Copland and Brenner

Table of Contents

1. H-1B Update: FY2011 Filing Period Begins April 1
2. In Brief: Recent Developments

1. H-1B Update: FY2011 Filing Period Begins April 1

   With March upon us, it is the season for prevailing wage requests, labor condition applications, and – soon - H-1B petitions. The first day of the federal government’s fiscal year 2011, and the date when 65,000 new H-1B visa numbers become available, is October 1, 2010. Since an H-1B petition may be filed up to six months in advance of the need for the prospective employment, April 1 is the first date upon which an H-1B petition may be filed with U.S. Citizenship and Immigration Services (“USCIS”) for employment to commence on October 1.

   With the economy still on the rebound, it is unlikely that the congressionally mandated cap of 65,000 will be reached quickly. For example, the relative calm with which April 1, 2009 arrived stood in marked contrast to the prior two years, when a stronger economy contributed to far greater demand. For FY2010, the “final receipt date” for H-1B petitions subject to the annual cap was not until December 21, 2009. In contrast, on April 3, 2007, USCIS announced that it had already received enough H-1B petitions to meet the cap for FY2008.

   Background: An H-1B visa is available under the Immigration and Nationality Act (“INA”) to an alien “who is coming temporarily to the United States to perform services… in a specialty occupation… or as a fashion model… of distinguished merit and ability.” An H-1B visa is also available for an alien to perform services of an exceptional nature requiring exceptional merit and ability relating to a Department of Defense (“DOD”) cooperative research and development project or co-production project. A “specialty occupation” is one that requires “theoretical and practical application of a body of highly specialized knowledge, and [ ] attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation” in the U.S.A.

   The H-1B category was established pursuant to 1990 amendments to the Immigration and Nationality Act (“INA”), which made these provisions more complex than the earlier H-1 program, imposed a 65,000 limit on the number of aliens who could be newly sponsored in the category each fiscal year, and increased agency oversight. The 65,000 cap, set arbitrarily and without any statutory scheme for increases based on actual employer need, restricted the number of foreign professionals who may be sponsored annually as aliens in H-1B “specialty occupations.” The 1990 amendments also established a first-time role in the H-1B program for the Department of Labor (“DOL”), historically the protector of employee rights in the workplace.

   On August 28, 1996, the legacy Immigration and Naturalization Service announced that the annual limit on new H-1B petitions had been reached for the first time. The cap was likewise reached early for FY1997 and 1998. Despite the predicament this caused U.S. businesses, it was not until October 21, 1998 that Congress – in a massive (4,000 page) Omnibus Appropriations Bill - increased the arbitrary H-1B numeric limit, but only temporarily. And, despite an increase to 115,000 for FY1999, the cap was still reached early – on June 15, 1999. This was again the case for FY2000. Meanwhile, stories of agency miscounts abounded. On October 17, 2000, the American Competitiveness in the Twenty-First Century Act again – temporarily – increased the H-1B cap, for fiscal years 2001 – 2003. On October 1, 2003 the H-1B cap shrank to its 65,000 limit.

   The 65,000 cap established by Congress in 1990 applied to all H-1B petitions until a statutory change enacted on December 8, 2004. At that time, a separate H-1B cap of 20,000 was established for beneficiaries holding at least a Master’s degree from a U.S. institution of higher education – even if the job itself requires only a Bachelor’s degree. Therefore, there is currently a cap of 65,000 H-1B visas for Bachelor’s degree holders, with a separate cap of 20,000 for those holding a U.S. Master’s degree. But the 65,000 cap is somewhat of a misnomer since 1,400 H-1B visas are set aside for nationals of Chile, and 5,400 for nationals of Singapore, under Free Trade Agreements with those countries. This sets the actual “worldwide” H-1B cap at 58,200.

   To further confuse (though favorably affect) H-1B matters, an additional, separate cap applies to any alien who is a national of the Commonwealth of Australia under yet another law (the REAL ID Act of 2005); they are not even classified as H-1B, but instead E-3, with an annual limit of 10,500 visas. Meanwhile, certain Canadian and Mexican “professionals” may be eligible for “TN” status under the North American Free Trade Agreement, to which no annual limit applies.

   Labor Department impact upon H-1B petition filing: Lesser demand for H-1B visas for FY2011 may be a boon to employers seeking them, since meeting the goal of an April 1 petition filing date with USCIS may prove to be difficult. One context in which this arises involves INA Section 101(a)(15)(H)(i)(b), which requires that an intending H-1B employer “has filed” a labor condition application (“LCA”) with the U.S. Department of Labor (“DOL”).

   Poorly worded implementing USCIS regulations at 8 CFR 214.2(h)(4)(i)(B)(1) appear to go further than the statutory language, however, stating that “[b]efore filing a petition for H-1B classification in a specialty occupation, the petitioner shall obtain a certification from the Department of Labor that it has filed a labor condition application in the occupational specialty in which the alien(s) will be employed.” (emphasis added) USCIS policy focused upon the “shall obtain a certification” portion of the regulation rather than the portion referring to the requirement that “it has filed” an LCA. In doing so, USCIS required that an employer obtain DOL certification before filing an H-1B petition, and submit the certification with the petition. Thus, generally stated, USCIS would not accept an H-1B petition in the absence of an approved LCA from the DOL.

   That may be well and good when the required certification can reliably be obtained from the DOL within a particular period of time. In fact, the INA, at Section 212(n)(1)(G)(ii), requires that the DOL provide certification within seven days of the date of filing and LCA except in cases where an application is “incomplete or obviously inaccurate.” However, after the DOL implemented its “iCERT Portal” for LCA processing on April 15, 2009, system glitches and delays meant that employers could not always timely file petitions to comport with their needs – or before the alien beneficiary’s nonimmigrant status expired. Since an alien who has failed to maintain status is generally ineligible for an extension or change of nonimmigrant status, the scenario wreaked havoc upon well-meaning and otherwise compliant employers and beneficiaries.

   In early Fall 2009, the Citizenship and Immigration Services Ombudsman received complaints involving LCA’s that were incorrectly denied, as well as other problems with delays and errors at the DOL. According to the Ombudsman’s analysis and recommendations dated October 29, 2009, these DOL problems, combined with the USCIS regulatory requirement that a certified LCA be submitted with an H-1B petition, was “prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions.”

   The Ombudsman’s recommendations specifically noted that, despite USCIS policy requiring that a certified LCA be submitted along with an H-1B petition filing, “the INA does not prohibit acceptance of the petition filing without the certified LCA.” They noted further that “the June 12, 2009, revision to the “Instructions for Form I-129” state, in relevant part (see p. 3), that “[t]he petition must be filed by the U.S. employer and must be filed with: 1. Evidence that a [L]abor [C]ondition [A]pplication has been filed with the U.S. Department of Labor …” [emphasis added].” The Ombudsman also pointed out that the DOL was denying LCA’s based upon false Federal Employer Identification Number (“FEIN”) mismatches with its database. This problem alone represented “up to seven percent of total iCERT filings” from April 15 – August 2009. Thus, the Ombudsman concluded that any costs to USCIS “are outweighed by the burden that incorrect denials have on employers and individuals,” such that the agency “should make a minor processing modification to address a temporary situation.”

   USCIS heeded the call and reconsidered its regulatory mandate that a certified LCA accompany an H-1B petition – but only temporarily. A USCIS Memorandum dated November 5, 2009 stated that the agency could “reasonably institute a policy to provide flexibility in the normal filing procedures for H-1B petitions.” Specifically, the Memorandum provided that an employer could file an H-1B petition in the absence of a certified LCA if the petition was accompanied by a copy of the DOL email confirming its receipt of the LCA at least seven calendar days prior to USCIS receiving the H-1B petition.

   The Memorandum stated that in cases where an LCA is shown to have been filed with the DOL but certification has not been issued, a request for evidence would be issued providing 30 days within which to submit it. In cases where an employer submitted evidence that the LCA was denied by the DOL, or where the approved LCA was different than the one originally filed in support of the H-1B petition, the H-1B petition would be denied.

   This policy was set to expire in 120 days, referenced in the Memorandum as March 4, 2010. However, in USCIS Questions and Answers posted on December 8, the expiration date was pushed back to March 9, 2010 to provide “the benefit of the full 120 day accommodation measure since the posting of the USCIS Update dated November 10, 2009.” At this writing, there is no indication that USCIS will extend the March 9 expiration date of this policy. There may be no need to do so, as current LCA processing times are generally within seven days. With April 1 just around the corner, however, it is unclear whether the DOL can be expected to maintain its current processing pace. Under the circumstances, the sooner any LCA filing takes place, the better.

2. In Brief: Recent Developments

   Change of Filing Location for Form I-485: In an Update posted at www.uscis.gov, the agency announced a revised Form I-485 (application for adjustment of status) and filing locations for that form. The changes “are part of an overall effort to transition the intake of USCIS benefit forms from Service Centers to Lockbox facilities.” Effective upon the day of the announcement, most applicants are required to file Form I-485 with a Lockbox facility. Moreover, the version of Form I-485 must be the version bearing the legend “(Rev. 12/03/09) N” in the lower right hand corner. A grace period with respect to both the form version and filing locations is in effect until March 29, 2010. After that date, previous versions of Form I-485 will be rejected, as will adjustment of status applications that are filed at an incorrect location.

   Change of Filing Location for Form I-765: In another Update, posted on February 24, USCIS announced revised filing instructions and addresses for Form I-application for employment authorization, (application for employment authorization). This Update, also effective immediately, requires applicants to submit Form I-765 to a USCIS Lockbox facility or the Vermont Service Center, based on the classification under which they are filing. Detailed guidance can be found in updated Form I-765 instructions at www.uscis.gov. The Service Centers will forward incorrectly filed applications to the appropriate lockbox facility until March 26, 2010. After that date, incorrectly filed applications will be rejected and returned to the applicant.

   DHS Report Discusses Unauthorized Immigrant Population: In a report released in January 2010, the U.S. Department of Homeland Security estimated that the unauthorized immigrant population in the U.S.A. grew by 27 percent from 2000 – 2009, and was approximately 10.8 million as of January 2009. Of that number, 63 percent entered the U.S.A. before 2000, and 62 percent are from Mexico. The full eight-page report is available online at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf.