Wednesday, April 27, 2011

USCIS UPDATES 2012 H-1B COUNT ON 4/22/2011: AT 8,000

USCIS just released another cap update for FY2012 - as of April 22, 2011, they receipted 8,000 H-1B petitions subject to the regular cap plus 5,900 petitions subject to the advanced degree cap. It looks like 900 H-1B petitions were filed this week based on last week's report, still very low usage but we all know what the economy is like.

Monday, April 25, 2011

WIKILEAKS CABLES DESCRIBE A FEW H-1B FRAUD ATTEMPTS

Some State Department cables that were released by WikiLeaks show concern for fraud in a few countries whose nationals rarely use the H-1B visas: Mexico, Libya and Iceland. The cables are only a collection of anecdotes explaining attempts of visa fraud or misrepresentation.
The consular officers sending those cables described what the fraud attempt was in each case, such as falsifying pay records or educational qualifications or experience.
These are individual cases only and not a systematic problem with the H-1B visa or its integrity and it is good that these few isolated cases got flagged by the consular officers. This is their job.
For the entire Computerworld article, go to: http://www.computerworld.com/s/article/9215855/WikiLeaks_cables_describe_H_1B_fraud_attempts.

Friday, April 22, 2011

USCIS UPDATES 2012 H-1B COUNT ON 4/15/2011: AT 7,100

USCIS issued its weekly H-1B cap update -- as of April 15, 2011, it has received approximately 7,100 H-1B cap-subject petitions plus 5,100 petitions for people with U.S. advanced degrees. Still showing low usage for the quota this year.

Tuesday, April 19, 2011

H-1B USAGE OFF TO SLOW START

The storyline continues. Last year, 13,500 regular H-1B applications were counted in the first week and 5,600 advanced degree applications. This year 5,900 regular applications were received in the first week and 4,500 advanced degree petitions. USCIS just reported that in the second week of counting, 7,100 regular cases were receipted and 5,100 advanced degree applications. That's roughly the typical weekly usage we saw last year and if the pace doesn't change much, the cap will potentially be hit one to two months later than for FY2011. Later this summer as the cap starts to get a little closer to being reached, we'll start issuing projections of the dates each quota is likely to be filled.

Wednesday, April 13, 2011

FEDERAL JUDGE PROTECTS H-1B EMPLOYEES FROM WRONGFUL ARREST

A recent ruling from a federal judge in Connecticut confirmed that as the American Immigration Lawyers Association (AILA) argued in an amicus brief, the government may NOT arrest H-1B employees for whom there are pending and timely filed extension applications. The decision in El Badrawi v. United States, was issued by U.S. District Judge Janet C. Hall, relied mainly on the federal regulations that allow H-1B employees to continue working for 240 days pending the adjudication of their extension applications, and that “work authorization is part and parcel of their authorization to be in the country, not a separate matter.” Thus, when the government permits the initiation of removal proceedings during this period would therefore be unfair to employees and employers alike, according to the decision. The plaintiff in this law suit is a Lebanese national, who was employed as a medical researcher when his employer requested an H-1B extension in early 2004, more than a month before his H-1B status expired. Though his employer paid a $1,000 fee for premium processing of the application, the government never adjudicated it and refused to respond to requests for information. Nearly seven months after the request was filed, immigration agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months. The amicus brief contained supporting declarations from three companies that rely on H-1B workers, arguing that arresting non-citizens with pending extension applications would threaten to disrupt key sectors of the U.S. economy and undermine the goals of the H-1B program. The decision is wonderful and really uses common sense (something the Federal Government is often lacking) - why would someone who can legally continue working while an extension application is pending could be arrested, detained and deported? The decision really was the right thing to do. What a sad set of circumstances for this plaintiff.

Monday, April 11, 2011

USCIS ISSUES F-1 H-1B CAP GAP Q&A

USCIS just issued a cap gap questions and answers page dealing with the question of who is eligible to benefit from the gap cap rule. The USCIS regulations allow people who were in F-1 OPT status with pending or approved H-1B petitions to remain in valid F-1 status (and have continued employment authorization) even though the F-1 status or EAD would otherwise expire. Because graduates of most U.S. universities graduate in May or June, and the H-1B start date cannot be sooner than October 1 (because that is when the U.S. government's fiscal year starts) then there is a gap in status between the expiration of the F-1 status (or OPT) and start date of H-1B, known as cap-gap. In the past, these beneficiaries would have to switch to another status or leave the U.S. but under the new rules this can be avoided if an employer files an H-1B visa petition for them with a start date of October 1, 2011 and a change of status from F-1 to H-1B is requested on the I-129 petition. The other main requirements for that to happen are that the H-1B petition would be timely filed (before the expiration on the student's I-20 or OPT expiration date or within the 60-day grace period after expiration), and non-frivolous. Once the extension is filed, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to depart the United States. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1. The student should then return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status. In order to enjoy from the cap-gap regulation, the students must remain in the United States and cannot leave, otherwise their status would be terminated and they would have to wait abroad until their H-1B start date of October 1 (well technically they could enter up to 10 days before that, which would be September 21). The entire Q&A is available on the USCIS public website at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD

Friday, April 8, 2011

STATE DEPARTMENT REVISES H-1B LICENSE GLITCH

The U.S. State Department issued a correction to the Foreign Affairs Manual. 9 FAM 41.53 N4.1 revised on 3-31-11 states as follows: "The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States." CT:VISA-1635. This is not new news because USCIS has been applying this standard for years, but it was not reflected in the consular regulations. Of course, none of this would matter if the government will be shut down and consulates will cease issuing visas.

USCIS UPDATES 2012 H-1B COUNT ON 4/7/2011: AT 5,900

After USCIS starting accepting H-1B petitions for Fiscal Year 2012 (Starting on October 1, 2011) as of April 1, 2011, it just issued an H-1B count update. As of April 7, 2011, it has receipted 5,900 petitions subject to the regular H-1B cap plus 4,500 petitions subject to the H-1B Master's degree cap. As widely anticipated, the H-1B usage by employers still remains low as the H-1B was just hit in January 2011 for the last fiscal year. However, if the economy rebounds in a big way, the numbers will not suffice for long. As government shutdown is feared as of next week, the Department of Labor will cease processing labor certificate application (LCA's) in connection with H-1B petitions, even though USCIS will continue to work as normal. However E-Verify will not work in case of a government shutdown.

Wednesday, April 6, 2011

WHAT FEDERAL GOVERNMENT SHUTDOWN MAY LOOK LIKE

Courtesy of Greg Siskind: By this weekend, the federal government's funding is set to run out and unless there is a breakthrough in negotiations between members of the two parties, we could see a shutdown for the first time in more than 15 years. How will this affect immigration services? While we don't have a lot of experience with government shutdowns in this country, we expect that only "essential" services will continue. That means law enforcement, fire fighting, the military, utilities and prisons. Air travel is considered essential so air traffic controllers and TSAs will continue to work. And so will agencies that are funded by application and user fees. So which immigration services are to be hit? According to AOL News, the State Department will be one of the highest profile agencies to be affected: The U.S. tourism and airline industries reportedly lost millions of dollars after the 1995-96 shutdowns halted visa and passport processing. Approximately 200,000 U.S. passport applications went unprocessed during the shutdowns and 20,000 to 30,000 foreign visa applications were unprocessed. Emergency passport and visa processing should be available during the shutdown. USCIS Service Centers and local district offices should operate as normal because they are funded primarily through application fees. It's not clear yet what's going to happen at the Department of Labor. But it is very possible the iCert portal used for labor certifications and H-1B labor condition applications could be closed during the shutdown and H-1B processing could be delayed. ICE facilities will continue to detain people and the court systems - including presumably immigration courts - will operate as normal. But according to AOL, hiring at these agencies may be frozen: The last shutdown had a number of consequences for law enforcement and public safety operations, including reported cancellation of hiring 400 border patrol agents and cancellation of federal law enforcement recruiting programs. Processing of immigrants and non-immigrants at ports-of-entry should continue, but there could be staffing cutbacks that could cause delays. Of course, we're bound to be surprised by what develops and I'll try to report to readers news as it becomes available. I'd also welcome reports on what people are learning on their own.

PRINCE GEORGE'S COUNTY SCHOOLS CHARGED WITH H-1B VIOLATIONS

According to a press release by the U.S. Department of Labor (DOL), Maryland's Prince George's County Public Schools system was found a willful violator of the H-1B laws and regulations. DOL investigators found that PGCPS illegally reduced the wages of 1,044 foreign teachers hired under the H-1B program by requiring the payment of $4,224,146 in fees. Due to the willful nature of some of the violations, PGCPS has been assessed an additional $1,740,000 in civil money penalties and may be debarred from filing new petitions, requests for extensions or requests for permanent residency for foreign workers under any employment-based visa program. Violations are willful when an employer knew or acted in reckless disregard for whether its actions were impermissible under the law. We are not sure what types of fees the DOL found unlawful that were paid by the employees (whether worker retraining fee, USCIS filing fees or attorney fees) but due to the large amount at stake, litigation by PGCPS may be pursued... The DOL press release can be found here: http://www.dol.gov/opa/media/press/whd/WHD20110357.htm

Friday, April 1, 2011

MAN SENTENCED TO PRISON FOR FAKING H-1B TECH WORKER PETITIONS

From the San Francisco Chronicle: A Concord man was sentenced on Friday to six months in prison and three years of supervised release, for making false statements on 11 applications for high-technology worker visas, United States Attorney Melinda Haag and Patrick Durkin, Special Agent In-Charge of the Diplomatic Security Service announced. Chennupati admitted that between April 1, 2008 and March 3, 2009, he submitted 11 foreign worker petitions to U.S. Citizenship and Immigration Services that contained counterfeit job offer letters from the Gap Corporation, Wells Fargo Bank and Genentech. Chennupati also admitted that he falsely stated on the foreign worker petitions that he had 11 jobs available from these companies. According to the U.S. Attorney's Office, no high-technology worker visas were issued from Chennupati's 11 fraudulent applications. Many of the allegations lodged by critics of the H-1B program regard things already against the law. Better enforcement of existing law and focusing on bad actors is the answer instead of making things ridiculously difficult for the vast majority of employers playing by the rules. Article can be found at: http://www.sfgate.com/cgi-bin/blogs/incontracosta/detail?entry_id=85830

H-1B HEARING TODAY IN THE HOUSE

The House Immigration Subcommittee is holding a hearing on H-1B visas today. The witness list includes USCIS' Donald Neufeld of Neufeld Memo fame, Bo Cooper, a former USCIS general counsel who now practices immigration law, Ron Hira, a professor and well-known H-1B critic and Bruce Morrison, a former Congressman who chaired the House Immigration Subcommittee and has worked privately on immigration advocacy projects over the years. I hope something good will come out of this, like increasing the cap and getting rid of some ridiculous fees (although I doubt it).