Contact Information
Law Offices of Kamlesh Tewary
1974 State Route 27
Edison, NJ 08817
Ph: (732) 287-0080
Fx: (732) 287-3836

Included below are older news articles from this website. Click on the link at the bottom of the page to return to the current News page.

3/09/2016 - April 2016 Visa Bulletin Issued
DOS has released the Visa Bulletin for April 2016. The Bulletin reflects modest forward movement in various employment-based and family-based visa categories. USCIS has yet to confirm whether it will consider the "Final Action Date" or the "Dates for Filing" category for purposes of accepting adjustment applications. Most likely it will rely on the "Final Action Date" as it has in the past few months. … [link]

7/10/2015 - August 2015 Visa Bulletin Issued
DOS has released the Visa Bulletin for August 2015. The Bulletin reflects forward movement in various employment-based and family-based visa categories. It also states that the EB-3 category is unlikely to progress before the new fiscal year, which starts October 1, 2015. … [link]

6/23/2015 - Department of State Visa System Experiencing Technical Problems
The Department of State has been unable to issue visas to travelers around the world for two weeks because of a computer hardware failure that remains unresolved. Normally around 50,000 visas are issued per day, so the technical glitch is causing a considerable backlog in visa applications. The issue is expected to remain unresolved for at least another week. Visas for medical or humanitarian purposes are still being processed. Humanitarian parole without a visa is also an option. … [link]

6/15/2015 - July 2015 Visa Bulletin Issued
DOS has released the Visa Bulletin for July 2015. EB-2 (India) remains at October 1, 2008, while EB-3 (India) has progressed slightly to February 1, 2004. EB-2 (China) has shown more significant progression, to October 1, 2013. … [link]

4/13/2015 - H-1B Lottery Conducted for FY2016
USCIS has confirmed that it received around 233,000 H-1B petitions during the recent H-1B cap season, which lasted from April 1, 2015 to April 7, 2015. Under current law, only 65,000 H-1B visas can be issued under the general category. Also 20,000 U.S. Master's exemption visas are available. Given the large number of filings, the chances of lottery selection for cases filed this season are less than 50%. USCIS will now begin notifying applicants about which cases met the lottery. USCIS will begin premium processing for selected H-1B cap cases no later than May 11, 2015. … [link]

4/13/2015 - Visa Bulletin for May 2015
DOS has released the Visa Bulletin for May 2015. EB-5 China went from being current in April to having a May 1, 2013 cut-off date, and EB-2 India progressed by more than seven months to April 15, 2008. The other categories remain largely unchanged. … [link]

2/10/2015 - March 2015 Visa Bulletin Released
The March 2015 Visa Bulletin shows forward movement in the EB-2 India category, which has moved from from September 1, 2005, to January 1, 2007. The Visa Bulletin also reflects slight forward movement in most other visa categories. … [link]

10/10/2014 - Forward Movement in Visa Bulletin Except for EB-2 (India)
The November 2014 Visa Bulletin has been released. The cut-off date for the employment-based, second preference category for India has retrogressed from May 1, 2009 to February 15, 2005. Also, there is slight forward movement in several other categories. … [link]

8/12/2014 - September 2014 Visa Bulletin Released
The September 2014 Visa Bulletin shows slight forward movement in most family-based categories and in the employment-based, second-preference India and employment-based, third preference and Other Worker categories for the Philippines. … [link]

7/9/2014 - August 2014 Visa Bulletin Shows Slight Progress in Key Categories
The DOS Visa Bulletin for August 2014 shows slight advancement in various visa categories. DOS has confirmed that it expects priority dates for EB-2 India to "retrogress significantly" in the coming months. … [link]

5/8/2014 - June 2014 Visa Bulletin Shows Significant Retrogression in Key Categories
The June 2014 Visa Bulletin has been released. The cut-off date for all family-based F-2A categories retrogressed due to heavy demand. The EB-3 category shows retrogression in all sub-categories, except for the Philippines. The EB-3 China category retrogressed from October 1, 2012 to October 1, 2006, and the "other worker" China category retrogressed from October 1, 2012 to January 1, 2003. … [link]

4/7/2014 - USCIS Reaches FY 2015 H-1B Cap
The USCIS has announced that it has received more than enough H-1B cap filings for fiscal year 2015, which runs from October 1, 2014 to September 30, 2015. A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing. All petitions not selected under the Master's exemption will become part of the random selection process for the regular 65,000 limit. … [link]

2/27/2014 - March 2014 Visa Bulletin Largely Unchanged from February 2014
The Visa Bulletin for March 2014 reveals few changes in employment-based immigrant visa cutoffs. The priority date markers for Indian nationals remain virtually the same as in February 2014. The availability date for EB-2 (China) has progressed to February 15, 2009, and EB-3 (China) has changed to September 1, 2012. The Bulletin also contains projections for the coming months. No forward movement is expected for EB-2 India. The EB-3 categories are also expected to remain stagnant due to increasing visa demand. … [link]

12/27/2013 - January 2014 Visa Bulletin Shows Continued Stagnation of Visa Numbers
The Visa Bulletin for January 2014 highlights the need for immediate immigration reform. Visa demand continues to outstrip supply, and consequently there has been little progress in the Visa Bulletin. The priority date cutoff for EB-2 India is 11/15/2004 and EB-2 China is 12/8/2008. The cutoff for EB-3 India has remained static at 9/1/2003. … [link]

10/21/2013 - USCIS Will Excuse Late H Status Extensions Attributable to Government Shutdown
The government shutdown, which lasted from the start of the fiscal year 2014 (October 1, 2013) to October 17, 2013, debilitated operations at many federal agencies. The Department of Labor's operations were severely affected, leading to suspension of Labor Condition Application (LCA) and Labor Certification processing. As a result, many individuals on H-1B, H-2A and H-2B status whose status was expiring were unable to file timely extensions with USCIS, as an LCA certification is a requisite to filing. USCIS has now confirmed that it will excuse delayed filings attributable to the government shutdown. … [link]

9/11/2013 - October 2013 Visa Bulletin Remains Largely Similar to September 2013 Bulletin
The September 2013 Visa Bulletin saw forward progress in various visa categories relative to bulletins from the beginning of the year. However, despite the start of the new fiscal year, the October 2013 bulletin appears to remain mostly steady in its allocation of priority dates. The F2A category is no longer current, instead showing a September 2013 priority date cutoff. EB2 India remains static at 6/15/2008, while EB-2 China has progressed to 9/15/2008. … [link]

03/26/2013 - H-1B Quota Likely to be Reached in the First Week of April
The latest estimates suggest that the H-1B quota for Fiscal Year 2014 (i.e. starting October 1, 2013), which opens on April 1, 2013, is likely to be exhausted in the first week of April. In that scenario, all cases received in the first week will be subject to a lottery. … [link]

02/4/2013 - Department of State's February 2013 Visa Bulletin Shows Limited Advancement
The February 2013 Visa Bulletin shows currency for the EB-2 category. The EB-2 (India) category has not changed since the October 2012 Visa Bulletin. EB-3 (India) is still severely backlogged at November 15, 2002. The EB-2 and EB-3 (China) categories have shown modest advancements of about one and two months, respectively. … [link]

11/12/2012 - DOL Makes Accommodations for Hurricane Sandy
The Department of Labor has stated that it will entertain requests for extensions of time on PERM and H visa cases an individual basis for those affected by Hurricane Sandy and related service disruptions. … [link]

11/21/2012 - Department of State Modifies Personal Interview Requirement for Certain Visa Applications
The Department of State has created two mechanisms, "interview waiver" and "dropbox" whereby visa applicants in India can avoid attending visa interviews under certain circumstances. While the "interview waiver" program would still require fingerprinting, the "dropbox" program can allow for visa applications without any physical presence requirement. The latter program is especially useful for holders of expired H-1B visas who are currently in the United States. … [link]

09/26/2012 - October 2012 Visa Bulletin Shows High Visa Demand, Backlogs
The Department of State has released the latest Visa Bulletin, for October 2012, which shows continued high demand levels for visas by Indian and Chinese nationals. For instance, the EB-2 general cutoff is January 1, 2012, whereas EB-2 (India) is September 1, 2004 and EB-2 (China) is July 15, 2007. EB-3 wait times continue to suffer from even more significant lag. … [link]

06/12/2012 - FY2013 H-1B Cap Closed
USCIS has confirmed that as of June 11, 2012, the FY 2013 H-1B cap was met, both for regular H-1B cases and the 20,000 U.S. Master's degree allocation. USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 that are received after June 11, 2012. … [link]

05/14/2012 - July 2012 Visa Bulletin Released
The Department of State has released the July 2012 Visa Bulletin, which states that visa numbers for the EB-2 (China and India) categories will remain unavailable until the next fiscal year, which starts October 1, 2012. Other EB-2 categories may also experience retrogression before the start of the new fiscal year due to heavy demand. … [link]

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]

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]

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 ( 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]

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]

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]

8/12/2010 - US Senate Passes Border Surveillance Bill
The US Senate has passed a bill allocating additional money towards enhanced border security during an unusual summer session. An amendment to the bill would increase 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. A preliminary version of the bill has already been passed by the House, and so it looks like the bill will become law when it is reintroduced after September 10. … [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]

3/26/2010 - Listening Session Held by USCIS Foretells Changes to Neufeld H-1B Memo
USCIS has recognized the public furor surrounding the issuance of its January 8, 2010 memorandum on employer control in the H-1B context. Today CIS held its second public session on the implications of the memo, this time focusing on contractors in the health care industry. Notably, USCIS officials stated that more formal guidance or possibly a revision of the memorandum was forthcoming. There was also a suggestion that rates of H-1B approvals have been unchanged since issuance of the memo. Perhaps most significantly, officials recognized that many adjudicators have been applying improper standards of evidence in their Requests for Evidence (RFEs). The proper evidentiary standard for nonimmigrant petitions is "preponderance of the evidence," which can be translated in layman's terms to "having just above a 50% chance of being true." In recent months many RFEs have requested "clear evidence" of eligibility, which is a higher and inapplicable standard. In other cases, the evidentiary standard is not stated, but the tone of the RFE and its ultimate disposition betray an overly exacting standard. USCIS headquarters will be issuing guidance to adjudicators at the Service Centers to treat RFEs as tools to help petitioners cure any deficiencies in their petitions, and not as de facto precursors to denials. … [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.
During the session, USCIS did confirm that it is receptive to pressures put upon it by members of Congress, even absent the passage of specific immigration legislation. This is a telling indication of the need for concerned immigration stakeholders to mobilize their Congressional Representatives and Senators to shift USCIS policy onto a more favorable path. There will be another collaboration session on the same topic on March 1. Interested parties can register at the following website. … [link]

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]

12/3/2009 - USCIS Issues Memorandum Explaining Its Policy on Agent-Petitioners in O and P Visa Cases
The relevant O and P regulations allow a bona fide agent to petition on behalf of an O or P employee who will work for multiple employers, as long as an itinerary listing all actual employers is provided. It has been common practice in such cases for the first employer to file on behalf of the individual and list the other employer(s) on the itinerary. USCIS has issued a policy memorandum (a public document that has USCIS officers and personnel as its intended audience) on this issue. Significantly, the memo has clarified that a petitioner will be deemed to be "in business as an agent," even if only for that specific visa petition. The memo also enumerates the kind of evidence that would satisfy the "in business as an agent" requirement. This evidence can include contracts, fee arrangements, or certifications from other employers listed in the itinerary that the the petitioner has been authorized by them to serve as their agent. The memorandum further cautions that petitioners for a P visa under the "U.S. sponsoring organization" category must not directly employ the P-1, P-2 or P-3 alien, but rather must assume responsibility for the accuracy of the terms and conditions specified in the petition. … [link]

11/15/2009 - USCIS Provides Update on the FY2010 H-1B Cap Count
USCIS has confirmed that as of November 6, 2009, it has received approximately 54,700 petitions towards the FY 2010 H-1B cap of 65,000. All of the U.S. Master's exemption allocation (20,000) has been used up. Master's cap students are eligible for filing under the regular H-1B cap as well. This number has fluctuated in recent weeks to take account of the increased number of H-1B petition denials/withdrawals under this year's quota. … [link]

10/29/2009 - Congress Passes Appropriation Bills for DHS - EB-5 Pilot Program Extended
The Congress has passed Department of Homeland Security Appropriations bill (P.L.111-83), which was signed into law by President Obama. Notably, this law extends the EB-5 Pilot Program until September 30, 2012. Under the Pilot Program, prospective investors can invest into accredited, existing businesses called Regional Centers for somewhat easier EB-5 processing. The Regional Center program had been in limbo since October 1, 2009, when the previous appropriation for the program expired. The new law also extends the Conrad 30 program, which is useful for those seeking J-1 waivers, and extends the non-minister religious workers category. Finally, the law allows USCIS to continue processing green card applications for dependents even when the principal beneficiary dies during the adjudication. Previously, such a death dealt a doubly-tragic blow to affected dependents as their GC status was put in jeopardy by the principal's death. … [link]

10/13/2009 - USCIS Clarifies O and P Visa Filing Procedures for Agents
O and P visas apply to non-immigrants with extraordinary ability in the sciences, arts, education, business or athletics, or in the motion picture and television field. O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. Often, an O or P employee will work for multiple employers during his/her stay in the United States. The relevant regulations allow a bona fide agent to petition on behalf of such a person, as long as an itinerary listing all actual employers is provided. The Service has found that in some cases involving multiple employers for an O or P employee, the first employer will file on behalf of the individual and list the other employer(s) employer on the itinerary. CIS has clarified that only a company that is “in business” as an agent can do a filing on behalf of multiple employers. This policy statement creates uncertainty as to how a company can prove that it is "in business" as an agent to the satisfaction of a particular USCIS adjudication officer. … [link]

8/13/2009 - USCIS Amends Procedure for Case Status Inquiries
Until recently, the only way to check on the status of a pending case that was taking beyond the normal processing time was to call the USCIS's National Customer Service Center (NCSC) at 1-800-375-5283. USCIS has amended this procedure to allow concerned customers or their representatives to email the applicable Service Center directly if the issue has not been resolved and more than 30 days have passed since the NCSC was contacted. There is also the option to email the USCIS Headquarters Office of Service Center Operations if there is no response from the Service Center within 21 days. … [link]

7/2/2009 ICE Steps Up Enforcement of Form I-9s
United States Immigration and Customs Enforcement (ICE) announced that on July 1, 2009, 652 businesses nationwide were issued Notices of Inspection (NOIs) for I-9 audits. This number is greater than the total number of I-9 audits conducted all of last year. ICE and the Department of Homeland Security have recently been promising greater enforcement of immigration-related regulations, and so this move is not unanticipated. DHS has increased the number of its staff that is dedicated towards fraud prevention and immigration compliance. Accordingly, all employers are encouraged to conduct Form I-9 self-audits to be prepared for an inspection by ICE should one occur.… [link]

6/25/2009 - Information Update: H-1B RFEs
As many H-1B employers will confirm, in the last few months USCIS has heightened the level of scrutiny with which it adjudicates employment-based petitions, resulting in increased numbers of Requests for Evidence (RFEs), Notices of Intent to Deny (NOID) and denials. The issue has been particularly vexing for Information Technology companies, given that the Service routinely requests documentation that is impossible to provide under normal business practices. In an encouraging development, USCIS has informally indicated to the American Immigration Lawyers Association that it expects to reduce the number of overbroad RFEs, and to modify Service Center practice to conform with such normal industry practices. USCIS will also be issuing a "Helpful Hints" bulletin addressing what kind of evidence employers can provide to avoid RFEs and denials. In the interim, employers are encouraged to vigilantly pursue avenues to substantiate their cases with adequate documentation.

6/25/2009 - Information Update: H-1B Cap Update
The H-1B cap for Fiscal Year 2010 has been reached. The USCIS announced that the "final receipt date" is December 21, 2009. While the H-1B cap for FY2010 has been reached later than in the past couple of years, it bears noting that new H-1B visa numbers will still remain unavailable for the next 9 months (until October 1, 2010). This underscores the fact that, even in a slow economy, the demand for H-1B visas greatly outstrips supply.

6/25/2009 - USCIS, FBI Eliminate National Name Check Backlog
USCIS has confirmed that it has eliminated the backlog of cases that were pending an FBI name check. The Service had previously indicated that it would continue preliminary processing of such cases to avoid further delays. Going forward, it is expected that 98% of name checks will occur within 30 days, with the remaining 2% being completed in 90 days. … [link]

4/28/2009 - Senators Durbin and Grassley Introduce the "H-1B and L-1 Visa Reform Act"
Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) have introduced legislation entitled the "H-1B and L-1 Visa Reform Act." If passed, this Act would significantly alter the H-1B landscape by implementing burdensome regulatory and administrative hurdles for many, if not most H-1B employers. Among other changes, the Act would:

  • prohibit employers from hiring additional H-1B and L-1 guest-workers if more than 50% of their employees are H-1B and L-1 visa holders,
  • permit DOL to initiate investigations without a complaint,
  • require annual DOL audits for employers having over 100 employees if more than 15 percent of such employees are H-1B nonimmigrants, and
  • require DOL to conduct audits of at least 1 percent of all H-1B employers across the United States.
Aside from being a colossal waste of taxpayer money, the Act, if passed, would be deleterious to the Information Technology industry as a whole. … [link]

3/31/2009 - ICE Clarifies Procedures for Cap-Gap Eligible Students
Students in F-1 status applying for a change-of-status H-1B petition under the FY 2010 quota (effective starting October 1, 2009) may be eligible for automatic "cap gap" relief. If the student is on post-completion OPT on the date of the petition's filing and that OPT period ends before October 1, 2009, the OPT is automatically extended to October 1. (The H-1B change of status petition must be successfully receipted if there is an H-1B lottery). Likewise, students in their 60 day "grace period" as of the cap-subject change-of-status H-1B petition's filing enjoy an extension of the grace period (but no additional work authorization) until October 1. An Immigration and Customs Enforcement (ICE) fact sheet has clarified that a new EAD does not need to be filed for the OPT cap-gap extension. It also lists certain employer and student responsibilities. … [link 1] [link 2]

3/13/2009 - H-1B Cap Filing Procedures
Employers are reminded that the H-1B regulations at 8 C.F.R. 214.2(h)(8)(ii)(B) were amended last year to allow for a five business day window in case of a lottery. Therefore, if the FY2010 H-1B cap is reached this year on or before April 7, 2009, all cap cases received through April 7, 2009 will be accepted for the lottery.… [link]

2/26/2009 - USCIS Expands Form I-140 Premium Processing Eligibility
Effective March 2, 2009, USCIS will accept a premium processing request for a Form I-140 petition filed by an H-1B nonimmigrant who has either finished 6 years in H-1B status or is within 60 days of the 6 year mark, if that nonimmigrant would be eligible for a 3 year post-6th year extension under section 104(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) but not a 1 year extension under section 106(a) of AC21.… [link]

2/19/2009 - American Recovery and Reinvestment Act of 2009 signed into law with Sanders H-1B Amendment
On February 17, 2009 President Obama signed into law the American Recovery and Reinvestment Act of 2009. The Act includes an amendment by Senators Bernie Sanders (I-Vt.) and Charles Grassley (R-Iowa) to consider all recipients of federal money under the Troubled Assets Relief Program (aka TARP) as "H-1B dependent." As discussed in our article on the current state of the H-1B program, this effectively means that these institutions would have great difficulty in hiring (or possibly extend the petitions of) H-1B workers since most of these institutions have been laying off U.S. workers. Non-recipient companies seem to remain free to place consultants at TARP-recipient worksites, despite the Sanders-Grassley amendment.… [link]

2/13/2009 - News Analysis
We have issued a news analysis article on the current state of the H-1B program in light of the recent headlines on the subject. The article discusses the TARP-related restrictions, audits, and strategies for H-1B employers and employees. … [more]

2/4/2009 - USCIS issues warning to avoid unaccredited immigration practitioners
The USCIS has issued an informational bulletin entitled "Don't Be a Victim of Immigration Fraud" as part of its awareness campaign on the issue of immigration fraud. The bulletin warns against the usage of unaccredited immigration consultants or notarios, and provides information on how the public can ascertain the accreditation status of immigration practitioners. … [link]

1/22/2009 - Janet Napolitano named as new Secretary of the Department of Homeland Security
As the new Obama administration takes over the executive branch of the federal government, one of the many highlights is the appointment and confirmation of former Arizona Governor Janet Napolitano as Secretary of the Department of Homeland Security. Napolitano has been an outspoken proponent of boosting skilled immigration, and favors increasing the H-1B cap and reducing green card backlogs. While only Congress can pass reform legislation, it is hoped that Napolitano's appointment will lead to much-needed favorable regulatory changes at DHS. … [link]

2/26/2009 - USCIS Expands Form I-140 Premium Processing Eligibility
Effective March 2, 2009, USCIS will accept a premium processing request for a Form I-140 petition filed by an H-1B nonimmigrant who has either finished 6 years in H-1B status or is within 60 days of the 6 year mark, if that nonimmigrant would be eligible for a 3 year post-6th year extension under section 104(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) but not a 1 year extension under section 106(a) of AC21. … [link]

2/19/2009 - American Recovery and Reinvestment Act of 2009 signed into law with Sanders H-1B Amendment
On February 17, 2009 President Obama signed into law the American Recovery and Reinvestment Act of 2009. The Act includes an amendment by Senators Bernie Sanders (I-Vt.) and Charles Grassley (R-Iowa), which automatically treats all recipients of federal money under the Troubled Assets Relief Program (aka TARP) as "H-1B dependent." As discussed in our article on the current state of the H-1B program, this effectively means that these institutions would have great difficulty in hiring (or possibly extend the petitions of) H-1B workers since most of these institutions have been laying off U.S. workers. Non-recipient companies seem to remain free to place consultants at TARP-recipient worksites, despite the Sanders-Grassley amendment. … [link]

11/07/2008 - Department of State Clarifies Procedures for TCN Visa Processing in Mexico
Visa applicants are generally encouraged to apply for visas in their home country, at the Consulate covering their permanent address. Under some circumstances, nonimmigrants residing in the US have been able to secure visas under Third Country National (TCN) visa processing in Canada or Mexico. The US Consulates in Mexico have clarified that they will not issue initial visas to TCN applicants for a particular visa category, but will entertain renewal of a prior visa stamped in the applicant's home country. … [link]

10/22/2008 - USCIS Increases Limit on TN Visas to Three Years
The USCIS has increased the limit on TN visas (available to Canadian and Mexican nationals) from one to three years. The rule change likewise extends the limitation for TD dependants to three years. This obviates the need for TN nonimmigrants to continually renew visa status each year. … [link]

9/25/2008 - Update and Outlook for Department of State Visa Bulletin
The Visa Bulletin for October 2008 reflects continued stagnation and retrogression in some categories. Priority dates for EB-2 (India and China) have retrogressed by almost two years. EB-3 visas are once again available in October 2008, but with significant backlog. Little if any forward movement of the cut-off dates in most Employment categories is likely until the extent of the CIS backlog of old priority dates can be determined. … [link]

7/31/2008 - USCIS Clarifies Applicability of INA Section 245(k)
Section 245(k) of the Immigration and Nationality Act (INA) creates an exemption to certain bars to adjustment of status for an aggregate period of 180 days. Under this law, employment-based adjustment applicants are still eligible for green card status even if they have engaged in unauthorized employment, failed to maintain status or otherwise violated the terms of their admission for 180 days or less. A recent USCIS memo clarifies that this 180 days limit begins from the applicant's most recent admission in nonimmigrant status. Entry as a parolee does not qualify as an admission in status. Also, 245(k) continues to apply to status violations that occur after the filing of an I-485 and before its adjudication. … [link]

6/12/2008 - USCIS Extends Premium Processing of Form I-140 for Certain H-1B Nonimmigrants
The USCIS has extended the option of premium processing to H-1B nonimmigrants whose sixth year will end within 60 days, and who are not eligible for a one year extension under section 106(a) of American Competitiveness in the Twenty-first Century Act of 2000 (AC21). The purpose of this policy change is to allow individuals who are running out of time in H-1B stay to utilize section 104(c) of AC21 for a 3 year extension based on a Form I-140 petition that is approved under premium processing. Premium processing service guarantees a response from the USCIS within 15 days for a $1000 fee. … [link]

5/29/2008 - FAQ Addresses Numerous Issues Relating to "Cap Gap" OPT and STEM OPT Students
An FAQ released by the USCIS addressed several lingering issues relating to "Cap Gap" OPT and STEM OPT students. Notable points include the following: To remain in status, students in the initial 12 month OPT period must accrue no more than 90 days of total unemployment (120 aggregate limitation applies to STEM OPT students). Cap Gap beneficiaries whose I-129 petition is denied may, under some circumstances, be eligible for 60 days of authorized stay as of the denial date. Cap Gap beneficiaries are eligible for updated I-20s but are not entitled to F visas during the cap gap period. Students who were in the 60 day post-OPT grace period on April 1 and whose H-1B change of status petition was receipted have Duration of Status (D/S) until October 1 but not work authorization. A STEM extension can be applied for during the cap-gap work authorization period. STEM students need to report significant changes (including changes in address or email address) to their school's DSO. Employers likewise have numerous obligations with respect to hiring/termination of STEM students. … [link]

4/7/2008 - Cap-Gap Relief for FY2009 H-1B Beneficiaries Currently on F-1/OPT; 17 Month OPT Extension for Science and Technology Degree Holders
A rule announced by the DHS provides some new benefits for F-1 students on Optional Practical Training (OPT). First, it allows for a 17 month extension beyond the initial 12 month OPT period, under certain circumstances. The Beneficiary must have a designated science or technology degree, must specify an employer who has registered under the (otherwise voluntary) E-Verify employment authorization verification system, and must remain employed with that employer to remain in status. Second, the rule automatically extends to October 1, 2008 the OPT authorization for current F-1 OPT students who have applied for a chance of status under the April 2008 H-1B quota, and whose employment authorization would otherwise have ended before October 1, 2008. … [link]

2/7/2008 - Relief for Adjustment Applicants with Long-Pending Security Checks
Thus far, definitive FBI fingerprint and name checks have been required prior to the approval of Form I-485 Applications for Adjustment of Status. In recognition of the fact that many adjustment applications have been pending for inordinate periods of time due to pending FBI checks, the USCIS has announced a new policy under which it will approve pending I-485 applications (and certain other applications) where the application is otherwise approvable and the FBI check has been pending for more than 180 days. The USCIS will take corrective action if the FBI check ultimately reveals derogatory information. … [link]

1/09/2008 - New Employment Verification Procedures Under Revised Form I-9
The USCIS has issued guidance that effective December 26, 2007 employers must use the newest version of the Form I-9 (revised June 5, 2007) for determining whether new employees are work authorized. Current employees are exempt from completing the revised Form I-9 unless their basis for employment is a newly-issued or revalidated EAD. Employers are cautioned to comply given that failure to utilize the new form carries penalties and also given that Immigration and Customs Enforcement (ICE) has stepped up its verification procedures. … [link]

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