New Appointment Service for All U.S. Visa Applicants in Canada

We have clients and our office handles a number of U.S. visa applications submitted in Canada.  Accordingly, we wish to report on a new appointment service for all U.S. visa applicants in Canada, which becomes effective on September 1, 2010.

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.

FY2011 H-1B Numbers Update – 34,900 Regular and 13,000 Masters Cap Visas Used (August 27, 2010)

FY2011 H-1B Numbers Update – 33,900 Regular and 12,600 Masters Cap Visas Used (August 20, 2010)

AAO Processing Times Report (August 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 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.

H-1B and L-1 Fee Increase for Certain Filings Becomes Effective

Many of our readers and clients are aware of the recent developments with respect to the “border security bill” passed by Congress and recently signed by President Obama into law (Public Law 111-230).

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.

FY2011 H-1B Numbers Update – 29,700 Regular and 12,300 Masters Cap Visas Used (August 13, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of August 13, 2010, USCIS has received approximately 29,700 H-1B petitions counting toward the 65,000 cap (an increase of 1,200 over the past week).  Similarly, as of August 13, there were 12,300 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 400 over the past week).

H-1B Quota Trends

The numbers, as reported over the past few weeks – confirm the trend that there was a very small weekly increase in the number of H-1B filings for the regular and Masters’s caps filings compared to the weeks prior.  The overall trend shows that the H-1B filings for the regular cap may be increasing slightly while the U.S. master’s cap filings remain slow. As a result and if the current trend remains, we estimate that the H-1B quota will remain open  for a considerable time.  We wish to caution 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.

FY2011 H-1B Numbers Update – 28,500 Regular and 11,900 Masters Cap Visas Used (August 6, 2010)

September 2010 Visa Bulletin – Last Bulletin for the Fiscal Year: EB-2 and EB-3 Forward Movement

The September 2010 Visa Bulletin was just released by the State Department.  The last visa bulletin for the fiscal year 2010 brings some forward movement across all categories, with the exception of EB-3 India.

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

Below is a summary of the September 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 slightly over two (2) months to May 8, 2006, EB-2 India also moves forward by two (2) months from March 1, 2006 to May 8, 2006.
• EB-3 ROW moves forward by six and a half (6.5) months to December 15, 2004, EB-3 China  moves forward by one (1) month to October 22, 2003, while EB-3 India  remains unchanged.  EB-3 Mexico remains unavailable.
• The “other worker” category moves forward by a few months, to March 22, 2003 for ROW and China remains unchanged at January 1, 2002 for India.

Substantial Forward Movement Continues

The notable forward movement in EB-2 and some EB-3 categories continues in this month’s visa bulletin as well.   This significant movement is due to the fact that there are some visa numbers available from other countries have not been reached yet and such countries’ per-country limit has not been reached.  As a result, as we are getting close to the end of the fiscal year, and after taking the worldwide demand into account, the State Department is attempting to allocate all of the available visa numbers which, if not allocated, may remain unused during the fiscal year.

Forward Movement Is Temporary

We wish to reiterate that the substantial forward movement  over the past three visa bulletins does not indicate a trend; instead, the last three visa bulletins’ forward movement was to ensure that no available visa numbers remain unused due to poor allocation of the unused numbers.  We expect that there be some retrogression over the next 1-3 months.

Please do not hesitate to contact us if you have any questions or if we can help you prepare and file your I-485 adjustment application, should your priority date become current.

AILA Sues USCIS Under FOIA For Release of H-1B Policy Documents

On Tuesday, July 20th, AILA filed a lawsuit against the Department of Homeland Security (DHS) and Citizenship and Immigration Service (USCIS) seeking the release of records concerning agency policies and procedures for the H-1B visa program.  AILA had attempted to obtain these documents under a Freedom of Information Act (FOIA) request which had been denied in full by USCIS.

This lawsuit focuses on the government’s H-1B visa review and processing procedures.  Since 2008, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced worksite inspections – expected to reach 25,000 visits in 2010 alone – in connection with H-1B cases.  At the same time, USCIS has kept under secret the rules and guidelines related to the review process.   The lack of publicly available information on the government’s heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.

The lawsuit seeks the release of policy and other agency memoranda regarding H-1B adjudication and enforcement.   Considering the full denial of AILA’s earlier FOIA request, it may be expected that the government will fight this lawsuit to prevent this disclosure.  We will continue providing updates and developments on this case.  Please stay tuned.

Developments in Neufeld Memo Lawsuit

We have previously written extensively about the January 2010 Neufeld Memorandum and the recent lawsuit challenging its validity.   We wanted to provide some recent updates on the case as it is of great interest to many of our clients and readers.

On June 25, 2010, the government filed a Memorandum in Opposition to the complaint.    The opposition is mainly based on technical arguments.  However, the government makes also the arguments that its policy-making ability pursuant to memoranda is exempt from the Notice and Comment requirements for rulemaking and that the plaintiffs have failed to show irreparable harm if the preliminary injunction were to be granted and, most interestingly perhaps, that agency memoranda are do not have the force of regulations and are just a suggestion to adjudicators on review criteria.

Subsequently, on July 9, 2010, the plaintiffs filed a reply to the government’s Memorandum of Opposition.  In it, the plaintiffs directly address the government’s arguments, including the argument that the policy memoranda does not constitute a regulation.   Plaintiffs argue that the policy guidance may not explicitly state that it is binding; however, in spirit and practice, it actually is.

We will continue to monitor the developments in this case as it affects a large number of our readers and clients.  Furthermore, the impact of this lawsuit may be broader than just the Neufeld Memorandum as the scope of the case may expand to cover other USCIS memoranda.   If you haven’t already, please subscribe to our free weekly newsletter to receive news and updates on this and related topics.