Business Immigration Monthly - November 2011

Date: 10/27/2011
 Business Immigration Monthly - November 2011

USCIS Announces that the U.S. Master's or Higher Degree Exemption from the Fiscal Year 2012 H-1B Quota has Been Exhausted – Fiscal Year 2012 Regular H-1B Quota Remains Available

The U.S. Citizenship and Immigration Services (USCIS) announced on October 21, 2011 that the U.S. Master's or higher degree exemption from the Fiscal Year 2012 H-1B quota (October 1, 2011 through September 30, 2012) has been exhausted. The exemption was limited to 20,000. Petitions filed after this date requesting the exemption will be considered under the Fiscal Year 2012 regular H-1B quota as long as numbers remain available under the regular quota. As of October 21, 2011, 46,200 petitions have been received by the USCIS against the regular H-1B quota of 65,000. Due to the U.S. Master's or higher degree exemption being met, it is estimated that the USCIS will now receive approximately 1,500 to 2,000 petitions filed against the regular H-1B quota each week. The H-1B quota in Fiscal Year 2011 was met on January 26, 2011. The H-1B quota in Fiscal Year 2010 was met on December 23, 2009. It is assumed that the H-1B quota for Fiscal Year 2012 will remain available at least through the end of December 2011. However, if demand continues to increase, the quota may be met be earlier. After the quota is met, the earliest date upon which employers will be able to file H-1B quota petitions is April 1, 2012 for petitions requesting start dates on or after October 1, 2012.

Additional information about the Fiscal Year 2012 H-1B quota will be contained in our firms future Immigration Updates as it becomes available.

USCIS Announces Redesign of the Employment Authorization Document and the Certificate of Citizenship

The USCIS recently announced the launch of an enhanced Employment Authorization Document (EAD) and a redesign of the Certificate of Citizenship. Both new documents include additional features to strengthen the security of the documents and to deter fraud. The USCIS indicated that it has already begun issuing the new EAD cards and the redesigned Certificates will be issued beginning on October 30, 2011. The USCIS indicated that although the look and feel of the document is new, the manner in which an applicant applies for and receives the documents will not change. Additionally, the USCIS emphasized that individuals with currently valid EAD cards are not required to apply for the new EAD card. The previously issued EAD cards will remain valid until the expiration date printed on the cards.

USCIS Abandons Proposed H-1B Quota Lottery Procedure and Changes Again How Approval Notices are Issued

Last year, the USCIS indicated that it would be changing how employers file H-1B quota petitions in the future. In the proposal, the USCIS stated that it would be transitioning to an electronic-based lottery system in order to determine which H-1B quota petitions are accepted for processing under the H-1B quota. As previously indicated, the H-1B regular quota is currently limited to 65,000 with an additional 20,000 numbers available to individuals who have earned U.S. Masters or higher degrees. Based upon feedback from its stakeholders, the USCIS has indicated that it will be postponing issuing a final rule implementing an advanced registration process for H-1B petitions. The USCIS indicated that many stakeholders stated that the advanced registration system would in fact create many challenges for businesses. Therefore, the USCIS stated that it will assess how the proposed regulation's objectives can be achieved within the framework of its ongoing transformation initiatives and will not be implementing the system for the Fiscal Year 2013 H-1B quota (October 1, 2012 through September 30, 2013) which opens on April 1, 2012.

In September 2011, the USCIS changed how it issues approval notices. The USCIS made this change without notifying the public. Approximately two weeks after changing the system, the USCIS held a stakeholder meeting during which it gained an understanding of the impact that the change has had on its stakeholders. After reviewing the comments from its stakeholders, the USCIS has decide to return to its previous method of issuing the original approval notice to the attorney or accredited representative's address stated on the Form G-28. A copy of the approval notice will be sent to the applicant or petitioner. The USCIS indicated that it will take approximately six weeks for this change to take effect because the USCIS will have to reprogram its systems to return to the previous procedure.

ICE Provides Update About Status of Many F-1 Students who Attended Tri-Valley University

Officials of the U.S. Department of Homeland Security (DHS), U.S. Department of State (DOS) and Immigration and Customs Enforcement (ICE) recently met with representatives of the Indian Embassy in Washington, D.C. to discuss issues relating to Indian students who were attending Tri-Valley University. In January 2011, ICE raided the University, closed the University and withdrew its SEVIS access. Additionally, the owner of the University has been criminally charged for alleged immigration fraud. Additional information about the closure of Tri-Valley University is contained in our firm's Immigration Updates dated February 1, 2011 and April 25, 2011.

ICE indicated that it has individually examined the cases of over 1,000 Indian students who were enrolled in the University. According to reports, approximately 95% of the University's student population were Indian nationals. ICE indicated that it has approved the transfer of approximately 435 of these students to other universities. ICE also indicated that it has denied the transfer request for approximately 145 students and has issued an equal number of Notices of Intent to Deny (NOIDs). ICE indicated that the remaining cases are still under review. ICE advised students who have received NOIDs to reply to the notices within the stipulated timeframe with the required documents.

DOS Releases November 2011 Visa Bulletin – All Employment-Based Immigrant Visa Categories Continue to Advance

The U.S. Department of State (DOS) in the November 2011 Visa Bulletin continues to advance all of the employment-based immigrant visa categories. The greatest advancement occurred in the EB-2 Indian national and Chinese national preference categories which advanced from July 15, 2007 to November 1, 2007. In the Visa Bulletin, the DOS stated that the EB-2 Indian and Chinese national preference categories are the "most favorable since August 2007." The DOS indicated that it has significantly advanced these categories within the past few months in order to generate significant levels of demand for immigrant visas. However, the DOS indicated that while it expects future movement in these categories, they may not occur on a monthly basis. The DOS further emphasized that foreign nationals should not expect such movements to "be the norm" throughout the fiscal year and that eventual retrogression of the categories may be a "distinct possibility" at some point during this fiscal year (October 1, 2011 through September 30, 2012).

The following is an overview of the movement of the employment-based immigrant visa categories since the inception of the current retrogression in October 2005:

Dec 2007

Jun 2008

Aug 2009

Mar 2010

Sep 2011

Oct 2011

Nov 2011

EB-3 World








EB-2 China








EB-3 China








EB-2 India








EB-3 India








EB-3 Other Workers








Additional information about the priority date movement in the employment-based immigrant visa categories will be contained in our firm's future Immigration Updates when it becomes available.

U.S. Consulates in India are Now Routinely Denying Visas to H-1B Applicants

The U.S. Consulates in India have begun to routinely deny H-1B visas to H-1B applicants who are employed (or have offers of employment) from consulting companies in the United States. The consulates in India are aggressively reviewing these H-1B visa applications to ensure that the H-1B employment will be controlled by the H-1B employer, and not by the end user company. If the H-1B applicant is unable to provide information and documentation which satisfies the consular official about the control issue during the nonimmigrant visa interview, some consular officials will issue a 221(g) letter requesting additional information and documentation from the H-1B employer. If such a letter is issued and the H-1B employer provides the documentation requested by the consular official, some consular officials will then forward the documentation to the DOS' Fraud Prevention Unit (FPU) to verify the accuracy of the information and documentation. This verification by the FPU may take weeks to complete. The consular official will not complete the processing of the application until it receives a report back from the FPU. However, some consulates after the nonimmigrant visa interview are not requesting additional information and confirmation from the H-1B employer in a 221(g) letter. Instead, the consulates are summarily denying the applications and are returning the petition to the USCIS with a recommendation that the petition be revoked. It may take more than 6-9 months for the petition to be forwarded to the USCIS and ultimately reviewed by the USCIS before the USCIS sends a Notice of Intent to Revoke to the H-1B employer. When the H-1B employer receives a Notice of Intent to Revoke, the employer may then respond to the USCIS' request (assuming that the assignment still exists). Due to the uncertainty about H-1B visa issuance in India for H-1B employees working for consulting companies, many Indian nationals have decided not to travel internationally at this time if they need to apply for an H-1B visa through a consulate in India.

Additional information about H-1B visa issuance at the consular posts in India will be contained in our firm's future Immigration Updates when it becomes available.