http://www.tewary.com/news.htm Concise summary of recent developments in the area of Business Immigration Law (H-1B visas, PERM Labor Certification, etc.). en-us Fri, 03 Sep 2010 12:00:00 EST USCIS has confirmed that as of August 27, 2010, it has received approximately 34,900 petitions towards the FY 2011 H-1B cap of 65,000. 13,000 petitions have been filed under the U.S. Master's exemption allocation of 20,000. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Fri, 03 Sep 2010 12:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 12 Aug 2010 12:00:00 EST 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 the 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 15 Jul 2010 12:00:00 EST 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 and 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Sun, 30 May 2010 09:00:00 EST USCIS has confirmed that as of April 27, 2010, it has received approximately 16,500 petitions towards the FY 2011 H-1B cap of 65,000. 6,900 petitions have been filed under the U.S. Master's exemption allocation of 20,000. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 06 May 2010 12:00:00 EST 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 "just above 50%." In recent months many RFEs have requested "clear evidence" of eligibility, which is a higher and inapplicable standard. USCIS headquarters will be issuing guidance to adjudicators at the Service Centers to treat RFEs as tools to help petitioners cure any deficinecies in their petitions, and not as de facto precursors to denials. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Fri, 26 Mar 2010 12:00:00 EST 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 immigation 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 18 Feb 2010 12:00:00 EST 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 will 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 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Fri, 15 Jan 2010 12:00:00 EST USCIS has announced that the Fiscal Year 2010 H-1B quota has been reached. The "final receipt date" was 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, 2011). This underscores the fact that, even in a slow economy, the demand for H-1B visas greatly outstrips supply. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 24 Dec 2009 12:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 03 Dec 2009 12:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Sun, 15 Nov 2009 12:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 29 Oct 2009 12:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Tue, 13 Oct 2009 12:00:00 EST 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 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 13 Aug 2009 12:00:00 EST USCIS has confirmed that as of August 7, 2009, it has only received approximately 44,400 petitions towards the FY 2010 H-1B cap of 65,000. Virtually 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Tue, 11 Aug 2009 12:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 02 Jul 2009 12:00:00 EST USCIS has confirmed that it has eliminated the backlog of cases that we 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 25 Jun 2009 12:00:00 EST USCIS has confirmed that as of June 12, 2009, it has only received approximately 44,400 petitions towards the FY 2010 H-1B cap of 65,000. Virtually 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. Employers are encouraged to file any remaining cap cases soon, as we anticipate the H-1B cap to be reached within the next few weeks. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Tue, 16 Jun 2009 12:00:00 EST USCIS has confirmed that as of May 18, 2009, it has only received approximately 45,500 petitions towards the FY 2010 H-1B cap of 65,000. Virtually 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. Employers are encouraged to file any remaining cap cases soon, as we anticipate the H-1B cap to be reached within the next few weeks. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Fri, 22 May 2009 12:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Tue, 28 Apr 2009 12:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Tue, 31 Mar 2009 12:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 26 Feb 2009 15:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 19 Feb 2009 15:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Wed, 04 Feb 2009 15:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 22 Jan 2009 15:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Fri, 07 Nov 2008 15:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Wed, 22 Oct 2008 15:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 25 Sep 2008 15:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 31 Jul 2008 19:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 12 Jun 2008 12:00:00 EST 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 have numerous obligations with respect to hiring/termination of STEM students. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 29 May 2008 18:00:00 EST Approximately 163,000 petitions were received between April 1 and April 7 for both the regular H-1B cap as well as the U.S. Master's exemption for Fiscal Year 2009 (beginning on October 1, 2008). USCIS conducted a lottery for accepted cases under both quotas, and receipt notices for all accepted cases will be issued by June 2, 2008. The 15 day timeframe for premium processing on accepted cases is effective from April 14, 2008. In addition, a few cases have been put on the wait-list for a final decision on acceptance or rejection under the lottery, pending the final results on certain other accepted cases. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Tue, 15 Apr 2008 14:00:00 EST As expected, the USCIS has received enough H-1B petitions under both the regular H-1B cap as well as the U.S. Master's exemption. USCIS will be conducting a lottery for accepted cases under both quotas, and any cases not selected under the U.S. Master's cap will be re-considered under the regular cap lottery. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Tue, 08 Apr 2008 18:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Mon, 07 Apr 2008 12:00:00 EST To alleviate the rush for filing of H-1B petitions on April 1, 2008, and also to avoid some of the abuses from last year, the USCIS will be implementing an Interim Rule featuring signficant changes. Notably, new 8 C.F.R. 214.2(h)(8)(ii)(B) has essentially extended the de-facto H-1B filing deadline of April 1, 2008 to April 7, 2008. Under that regulation, if the H-1B cap is reached on any one of the first five business days of April 2008, USCIS will randomly select H-1B numbers among the petitions received on those days. Also, under new 8 C.F.R. 214.2(h)(2)(i)(G), multiple filings by the same employer for the same beneficiary will all be rejected. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 20 Mar 2008 18:00:00 EST 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. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 07 Feb 2008 18:00:00 EST The USCIS has announced new procedures to be followed for H-1B petitions requesting cap exemption on the basis that the petitioner is an institution of higher education, a related nonprofit entity, a nonprofit research organization or a governmental research organization. Going forward a special unit at the California Service Center will handle such petitions. H-1B petitions requesting cap exemption under the U.S. Master's quota or due to prior H status are excluded from this directive. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 31 Jan 2008 18:00:00 EST The December 2007 Visa Bulletin shows a return to significant visa retrogression in the EB-2 and EB-3 categories. Most applicants for adjustment of status who filed in July/August 2007 can expect to wait years for the completion of their green card processing. Also, clients are reminded that certified RIR and TR labor certifications that have not become the basis for an I-140 immigrant petition are set to expire on January 12, 2008. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 29 Nov 2007 18:00:00 EST Generally, an adjustment applicant who leaves the country while the application is pending is deemed to have abandoned it unless an advance parole is received prior to departure. An exception exists for H and L nonimmigrants under certain conditions. The USCIS today published a new rule that waives the requirement that the H or L nonimmigrant must return with the I-485 receipt to preserve a pending adjustment application. The other requirements (such as returning to the same employer if on H-1 or L-1) continue to apply. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 01 Nov 2007 18:00:00 EST The USCIS has reported that it is experiencing inordinate delays in the receipting of I-485, I-131 and I-765 applications given the 320,000-odd adjustment applications filed in July and August. The agency is working to ensure all EAD applications are processed in the mandated 90-day timeframe. Adjustment applicants in H or L status are reminded to wait for the I-485 receipt notice before travelling to avoid I-485 abandonment issues. USCIS has also indicated that it will not be reinstating I-140 premium processing in the near future. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 04 Oct 2007 18:00:00 EST The Department of State has issued the October Visa Bulletin, which shows current visa number availability in most classifications, except the EB-2 and EB-3 categories. Notably, the EB-1 category is current for all countries, and EB-2 is current for all countries except China and India. The EB-3 and Other Workers categories are available, yet show significant retrogression, with 2001 and 2002 priority date cutoffs. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Fri, 14 Sep 2007 03:00:00 EST The Department of State has issued the September Visa Bulletin, which shows at least some visa number availability in all classifications except the Other Worker and some EB-3 categories. This result is somewhat surprising given the deluge of filings between July 17 and August 17 of this year. The Department of State explained that visa availability in September is due to lesser demand for immigrant visas at consular posts. DOS officials have also informally stated that the October 2007 Bulletin will probably be similar to the January 2007 Visa Bulletin for EB-3 cases and the September 2007 Visa Bulletin for EB-2 cases. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 23 Aug 2007 13:00:00 EST The USCIS's new fee schedule has gone into effect. USCIS also issued three FAQs relating to Employment-based Adjustment Applications being filed by August 17, 2007 under the revised July Visa Bulletin. Notable points: USCIS will accept applications without medical forms. RFEs will be issued for the medicals;I-485 applications may be filed where an I-140 immigration petition has been filed but no receipt number has been issued;Derivatives are reminded to file along with principal applicants. The FAQs also address a variety of other filing issues. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 09 Aug 2007 19:00:00 EST The Department of State has announced, unbelievably, that all employment-based immigrant visa categories (except for the Other Worker category) are now available for the remainder of July 2007, but are unavailable for August 2007. This announcement rescinds the DOS' earlier announcement from July 2, 2007, which made all employment-based categories unavailable. The first version of the July Bulletin, issued in mid-June, had made all employment-based categories current. USCIS announced that it will allow filings eligible for adjustment in July 2007 to be submitted during a 31 day window, from July 17, 2007 to August 17, 2007. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Tue, 17 Jul 2007 18:00:00 EST As predicted, the Department of State has made all employment-based preference cases unavailable as of July 2, 2007. Unavailability will continue until the new fiscal year in October 2007. Applicants who needlessly rushed to file I-485s and suffered losses as a result are encouraged to join the American Immigration Law Foundation's AILF efforts in filing lawsuits against USCIS and DOS. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Mon, 02 Jul 2007 13:00:00 EST The Senate has decided not to proceed with the "Grand Bargain" comprehensive immigration reform bill that it was considering. The bill essentially featured a complete restructuring of the employment and family based immigrant visas systems, and certain proposed amendments would have addressed visa backlogs and the H-1B quota. The law will remain largely the same for the time being, and no major developments in immigration reform are expected until after the November 2008 presidential elections. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 28 Jun 2007 13:00:00 EST The Department of State published the Visa Bulletin for July 2007. The new bulletin shows that priority dates are current in all categories except the "Other Worker" category. Significant visa retrogression is expected by the start of the new fiscal year in October 2007. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 14 Jun 2007 13:00:00 EST The USCIS announced a new fee schedule effective July 30, 2007. Notable increases include a new filing fee of $475 for I-140s, $320 for I-129s (including H1s and L1s), and $1010 for most I-485 applicants. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 31 May 2007 13:00:00 EST The Department of State published the Visa Bulletin for June 2007. The new bulletin shows that priority dates progressed in many categories, including by two years in the EB-3 (All Others) and EB-3 (India) categories, and by 15 months in the EB-2 (India) category. Also the Other Workers category has now become available. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Wed, 16 May 2007 13:00:00 EST The Department of Labor's Rule 1205-AB42 is scheduled for publication as a Final Rule on May 17, 2007 and will be effective on July 16, 2007. The Rule ends the practice of labor substitution, and requires an I-140 immigrant petition to be filed within 180 days of an approved labor certification. Pending I-140 substitutions filed prior to July 16, 2007 will be unaffected by the Rule. It also creates a mechanism from debarment for the labor certification program and prohibits the sale or barter of labor certifications. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Wed, 16 May 2007 13:00:00 EST The Department of Labor is expected to increase its enforcement of wage and hour regulations. A recent decision, DOL vs. API Accounting, is an example of this more aggressive stance towards regulation enforcement. In API, the DOL punished API for its alleged violations with an award of backwages, a civil penalty of $7500, and debarment from the H-1B program for two years. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Mon, 14 May 2007 13:00:00 EST The Office of Management and Budget has completed its review of the Department of Labor's Rule 1205-AB42, which would end the practice of labor certification substitution, limit labor certification validity to 45 days, and increase penalties for violations of DOL regulations. The final version may include modifications. The date of effectiveness is expected to be announced soon. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Tue, 01 May 2007 13:00:00 EST The USCIS recently issued a proposed rule to increase its filing fees by an average of $174, from an average fee of $264 to $438. In other words, fees are expected to increase by around 66%. The Department of Labor has also proposed a filing fee for PERM labor certification applications, which have been free thus far. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Tue, 03 Apr 2007 13:00:00 EST The USCIS recently issued a proposed rule to increase its filing fees by an average of $174, from an average fee of $264 to $438. In other words, fees are expected to increase by around 66%. The Department of Labor has also proposed a filing fee for PERM labor certification applications, which have been free thus far. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Mon, 19 Feb 2007 13:00:00 EST A recent USCIS memo announced that any time spent in H-4 status will no longer count against the six year maximum applicable to H-1B aliens. Also, H-1B holders who have used less than their 6 years and have stayed out of the country for over 1 year now have the option of returning for the remainder of their 6 year stay (cap exempt), instead of waiting for a new H-1B cap and applying for a fresh 6 years of eligibility. This is especially useful where a labor certification has been filed for the individual. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 21 Dec 2006 11:00:00 EST The Department of State has partially waived the jurisdictional requirements for choice of Consulate in India. English-speaking nonimmigrant visa applicants can now apply at the U.S. Embassy, New Delhi or at the U.S. Consulates in Chennai or Mumbai. This will be of comfort to visa applicants in the Chennai region, who have been inundated with superfluous rejections based on 221(g) requests. Such denials seem to be less of a problem in Delhi and Mumbai. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 14 Dec 2006 18:00:00 EST The USCIS has announced that it is accepting Premium Processing for Forms I-140 filed in the EB-2 and EB-3 categories. Premium Processing is not possible where the original labor certification is unavailable. Also, conversion of a pending I-140 petition to premium processing is available, however it is not possible to file a new I-140 petition along with a Premium Processing request where an earlier I-140 petition is already pending. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Mon, 25 Sep 2006 18:00:00 EST The Department of Labor OFLC introduced its Backlog Public Disclosure System, which allows aliens, attorneys and employers to check the status of a pending pre-PERM labor certification case by inputting the ETA number. Another DOL FAQ re-establishes procedures for reinstating erroenously closed pre-PERM cases. http://www.tewary.com/news.htm info@tewary.com (Law Offices of Kamlesh Tewary, P.C.) Thu, 14 Sep 2006 18:00:00 EST