1/30/2012 - Progression of Priority Dates for the EB-2 (India) Visa Category
Recently there has been significant progression in visa numbers for the EB-2 (India) category. Each of the last 2 months saw a 1 year jump forward in the priority date. The Department of State has informally confirmed that the Visa Bulletin for March 2012 will only show advancement of a couple of months. Priority dates will remain stable and possibly retrogress through the end of the fiscal year.… [link]

11/24/2011 - The FY2012 H-1B Cap Has Closed
USCIS has confirmed that the last day for acceptance of cases under the H-1B cap for Fiscal Year 2012 was November 22, 2011. Both the regular H-1B cap and the U.S. Master's exemption allocation have been exhausted. The cap reopens on April 1, 2012 for filings effective October 1, 2012.… [link]

10/6/2011 - NLRB Mandates Notice Posting Regarding Employee Union Rights
The National Labor Relations Board (NLRB) has mandated that most private sector employers post a notice advising employees of their rights under the National Labor Relations Act. The notice is inapplicable to agricultural, railroad and airline employers, as well as very small employers that conduct so little business that they have a negligible effect on interstate commerce. The deadline for compliance was initially set at November 14, 2011, but that deadline has been postponed till January 31, 2012 to allow the NLRB to conduct "enhanced education and outreach to employers."… [link]

8/2/2011 - USCIS Revises FAQ's on Establishing the "Employee-Employer Relationship" in H-1B Petitions
Shortly after the issuance of the Neufeld Memo in January 2010, the USCIS issued a set of FAQ's addressing how an H-1B Petitioner could establish that it had the requisite employer-employee relationship with the H-1B Beneficiary. These FAQ's have been revised with additional information. As before, the emphasis is on documentary evidence establishing the employer's right to control the employee in the employee's performance of duties.… [link]

5/19/2011 - List of OPT-STEM Majors Expanded
ICE has expanded the list of eligible majors for F-1 students to work under the STEM program, which allows for 17 month extensions of OPT (Optional Practical Training) status.… [link]

3/3/2011 - DOL Intends to Increase Scrutiny in Permanent Labor Certification Adjudications
In an annual report highlighting its strategic goals for the upcoming year, the Department of Labor stated that its Employment and Training Administration intends to apply stricter scrutiny to labor certification applications. For instance, in June 2011 a new PERM application form will be instituted, which will require more detailed information regarding certain aspects of recruitment conducted. DOL intends to conduct more audits, and also increase the number of "supervised recruitments", which involve a high level of governmental participation in the PERM recruitment process. In its report, the DOL admits that it favors audits and supervised recruitments because these "integrity measures generate the highest number of denials and non-certifications, outcomes which enhance program integrity and contribute to jobs being available to U.S. workers." In other words, DOL now seems to see PERM denials as part of its mission of protecting U.S. workers. The agency also intends to start charging a fee for PERM applications. … [link]

2/18/2011 - Export Control Requirements for I-129 Petition Filers
USCIS now requires employers filing Form I-129 for H, L, and O visa status on behalf of foreign nationals to certify that they have (1) reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and (2) have made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national. If an export license is required to be obtained before such release, the employer must attest that the worker will not be exposed to covered technologies without first obtaining an export license covering the foreign worker. Employers can confirm whether they require an export license by directly contacting the Bureau of Industry and Security, U.S. Department of Commerce. … [link]

1/29/2011 - Consulate General of India Acquires Trickles of Information from ICE Regarding Tri-Valley University Raid
The Consulate General of India has consulted with U.S. Immigration and Customs Enforcement (ICE) regarding its handling of the legal status of students at Tri-Valley University, which was raided last week for operating as a diploma mill. It appears that ICE will be issuing a detailed advisory within the next few days. Many students are already in deportation proceedings. It appears that the majority of students who are subject to deportation proceedings will have the option of asking for an order of voluntary departure, which would allow subsequent return to the US in most cases. Transfers to another school in F-1 status will not be possible. ICE has also set up a phone number (415-844-5320) and email address (SFRHSIFraud@dhs.gov) for affected students to inquire about their cases. We strongly recommend that students retain legal counsel before communicating with ICE. … [link]

1/27/2011 - USCIS Reaches the H-1B Cap for Fiscal Year 2011
USCIS has confirmed that Wednesday, January 26, 2011 will be the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011 (which runs from October 1, 2010 to September 30, 2011). Petitions received after January 26, 2011 will be rejected, and cases received on that date will be subjected to a random lottery for inclusion into the cap based on the remaining H-1B cap numbers. The next opportunity for an employer to file an H-1B cap petition will be on or after April 1, 2011, for employment beginning no earlier than October 1, 2011. … [link]

10/31/2010 - USCIS Filing Fees to Increase Effective November 23, 2010
Effective November 23, 2010, increased USCIS filing fees will kick in for many types of filings. Fees are being raised by a weighted average of approximately 10 percent. A list of the old and new fees can be found at the USCIS website. … [link]

8/29/2010 - New Law Substantially Increases H-1B and L-1 Fees for Certain Large Filers
A new law passed by Congress, Public Law 111-230, has increased the fraud fee for H and L filings by $2000 and $2250 (respectively) for companies that have over 50 employees and are more than 50% comprised of H and L employees. The heightened fees are deemed to be effective for all filings done on August 14, 2010 and thereafter, and will remain in effect until September 30, 2014. As with the regular fraud prevention and detection fee, the new fee only applies in cases where an initial grant of status is sought or in change of employer situations for current H/L workers. … [link]

6/10/2010 - USCIS-FDNS Site Visit Statistics Released
The USCIS's Office of Fraud Detection and National Security (FDNS) has released statistics and basic information on the investigations that have been conducted between 7/29/2009 - 6/1/2010. During this time period, only 2 cases were referred to US Immigration and Customs Enforcement (ICE) for criminal prosecution. However, in 9% of the total 15,733 cases, the applicable Service Center issued a Notice of Intent to Revoke/Deny the approved petition due to some suspected technical violation or indication of fraud. Unfortunately, all site investigators are currently independent contractors, not government employees. Our experience has been that many investigators may be unfamiliar with immigration regulations and H-1B employers' actual responsibilities under the law. H-1B petitioners are reminded that they are constitutionally privileged with the right to have an attorney present during a site investigation. An H-1B employer under investigation should postpone answering questions until its attorney is present to help avoid unfair assumptions or misinterpretations by the investigator. … [link]

5/30/2010 - Employer Verification by USCIS under the VIBE System
USCIS's Office of Service Center Operations (SCOPS) handles the processing of employment-based immigrant and nonimmigrant petitions. As part of its processing, SCOPS determines whether the petitioning company in a particular case is a financially viable entity. Thus far, USCIS has relied on evidence provided by the petitioner to assess financial viability. While this has meant that petitioners are sometimes burdened by expansive Requests for Evidence (RFEs) regarding company information, at least this process has allowed petitioners to define the content and scope of the evidence considered. As part of an initiative called Verification Initiative for Business Enterprises (VIBE), USCIS is moving away from employer-supplied information for purposes of assessing financial viability. Instead, VIBE will utilize information collected about the petitioner by Dun & Bradstreet, a private data collection firm. During petition processing, companies will still be able to provide evidence of their own choosing in response to RFEs, but details that conflict with their D&B entries might be treated with greater scrutiny. Therefore, it is essential for all petitioners to check their D&B listings to ensure that all information is accurate. While D&B promises that companies can correct mistaken information in their D&B listings free-of-charge, it can take up to 30 days to register with D&B, and further time for adjust incorrect details. If a petitioner faces an RFE citing incorrect D&B information, that petitioner may not have enough time to edit its D&B listing and still respond to the RFE in a timely fashion. Accordingly, it is imperative for all employment-based immigrant and nonimmigrant petitioners to check their D&B listings for accuracy and to take the appropriate steps to correct errors. … [link]

2/18/2010 - USCIS Clarifies Certain Aspects of the January 2010 Neufeld Memo on Employee Control in the H-1B Context
There has been a large amount of speculation and fear surrounding the issuance of the January 8, 2010 memorandum from Donald Neufeld. One major question has been whether the USCIS intended to cast a negative light on H-1B filings by staffing companies, by suggesting that such companies do not qualify as "employers" for H-1B purposes. To address these concerns, USCIS held a public "Collaboration Session" on February 18, 2010. During the session, business owners, attorneys and members of the public raised their concerns about the memorandum. The USCIS officials did not address most of the points raised, as the purpose of the session was for USCIS to get a sense of the public's concerns and then to decide on any requisite policy changes. However, USCIS leaders did note a few important points:

• The purpose of the Neufeld Memorandum was not to target IT companies or to put an end to the consulting/staffing business model.
• The memo, which took around a year to formulate, was not issued as a response to allegations of widespread fraud in the H-1B program.
• The memo's purpose was to create a uniform policy regarding employers/employees, and thereby put an end to the inconsistent RFEs and denials that have been issued by the Service Centers on this topic.
• Since the issuance of the Neufeld memo, all H-1B denials have required supervisor approval prior to being issued. Normally supervisor approval is only required in Motions to Reopen (MTRs). This policy was instituted by USCIS headquarters to avoid improper denials based on a misinterpretation of the Neufeld memo.
• As we predicted earlier, recent turnaways by CBP officers of H-1B visa holders at Newark and other ports of entry have not been caused by the issuance of the memo. Those cases involved suspected fraud by the H-1B petitioner or the employee.

1/15/2010 - USCIS Explains its Current Policy Vis-a-vis United States Employers; IT Consulting Firms Possibly Affected
The USCIS has released a memorandum clarifying its position on employer-employee relationships in the H-1B context. More specifically, the memorandum explains the USCIS's interpretation of "United States employer," which is a term that is defined at 8 C.F.R. Sec. 214.2(h)(2)(i)(A). USCIS will determine whether a particular petitioner qualifies as a United States employer on a case-by-case basis, taking into account a number of common law factors. Basically, the touchstone of employment is control over the manner and means by which work is performed. The factors specified in the memo are similar to the factors used by the IRS in determining whether a worker is an employee or an independent contractor. The practical significance of the memorandum is two-fold. First, USCIS has slyly avoided precedent decisions allowing so called H-1B "self petitions." Under the current interpretation, a proprietor of a business will no longer be able to sponsor himself/herself for an H-1B visa through the company since there is no true control by the company over the individual. Secondly, the memo states that IT consulting companies that place their payroll employees at third party sites may need to establish that they qualify as U.S. employers (within the meaning of 8 C.F.R. Sec. 214.2(h)(2)(i)(A)) on a case-by-case basis. Notably, the FAQ to the memorandum explicitly states that it "does not change any of the requirements for an H-1B petition" (emphasis added). There are certain steps that employers can take to strengthen the kind of evidence that would be provided in response to an RFE questioning employer control. Also, the memorandum does not address qualification by IT consulting companies under the regulation for agents. Stay tuned for future updates on this compelling development in the H-1B arena. … [link 1] … [link 2]