Visa Lawyer Blog

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USCIS kept on updating the total number of cases received for H-1B for FY 2009-10. However, the recent USCIS H-1B cap count indicates decline in number of cases than what had been previously reported. The updated count reports the receipt of 44,400 ‘Regular’ cap cases, by June 12, 2009 which is lesser than the prior count of 47,700, given as of May 22, 2009. There is no explanation too from USCIS for this decline in trend. Thus, this reduced number may reflect either withdrawals by employers, denials by the USCIS, duplicate filings, or an error in the prior cap counts.

As of this writing, both the Advanced Degree and Regular caps remain open. We will continue to provide updated H-1B cap count information.

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In a recent decision, RUIZ-DIAZ v. UNITED STATES OF AMERICA, the court ruled that Petitioners who filed or will file a Petition for Special Immigrant Religious Worker Visa (Form I-360) with United States Citizenship and Immigration Services (“USCIS”) on behalf of individual beneficiaries are hereby notified that you or your beneficiary may now file an Application for Adjustment of Status (Form I-485) and, if your beneficiary seeks employment status as an adjustment applicant, an Application for Employment Authorization (Form I-765) even if USCIS has not yet issued a final administrative decision regarding the I- 360 petition. Previously, the I-360 had to be adjudicated before the adjustment package could be filed.

The Court has invalidated USCIS’ bar against concurrent filings as an unreasonable

interpretation of the governing statute. Pursuant to an order dated June 11, 2009, USCIS is required to accept as properly filed adjustment of status applications (Form I-485) and employment authorization applications (Form I-765) from individuals who are beneficiaries of petitions for special immigrant visas (Form I-360), whether submitted concurrently with or subsequent to the visa petition, provided the applications meet USCIS’ valid filing requirements.

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Rep. Brian Bilbray (R-Calif.) accused the White House on Saturday of playing politics with immigration reform, after President Obama delayed meeting with congressional leaders to discuss the topic this upcoming week.

The longtime anti-illegal-immigration lawmaker questioned the administration’s motives in setting up a bipartisan meeting with members of Congress on comprehensive reform only to exclude key GOP members, on both sides of the dome, from the session that White House officials announced last Friday had to be rescheduled for the second time.

Majority Leader Harry Reid (D-Nev.), a close friend of Bilbray’s despite their opposing positions on the issue, pledged to make comprehensive immigration reform happen before the end of the 111th Congress.

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Last week I attended the Annual Immigration Lawyers conference in Las Vegas. During the conference, government officials spent some time to update the attendees of the most recent information and upcoming changes.

It seems that the collection of the $500 fraud fee for new H1B or L-1 petitions is being used to invest in hiring more investigators. One recent trend is that business practices that were standard and went unchallenged previously, now are being viewed as “fraud.” Many companies must revise their practices to meet current standards. This does not mean that these practices of employers or businesses are necessarily fraudulent.

The biggest frustration for lawyers dealing with H1B’s are the unreasonable RFE’s being issued by the service since the April 1 filing. USCIS is making requests for photos of the premises, copies of contracts between all involved parties, and evidence of doing business including leases, licenses, and other proof. These requests are onerous for employers, as well as disruptive and harmful to both the employer and the employee when the H1B petition is often denied without valid justification.

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Mr. Charles Oppenheim of the Department of State Visa Office has advised AILA of the following predictions for the movement of priority dates for the remainder of FY2009 and future years. He estimates that all 140,000 employment-based immigrant visa numbers will be used this fiscal year (October 1, 2008 through September 30, 2009). Mr. Oppenheim notes that the estimates provided on visa availability for the remainder of FY2009 were based on USCIS processing during the first 7 ½ months of the fiscal year, and any changes to USCIS processing patterns would impact availability. Mr. Oppenheim reported:
* The employment-based fourth preference, which includes religious workers and other special immigrants, has experienced a surge in usage of immigrant visa numbers this year. While this preference is current for June 2009, continued heavy demand for numbers could require the establishment of a cut-off date later in the fiscal year.

* The employment-based fifth preference (immigrant investors) has also experienced a surge in usage of immigrant visa numbers this year.

* The surge in usage of the employment-based fourth and fifth preference numbers is significant beyond those specific categories themselves because, historically, there have been substantial unused numbers in these categories which have been used to meet demand for visas in the employment-based first and second preference categories, allowing the China and India cut-off dates to advance further than would be possible if those categories are limited to only their annual limits. This means EB2 immigrants from China and India could have an even longer wait to obtain green cards.

* The EB1 category worldwide will remain current the rest of the fiscal year but demand is high.

* The EB1 categories for India and China will be current during the month of July 2009, but could require the establishment of a cut-off date in August or September should EB1 demand remain heavy. As noted above, China and India have previously benefited from the excess EB1 numbers for all other countries because excess visa numbers from other countries “fall across” the EB1 category to India and China. The high demand from other countries this year means there are fewer numbers to “fall across” to India and China.

* EB2 India. The prognosis is grim. For July 2009, the cut-off date is January 1, 2000, and the category may become unavailable in August or September of 2009. There are currently approximately 25,000 EB2 India cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for the “green cards” to be approved. Like all other countries, India has a limit of 2,800 EB2 numbers available per year plus any “fall across” and “fall down” numbers from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for Indian EB2 applicants may be measured in years, even decades.

* EB2 China. The prognosis is equally grim. As of July 2009, the cut-off date will be January 1, 2000 and the category may become unavailable in August or September of 2009. There are a significant amount of EB2 China cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for approval of the adjustment of status. Like all other countries, China has a limit of 2,800 EB2 numbers available per year plus any “fall across” and “fall down” from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for China born EB2 applicants may also be many years.

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The July 2009 Visa Bulletin was released. As we anticipated, the only change is the EB-2 China category which changed and retrogressed 5 years. All other categories remain unchanged. Here is a summary of the July 2009 Visa Bulletin:

* EB-1 remains current across the board.

* EB-2 remains unchanged for all categories except as noted above for EB-2 China: EB-2 (Rest of World) is current, EB-2 China and EB-2 India are January 1, 2000.

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The Department of Labor published a final rule, effective on June 29, 2009, that suspends the H-2A final rule published on December 18, 2009. DOL is republishing and reinstating regulations in place on January 16, 2009, for 9 months, after which the Department will either have engaged in further rulemaking or lift the suspension.

The Department of Labor released FAQs regarding the May 29, 2009, suspension of a December 18, 2009, final rule on H-2As. Read more below

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I’m at the annual meeting of the American Immigration Lawyers Association here in Las Vegas. More than 10, 000 lawyers gathered here in Las Vegas to learn about the most recent updates from the Government directly.

We just finished a session with the Department of Labor. Some of the key news is that more company audits are on the way. In fact, currently there are 200 cases pending in the audit line. They promised more audits as the icert system will become a standard in filing PERM, LCA and Prevailing wage requests.

Also H2B cases now must prevailing wage requests directly with the Chicago DOL center. There is a slight delay in processing. They are currenlty working on PWD’s filed on May 8th or before. Wea ll need to be patient.

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A few days ago, Attorney General Eric Holder, vacated the decision in Matter of Compean and directed the BIA and Immigration Judges to apply the decision in Matter of Lozada for claims of ineffective assistance of counsel, pending promulgation of relevant regulations.

Attorney General Eric Holder withdrew the decision issued by former Attorney General Mukasey on the last day of the Bush Administration, which had eviscerated the right to effective representation in Immigration Court proceedings. Attorney General Holder had stated during his confirmation process that he would review the Mukasey decision and that he disagreed with its reasoning.

By ensuring that immigrants seeking relief from the harsh consequences of deportation are assured that they will not be punished by the ineffective actions of their counsel, Attorney General Holder has reset the standard that the Constitution ensures.

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As of May 29, 2009, approximately 45,800 H-1B cap-subject petitions and approximately 20,000 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, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Since it is probable that there will still be H-1B numbers available after June 30, U.S. employers should submit H-1B petitions for potential workers as soon as possible.