Author Archive

Expansion of Nonimmigrant Visa Interview Waiver Program: Russia (Moscow), New Delhi, and Bucharest

April 26, 2012

Early this year, the Department of State (DOS) announced a pilot program, being implemented on an embassy-by-embassy basis, to waive the non-immigrant visa interview requirement for certain visa renewals. Recently, the U.S. Embassy in Bucharest, Romania, announced the expansion of the visa interview waiver program to certain applicants seeking to renew a B1/B2, C1/D, or F/J/M visa that expired within the last 48 months. The U.S. Embassy in New Delhi, India announced the expansion of the program to certain applicants seeking to renew a B1/B2 visa (also expired within the last 48 months). In addition, the U.S. Embassy in Russia announced the expansion of the program to applicants seeking to renew a B1/B2 or C1/D visa that expired within the last 47 months. Earlier, the U.S. Embassy in Beijing, launched its visa interview waiver pilot program for certain B, C, D, F, J, M and O visa holders, and special rules went into effect for certain Brazilian citizens waiving their consular interviews.


Guidance for Certain Foreign Students Applying for H-1B Status

April 17, 2012

Individuals who are in the United States in F-1 (student) status should be aware of special rules that may apply if filing a petition for a change to H-1B status.

Under the immigration regulations, certain students with pending or approved H-1B petitions are permitted to remain in the United States in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire.  Under these special rules, the student’s F-1 status is extended and he or she can remain in the United States until the start date of the new, approved H-1B employment period. This special extension is called the “cap-gap” extension because it fills the “gap” between the normal end of F-1 status and the beginning of H-1B status. The gap often occurs because most students graduate or complete their post-completion Optional Practical Training (OPT) in May or June and H-1B visas, normally exhausted months earlier, are not available again until October 1.

To be eligible for the cap-gap extension, an F-1 student must have an H-1B petition filed on his or her behalf and that petition must be filed while the student’s authorized F-1 admission is still in effect. In other words, the petition must be timely filed during the academic course of study, the authorized period of post-completion OPT, or during the 60-day grace period. In addition, the H-1B application must indicate a request for an October 1st start date (the first day of the upcoming fiscal year).  Once a timely filed request to change status to H-1B on October 1 has been made, the automatic cap-gap extension begins and continues until the H-1B petition adjudication process has been completed.

If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 (of that year). If, however, USCIS denies, rejects, or revokes the H-1B petition, the automatic cap-gap extension of status expires, and the student is granted (from the date of the notification of the denial, rejection, or revocation of the petition) the standard 60-day grace period before he or she is required to depart the United States. In some instances, however, where there has been a denial, the student is required to leave the United States immediately.

Other rules apply to F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees as well as instances where the F-1 student is terminated or laid off during the pendency of their H-1B petition.

The rules regarding work authorization and status for cap-gap foreign students are complicated and very specific. For example, an F-1 student who is already in his or her 60-day grace period when the H-1B petition is filed is unable to receive employment authorization even though F-1 status is automatically extended.  Also, students whose status is governed by the cap-gap extension cannot re-enter the United States in F-1 status during this period if they elect to travel. Instead, they are required to apply for an H-1B visa at a consular post abroad prior to returning. And, the earliest they can re-enter the U.S. is ten days prior to the H-1B start date.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the petition processing, with their Designated School Official (DSO) to ensure their status is properly extended on their Form I-20, and with their immigration attorney.

TPS Designation for Syria

March 30, 2012

Today the USCIS released details on Temporary Protective Status (TPS) application procedures for eligible Syrian nationals.  In addition to Syria, other designated countries include El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, and South Sudan.

TPS designation can be made by the Secretary of Homeland Security when a foreign country has conditions that temporarily prevent the country’s nationals from returning safely.  Conditions that can warrant TPS include civil wars or ongoing armed conflicts; environmental disasters or epidemics; or other extraordinary and temporary conditions. During a designated TPS period, eligible individuals are not removable from the United States, can obtain temporary work authorization, and may be granted travel authorization.

To qualify for TPS, Syrian nationals must register prior to September 25, 2012. Individuals must meet all requirements for TPS, including being able to document that they have continually resided and been physically present in the United States since March 29, 2012 and pass a security background check.  Individuals with criminal records or who are deemed a threat to national security will not be eligible for TPS.

If you have questions regarding TPS designation or need assistance, please feel free to contact our department.

Syria Designation for Temporary Protected Status (TPS)

March 26, 2012

The USCIS announced that Syria will be designated for Temporary Protected Status (TPS) for an 18-month period.  We anticipate that later this week USCIS will provide additional details in the Federal Register, which will include information on how to register for TPS, who is eligible to apply for TPS, and when the TPS registration will begin.  We will post additional information as soon as it is published.

Visa Numbers for EB-2 India and China Expected to Retrogress in May 2012

March 26, 2012

According to Charlie Oppenheim, Chief, Immigrant Visa Control & Reporting in the State Department, the China and India EB-2 cut-off will retrogress to August 15, 2007 in the May 2012 Visa Bulletin. The reason for this is because demand for immigrant visas for these categories has been increasing. The State Department has not made projections for the remainder of the year.  However, USCIS has indicated that they plan to “pre adjudicate” adjustment applications received through April 2012. The State Department will hold these pre adjudicated cases in the “pending” demand file. That way, the cases will be ready to process if the current number use pattern changes.

New Study Finds Dramatically Increased Rates of Denials and “Requests for Evidence” for H-1B Professionals, L-1 Intracompany Transferees, and O-1 Extraordinary Ability Nonimmigrants

March 15, 2012

With its analysis of new data from the government, the nonprofit, nonpartisan National Foundation for American Policy (NFAP) makes crystal clear:  Over the past four years, the U.S. Citizenship and Immigration Services (USCIS) has dramatically increased its denials of L-1 and H-1B petitions and much of the increase in denials involves Indian-born professionals and researchers. NFAP also reports a dramatic increase in denials of O-1 “extraordinary ability” petitions, and an across-the-board increase in requests for additional evidence (RFEs) for all of these categories. The data suggests that USCIS has changed the standards for these petitions, beginning in 2008–09, despite no change in the law or relevant regulations and, as a result, has demonstrated its capacity to keep skilled foreign nationals out of the United States. Here are some of the statistics from the report:

  • Denial rates for L-1B “specialized knowledge” petitions rose from 7% in FY07 (Fiscal Year 2007) to 27% in FY11 (Fiscal Year 2011). In FY11, 63% of L-1B petitions were delayed due to RFEs; in FY04, only 2% received RFEs.
  • Denial rates for L-1A executives and managers petitions increased from 8% in FY07 to 14% in FY11. RFEs increased from 4% in FY04 to 51% in FY11.
  • Denial rates for H-1B petitions increased from 11% in FY07 to 17% in FY11. (In FY09, the denial rate was 29%.) RFEs rose from 4% in FY04 to 26% by FY11.  (In FY09, the RFE rate was 35%.)
  • Denial rates for O-1A extraordinary ability petitions rose from 4% in FY08 to 8% in FY11. For O-1As, RFEs increased from 1% in FY04 to 27% in FY11.
  • Country-specific data on new (initial) L-1B petitions indicate USCIS is more likely to deny a petition from an Indian-born professional than from a national of another country. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8% FY08 to 13.4% in FY11. (In FY09, the rate was 22.5%.)  The drop in FY11 Indian denials can be attributed to a 40% decline in the number of receipts for new L-1B petitions for Indian professionals between FY10 and FY11.

Employers already are selective about who they sponsor and thus petition for those who they believe meet the standard for approval. They complain, rightly so, that the time lost due to the increase in denials and RFEs are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States. Denying these businesses the ability to transfer these key personnel harms innovation and job creation in the U.S. and encourages employers to keep more resources outside the country to ensure predictability.

As noted by NFAP, the dramatic increase in denial and RFE rates for employment petitions raises serious questions about the training, supervision, and procedures of adjudicators and of the government’s commitment to maintaining a stable business climate for companies competing in the global economy.

H-1B Professional Visa – It’s Filing Season

March 9, 2012

On April 1, employers will be able to file H-1B petitions for their employees who require a first-time H-1B visa for work that will commence on October 1, 2012. Therefore, now is the time to identify new H-1B employees and begin preparing necessary petitions. With increased denial rates and skyrocketing requests for additional evidence, employers may be able to avoid costly delays or denials with meticulous, careful planning and preparation.  A review of company H-1B public access files also may be prudent to ensure that files are complete and in full compliance as well as to determine that valid employer-employee relationships have been maintained.

While we anticipate that visas will remain available beyond April 1, H-1B visas will be used up much more rapidly as the economy recovers. Under immigration rules, first-time H-1B visas are limited to 85,000 per fiscal year.

Update on PERM Labor Certification Program: Audits on Rise; Wage Determinations “Current”

December 16, 2011

PERM audits are on the rise again, and employers sponsoring foreign workers need to take care that they are strictly complying with the requirements of the PERM labor certification program. Job requirements, advertising, and recruitment are the key areas for PERM audits. In this time of high unemployment, recruitment is an area that is especially vulnerable to an audit. Because vetting applicants and managing applicant response is one particular part of the process for which employers are solely responsible, employers must maintain good records of their recruitment efforts and applicant pool. While they must document who applied and how they were notified about the selection process, employers are not, however, required to tell applicants why they weren’t hired even though some audit notices ask for this information. Supervised recruitment – which can cost an employer additional money for advertising and legal fees – also is on the rise, especially in professional occupations where the requirements include configurations that offer alternatives to bachelor degrees, where the job is entry level with no requirements, in lower level financial industry jobs, and in restaurant industry positions irrespective of the status of the foreign national.

Meanwhile, the Department of Labor announced that is has cleared up its backlog and is again issuing prevailing wage determinations for PERM cases within 60 days of submission.

H-1B Cap Reached

November 23, 2011

Today USCIS announced that the H-1B cap for this fiscal year (FY 2012) has been reached. The government will not accept any new, cap-subject H-1B petitions received after November 22, 2011 that are requesting an employment start date in FY 2012.

The USCIS will continue to process H-1B applications for individuals already in H-1B status seeking to extend their status or seeking to change their terms of employment (including those seeking a change in employer). In addition, applications will still be accepted for H-1B employees seeking concurrent H-1B employment and the government will continue to accept cap exempt H-1B petitions (for instance, individuals seeking to work at an insitution of higher education, physicians that have obtaining a Conrad 30 J-1 waiver, etc).

If you are interested in filing a cap-subject H-1B application for next fiscal year, please let us know as soon as possible. We will begin preparing these applications in order to file them on April 1, 2012 and will be able to request an October 1, 2012 start date.

Update on Visa Number Availability

November 15, 2011

In the November Visa Bulletin, the Department of State (DOS) provides its prognosis on the likely availability and movement of visas for the next few months:

For Family (Worldwide) Categories: F1, expected to advance three to six weeks; F2A, three to six weeks; F2B, one to two weeks; F3, one to two weeks; and F4, up to one month.

For Employment Categories:  EB-1, current; EB-2, current for Worldwide, Mexico, and The Philippines. (For China EB-2 and India EB-2, DOS reports that the current EB-2 cut-off date is approaching the most favorable date previously reached for such applicants; the dates reflect an effort to generate demand based on new filings for adjustment of status at USCIS offices. DOS advises, however, that once the level of demand increases sufficiently, the forward movement may be slowed or stopped, and a retrogression of the cut-offs at some point during the year is possible); EB-3, for Worldwide, expected to advance up to one month; China EB-3, one to three weeks; India EB-3, up to two weeks; Mexico EB-3, up to one month; Philippines EB-3, up to one month; EB-4, current; EB-5, current.

%d bloggers like this: