Posts Tagged ‘EB-5’

H-1B Cap Almost Reached and Other News

December 19, 2009

Happy Holidays from the Davis Brown Immigration Department!  Surviving 2009 is an accomplishment in itself.  We wish all of you a safe, happy and prosperous New Year!

Following is an update on the latest in immigration-related law and policy.

H-1B Cap Almost Reached

The soft economy this year resulted in H-1B (professional work visas) being available for much longer than they have been in the recent past. Usually these visas run out on April 1, the first day of the application period.  But last week the Immigration Service reported that only 1,000 remain and will likely be used up in the next few days.

This means that the only H-1B filings we can make until April 1 are for transfers (where the person has been counted toward the cap already) and cap-exempt positions (jobs at colleges or universities, doctors receiving a Conrad 30 waiver, and jobs at entities affiliated with higher education institutions, for the most part).  Those cases filed April 1 for new H-1Bs must be for jobs starting October 1, 2010.

Immigration Reform Bill Introduced in the House

The Comprehensive Immigration Reform for America’s Security and Prosperity (CIR ASAP) Act of 2009 was introduced by Rep. Gutierrez (D-IL) on December 15.  It is a huge bill and is the first in an expected series as Congress considers changing the immigration system.  More to come as we analyze this bill and its chances of success (why do they always introduce immigration legislation during the holidays?)

I-9 Enforcement – This Time They Mean It

After many fits and starts over its 20+ year history, the I-9 form is finally getting the attention that has been threatened for so long.  Immigration & Customs Enforcement (ICE) has not only announced, but is actually doing, wide-spread I-9 audits, resulting in fines. The stated goal of these audits is as a criminal prosecution tool as well as an administrative enforcement tool.

The audits are focused on particular industries on a rolling basis, adding new industries as others are completed. While the numbers are not huge (85,000 I-9s reviewed, 16% resulting in Notice of Intent to Fine and more than $2 million in fines from 654 audits), they are continuing and consistent for the first time in memory.

Now is a good time to self-audit I-9s and consider an outside “spot-audit” to assess potential liability and any other workforce concerns.  If your company receives an audit request, consider it with no less seriousness than an IRS audit or wage/hour or OSHA visit, and let us know if we can help.

ESTA Travel Registration – When “Delay” Means “Denial”

Travelers using the visa waiver program (people from certain countries are not required to obtain a visitor’s visa, but may instead enter for up to 90 days on a passport) must now register on-line under the ESTA (Electronic System for Travel Authorization) (go to

Recently, the government announced that persons who had applied for visas and been refused for lack of information under INA §222(g) should disclose this “delay” as a denial on ESTA.  Failure to do so could result in refusal at entry as a person making a misrepresentation.

The problem is that visa applicants do not always realize that the request for more information is actually a “denial”.  Therefore, this pronouncement is controversial and we hope it will be changed.  In the meantime, please be careful in filling out ESTA registration and let us know if you have questions.

ESTA Travel Registration – Watch Out for Scams!

In finding the website for the above item we found that many non-governmental sites are operating purporting to register people for ESTA.  Please make sure to enter through the Customs and Border Protection portal ( rather than these other sites, which may be scams to obtain your ID information or sell you something that is offered FREE by the federal government.

Inquiries for the Citizenship & Immigration Service

As many of you know, the Immigration Service as established a National Customer Service Center with an 800 # (800-375-5283) for various inquiries.  This number provided a lot of unreliable information – and long waits to talk to a person – when first established but has improved.  While we still caution that the 800# is not legal advice, it is an initial portal to making most case inquiries, even for attorneys.

An email inquiry box is also now available at the four service centers, but only if you have called the 800# first and waited 30 days in most instances.

Because Canadians cannot access the National Customer Service Center through the 800# number to ask about general immigration questions, Canadian customers may now inquire about general immigration information at in addition to obtaining immigration information at

The website,, was recently re-designed.  It is better in some ways and worse in others, but it is a good place to find general information.  We refer our clients to the site in limited instances, such as to find the nearest Civil Surgeon for an immigration medical exam.

Improved customer service is a fantastic goal – but it is not legal advice.

In Other News

Some other items that are not as recent, but still important:

Congress has extended the religious worker (non-minister) immigrant category, the EB5 “regional center” immigrant program to allow for indirect job creation for immigrant investors.  These programs expire every few years, causing consternation for all.  But at least we have another breather.  The e-Verify employment verification program was also extended.

The HPV vaccination is no longer required for women green card applicants.  This vaccine was controversial and expensive.

HIV has been removed from the list of communicable diseases resulting in a bar to immigration absent a waiver.

Lou Dobbs (a vocal opponent of immigration reform) resigned from CNN and is now running for Congress.  His platform includes supporting legalization for unauthorized immigrants.  You just never know . . .

For Employers – COBRA Extension

Our Health Law Department reports the following:

The House has passed a bill extending the federal COBRA subsidy.  The bill’s provisions extend the time frame to qualify for the subsidy by two months, through February 28, 2010.  The bill also extends the length of the subsidy from 9 months to 15 months.  The bill also contains notification requirements for employers.

We expect the bill will quickly be passed by the Senate prior to its recess for the holidays.  Once the bill has passed the Senate, we will provide you with a detailed summary of the bill’s provisions and its impact on employers.

Please contact Susan Freed at if you would like to be on her list or need additional information.



June 23, 2009

The following is an update on developments in immigration law and procedure.

H-1B Cap Still Not Reached – But Stricter Standards Being Applied

How times have changed.  More than two months into the H-1B cap filing period and still more than 20,000 H-1Bs remain to be awarded of the available 65,000 “cap”.  For several years, these ran out the first filing day. Clearly the economic downturn has effected demand.  But this does provide an opportunity for companies to sponsor foreign workers that can help stimulate the economy through their unique job skills.  Remember that applications filed now for H-1B jobs will not take effect until October 1, 2009, if subject to the cap.

The Immigration Service has taken the opportunity of fewer H-1B filings to scrutinize those filings even more closely.  As some of our clients know, we are receiving extensive requests for evidence on some cases – even though we thoroughly document the cases as always.  It has been frustrating to see one employee receive an H-1B with no questions asked and another in the same job receive a big request for evidence.  But this is another example of the unpredictability of administrative law.

H-1B Investigations

Another new trend, which according to the Immigration Service will become more common, is the in-person investigation of H-1B applications.  Because of the increasing emphasis on fraud in all government programs (and especially the H-1B program), we have seen CIS officers come to the employer’s work site to question employees and obtain company records.  Iowa is on the leading edge of this trend because of an alleged scheme of H-1B fraud in the IT industry here.

If you receive a personal visit from CIS, here are some things to remember:

– These are CIS investigations, not ICE (or at least they have not been), and therefore are primarily fact-finding.

– You may (politely) refuse to answer questions until your attorney is present.  For example:  “We of course want to cooperate with you fully, but we would really like to have our attorney here, so can you please wait in the lobby until she arrives?”

– You can call us at any time to assist.  These inspections will likely occur during business hours, but feel free to call outside of business hours (cell numbers:  480-7115 – Lori, 554-7280- Amy, and 991-2783 – Nikki).  If we are too far away, we can find someone to attend the interview, or find some other way to handle this.

– Neither you nor your employee/prospective employee has done anything wrong by filing for an H-1B.  It is unnerving to have this experience, but it does not mean that the application will be denied.

– Employers should keep in mind obligations they may have regarding employee privacy.  If you have questions about employee privacy, we have experts at the firm who would be happy to answer them.  If you have concerns about releasing information requested, you can tell CIS that you need to check with counsel before releasing potentially restricted information.

Immigrant Visa Numbers Expected to Stall

The Visa Bulletin for July indicates that the EB2 waiting line stands at January 1, 2000, for India and China (the rest of the countries are current) and EB3 continues to be “unavailable” for all countries.  EB1 is “current” for all countries.

However, because of increased demand for religious worker (EB4) and investor (EB5) visas, the Department of State expects that visa numbers will move very slowly in the coming year (the new fiscal year starts October 1) unless the quotas are increased.

Only 140,000 employment-based (EB) visas are available each year in these categories and that includes spouses and children in addition to the sponsored worker.  Unused EB4 and EB5 numbers have been available to enhance the other categories in the past, helping general worker visa availability.

The EB1 category is for multinational managers and executives, outstanding professors and researchers, and persons with “extraordinary ability”.  We are happy to explore this category with anyone who believes that he or she qualifies.  Also remember that under “cross-chargeability” provisions, the country of birth of an accompanying spouse (and in very rare cases a parent) can be used instead of the country of the principal applicant if that would help escape a waiting line.  Other than these options, the only way for this situation to improve is to change the law.

Adjustment of Status Interviews Being Held Despite Backlogs

Given the backlogs discussed above, the Immigration Service has decided to adjudicate cases to the extent possible to remove deniable cases from the waiting line and to have approvable cases available to be finalized when the visa numbers progress.

Many applicants in the waiting line have received requests for evidence or interview notices.  This does not mean your case will be approved if a visa number is not available.

Interviews are scheduled for several reasons: to investigate a past criminal conviction, to evaluate the validity of a recent marriage, or to confirm the legitimacy of a job offer, for example.  If we receive the interview notice, we will send a detailed instruction letter and suggest a conference call to discuss how to approach the interview.  If you receive an interview notice and have not heard from us, please contact us.  Sometimes we do not receive government notices, although we are supposed to if we have a G-28 on file in your case.

To EAD or Not to EAD – That is the Question

Another consequence of the long waiting lines is that employment authorization document (EAD) and advance parole approvals must be renewed several times.  The Immigration Service is now approving most EADs in employment-based cases for two years, rather than one year.

Still, people who filed under the “old” rules, must pay a filing fee each time an EAD or advance parole is renewed.

It is true that if you are on H-1B (or L) and continue to work for the H-1B employer (and no other employer without an H-1B approval), you do not need the EAD or advance parole to maintain your status or to travel.

However, please be aware that if the H-1B employment ends, you will need an EAD to work anywhere else (unless the new employer is willing to transfer the H-1B) and an advance parole to travel outside the U.S.  These can take 90 days (or sometimes longer), during which waiting time you cannot work or travel outside the U.S.  Considering this, EAD and advance parole renewals may be reasonably-priced “insurance”.

Farewell to Gina Johnson

We will miss Gina, but wish her well as she moves to Texas to be closer to her family.  Thanks to Gina for all she did for our department and the firm!

Welcome Back Natalie!

The only way we can stand to let Gina leave is that Natalie Rivera is returning!  Natalie spent several months in El Salvador and fortunately for us was able to return right when Gina was scheduled to leave.  Natalie is also fluent in Spanish.

Employment Law Seminar Materials Available

If you missed our firm’s annual Employment Law Seminar and would like the materials, they are available in pdf format.  Just let us know and we’ll send them to you.

%d bloggers like this: