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]

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 annouced 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.

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 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 natarios, 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 approveable 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 Verficiation 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 Immigrantion and Customs Enforcement (ICE) has stepped up its verification procedures. … [link]