Analysis of Proposed Changes to Form I-129 (H-1B, L-1, TN)

USCIS published a notice in the Federal Register with proposed changes to Form I-129 which is used for H-1B, L-1, TN, among other visa type filings.   Please see the DRAFT proposed Form I-129 (and draft instructions).  The proposed changes are significant and are likely to impact most, if not all, employers who file Form I-129.

More Amendments Will Be Required

The proposed draft contemplates that an H-1B amendment filing will be required for ANY material change in employment.  The instructions provide as an example of material change in employment a change on primary job duties or change in the geographic location of the job.    Currently, H-1B petitions do not always have to be amended when there is a change in the geographic location of the job.   Under current guidance, a valid Labor Condition Application (LCA) is required for such geographic location job change.

Under the proposed Form I-129, an H-1B amendment, in addition to LCA filing, will be required for any job change with respect to geographic location.  While this is unlikely to affect many employers who employ their H-1B workers onsite; the proposed change will be very burdensome to consulting companies and companies with roving employees.

Furthermore, the requirement of filing H-1B amendments for geographic location job changes will create another level of uncertainty associated with the H-1B amendment process.  The cost (filing fees and preparation expenses) of having to prepare such amendments is also likely to be significant and impact consulting and roving-employee companies.

Export License Acknowledgement

The draft revised Form I-129 requires a deemed export license acknowledgment.   Certain H-1B, L-1 and O-1A workers must have a “Deemed Export License” issued by the Department of Commerce to be eligible for employment pursuant to H-1B, L-1 or O-1A status.   Accordingly, the employer must submit evidence that a review of the deemed export license requirements has been completed (under 15 C.F.R. 734.2).

If a deemed export license is required, a copy of the Department of Commerce approved license must be supplied.  Alternatively, if a deemed export license is not required, the employer will have to indicate whether the technology with which the foreign worker will be engaged is subject to Export Administration Regulations (EAR) and identify the Export Control Classification Number (ECCN) of the technology in which the beneficiary will have access to.

Evidence of Valid Status Required

The draft instructions also indicate that evidence of valid status will  be required as initial evidence with any Form I-129 petition.   USCIS will require, for all change or extension of status petitions, copies of the last two paystubs and Form W-2 in addition to Form I-94 and Form I-797 approval notice to support that the beneficiary has maintained a valid status.

Third-party Worksite Attestations

In cases where the worker will be placed at a third-party worksite, the revised Form I-129 requires certain attestations – name of the company where the worker will be placed, the work address and a contact person.  Although changes to the language may be necessary due to apparent misuse of terms, the petitioning employer will also have to attest that the worker will receive at least the prevailing wage or the offered wage (same under current H-1B regulations).

H-1B Worker Will Have to Sign Data Collection Supplement

Under the revised form, the H-1B worker will be required to sign the Data Collection Supplement.  The purpose of this is to attest that the worker has accepted the terms of the job offer, including offsite placement and the possibility of relocation.  Currently, the employee does not have to sign or otherwise acknowledge any portion of the H-1B filing paperwork.

Duplicate Forms Required

The proposed instructions also require that all of the forms and supporting evidence be submitted in duplicate.  Currently, duplicates are necessary for petitions requesting consular processing.   However, since each H-1B worker is, at some point of their H-1B period, likely to apply for a visa at a U.S. consulate abroad, this requirement is certainly helpful to eliminate visa processing delays associated with lack of information in the consular service database due to lack of duplicate copy.

It is our office’s practice to almost always submit duplicate copies of the petitions and all supporting evidence, so this change should not affect our practice.

Conclusion

The proposed changes to Form I-129 are fairly significant and create a number of additional requirements and burdens on at least some, if not all, employers using Form I-129 to petition for foreign workers.  Our office will remain involved in this comment period and we will provide updates on this proposed Form I-129 draft and any developments related to it.  Please consider subscribing to our free weekly newsletter to receive email updates on this and related immigration law developments.

Various Updates from the Texas Service Center

The Texas Service Center (TSC), in a meeting with AILA, has provided some helpful updates regarding processing of petitions filed with TSC.

Processing Times

TSC has confirmed that the pending application reports posted on the USCIS status check website are generally correct.  I-485s filed prior to March 26, 2009 that are still pending should be in for processing and for those I-485s, a streamline request is appropriate.  Similarly, TSC has completed review of derivative I-485 that have become separated from the primary I-485, so a streamline request may be appropriate in such cases as well.

AC21 Porting Notifications

TSC is expecting guidance from USCIS headquarters regarding cases in which the I-485 has been preadjudicated and waiting visa number but where a request for recent job verification may be necessary.  Currently, there are a high number of preadjudicated I-485 waiting for a visa number; however, many of these I-485 applicants have changed jobs pursuant to the AC21 portability provisions.

It is currently unclear whether TSC will issue an RFE requesting a more recent employment verification letter for these preadjudicated cases.  While TSC has indicated a preference to receive AC21 notifications generally, such notifications are not required.  Pending USCIS headquarters guidance, we still recommend that AC21 change of employer notifications be filed to “preemt” a possible RFE regarding employment verification even for preadjudicated I-485 cases.

Transfers from TSC to National Benefits Center (NBC)

TSC has confirmed that generally, the reason for transferring unadjudicated cases to NBC is when a I-485 requries an interview.  TSC transfers the “A file” to NBC which will then send it to a local office for interview.   Generally, TSC does not transfer cases to other centers for workload reasons.

April 2010 Visa Bulletin – Gradual Forward Movement, EB-2 India Unchanged

The April 2010 Visa Bulletin was just released by the State Department.  The seventh visa bulletin for the fiscal year 2010 brings gradual forward movement.  There is some gradual forward movement across most employment-based categories except EB-2 India and EB-3 Mexico which did not change this month.   A notable movement is in EB-3 India category where the priority date moved forward by over two months.

Here is a summary of the April 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by six (6) weeks to August 22, 2005, and EB-2 India remains unchanged at February 1, 2005.
• EB-3 ROW moves forward by almost fix (6) weeks to February 1, 2003, EB-3 China moves forward also by six (6) weeks to February 1, 2003, while EB-3 India moves forward by over two (2) months to September 8, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001.

Current State of Immigration Reform: Barely Moving

Today’s Wall Street Journal has a recap of recent high-level meetings and plans regarding an immigration reform, a topic which President Obama said he will tackle during his first year in office.

Washington has been busy for the past few months with health care, wars and the economic crisis.  Not surprisingly, immigration reform has not been high on the President’s agenda.

A pair of senators trying to put together a comprehensive immigration bill showed their outline to President Barack Obama Thursday and asked his help in recruiting additional Senate backers. But with a full plate already and elections looming, it was unclear how involved the White House plans to get on the issue.

According to the Wall Street Journal, while President Obama remains “fully committed” to immigration reform, his administration has taken a more hands-off approach and has left Congress to propose the outline of the reform plans and to “sell” it on Capitol Hill.

The Schumer/Graham plan, proposed by Senators Charles Schumer (D-NY) and Linsay Graham (R-SC), was presented to the President.  However, Sen. Graham is looking for another Republican sponsor, but has been unable to find one.  Senator McCain (R-AZ) who supported a similar plan when President Bush proposed it, has not been willing to sign on.

The Schumer/Graham Plan Outline

While the Senators have not released their plan formally,  it may include many of the building blocks from the last failed effort, including a path to citizenship for those here illegally, now estimated at 10.8 million people; a guest worker program; and, in a new twist, a mandatory biometric identification card for workers to stem the flow of illegal workers into the country in future years.

Immigration Reform – Slow Movement

In this political climate, it seems that immigration reform, if it happens, will move forward very slowly.   The President has seemingly delegated to Congress finding support for the immigration reform, and the current political gridlock in Congress will not help.   We will provide to monitor the current state of the immigration reform from our offices in Washington, DC, and provide further updates.   To stay up-to-date on this and other immigration topics, please consider subscribing to our free weekly immigration newsletter.

USCIS Will No Longer Accept H-1Bs Without Certified LCAs

In November of last year and in February of this year, we wrote about a temporary change USCIS made with respect to H-1B petitions filed without certified Labor Condition Applications (LCAs).   The reason for this temporary change in policy was to accommodate LCAs which have been delayed past the 7-day LCA processing window.   Pursuant to the temporary policy, H-1Bs could be filed with evidence of filed LCA which shows that the LCA has been pending for more than 7 business days.

USCIS has refused to expand the temporary policy and as a result, effective March 10, 2010, USCIS will no longer accept H-1B petitions filed without a certified LCA.    All H-1Bs filed on or after March 10, 2010, must be accompanied by a certified LCA or will be rejected.

Greece to be Designated a Visa Waiver Program Country

The U.S. Department of Homeland Security (DHS) Secreatary Napolitano announced that DHS will designate Greece as a Visa Waiver Program (VWP) yesterday, March 9, 2010. As a result, Greek nationals will be able to travel visa-free to the United States effective April 10, 2010.

The VWP will enable citizens of Greece to travel to the United States, beginning on April 10, 2010, for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA).

Currently, 35 countries participate in the Visa Waiver Program. The U.S. Congress authorized DHS in August 2007 to reform the VWP and strengthen the security arrangements required of existing participant countries, as well as to expand the opportunity for aspiring countries to join the program. This legislation also mandates certain improvements to the VWP for all participating countries, such as the requirement that travelers first obtain an online authorization to travel under the recently established ESTA, a web-based system that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States.

VSC Officers and “Credit” for RFES

During a recent AILA conference, the Vermont Service Center (VSC) Director Dan Renaud told the audience that the performance review structure for adjudicating officers has recently changed. Pursuant to the new performance review structure, officers get credit for issuance of Requests for Evidence (RFES), in addition to issuing approvals and denials, under the previous performance review structure.

Anticipating reaction from practitioners and affected individuals, AILA has attempted to clarify this comment with VSC. VSC has clarified this statement. In the VSC’s view, the “credit” for RFES is meant to encourage qualitative RFES. Under the previous policy, VSC was concerned that since examiners were not given “credit” for RFES, examiners were not spending the appropriate amount of time on them, resulting in RFES that were not appropriate. According to VSC, the purpose of giving credit is to improve the quality of RFES by making it something adjudicators have to stop and think about, rather than something to quickly send off. VSC has indicated that the amount of RFES issued has not changed as a result of the policy change.

Inevitably, this comment will trigger a fair amount of speculation and, possibly, accusations that RFES are being issued unfairly. We cannot confirm that RFES are unfair or issued disproportionately; our recent experience indicates that VSCS RFES are fair and well-prepared. We will continue to monitor RFES coming out of VSC and provide updates to our clients and readers.

H-1B Cap for Fiscal Year 2011 Opens on April 1, 2010

The U.S. Citizenship and Immigration Service (USCIS) is set to begin accepting H-1B visa applications pursuant to its Fiscal Year 2011 (FY2011) quota.   The first day on which USCIS will accept new, cap-subject H-1B petitions, is April 1, 2010.

About the H-1B Program and the Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2011 starting on October 1, 2010.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H1B status and who are seeking to extend their visa or change employers.

Timing of the Cap-subject H-1B Petition Filing

The earliest date on which cap-subject H-1B petitions to be counted under the FY2011 H-1B cap is April 1, 2010.  By law, the earliest starting employment date for petitions approved under the FY2011 H-1B cap is October 1, 2010.  As a result of this up to 6-month window  between the time of filing and the time of employment, it becomes important to plan properly with respect to resources, valid status in the U.S. and work authorization.

Before an H-1B petition can be filed on or after April 1, there are a number of lead-time items.   Employers who have not submitted Labor Condition Applications (LCAs) with the Department of Labor’s iCERT system must have their Federal Employer Identification Number (FEIN) verified – a process which generally takes 2-4 business days.  Subsequently, an LCA must be filed for the offered position.  LCAS tend to be certified within 7 business days.   Only after the LCA is certified (with very minor exceptions) can an H-1B petition can be finalized and filed.  Accordingly, it becomes important to start the H-1B petition process as early as possible.  At a very minimum, an H-1B petition preparation can take at least two (2) and often at least three (3) weeks.

Cap-exempt Employers Can File H-1B at Any Time

Not all H-1B petitions must be filed under the H-1B annual cap.  Certain employers can file for H-1B workers at any time of the year and without being subject to the numerical H-1B visa limitations.  Such employers are generally qualified institutions of higher education (universities, colleges) and non-profit research organizations, or non-profits affiliated with institutions of higher education.   Note, not all non-profit organizations qualify; only those who are engaged in research may file for cap-exempt H-1B petitions.

Please see our helpful Guide to H-1B Cap Exempt Employers for more details.

Projections About This Year’s H-1B Cap

As discussed above, the H-1B cap “opens” on April 1, 2010 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached.  While it is impossible to predict exactly when the FY2011 H-1B cap will be reached, it is helpful to provide some context.  For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days.   Last year, for FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.

Due to the recovering economy, we do not expect that this year’s H-1B cap will be reached in eight days.  However, we do not anticipate that the H-1B cap will remain open until December of 2010.  Accordingly, to eliminate uncertainty, we recommend to our clients to aim for an early April H-1B filing.

Throughout the H-1B filing season, we provide weekly (or more often, if necessary) updates about the status of the H-1B cap and any related developments.  Please check back often or subscribe to our Weekly Newsletter to receive news and updates related to the H-1B filing season.

Conclusion

Because USCIS received more applications than there were visas available for fiscal years 2009, 2008, 2007 and 2006 within a few days of the cap opening, and for the 2010 fiscal year the cap was hit in December 2009, we recommend that clients consider their needs as soon as possible and be prepared to file on the first available date – April 1, 2010.    Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.

NPR Story about the EB-5 Program

The NPR ran a story yesterday, March 5th, on the EB-5 investor visa program.  While the story is intended for a general audience and is fairly general in nature, it is interesting to read (or listen to the podcast) a mainstream media story about this growing in importance and profile program.

One of the points of the story is that the EB-5 program may be considered as a unfair “pay-to-play” program where foreign nationals “buy” their U.S. visa.  Of course, the story provides plenty of support for the EB-5 program which is considered by many to be a beneficial job-creating and foreign capital-attracting program in these difficult economic climate.

NPR story:  For Some Immigrants, The Ticket To A Visa Is A Check.

AAO Processing Times Report (March 1, 2010)

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 March 1, 2010.  Overall, there is not much change in comparison to the February 1, 2010 report.

Among the most notable AAO processing times:

• H-1B appeal takes 13 months (decrease by one month compared to February 1, 2010);
• I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 12 months (no change) while EB1 Outstanding Professor or Researcher category takes 4 months (decrease by three months);
• I-140 EB2 (Advanced Degree) takes 24 months (decrease by one month) while EB2 (NIW) takes 4 months (decrease by three months); and
• I-140 EB3 Skilled Worker takes 24 months (increase by one month) while EB3 Other Worker takes 22 months on appeal (increase by one month).

Read the full AAO Processing Times report.