Visa Pilot Program Announced

February 2, 2012 by

The Department of State recently announced a Visa Pilot Program intended to ease the visa issuance process for certain low-risk applicants.

Details of the program have not yet been determined but generally applicants that have successfully applied for a visa in the past and who meet certain parameters will not be required to appear in person for visa renewals.

Also under consideration for exemption from interview requirements are certain very young or older applicants.

This exemption from interview will free appointments for first-time applicants, reducing appointment wait times.

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L-1 Visa Validity Change Announced

February 2, 2012 by

The Department of State announced that it will be publishing a rule to de-link visa validity with petition validity for L-1 visa applicants. What does this mean?

Usually the visa end date is the same as the petition end date.  The petition is what is filed with the Immigration Service to provide initial approval for visa issuance at a U.S. Consulate. This is most often a petition specifically for the beneficiary applying for the visa, but “blanket L” petitions are also available in some situations. A Blanket L petition can be used by an unlimited number of visa applicants.

An example to show this point is: Mary is approved for a change of status to L when she is in the U.S. In 2010. She does not travel outside the U.S. Until 2012.  The petition end date is in 2013. The L visa can be issued only to 2013 as the rule now stands.

Once the rule is changed, the end date of the visa would not be limited in this example to 2013.  Instead the consular officer would look at the visa reciprocity schedule for Mary’s home country.

If she is from China, which allows L visas for two years, the visa could be issued to 2014 in this example. If she is from India, which allows L-1 visas for 5 years, the visa could be issued to 2017 (if it is an L-1A or 2015 if it is an L-1B – because of the limit on total L status duration).

Whether this change is helpful thus depends on the reciprocity schedule of the home country.

It will likely be most helpful with Blanket Ls close to the petition expiration date (the first Blanket L is granted for only three years, but the extension is indefinite) and for visa applications closely preceding an extension filing.

The effective date of the rule has not been announced.

Visa Processing Tips

February 1, 2012 by

All “non-immigrant” (meaning temporary) status approvals (H-1B, L, O, etc.) by the Immigration Service in the U.S. are sent by the Service Center to the Kentucky Consular Center.  The KCC scans the petition and supporting documents so they can be accessed electronically by the U.S. consulates abroad for visa issuance.

If the beneficiary is in the U.S. and changing or extending status, no visa is needed.  But if the beneficiary is outside the U.S. and waiting to enter or is planning foreign travel, the timing of the notification is very important.

The Service Center will overnight the approval if the petition shows that the beneficiary will enter the U.S. in less than 30 days.  Otherwise it will send the approval by regular mail to the KCC.

The KCC categorizes approvals for scanning as follows:

  • Expedited cases (as designated by the Service Center) are sent in one day
  • O, P, T, U are sent within 3 days
  • H, L, R and all other cases that are not for extension or change of status  are sent within 5 days
  • Extension and change of status cases are sent within 10 days

When the beneficiary schedules the visa appointment, he or she should inquire whether the approval has been scanned by the KCC. If not, the consulate can contact the KCC in advance of the appointment and have the case scanned.

If the case is not scanned, the consular officer is prevented from issuing the visa until the approval is available electronically. This is true even if the beneficiary has the original approval notice in hand.

Strangely, a few consulates still require the original approval notice from the beneficiary despite the fact that the electronic approval is required for visa issuance and they have been instructed not to require it.

We always send the beneficiary a full copy of the petition and the original approval notice when we know that a visa is required.

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

December 16, 2011 by

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 by

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 by

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.

Update on H-1B Visas

November 4, 2011 by

H-1B Professional Specialty Worker Cap Update: As October 1 marked the beginning of the new fiscal year, visas are now immediately available for new H-1B cap-subject petitions. As of October 28th, USCIS reports that 49,200 new H-1B cap-subject petitions were receipted and another 20,000 petitions for foreign nationals with advanced degrees for FY2012. There are 85,000 new H-1B visas available annually, of which 20,000 are designated for advanced degree holders. For FY2011, H-1B visas became unavailable as of January 26, 2011.

Tough Penalties Levied Against School District in Maryland for H-1B Violations Become Final: A Department of Labor Administrative Law Judge approved a settlement agreement with Maryland’s Prince George’s County School District (PGCSD), located in the Washington, D.C. metro area, to pay sizeable fines for major violations of the H-1B program, including failure to pay wages and to maintain documentation as required. Under the agreement, PGSCD is barred from hiring any new foreign workers for two years and must pay a civil penalty of more than $100,000 for violating the H-1B program and over $4 million in back wages to more than 1,000 teachers.

Over the last several years, government agencies involved with the H-1B program have stepped up their enforcement and auditing efforts. Employers and their human resource personnel are wise to make sure their public access files and other records relating to their H-1B employees are up to date and in good order.

USCIS Announces Redesigned Employment Authorization Document (EAD) and Certificate of Citizenship

October 25, 2011 by

On October 25th the United States Citizenship and Immigration Services (USCIS) announced that it will begin issuing a new version of the Employment Authorization Document (EAD) and Certificate of Citizenship as of October 30th. The new version of these documents will include enhanced security features in an effort to reduce fraud. Previously issued documents will continue to be valid. However, the government will start issuing the new format of the EAD for new applications and renewals. For additional information and samples of the new documents, you can visit the USCIS website at: http://www.uscis.gov/ .

USCIS to Resume Mailing of Original I-797 To Attorney of Record

October 20, 2011 by

On October 20th the USCIS announced that due to complaints from stakeholders, it will resume the mailing of original I-797 approval and receipt notices to the attorney or accredited representative of record. As you may recall, in September without notice, the USCIS changed its longstanding process of sending original notices to attorneys, and instead started sending them directly to the Petitioner or Beneficiary. This resulted in many unanticipated problems, including the inability of attorneys being able to correct errors on notices (since the courtesy copy does not include the I-94 card), delays with approval notices due to mailroom issues at large companies, beneficiaries not receiving approval notices due to a change of address, and attorneys not receiving proper notification. In approximately six weeks, the USCIS will resume sending the original notices to the attorney or accredited representative on record. In addition, applicants or petitioners will receive a courtesy copy of the approval.

Most Immediate Relative Petitioners Residing Abroad Now Must File Their I-130s in the U.S.

October 20, 2011 by

In mid-August, USCIS announced that petitioners residing outside the U.S. in countries without USCIS offices will no longer be eligible to file immediate relative green card petitions, Form I-130, with the Department of State (DOS) nor have the option of filing at the USCIS overseas office governing their jurisdiction. Instead, they will be required to file only with the USCIS Chicago Lockbox. Petitioners residing in countries where a USCIS office is located will continue to have the option to file either with that office or with the Chicago Lockbox.

Why is this significant for some? Because, the processing time for the overseas filing of Form I-130 is significantly shorter than the time for processing through the Lockbox. So, in most locations, a petitioner who can file locally abroad may have his immediate relative issued an immigrant visa within two to three months of filing an application, whereas a petitioner filing via the Lockbox may not result in an immigrant visa being issued for nine or more months. Those who may be impacted may still be eligible for “local” processing if warranted by special circumstances and USCIS authorizes the DOS to accept and adjudicate an I-130 petition. USCIS provides examples of circumstances in which it would consider authorizing local DOS adjudication: certain military and medical emergencies; threats to personal safety; certain “aging out” cases; certain cases where the petitioner has recently naturalized; and certain cases involving adoption of a child.


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