B filing procedure must wait until they receive an RFE before they can submit the already DOL-certified LCA in support of the H-1B filing.  The certified LCA must be the same LCA which was filed with the original H-1B petition, unless the petitioner provides an LCA which was certified prior to the submission of the H-1B petition.

Late Filings Due to LCA/FEIN Verification Delays Should Be Excused

In addition, USCIS has confirmed that it will continue to excuse late H-1B filings under 8 C.F.R. 214.1(c)(4) or 8 C.F.R. 248.1(b) when the delay in filing of the H-1B petition requesting an extension of H-1B stay or change of status to H-1B was related to LCA issuance delays beyond the control of the petitioner and/or denials by DOL due to employer’s FEIN verification issues.

Our office handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of January 4, 2010.  Overall, there is not much change in comparison to the December 2, 2009 report.

Among the most notable AAO processing times:

• H-1B appeal takes 13 months (increase by one compared to December 2, 2009);
• I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 11 months (no change) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
• I-140 EB2 (Advanced Degree) takes 24 months (two months improvement) while EB2 (NIW) takes 6 months (or current, meaning less than 6 months); and
• I-140 EB3 Skilled Worker takes 23 months (no change) while EB3 Other Worker takes 23 months on appeal (no change).

Read the full AAO Processing Times report.