Good News for H-1B Temporary Workers from China: Visa Validity Increased

On July 9, the Department of State increased the validity of H visas (H-1B and H-2 temporary workers, H-3 trainees, and H-4 dependents) for citizens of China. These visas are now valid for multiple entries over 12 months. That’s an improvement—it was 2 entries over 3 months.

So Chinese can save some money and time that would otherwise go for H visa renewals. And the U.S. Consular posts in China can devote their limited resources to better things than renewing H visas every 3 months.

The validity of U.S. nonimmigrant visas is negotiated with other countries on a reciprocal basis. If you know what reciprocal commitments China made to the U.S. in return for increasing H visa validity, please drop me a line.

Of course, 12 months is still not enough. For example, H-1B visas for citizens of Hong Kong, Taiwan, Singapore, and other countries are valid for up to 60 months (but not to exceed the expiration of the underlying H-1B petition). But that fight is for another day.

H-1B Cap Update–No Rush on H-1Bs

At the Vermont Service Center Stakeholder meeting held on Tuesday, April 6, 2010, VSC reported that, as of close of business on Monday, April 5, 2010, VSC had received a total of 9,525 cap-subject H-1B petitions. Of those petitions, 6,791 were “regular” cap, and 2,734 were advanced degree. All cases received before April 7, 2010, will have an April 7, 2010 receipt date. Those received on April 7, 2010 or later will bear the actual receipt date. For those submitted for Premium Processing, the clock will start on April 7, 2010.

USCIS Reaches FY 2010 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) has announced that it received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010.  Dec. 21, 2009 is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.

The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009.  USCIS will use this process to select petitions needed to meet the cap.  USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States.
  • Change the terms of employment for current H-1B workers.
  • Allow current H-1B workers to change employers.
  • Allow current H-1B workers to work concurrently in a second H-1B position.

Certain H-1B petitions are also exempt from the H-1B cap. These include foreign nationals offered employment at an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization. (USCIS has already received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption.)

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers. On April 1, 2010, USCIS will begin accepting H-1B petitions for FY 2011 (i.e., work beginning on October 1, 2010). Now is the time to begin planning for those petitions.

USCIS Focuses Fraud Investigations on Small Companies

I previously reviewed a September 2008 USCIS report, entitled H-1B Benefit Fraud & Compliance Assessment, finding that small companies are more likely than large companies to violate the rules related to employing workers with H-1B visas.

In January 2009, I reported that USCIS had implemented the report’s recommendations by closely scrutinizing small companies filing H-1B petitions, including asking for extremely detailed financial information, zoning records, payroll data, evidence of business contracts, and much more.

Now, USCIS has inadvertently leaked an internal “H-1B Petition Fraud Referral Sheet” showing that all petitions for small companies are automatically referred for special fraud investigations. Specifically, any petition that meets 2 of the 3 following criteria must be referred: (a) gross income less than $10 million; (b) less than 25 employees; and (c) company established for less than 10 years.

I continue to believe that cracking down on small business owners is the wrong strategy. It seems to me that the main problem is that the H-1B rules are hyper technical. They consist of hundreds of pages of regulations from USCIS, the U.S. Department of Labor, and the U.S. Department of State. Large companies hire outside immigration lawyers llike our firm, have in-house immigration specialists, and perform periodic compliance audits. Small businesses don’t command such resources. To improve compliance rates among small businesses, the best thing to do is to simplify the bewildering maze of rules.

USCIS Says Annual H-1B Visa Cap Not Yet Reached

U.S. Citizenship and Immigration Services (USCIS) announced yesterday that the annual H-1B visa cap of 65,000 new H-1B petitions had not yet been reached. In fact, USCIS has only reached “about half” that number of petitions, according to a USCIS spokesman.

As background, H-1B visas are temporary work visas for professionals. There is an annual cap of 65,000 new H-1B petitions that can be approved, 20,000 of which are set aside only for persons with at least a U.S. master’s degree. H-1B petitions are accepted by USCIS beginning on April 1 of each year for work to begin on October 1 of the same year.

Blame it on the economy. Last year, within one week of April 1, USCIS received requests for about double the visas that could be issued for the fiscal year. Two years ago, the cap on H-1B petitions was reached in two days before the agency stopped accepting the applications. In fact, for each of the five previous years, the H-1B cap has been filled before October 1.

Many companies have complained about the artificially low cap on H-1Bs. “U.S. employers deserve better than a random lottery to determine if they can hire the highly educated candidates they need,” Robert Hoffman, vice president for government and public affairs at Oracle.

There’s no way to calculate when this year’s H-1B cap will be reached.

USCIS Increases Scrutiny on Small Companies Filing H-1B Petitions

I previously reported on a September 2008 USCIS report, entitled H-1B Benefit Fraud & Compliance Assessment, finding that small companies are more likely to violate H-1B visa rules. USCIS apparently now has begun making procedural changes consistent with the report.

The American Immigration Lawyers Association believes that USCIS has in some cases made overly broad requests for evidence from H-1B petitioners, seeking for example: “extremely detailed employer financial information; requests for proof of existence of an employer’s place of business (copies of leases, verification of proper use by zoning or planning authorities, letters from landlords, etc.); comprehensive lists of all employees, or all nonimmigrant employees, along with supporting payroll and tax information; requests for job descriptions in extreme detail; an explanation of the specialty nature of the occupation for which the nonimmigrant worker’s services are sought (especially the obvious); requests for prospective itineraries; copies of contracts where the employee will be working on a project for a third party….”

Of course USCIS should crack down on fraud wherever it is found. However, it seems to me that it is wrongheaded to crack down on small businesses. For H-1B visas the main problem is that the rules are hyper technical. They consist of hundreds of pages of regulations from USCIS, the U.S. Department of Labor, and the U.S. Department of State. In my opinion, the best way to reduce technical violations is to simplify the bewildering maze of rules.

With our economy in a slump, H-1B visas are a good thing.  They’re good for companies, who can recruit the best talent wherever it can be found. They’re good for U.S. workers too because for each H-1B worker hired the employer pays a $750 or $1500 “ACWIA” fee to the federal government to be used for training U.S. workers so our country can compete better in the global economy.

USCIS Finds Small Companies More Likely to Violate H-1B Rules

H-1B Benefit Fraud & Compliance Assessment, a study published by U.S. Citizenship and Immigraton Services last month, finds that small companies are more likely to violate the rules related to H-1B temporary work visas. This finding is unsurprising because–as my clients constantly remind me–the rules are hyper technical. They consist of hundreds of pages of regulations from USCIS, the U.S. Department of Labor, and the U.S. Department of State. In my opinion, the best way to reduce technical violations is to simplify the bewildering maze of rules.

Each year, 65,000 H-1B visas are made available to professionals with at least a bachelor’s degree to work to work for employers paying at least the “prevailing wage” for the job in the geographic area. For background about H-1B visas, see here.

USCIS’ study found fraud or technical violations in 20% of the 246 cases investigated. Technical violations included violations such as:

  1. The employer required the H-1B worker to pay the $750 or $1500 “ACWIA” filing fee, which by law cannot be passed on to the worker.
  2. The employer failed to pay at least the prevailing wage under U.S. Department of Labor rules.
  3. The H-1B worker was working in a geographic location not specified in the paperwork filed with the U.S. Department of Labor.
  4. The employer put the H-1B worker on unpaid leave (“benching”).
Based on the study, USCIS found that being a small company (25 or fewer employees, or gross annual income under $10 million) or being a new company (in existence for fewer than 10 years) is an “indicator” that fraud or technical violations are more likely. USCIS promised to “make procedural changes” to go after such violators.
It seems to me that it’s wrongheaded to crack down on small businesses. Instead, USCIS should crack down on fraud, wherever it is found. And USCIS should simplify the maze of H-1B rules to make it easier for small businesses to comply with the law.
H-1B visas are a good deal for businesses because they allow companies to recruit the best talent wherever it can be found. H-1B visas are a good deal for U.S. workers too because for each H-1B worker hired the employer pays the above-mentioned $750 or $1500 “ACWIA” fee to the federal government to be used for training U.S. workers so our country can compete better in the global economy.
In this economic climate, where the government just bailed out big business on Wall Street to the tune of $700 biliion, we should be making it easier for small business to compete by simplifying regulations rather than punishing small business for hyper-technical violations of byzantine rules.

EB-5 Investor Visa Update from USCIS

On Sept. 22, 2008, U.S. Citizenship and Immigration Services released a powerpoint presentation with updates on the EB-5 investor visa program for Fiscal Year 2008. Here are the highlights:

  1. 12 new EB-5 regional centers were approved.
  2. 1017 Forms I-526, Immigrant Petitions for Alien Entrepreneurs, were filed.
  3. 350 Forms I-829, Petitions by Entrepreneurs to Remove Conditions, were filed.

What does this mean? First, with more approved EB-5 regional centers, investors now have more choices for passive investments, meaning more options for EB-5 investments that don’t require investors to establish and manage their own businesses. Second, while EB-5 filings are up, it’s still hard to call the EB-5 program popular–only a fraction of the total 10,000 visas per year are being used. You can see the powerpoint presentation here.

Update: Consular Recommendations to Revoke Visa Petitions

Our law firm is often retained to represent clients where a U.S. Consulate has returned the visa petition to USCIS to consider revocation. This process is slower and less transparent than it should be. Still, this update explains that recently there have been some minor improvements in the process. These improvements were mentioned by Jonathan R. Scharfen, Acting Director of USCIS, in a recent response[1] to the USCIS Ombudsman’s recommendations for reform.[2]

Background

Generally, USCIS approval of a visa petition is a prerequisite for the issuance of a visa by a U.S. consulate abroad. For example, USCIS must approve an employer’s H-1B petition before the worker applies for a visa at a U.S. consulate. Similarly, USCIS must approve a U.S. husband’s immigrant visa petition before the wife can apply for an immigrant visa at a U.S. consulate.

Even after a petition has been approved, USCIS can revoke it for good cause.[3] And consular officers have instructions to return petitions to USCIS[4] for revocation where fraud, misrepresentation, or ineligibility is likely to lead to revocation.[5]

If USCIS concurs with the consular officer’s reasoning, USCIS issues a “Notice of Intent to Revoke” to give the petitioner an opportunity to respond.[6] Once the response from the petitioner is received, USCIS will either reaffirm the petition and send it back to the consulate for processing, or revoke the petition. A petitioner may appeal revocation to the Administrative Appeals Unit.

Ombudsman’s Recommendations Accepted by USCIS

* USCIS Receipt Notice: The Ombudsman recommended that USCIS issue a receipt notice to the petitioner upon receipt from the Consulate of a returned petition. Happily, USCIS has implemented this recommendation. It can take 6-12 months or more between from when a Consulate returns a petition to when USCIS to issue a Notice of Intent to Revoke a returned petition. Previously USCIS didn’t issue receipt notices to acknowledge they had received the returned petitions. Clients were left clueless about the status of their cases.

* USCIS Website Improvements: USCIS has agreed to improve its website’s information related to revocation of petitions, but it appears that the update has not yet been posted.

Ombudsman’s Recommendations Rejected by USCIS

* Uncertain Processing Times: The Ombudsman recommended that USCIS create standard processing times for consideration of revocation of returned petitions, and report current processing times online. USCIS responded that it would not be practical to establish standard processing times because some cases require lengthy fraud investigations, whereas others do not. USCIS’ response is, in my opinion, disappointing. Setting standard processing times are helpful for USCIS service centers to set work priorities and for stakeholders to set reasonable expectations as to how long their cases will take. Moreover, as for other types of cases that USCIS handles, if a fraud investigation is needed, then an exception can be made to the standard processing time.[7] Standard processing times would also, hopefully, reduce the current processing times for consular return cases. Currently, with consular return cases taking a year or more, clients must consider the faster option of filing a new petition. This creates extra work for USCIS, even though USCIS or the Consulate may refuse to act on the new case before USCIS completes decided whether or not to revoke the old petition.

Other Problems with the Consular Return Process

* Readjudication by Consulate: The State Department’s Visa Office has reminded Consulates that they “should not attempt to readjudicate petitions” already decided by USCIS. “Rather, a consular officer should only seek revocation of the petition if the officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or that the beneficiary is not entitled to the status conferred by the petition. Petitions generally should not be returned unless the post uncovers new information not known to [USCIS] at the time of petition approval.”[8] Despite this reminder, some consular officers seem to return petitions to USCIS when it is not warranted, thereby inconveniencing applicants and creating additional work for USCIS.

* Consular Notice of Intent to Return Petition to USCIS: Currently, a consular officer who decides to return a petition to USCIS needs only to provide notice of this fact to the visa applicant. The officer need not explain the reason why the petition is being returned.[9] Our recommendation is that the officer should provide notice to the visa applicant of the reason why and give the applicant a chance to provide additional evidence that the petition should not be revoked. In some cases, this will be more efficient than waiting a year or more for USCIS to decide whether to revoke the petition.

Conclusion

Despite recent improvements, this legal process remains slower and less transparent than it should be. Counsel should help the visa applicant to be prepared at the time of the consular interview to answer all relevant questions by the consular officer in order to minimize the risk that the officer will return the petition to USCIS with a recommendation for revocation. If there are problems at the interview, it may be wise to contact the Consulate to try to resolve the problems before the petition is returned to USCIS. If the petition is returned, it may be best to both respond to the Notice of Intent to Revoke and consider filing a new petition.


[1] Memo by Jonathan R. Scharfen, USCIS Acting Director, Response to Recommendation #33, Recommendation on the Processing of Petitions That Are Returned by the U.S. Department of State for Revocation/Revalidation (May 23, 2008).

[2] Memo by Prakash Khatri, USCIS Ombudsman, Recommendation on the Processing of Petitions That Are Returned by the U.S. Department of State for Revocation/Revalidation (Aug. 24, 2007).

[3] INA § 205; 8 C.F.R. § 214.2(l)(9).

[4] Consulates return immigrant petitions (including Ks and Vs) to the National Visa Center and nonimmigrant petitions to the Kentucky Consular Center. In either case, petitions are then routed to the appropriate USCIS offices. Forms I-130, Petitions for Alien Relatives, initially filed with an overseas USCIS office are returned directly to that office by the Consulate. Minutes of AILA-DOS Liaison Meeting (Oct. 2007).

[5] Cable, DOS, 01-State-121801 (July 13, 2001).

[6] 8 C.F.R. § 205.2(b); 8 CFR 214.2(l)(9)(iii).

[7] For example, according to USCIS regulations, L-1 petitions should be adjudicated within 30 days. However, where a fraud investigation is needed, USCIS makes an exception to this time limit. 8 C.F.R. § 214.2(l)(7).

[8] Cable, DOS, 01-State-121801 (July 13, 2001).

[9] Minutes of AILA-DOS Liaison Meeting (Oct. 2007).

U.S. Visa Application Fee Increase

NONIMMIGRANT VISA APPLICATION FEE WILL INCREASE TO $131

Effective January 1, 2008, the application fee for a U.S. nonimmigrant visa will increase from $100 to $131. Those applicants who paid the prior $100 application fee before January 1, 2008 will be processed without further payment only if they appear for a visa interview before January 31, 2008.

Applicants who paid the prior $100 application fee and appear for visa interviews after January 31, 2008 must pay the difference – $31 – at CITIC Bank and obtain a receipt before they will be interviewed.

Any payments made after January 1, 2008, regardless of the interview date, must be for the full $131 fee.

IMMIGRANT VISA APPLICATION FEE WILL INCREASE TO $355

Effective January 1, 2008, the application fee for a U.S. immigrant visa will increase from $335 to $355. Those applicants who paid the prior $335 application fee before January 1, 2008 will be processed without further payment even if they appear for an immigrant visa interview after January 1, 2008.

Most IV applicants pay their fees through the Department of State’s National Visa Center (NVC) in the United States. Fee bills sent by NVC will reflect this change effective January 1, 2008. Applicants who make their payment after January 1, 2008 will be required to pay the increase even if their original fee bill sent prior to January 1, 2008 displays the fee of $335.

Source: U.S. Embassy