Summary of the October 2010 Visa Bulletin – Employment-Based (EB)

Below is a summary of the October 2010 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World) remains current, EB-2 China moves forward by only two (2) weeks to May 22, 2006, while EB-2 India remains unchanged at May 8, 2006.
• EB-3 ROW moves forward by three (3) weeks to January 8, 2005, EB-3 China  moves forward by three (3) weeks to November 8, 2003, while EB-3 India  moves forward by two (2) weeks to January 15, 2002.  EB-3 Mexico is now available at April 22, 2001 and EB-3 Philippines moves forward by three (3) weeks to January 8, 2005.
• The “other worker” category remains unchanged at March 22, 2003 for ROW and China and moves forward by two weeks to January 15, 2002 for India.  Mexico is now available at April 22, 2001 and the Philippines remains unchanged at March 22, 2003.

Summary of the October 2010 Visa Bulletin – Family-Based (FB)

Below is a summary of the October 2010 Visa Bulletin with respect to family-based petitions:

• FB1 ROW, China and India move forward by six (6) weeks to February 15, 2006, while FB1 Mexico moves forward by two (2) weeks only to December 15, 1992.
• FB2A ROW, China, India and Philippines move forward by four (4) months to April 1, 2010, while FB2A Mexico moves forward by one year to January 1, 2010.
• FB2B ROW, China and India move forward four (4) months to April 1, 2005, while FB2B Mexico moves forward by only one (1) week to June 22, 1992.

Forward Movement Continues

The forward movement across many employment and family-based categories continues.  With respect to employment-based petitions, however, the forward movement is fairly small, often only by one or two weeks.  The forward movement in family-based petitions is notable in many cases – four months for many categories.   It is early to make predictions about the movement of the visa numbers over the next fiscal year solely on the basis of the first Visa Bulletin for FY2011.  A positive development, however, is the continued forward movement, albeit small for some categories.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

California Service Center

RFE Trends.  There is much discussion about the California Service Center (CSC) increasing RFE trends.  The numbers indicate that for FY2010 (through July 2010), the CSC RFE rate has remained steady or has decreased with respect to H petitions (20%) while it has increased with respect to L (40%), O (38%) and P (44%) petitions.    While the RFE rate for H petitions seems to have remained steady over the past few years, the RFE rate for L, O and P petitions seems to have increased substantially.

Also, it should be noted that the numbers and rates of RFEs issued do not describe the entire picture.  Anecdotal evidence (supported partially by our office’s direct practice) shows that while the percentages for RFEs for H petitions may have decreased, the length and scope of the RFEs has actually increased.

Approval Trends.  CSC shows a slight increase in approval rates for H petitions (82%), while there is a slight decrease in the approval rates for L (73%), O (80%) and P (73%) petitions.   The overall approval rate for California for FY2010 is 80.5%.

Vermont Service Center

RFE Trends. The  Vermont Service Center (VSC) has noted a significant decrease in RFE rates for H petitions in FY2010 compared to FY2009.  For the current fiscal year, the RFE rate for H petitions is 22% compared to 28% in FY2009.   The RFE rates for L, O and P petitions are 18%, 17% and 15%, respectively.  It should be noted immediately that while the H petition RFE rates for Vermont are similar to the RFE rates in California, the RFE rates in Vermont for L, O and P petitions are substantially lower – by 20-30 percentage points.

The overall RFE rate for VSC is 20.5%, compared to 24% at CSC.

Approval Trends.  The approval rates for VSC are fairly consistent over the past three years.  There is a notable increase in the RFE approval rates in this fiscal year compared to FY2009.  The approval rate for H petitions is 78%, while the approval rates for L, O, and P petitions are 90%, 95% and 96%, respectively.  Compared to California, the H approval rate is slightly lower, while the L, O and P petition approval rates for Vermont are 10-15 percentage points higher for Vermont than California.

Conclusion

While the processing statistics for the past three years allow us to draw some conclusions about a service center’s processing trends, it also dispels some myths and rumors founds often on the Internet.  The numbers, however, confirm that some petitions, most notably L, O and P, face significantly higher chances of an RFE and significantly lower chances of approval in California.

The most notable difference, in the approval rates for L, O and P petitions between Vermont and California is difficult to explain.  In our practice, we review each petition early on with respect to the applicable service center and prepare it accordingly to address any difference in adjudication standards and trends between the Vermont and California Service Centers.

As of September 1, 2010, all services — including calling for information and scheduling an appointment — will be provided for no additional cost, with no requirement that applicants pay phone charges or PIN numbers to access such services. Starting September 1, 2010, applicants will visit CSC Visa Information Services to either obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada.

For those U.S. visa applicants who have already scheduled an appointment or paid their MRV fee, the U.S. Embassy in Canada has some specific instructions.

This significant decline has contributed to an overall reduction of 8% in the number of unauthorized immigrants currently living in the U.S.-to 11.1 million in March 2009 from a peak of 12 million in March 2007, according to the report.

The data is obtained mainly through U.S. Census data.  It is interesting that the most significant decrease in the population of unauthorized immigrants has been among those who come from Latin American countries other than Mexico.  From 2007 to 2009, the size of this group from the Caribbean, Central America and South America decreased 22%.  The numbers of unauthorized immigrants from Mexico  (which accounts for about 60% of all unauthorized immigrants) peaked in 2007 at 7 million and has since remained mainly unchanged.  The study notes that the inflow of unauthorized immigrants from Mexico has decreased, which seems to suggest that unauthorized immigrants from Mexico have settled in the U.S. and are not going back even in an economic crisis.

The recent decrease in the unauthorized population has been especially notable along the nation’s Southeast coast and in its Mountain West, according to the new estimates. The number of unauthorized immigrants in Florida, Nevada and Virginia shrank from 2008 to 2009.  Other states may have had declines, but they fell within the margin of error for these estimates.  These states have been severely affected by the housing crisis which resulted in a significant decrease in construction jobs.

The report estimates that over the past two years, the annual inflow of unauthorized immigrants is 300,000 per year, down from about 550,000 per year between 2005 and 2007.

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of August 20, 2010, USCIS has received approximately 33,900 H-1B petitions counting toward the 65,000 cap (a substantial increase of 4,200 over the past week).  Similarly, as of August 20, there were 12,600 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 300 over the past week).

H-1B Quota Trends – Is the Substantial Regular Cap Filings Increase a One-Time Event?

The numbers, as reported over the past week, show a reversal of the recent trends of minor weekly increases.  During the past week there was a substantial increase in the number of regular cap H-1B filings — over 4,000 in a week which is drastically bigger than any the filings over the previous weeks.

It is difficult to estimate the reason for this increase but it is most likely due to the fee increase imposed on certain H-1B filings.  We suspect that a number of companies wanted to file before they were subjected to the new significant H-1B filing fee.  We will monitor next 1-2 weeks’ H-1B numbers to understand whether this increase was indeed a one-time opportunity to file before the fees were raised or there is a longer-term trend of increased regular-cap H-1B filings.

We wish to reiterate our caution to potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

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 August 1, 2010.  Overall, there is not much change in comparison to the July 1, 2010 report.

Among the most notable AAO processing times:

• H-1B appeal takes 13 months (increase by one month compared to July 1, 2010);
• I-140 EB1 Extraordinary Ability takes 7 months (no change), Multinational Manager or Executive takes 15 months (no change) while EB1 Outstanding Professor or Researcher category takes 6 months (no change);
• I-140 EB2 (Advanced Degree) takes 24 months (no change) while EB2 (NIW) takes 7 months (increase by one month); and
• I-140 EB3 Skilled Worker takes 25 months (increase by one month) while EB3 Other Worker takes 20 months on appeal (decrease by three months).

Read the full AAO Processing Times report.

About the Fee

The fee will be in the amount of $14.00 and will be required to be paid via credit card (MasterCard, Visa, American Express and Discover) at the time of completion of the ESTA pre-travel registration.  An ESTA registration is valid for up to two years so the fee will not need to be paid for subsequent VWP travels within this two-year period before a new ESTA registration (and fee) will be required.

The fee was mandated by the Travel Promotion Act of 2009 which mandates that the ESTA funds will be partnered with private funds for the purpose of U.S. travel promotion.

Fee Becomes Effective September 8, 2010

All ESTA registrations submitted on or after September 8, 2010 will require the payment of the new fee.   VWP travelers who plan to visit the U.S. in the near future may want to submit their ESTA registration in advance of this date.

The mandatory nature of the fee and the fact that it can only be paid via certain credit cards through the ESTA website has caused some concerns.  Although many Visa Waiver Countries travelers have access to credit cards at their disposal, the credit card payment requirement may deter or inconvenience some VWP travelers during their ESTA registration process.   As of now, there are no other alternative methods for paying the fee.

Visa Waiver Countries

As a reminder, the Visa Waiver Countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

What Are the New H-1B and L-1 Filing Fees?

Effective immediately, Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.

Note that not all H-1B or L-1 cases are subject to these new fees.  These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.  Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

• Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) (H-1B or L-1 cases), or
• To obtain authorization for an alien having such status to change employers.

It should also be noted that this additional fee, where applicable, is in addition to any applicable filing, fraud prevention, ACWIA or premium processing fees.

Revisions of Form I-129 is Underway

Because Public Law 111-230 is effective immediately but USCIS has not released a revised Form I-129 to reflect the new requirements and fees, USCIS advises all H or L filings to clearly describe whether the new fee applies:

USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Where USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the public law. An RFE may be required even if such evidence is submitted, if questions remain.

Source: USCIS Update: USCIS Implements H-1B and L-1 Fee Increase According to Public Law 111-230 (August 19, 2010)

Conclusion

The H-1B and L visa fee increase is likely to impact a number of companies relying heavily on foreign workers.  The law has sparked some controversy and is subject to a number of diplomatic, political and even international trade disputes.   However, as it stands now, all H-1B and L filings should undergo an additional level of analysis whether Public Law 111-230 applies.