Business Immigration Monthly - January 2011

Date: 1/7/2011
 Business Immigration Monthly - January 2011

H-1B Quota for Fiscal Year 2011 May Be Met by Mid-January 2011

The H-1B quota for Fiscal Year 2011 (October 1, 2010 through September 30, 2011) continues to remain Available. The regular quota for Fiscal Year 2011 is limited to 65,000 (minus approximately 550 number being used by the H-1B1 category for nationals of Chile and Singapore). The exemption from the quota for individuals who have earned U.S. Masters or higher degrees is limited to 20,000. As of December 31, 2010, which is the latest update provided by the U.S. Citizenship and Immigration Services (USCIS), the USCIS has received 53,900 petitions against the regular H-1B quota and 20,000 petitions filed requesting the U.S. Master's Degree or higher degree exemption. The USCIS announced on December 31, 2010 that the U.S. Master's or higher degree exemption has been met. Because this exemption has been exhausted, all quota petitions will now be counted against the remaining numbers in the regular quota. The USCIS is currently receiving approximately 2,000 petitions a week against the regular H-1B quota. It is assumed that the number of filings will increase because the U.S. Master's degree or higher degree exemption has been exhausted. Therefore, we are anticipating that the regular H-1B quota for fiscal year 2011 will be met by mid-January. Last year, the H-1B quota was met on December 23, 2009. After the USCIS announces that the H-1B quota has been met, employers will not be able to file initial H-1B petitions subject to the quota until the quota Fiscal Year 2012 opens on April 1, 2011 (for petitions requesting a start date of October 1st, 2011 or later).

Additional information about the status of the H-1B quota for Fiscal Year 2011 will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Has Pending a Proposed Regulation to Modify How H-1B Quota Petitions are Filed

The USCIS currently has pending with the Office of Management and Budget (OMB) a proposed regulation which would modify how H-1B quota cases are filed. The proposed regulation would only affect H-1B quota case filings and not other H-1B filings which are not subject to the quota. This proposed regulation has been pending with OMB since September. It is assumed that the proposed regulation will be released shortly with a short comment period so that the USCIS may implemented the new system for the Fiscal Year 2012 (October 1, 2011 through September 30, 2012) H-1B quota filings. Although the USCIS has not had to conduct a random selection process for H-1B filings received during the initial filing periods in Fiscal Year 2010 and Fiscal Year 2011, the USCIS may be assuming that a random selection process may be necessary for the Fiscal Year 2012 quota due to the improving economy. In Fiscal Year 2009, the USCIS received approximately 166,000 petitions filed against the H-1B regular quota of 65,000 and the 20,000 numerical limitation for the exemption from the H-1B quota for individuals who have earned U.S. Master's or higher degrees.

Additional information about the change in the filing process for the fiscal year 2012 H-1B quota will be contained in our firm's future Immigration Updates.

DOS Releases January 2011 Visa Bulletin – Gradual Advancement Continues in Most Employment-Based Immigrant Visa Categories

The U.S. Department of State (DOS) recently released its January 2011 Visa Bulletin. In the January 2011 Visa Bulletin most employment-based immigrant visa categories advanced by one to two weeks. However, the EB-2 Indian national preference category again did not advance due to continuing significant demand in the category. The DOS previously predicted no advancement in this category for at least the next few months.

The following is a comparison of the priority cut-off dates since the inception of the current retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

Aug 2009

Nov 2010

Dec 2010

Jan 2011

EB-3 World








EB-2 China








EB-3 China








EB-2 India








EB-3 India








EB-3 Other Workers








Additional information about the advancement or retrogression in the employment-based immigrant visa categories will be contained in our firms future Immigration Updates when it becomes available.

DOL WHD Enters into Consent Order with H-1B Employer Assessing $635,000 in Back Wages, $121,000 in Civil Monetary Penalties and Debarment for Two Years Against IT Consulting Company for Violations in the H-1B Program

The U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) recently announced that it entered into a consent order with Peri Software Solutions Inc. (Peri), a consulting company based in New Jersey, for violations in the H-1B program. Under the consent order, Peri will be required to pay more than $635,000 in back wages to 67 H-1B nonimmigrants. Additionally, it will be required to pay Civil Monetary Penalties (CMP) in excess of $121,000 for substantially failing to provide notice of the filing of the Labor Condition Application (LCA) as part of the H-1B process. Additionally, although the WHD press release indicated that Peri was debarred from the H-1B and other nonimmigrant and immigrant visa programs for one year, the actual consent order debars it from these programs for two years.

The DOL stated that since 2005, its investigations have resulted in more than $5.6 million in back wages and $300,000 in CMPs in New Jersey alone, not including the Peri case. The DOL stated that the most common violations found in the program are employers' failure to post notice of the filing of the LCA at every work site where the H-1B worker may be employed and failure to pay nonimmigrant workers the required wage for all non-productive time.

New Accreditation Requirement for Intensive Language Training Programs who Enroll F-1 Students

On December 14, 2010, a law was enacted amending the F-1 category to require that intensive language training programs be accredited by an accrediting agency recognized by the Secretary of Education in order to be SEVIS-certified, issue Forms I-20 and enroll F-1 nonimmigrant students. The law will become effective 180 days after enactment but non-accredited intensive language training programs that are already SEVIS-certified should be allowed one year from the date of enactment to apply for accreditation from a Department of Education (DOE) recognized to accrediting agency. Additionally, to allow time for the accreditation process to be completed, the law will also permit F-1 students to enroll non-accredited programs for three years after enactment provided that the program has applied for accreditation within one year from the date of enactment. College or university-based intensive English programs that are governed by a regionally accredited college or university coming under that school's accreditation would be considered accredited under the law and would not be required to seek independent accreditation. Intensive English programs that are physically located on an accredited schools promise that are not governed by that accredited institution would be required to seek accreditation.


US Embassy and Consulates in Mexico Visa Processing Changes

On January 10, 2011 most applicants processing their visas at the U.S. Embassy and Consulates in Mexico will first have to visit their local Application Support Center (ASC) prior to attending the interview. The ASC will capture the applicant's biometric information and the applicant will only pay one fee for visa processing, as opposed to the current three separate fees. The visa processing fee will remain the same ($140 for tourist visas, $150 for H-1Bs, L-1s, etc. and $390 for E-1s and E-2s), but will now include the fee to make the appointment, the courier service fee and the $26 surcharge at the U.S. Consulates in Ciudad Juarez, Monterrey and Nuevo Laredo. Most applicants renewing their visas will not have to attend an interview, but can simply visit the ASC and will receive their renewed visas in the mail. Please contact us if you will be applying for a visa in Mexico so that we may provide detailed information on the new procedures.