Tags: L-1B, US Citizenship, USCIS
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On August 28, 2015, the U.S. Citizenship & Immigration Services (“USCIS”) released its performance data related to the adjudication of L-1B “specialty knowledge” worker petitions through the end of the third quarter of Fiscal Year 2015. The L-1B visa is an important visa that enables multinational companies to transfer workers to the U.S. who have been employed abroad with a qualifying, related entity if the worker has been employed in a position that requires noteworthy or advanced knowledge of the company’s products and procedures.
A review of the data shows that since the start of Fiscal Year 2015 (i.e. October 1, 2014), USCIS denials of L-1B petitions are on the decline, with the denial rate dropping from 30% to approximately 20%. The fact that one fifth of all L-1B petitions filed can expect a denial is still sobering. However, the downward trend is somewhat encouraging considering that according to data for Fiscal Years 2003 through 2011 denial rates had increased 500% from a low of 6% in Fiscal Years 2005 and 2006 to a high of over 30%.
One likely explanation of this downward trend in denials stems from President Obama’s executive order signed in November of 2014. The executive order included a directive to USCIS to implement better guidelines for its adjudicators to use when evaluating L-1B petitions and to create a more uniform and predictable standard. On August 17, 2015, USCIS released a new L-1B Adjudications Policy Memorandum. While the new policy memorandum appears to adopt a relatively restrictive definition of “specialized knowledge”, it at least does so in a more predictable way. The jury is still out on how USCIS will go about implementing the policy memorandum. It is our hope that USCIS will continue to educate its adjudicators on the importance of the L-1B visa program as well as on Congress’ intent to facilitate knowledge transfer from key employees. It is also our hope that the related government agencies continue to evaluate their standards to ensure the fair treatment of workers who drive economic innovation.
Tags: CIS, DOS, EB-2, foreign national, immigration, USCIS, visa
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After months of steadily moving forward the priority date for the Employment-based Second preference category (“EB-2”) for foreign nationals chargeable to India, in the October 2014 Visa Bulletin the Department of State (“DOS”) has stated that the EB-2 India priority date will retrogress to 2005 as early as on November 1, 2014. Any Indian national with a “current” priority date for the EB-2 category is therefore encouraged to immediately file their I-485 Adjustment of Status application.
Additionally, officials within the DOS have told the American Immigration Lawyers Association (“AILA”) that the maximum number of Indian EB-2 immigrant visas for the current government fiscal year (running to September 30, 2014) has been reached. Therefore, the DOS will not be allocating any new immigrant visas for EB-2 Indian nationals until October 1, 2014, which is the start of the next government fiscal year. However, the Citizenship and Immigration Services (“CIS”) has stated that it will continue to accept filings with a current priority date – presumably through the end of October. In addition, pending I-485 Adjustment of Status application and new applications filed during the month of September will be held until October 1, 2014, at which time they will begin to be processed. As a result, Indian nationals should not delay their filing due to the unavailability of Immigrant Visas.
What this all means for the next 6 weeks is not clear. There are a number of pending I-485 Adjustment of Status applications filed by Indian nationals with current priority dates. We expect that some number of these pending cases will be approved when visa numbers again become available for a short period of time on October 1st. How many will be processed and approved within this short window of time cannot now be determined.
Feel free to contact any member of our Immigration Law Group with any questions.
Tags: 2014-cap, h-1b visa, USCIS, visa
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Given improving economic conditions and increased hiring, we anticipate that demand for the limited number of H-1B visas will again this year vastly exceed supply. Last April, over 130,000 cap subject H-1B petitions were filed with the USCIS in the first week of April, and USCIS held a lottery to determine which petitions would be accepted for processing. We are projecting that this year the cap will again be reached within the first week of April and that USCIS will hold another lottery. As a result we are advising all employers who expect to sponsor an employee for a new H-1B visa to file within the first five (5) days of April.
Please see this month’s Immigration Alert for further details.
As always, you’re invited to contact our Immigration Team at you convenience to discuss your specific needs.
Tags: CBP, DOL, DOS, government shutdown, immigration law, USCIS
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On October 1, 2013 MBBP published a new Immigration Alert: The Effect of The Government Shutdown on Immigration Matters. As a result of Congress being unable to agree to fund the government, it has been “shutdown” until the funding has been secured. This will have a major effect on government services that are not fee-based. For those services, all non-essential employees must stay home. The only exception where non-essential employees can work is to protect life or property. Essential employees will continue to work. Fee-based government services will be mostly unaffected. We strongly encourage any HR or hiring officials to read this in its entirety to ensure that they understand what compliance obligations will continue, and what will be suspended. The major government agencies that will be affected are:
- U.S. Citizenship & Immigration Services (USCIS)
- Customs & Border Protection (CBP)
- Department of Labor (DOL)
- Department of State (DOS)
Tags: DOMA, DOS, immigration law, USCIS
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By: Grant W. Godfrey
We have previously written about the recent Supreme Court decision striking down a key provision in the federal 1996 Defense of Marriage Act (“DOMA”). DOMA had prohibited the Federal Government from recognizing same-sex marriages by defining the word “marriage” as a legal union between one man and one woman. We also provided an update when the U.S. Citizenship & Immigration Services (“CIS”) announced that it would allow Same-Sex Spouses to sponsor each other for Green Cards.
The CIS has updated its Frequently Asked Questions (“FAQ”) informing the public that it will accept applications for all benefits that heterosexual spouses are provided. The U.S. Department of State (“DOS”) has also issued its own FAQ stating that it will process visa applications for same-sex spouses in the same way that it processes applications from heterosexual spouses.
It is important to note that at this time, same-sex partners in civil unions and domestic partnerships are not allowed to sponsor each other for immigration benefits. As long as the same-sex spouses were married in a jurisdiction that recognizes same-sex marriage, the marriage should be considered legally valid for immigration purposes. CIS has previously stated that there may be circumstances in which it will look at the law where the spouses are living to determine if the marriage is valid for immigration purposes, however this interpretation directly contradicts recent case-law stating that the only relevant consideration is the jurisdiction where the marriage occurred. It is our expectation that CIS will rarely, if ever, look to the law of the state where the spouses are living to determine if the marriage is valid.
Please do not hesitate to contact the attorneys in our Immigration Practice with any questions, or to explore sponsorship opportunities.
Tags: DOMA, USCIS
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By: Grant Godfrey
On July 2, 2013, U.S. Citizenship & Immigration Services (“CIS”), the government agency with primary responsibility over granting immigration benefits, issued an Alert containing a statement from the Secretary of Homeland Security Janet Napolitano and a Frequently Asked Questions (“FAQ”) regarding implementation of the Supreme Court Decision that overturned a critical section of the Defense of Marriage Act (“DOMA”).
In her statement, Secretary Napolitano specifies that effective immediately, CIS has been directed to review immigrant visa petitions (commonly referred to as a petition for a “Green Card”) filed on behalf of a same-sex spouse in the same manner as it would for a petition filed by a heterosexual spouse. The FAQ reiterates Secretary Napolitano’s statement, and also clarifies that as a general matter CIS will look at the law of the place where the marriage was performed to determine if it is valid, not the spouse’s state of residence. This means that even if a spouse lives in a state that does not recognize same-sex marriage, in most cases the marriage will still be considered valid as long as it was conducted in a state or country that recognizes same-sex marriage.
Green Card sponsorship is only one of several benefits that heterosexual spouses are allowed (see Impact of the Supreme Court Striking Down the Defense of Marriage Act on Immigration). We will continue to monitor this situation, and expect that in the coming weeks more immigration benefits will be extended to same-sex couples.
The H-1B Filing Season – a Post-Mortem 06/06/2013Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.
Tags: H-1B filing, immigration reform, USCIS
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By: Donald Parker
The 2014 H-1B filing season opened on April 1st with a bang. In the first 5 days of April, the U.S. Citizenship and Immigration Services (“CIS”) received approximately 124,000 visa petitions for new H-1Bs – well exceeding the 65,000 quota for non-U.S. Master’s degree cases and the 20,000 quota for U.S. Master’s degree holders. By regulation, CIS is required to accept for processing all H-1B petitions filed during the first 5 business days of the H-1B filing season. In the event that CIS receives more petitions than the available annual quota during the initial filing period, it will make an announcement that it is no longer accepting H-1B petitions and will hold a lottery to determine which cases will be accepted for processing. This year, CIS announced on April 5th that it received sufficient visas to fill the quota, and on Sunday, April 7th it held the required lottery.
Over the course of the following weeks, we, like other immigration practices began to see Receipt Notices trickle in for those of our cases that were selected in the lottery process. Beginning in the second week of May, with all selected cases having been receipted, the CIS began to return the cases of those who were not as fortunate in the lottery.
In our practice we filed a record number of cases – even more than had been filed by us in 2008, the last year when an early lottery needed to be held. Of that number, all of our U.S. Master’s degree cases were accepted for processing. This suggests that while CIS received more than 20,000 U.S. Master’s degree cases, the number that they received was likely not significantly in excess of the cap. With respect to our non-Master’s cap cases, we received Receipt Notices for approximately 72% of our filed cases suggesting that the USCIS received approximately 100,000 non-U.S. Master’s cap cases.
Of the cases that were not receipted, many of the affected workers had other options to remain in the U.S. (e.g. STEM extensions of OPT, and eligibility for H-1B alternatives like the O-1 visa and the E-2 visa). Still, as is the case for many thousands of people around the United States, several of our clients are having to deal with the reality that there will be no more new H-1B visas available this year and few good alternatives that fit their workers.
The Immigration Reform legislation that is currently working its way through the U.S. Senate will do much to remedy the shortage of H-1B visas. But, it faces many challenges including making it safely out of the Senate and then trying to find some reconciliation with the less controlled House of Representatives. Time will tell whether the U.S. government is prepared to replace the “luck” of a lottery with a sensible system and adequate visa numbers to meet the needs of U.S. employers looking for the strongest and most capable, professional labor force.
For questions or more information on this topic, please contact any member of our Immigration Law Group.
CIS Will Likely Need Until The End of May to Sort Out Accepted and Rejected H-1B Cap Cases 04/16/2013Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.
Tags: H-1B cap, immigration, USCIS
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In recent alerts, we have informed clients that the H-1B Caps had been reached and the lottery had been held, provided a FAQ in regards to the H-1B Cap, and provided an alert describing the H-1B caps and provided an overview of eligibility for the status.
At a recent conference, an official at the U.S. Citizenship and Immigration Services (“CIS”) informed the audience that CIS would first process data entry for the H-1B cap cases filed requesting premium processing, and that they expected data entry for those cases would be completed by April 15. Note that this is the only preferential treatment that CIS is providing to premium processed cases. CIS must process those cases first as they are required to make an initial determination on all premium processed cases by May 1st. Premium processed cases did not receive any preferential treatment in the lotteries.
Once data entry is complete on the premium processing cases, CIS will begin data entry for all other cap-subject H-1B cases. CIS anticipates that data entry for the non-premium processed cases will continue until sometime in May, and rejection notices for petitions not selected in the lottery will be sent out after that.
Unfortunately this information confirms our prediction in the H-1B Cap FAQ that both the employers and sponsored employees will likely need to wait another month or more before they will definitively know whether the case was accepted for processing or not.
We again encourage anyone who is in Human Resources or Recruiting who are interested in learning more about the other work authorized visa categories to attend our event on May 9th, “Alternatives to H-1B Visas.”
Tags: getting in line, green card, immigration, USCIS
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By: Grant Godfrey
Anyone who has navigated through our maze of immigration laws understands that it is complicated and takes a long time. An NBC news article published today sheds light on how the concept of “getting in line” for a Green Card is a dramatic oversimplification of our current system. The better questions are: (a) which line do you have to get in?, (b) how many years are you going to have to wait?, and (c) is there even a line available to you?
To help you answer these questions and more, please contact any member of our Immigration Practice Group.
Tags: entrepreneurs in residence, entrepreneurs pathways, USCIS
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Last October, the U.S. Citizenship & Immigration Services (“CIS”) announced the Entrepreneurs in Residence program with the goal of harnessing industry expertise from the public and private sectors and increasing the job creation potential of employment-based and high-skilled visa categories. On November 29, 2012, CIS launched a new web portal for entrepreneurs, the Entrepreneurs Pathways web portal.
The portal includes a guide to the various visa options an entrepreneur has to enter and work in the United States. While the portal provides an overview of the basic eligibility requirements for the statuses, it does not inform the reader of the limitations, traps and pitfalls of those visa options. The establishment of the Entrepreneurs in Residence Program at CIS is a clear statement that CIS is interested in facilitating entrepreneurs’ entry to the United States. However, it will do little to simplify how foreign born entrepreneurs can found and run a business in the U.S. with reliable expectation of visa issuance, extension and, if desired, a pathway to a Green Card. Bipartisan legislation like the StartUp Visa Act and Startup Act 2.0 that are currently pending in Congress, would provide pathways to a Green Card for entrepreneurs, and could easily be amended to include temporary visa statuses so that entrepreneurs could quickly enter the U.S.
Please feel free contact the Immigration Law Group with any questions on this topic.
Tags: h-1b visa, immigrant visa, immigration alert, USCIS
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MBBP has released a new Immigration Alert which discusses the possibility of the 2013 H-1B Visa Cap (both “regular” and “U.S. Master’s”) being reached by June as well as the cut-off dates for Employment-based Immigrant Visa for all countries. Our Alert also provides a link to an H-1B Cap Information chart which shows the USCIS updates and anticipated H-1B cut-off date based on current usage.
Please see our May Immigration Alert to learn more.
Contact our Immigration Practice Group with any questions on this topic.
Update on the H-1B Cap 05/02/2012Posted by Morse, Barnes-Brown Pendleton in Legal Developments, MBBP news.
Tags: h-1b visa, immigration alert, USCIS
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As you are aware, the FY 2013 H-1B season opened on April 1st. The U.S. Citizenship & Immigration Services provides regular updates on the number of petitions that it has received. Recent updates indicate that the cap will very likely be reached faster than it has been in the past couple of years.
You can find more information in a brief article we have written here. We advise all employers who expect to sponsor a cap-subject employee for an H-1B visa to contact us immediately if they have not already done so.
Tags: h-1b visa, immigration alert, USCIS
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The H-1B visa is the standard working visa used by foreign nationals to work in the United States with a U.S. employer. The H-1B “specialty worker” visa is available only to foreign nationals who have obtained a job offer in a position that customarily requires someone with a Bachelor’s degree. With a few exceptions, foreign nationals who have completed 6 years of time in the United States in H-1B status, will be required to return to their home country.
H-1B visas are available in a limited number (the “H-1B cap”) on October 1st of each year, the beginning of the fiscal year of the U.S. Citizenship & Immigration Services (“CIS”). Applications for the up-coming fiscal year tranches of H-1B visas can be made starting April 1st. While we expect that the FY 2013 H-1B cap may not be reached for several months after April 1st, we cannot of course be certain. The demand appears to be greater this year and we expect that CIS’s apparent bias against granting L-1B “specialized knowledge” work visa petitions will cause U.S. multinational corporations to rely more heavily on the H-1B visa program.
As a result, we are advising all employers who expect to sponsor an employee for an H-1B visa to plan to file in the early part of April of 2012.
Please visit our website for the full Immigration Alert.
H-1B Cap Reached for 2011 Fiscal Year 02/01/2011Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.
Tags: h-1b visa, USCIS
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On January 27, 2011, the CIS announced that the H-1B cap for the 2011 fiscal year had been reached on January 26, 2011. Any H-1B cases received by the CIS after January 26, 2011 will be rejected and returned. The USCIS will place all cap-subject H-1B petitions that were received on January 26, 2011 into a lottery and winners will be chosen through a computer-generated random selection process. H-1B1 visas continue to remain available for Chile and Singapore citizens under their respective Free Trade Agreements.
Given this news employers should be careful when recruiting and interviewing candidates. If a candidate indicates that he/she will require sponsorship, try to determine whether the candidate has previously been issued an H-1B visa in the past several years. These candidates may be exempt from the annual H-1B cap. If the candidate has previously held H-1B status, it is important also to know whether the H-1B visa was for employment with an “exempt” institution. Institutions of higher education or “affiliated” employers, non-profit research organizations and governmental research organizations are exempted from H-1B numerical limitations. A candidate that has only held H-1B status through one of these “exempt” employers will be subject to the H-1B cap when moving to a non-exempt H-1B employer.
To read our full immigration alert on this subject, please visit our website.
Tags: ESTA, immigration, USCIS
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The Visa Waiver Program (VWP) was implemented in 1986 in order to allow travelers from certain countries to enter the U.S. for vacation or to attend business meetings without requiring a visa. To utilize the Visa Waiver for trips to the U.S., travelers must register online with the Electronic System for Travel Authorization (ESTA) prior to their trip. Previously, registering with ESTA was free for passengers; however, on September 8, 2010, the government began imposing a fee for new registrations and renewals. Read more in our full Immigration Alert.
As of December 10, 2010, the total number of H-1B cap-subject petitions counted under the regular cap was 52,400. This means that there will soon be less than 10,000 H-1B visas available. With respect to the 20,000 H-1B visas that are made available under the U.S. Master’s degree exemption tranche, 19,100 visas have already been called for as of the same date. As a result, now is a good time to review your hiring plans for any foreign nationals or foreign students.
MBBP’s December 2010 Immigration Alert also contains information on other topics including:
- USCIS Enhances its Information Gathering of H-1B and L-1 Employers and Employees through Form Revisions
- The Labor Condition Application Revisited
More information can be found in our full Immigration Alert.
Tags: h-1b visa, immigration, USCIS
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Visa Fees Have Increased
On June 4, 2010, the Department of State implemented increases in its nonimmigrant visa application fees. The fee increases are relatively minor for most temporary visas, with two exceptions: applications for K visas, which are for fiancé(e)s and spouses of U.S. citizens and their minor children – and E visas, which are for Treaty-Traders/Investors (E-1/E-2) and Australian Professional Specialty Worker (E-3), have gone up significantly. This Immigration Alert provides a breakdown of the nonimmigrant visa application rate increases.
Up-Dated Count on H-1B Numbers
As expected, the global recession has resulted in a significant reduction in the number of new H-1B visa petitions being filed in the current fiscal year of the USCIS. While in years prior to 2009, H-1B visas had been used up within weeks of April 1st, as of June 24, 2010 H-1B visas will likely be available through the end of this year. For a detailed count please click here.
MBBP’s June 2010 Immigration Alert also contains information on other topics including:
- USCIS changes to “Green Cards” and “Employment Cards”
- Visa Waiver Program Going Paperless
Click here to read our full Alert.
When it Comes to Immigration, Does the Right Hand Always Know What the Left Hand Will Do? 11/16/2009Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.
Tags: h-1b visa, LCA, taxpayer ID, USCIS, USDOL
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U.S. Citizenship and Immigration Services (“USCIS”) is now trying to streamline a process made more complex by the U.S. Department of Labor (“USDOL”). A requirement for the filing of any H-1B visa petition is the advance receipt of a certified Labor Condition Application (“LCA”) from the USDOL. Until 2009, these Applications, which contain attestations by the employer about the salary to be paid to the sponsored foreign worker and her working conditions, were submitted electronically, reviewed by a computer and certified within seconds of the time of submission if filled out properly. In the Summer of 2009, the USDOL changed the process by which an LCA could be certified by requiring a human review of each Application submitted and an independent verification of the validity of the employer’s Federal Taxpayer ID number. These changes have caused delays in the processing of LCAs which now take 7 to 8 days to be certified and can take several weeks more if there is a delay in verifying the employers Taxpayer ID number.
What this has meant is that H-1B cases, that previously could be filed with the USCIS within a day or two of beginning the paperwork processing, are now taking a week to two and in some cases three weeks to be filed while the employer waits for a certified LCA from the USDOL. In response, earlier this week, the USCIS announced that it would accept H-1B visa petitions without a certified LCA so long as the employer could provide evidence that the LCA had been filed with the USDOL at least 7 days prior to the date of submission to the USCIS. This will obviously help in ensuring that H-1B cases that need to be filed on an emergency basis can be filed at least within a week of the LCA filing. It also reveals an interesting interplay and possibly friction between the USCIS and the USDOL – the USDOL insists that LCAs must take longer to be certified because of the need for human review and the USCIS responds by bending the requirement of a certified LCA for an H-1B visa petition.
The ultimate friction is that if the USDOL denies the LCA after an employer rushes to file the H-1B visa petition, the employer could lose not only the H-1B but also the substantial filing fees it paid to secure that H-1B. Clearly there are a number of questions that will need to be resolved with the announcement of this new policy by the USCIS before employers can feel comfortable taking advantage of it.