The USCIS announced on April 5, 2013 that the H-1B cap was reached in the first week petitions could be filed for the fiscal year beginning October 1, 2013.
Continue Reading USCIS Announces H1-B Cap Reached
“Now is the Time” to Move on Immigration, But the Devil is in the Details
It has been two weeks since a bipartisan Senate Committee of eight senators released their statement of principles for Comprehensive Immigration Reform, followed two days later by President Obama during a speech in Las Vegas. The President told the nation that the political stars have aligned and "now is the time" for serious consideration of immigration reform. Together, these statements set the stage for the debate to come.
These two statements provide a hopeful sign that the intractable problems have been reconsidered in light of the new political reality and good old-fashioned compromises have been defined. There are still many difficult decisions ahead. The devil, as they say, is in the details, and it is those details beyond the basic positional statements that will be necessary to define.
When it comes to immigration reform, the critical decisions boil down to numbers. The problem with the last comprehensive reform legislation in 1986 was that the law made no attempt to adjust the limits to changing economic conditions – immigration limits haven’t changed since they were arbitrarily set in 1990.
Immigration policy must be based upon both family reunification and the labor demands and employment opportunities, both core national values. But the law was not built to index or adjust to changing economic conditions. In fact, the Immigration Act of 1990, still in place today, permits the annual admission of 226,000 family-based immigrants, based on various family relationships; and 140,000 immigrants conditioned on the needs of U.S. employers, based on different skill sets.
Continue Reading “Now is the Time” to Move on Immigration, But the Devil is in the Details
Will EB-3 Catch Up to EB-2 for India?
The State Department released the January 2013 Visa Bulletin last week. Among the items of interest was the disappointing news that the visa cut-off date for the EB-2 category for India remains September 1, 2004, for the fourth straight month since the new fiscal year began in October. This means that cases with a priority date on or before the cut-off date can be processed, all other applications must wait for an available visa. The visa cut-off date for the EB-3 category for India again showed a slight movement of one week to November 8, 2002, from the previous month’s cut-off date of November 1, 2002. Since the beginning of the fiscal year, that’s a movement of a whole month for Indian born applicants in the EB-3 category.
(For those still confused about the visa cut-off dates: the foreign employee’s priority date must be prior to the visa cut-off date published in the monthly Visa Bulletin for the employee to be able to file an application to adjust status, the final step in the process for permanent residence. If the application to adjust status has already been filed, it cannot be approved until the posted cut-off date reaches the individual’s priority date. The priority date is set by the filing date of the PERM application or the immigrant visa petition, whichever comes first.)
The problem for Indian born applicants is the per country limitation. The law limits each country to 7% of the total applicants if a classification is oversubscribed, meaning that there are more applicants in line than the law allows in any one year. Congress set the limit for employment-based visas at 140,000 in 1990, and has not updated the law since then. Because this limit includes not only the employees being sponsored, but each of their family members, the sponsored immigrant requires an average of 2.3 visas, further reducing the availability of visas. The allocation for the EB-2 and EB-3 categories are 40,040 each, and because both have been oversubscribed, the per country limitation has been effective since April 2000. This means that there are 2,803 (7% of 40,040) visas available for Indian born applicants in each of the two employment categories.
Form I-9 Remains Valid Despite August 31 Expiration Date
On Aug. 13, 2012, the U.S. Citizenship and Immigration Services (USCIS) announced that the most recent version of Form I-9 remains valid notwithstanding the OMB expiration date of Aug. 31, 2012 (located in the upper right hand corner on the form). Until further notice, the current form, which was last revised on Aug. 7, 2009 (located
The Supreme Court Provides a Mixed Review of the Arizona Immigration Laws
The Supreme Court has issued its long awaited decision on the constitutionality of the Arizona Immigration law known as SB 1070. The case came before the Court following a decision by the lower courts to grant a preliminary injunction enjoining the application of four provisions of the Arizona law.
Continue Reading The Supreme Court Provides a Mixed Review of the Arizona Immigration Laws
USCIS Announces the H-1B Cap has been reached
This afternoon, the USCIS announced that it has received sufficient petitions for the H-1B visa to reach the statutory cap for Fiscal Year 2012.
Continue Reading USCIS Announces the H-1B Cap has been reached
USCIS Approaches H-1B Cap for New Fiscal Year
USCIS announced the status of the H-1B cap filings as of October 21, 2011 for the fiscal year that began on October 1, 2011. For background, the law permits 65,000 regular “cap” cases and 20,000 master cap (graduates of U.S. universities with an advanced degree) each fiscal year.
Continue Reading USCIS Approaches H-1B Cap for New Fiscal Year
USCIS Restores Practice of Sending Notices to Counsel of Record
On October 7, 2011, we reported that the USCIS changed its procedures regarding the delivery of approval notices. Effective September 12, 2011, notices were sent to the applicants or petitioners instead of counsel, as had been the long standing practice.
Continue Reading USCIS Restores Practice of Sending Notices to Counsel of Record
USCIS Change in Mailing Procedures Has Substantive Impact upon Employers and Foreign National Employees
On September 12, 2011, U.S. Citizenship and Immigration Services changed their long standing practice for the distribution of original approval notices for petitions and applications seeking immigration benefits, including the change or extension of nonimmigrant stay. Notices have previously been sent to counsel of record, but now are sent directly to the petitioner or applicant. Employers and individuals have immediately noted several unattended consequences of this change in long-standing policy.
Many approval notices include a revised or extended Form I-94, Arrival and Departure Record. This original document advises foreign nationals of their current nonimmigrant status and the date on which that status expires. Many governmental agencies, including the state motor vehicle departments, will not provide services to foreign nationals (for example, a driver’s license) unless the original document is provided. The distribution to the petitioner, usually the employer, complicates this process.
Department of Justice Complaint Against Farmland Foods Highlights Fine Line Employers Must Walk In Evaluating Employment Authorization Documents
Today, the Justice Department announced that it has filed a lawsuit against Farmland Foods, Inc., a major producer of pork products based in Kansas. The lawsuit, which will be heard by an Administrative Law Judge, alleges that the employer engaged in unlawful discriminatory acts by requiring foreign born and non-citizen employees to provide additional documentation of employment authorization beyond what was required by law and the documents required from U.S. citizens. While we have not yet heard the full facts or Farmland Food’s position, the lawsuit highlights the fine line employers must walk to satisfy both the obligation to verify employment eligibility for all employees, and avoid unfair discrimination against employees born in other countries or with foreign sounding names.