United States: Immigration Alert - July 2010

DEPARTMENT OF HOMELAND SECURITY

USCIS Updates FY 2011 H-1B Count

The H-1B visa program is used by U.S. employers to employ foreign nationals in specialty occupations that require theoretical or technical expertise in a specialized field and require a bachelor's degree or its equivalent as a minimum requirement. Examples of H-1B occupations include architects, engineers, computer programmers, accountants, doctors, and college professors.

Congress sets annual numerical limitations (caps) on H-1B visas, which control the number of workers that can be issued a visa in a given fiscal year to enter the United States. The current annual cap on the H-1B category is 65,000, and of that amount 6,800 visas are set aside for nationals from Chile and Singapore, leaving 58,200 visas for foreign nationals from other countries.

An additional 20,000 H-1B visas are designated for foreign workers with a Master's or higher level degree from a U.S. academic institution.

As of 23 July 2010 approximately 26,000 H-1B cap-subject petitions had been received by the U.S. Citizenship and Immigration Services (USCIS) for FY2011. Approximately 11,300 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.

USICS Issues Guidance Regarding Date of Hire for E-Verify

Due to numerous questions related to the E-Verify hire date and the three-day rule, USCIS recently issued guidance on the timing for completing Form I-9 and creating cases in E-Verify. With regard to completion of Form I-9, the earliest date on which an employer may complete the form is immediately after a new employee has accepted an offer of employment, and the latest date on which an employer may complete the form is the third business day after the employee commences employment. Similarly, with regard to E-Verify, the earliest date on which an employer may create a case in E-Verify is immediately after a new employee has accepted an offer of employment, and the latest date on which an employer may create a case in E-Verify is the third business day after the employee commences employment; in either scenario, the Form I-9 must be completed prior to creation of a case in E-Verify. In addition, USCIS provided guidance on determining the E-Verify hire date. If the case is created in E-Verify before the employee starts work for pay, then the E-Verify hire date is the date the case was created in E-Verify. If the case is created in E-Verify on or after the employee starts work for pay, then the E-Verify hire date is the date the employee started work for pay. Additional details are available the E-Verify Homepage.

USCIS Fact Sheet: Your Guide to InfoPass

On 22 June 2010 USCIS published a "Guide to InfoPass", the free service that allows online scheduling of appointments with a USCIS Immigration Officer at a local USCIS District Office. InfoPass can be accessed through any computer's internet browser.

Per the guidance, once a person makes an appointment with a USCIS Immigration Officer through InfoPass, he/she should print out the InfoPass appointment notice confirmation and bring it to the appointment, as well as a government-issued identification and all immigration forms, notices, letters, and other documents that relate to the person's inquiry.

Appointments can also be canceled or rescheduled on InfoPass. Note that for routine matters, such as obtaining forms or basic case status inquiry, or renewing or replacing a Permanent Resident Card or Employment Authorization, an appointment is not necessary. Such routine inquiries can be handled over the telephone or internet. However, for certain types of case status inquiries, it may still be beneficial to schedule an InfoPass appointment and visit a local USCIS office to inquire in person.

USCIS Launches Redesigned E-Verify Employer Web Interface

On 13 June 2010 USCIS launched a completely redesigned web interface for employers using the E-Verify Program. The redesign took over one year to complete and has significantly enhanced the web interface user experience, improving customer service, security, accuracy, and efficiency. A new home page, a reimagined case alerts feature, improved case management, and a streamlined tutorial are among the dozens of enhancements made to the E-Verify website. The new interface also has enhanced security features such as masking Social Security numbers to further protect privacy and ensure that only valid companies enroll in E-Verify. All current E-Verify users are required to complete the updated tutorial, which takes about 20 minutes to complete and serves as a "how-to" of the new system.

DEPARTMENT OF LABOR

BALCA Affirms Denial, Finding Employer Statement Insufficient Documentation of Minimum Requirements

On 29 June 2010 the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of the labor certification application of Virginia Carolina Construction on behalf of Jose Culler. The BALCA denial came nearly four years after the Certifying Officer (CO) had originally denied certification on 15 December 2006. The CO had denied certification, in part, because the Alien did not meet the Employer's minimum education, training and experience requirements as listed in Section H, at the time of filing, in violation of 20 C.F.R. 656.17(i). Specifically, the CO stated that the application required 6 months of training as a certified welder and the application did not show that the Alien had this training.

The Employer subsequently filed two requests for reconsideration, on 16 January 2007 and 23 February 2009 respectively, each time stating that Mr. Culler did meet its training requirements and was a certified welder. The Employer also asserted that Mr. Culler was the only applicant for the position. The CO found that the denial of certification was valid because, although the Employer indicated that the foreign worker was a certified welder, it did not submit any evidence to support its claim. BALCA affirmed the CO's denial of certification, finding that the Employer did not submit any evidence to support its claim that the Alien met its minimum training requirements. BALCA based its decision, in part, on Matter of Wings Wildlife Productions, Inc. 1990-INA-69 (Apr. 23, 1991) ("An employer's conclusory statement that the alien meets its minimum requirements does not constitute adequate documentation that the alien does meet those requirements").

BALCA Affirms Denial Finding Recruitment Report Inadequate Proof of Web Advertising

On 29 June 2010 BALCA affirmed the denial of the labor certification application of Trans-Atlantic Systems Inc. on behalf of Arun Kumar Thota. In doing so, BALCA held that an employer's recruitment report was insufficient to document that the employer had complied with the labor certification regulations set forth in 20 C.F.R. § 656.17(a)(3) and 20 C.F.R. § 656.17(e)(1) whereby an employer must maintain supporting documentation of all recruitment steps undertaken. In this case, the employer stated in its application that the Programmer position being certified had been advertised on a job search website but that due to an "internal error," the employer failed to make a timely printout of the online advertisement. BALCA held that the employer's submission of a signed recruitment report, standing alone without additional evidence of the advertisement, was insufficient evidence to document that the employer had placed an electronic advertisement on a job search website. As such, BALCA affirmed the CO's denial of labor certification.

DEPARTMENT OF STATE

DOS Visa Policy Update on Biometric Signature and Affirmation of DS-160 Non-Immigrant Visa Application

The DOS recently issued a cable requiring that consular posts: (1) take an applicant's fingerprints before (and not after) the interview; and (2) clearly post an acknowledgement statement at the point where the applicant's fingerprints are verified or at the point at which the ten-digit fingerprint scan is collected. This statement requires an applicant to verify that he or she understands the questions in the application, that the applicant's responses are true and complete, and that the applicant will tell the truth during his or her interview. The DOS notes that it issued these new requirements in response to claims made by visa applicants using the DS-160 that submitted information had been changed between the time of submission and the time of the interview or that information was improperly provided by individuals who assisted in the preparation of their application.

New Consular Fees Effective 13 July 2010

As previously reported, the DOS published its new Schedule of Fees for Consular Services, effective 13 July 2010. The modified fees reflected therein are intended to ensure that fees for consular services more accurately reflect costs to the United States of providing the services.

Most notably, the fee for processing an immigrant visa changed from $355 for all immigrant visas to the following fees based on category of immigrant visa:

In addition, the fee for processing nonimmigrant visa changed (effective 4 June 2010) from $131 for all nonimmigrant visas to the following fees based on category of nonimmigrant visa:

A complete list of the new fees is available at travel.state.gov/news/news_5078.html.

August 2010 Visa Bulletin

The DOS has released its Visa Bulletins outlining the availability of immigrant visa numbers for August 2010. Visas remain current and available for all nationalities in the first-preference category.

The current priority date for Chinese nationals and Indian nationals in the second-preference category is 1 March 2006. Visa numbers remain current and available for all other nationalities in the second-preference category.

Visa numbers are available in the third-preference category as follows:

Visa numbers are available in the Other Workers preference category as follows:

Visa numbers remain current and available for all nationalities in the categories of: fourth preference, Certain Religious Workers, fifth preference, Targeted Employment Areas/Regional Centers, and 5th Pilot Programs.

Diversity Immigrant Visas for August and September 2010

For August, immigrant numbers in the diversity immigrant category are available to qualified DV-2010 applicants. However, visas are only available for applicants with DV regional lottery rank numbers below the specific allocation cut-off number:

• Africa: 64,300 (except Egypt: 26,000; Ethiopia: 25,625; Nigeria: 22,000)
• Asia: 28,700
• Europe: Current
• North America (Bahamas): 5
• Oceania: Current
• South America and the Caribbean: Current

In addition, the Bulletin provided advance notification of the diversity immigrant category rank cut-offs, which will apply in September 2010. For September, visas will be available for all qualified applicants from: Africa (except Ethiopia: 26,350), Asia, Europe, North America (Bahamas), Oceania, and South America and the Caribbean.

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