Copland and Brenner

Table of Contents

1. USCIS: Adopted Decisions are Precedent
2. H-1B Update: Advanced Degree Visas Available; DHS Refuses to Issue Set-Aside Visas from FY2005
3. DOS Visa Bulletin Warns of Slow Movement in Cut-Off Dates
4. Change on the Horizon?

1. USCIS: Adopted Decisions are Precedent

   Last month, U.S. Citizenship and Immigration Services (“USCIS”) indicated on its web site that it will begin posting what it calls “Adopted Decisions,” noting that “All officers should follow the interpretation and reasoning of these decisions in all proceedings involving the same issues.” The decisions so designated by USCIS are among those rendered by the Administrative Appeals Office (“AAO”), which has appellate jurisdiction over 66 types of immigration petitions and applications as set forth at 8 CFR §103.1(f)(3)(iii). Included among them are employment-based immigrant visa petitions.

   The new practice concerning Adopted Decisions comports with regulations at 8 CFR §103.3(c), which state that “designated Service decisions are to serve as precedents in all proceedings involving the same issue(s). Except as these decisions may be modified or overruled by later precedent decisions, they are binding on all Service employees in the administration of the Act. Precedent decisions must be published and made available to the public as described in §103.9(a) of this part.”

   The two initial Adopted Decisions appearing on the USCIS web site were designated as such by Robert C. Divine, Acting Deputy Director of USCIS. The first Adopted Decision, 06-0001, involves “H-1B Recapture of Time Spent Outside the United States.” The case arose when a U.S. employer sought to extend by 30 days the H-1B status of an alien who had been outside the U.S.A. on a 30-day work assignment shortly before the expiration of the six-year maximum period that generally applies. In a decision dated September 2, 2005, the AAO held that the six-year period of authorized admission of an H-1B nonimmigrant accrues only during periods when the alien is lawfully admitted and physically present in the U.S.A. The reasoning for this is that the statute provides that “[t]he period of authorized admission [of an H-1B nonimmigrant may not exceed 6 years,” and regulations thereunder also reference an H-1B alien “who has spent six years in the United States.” Appropriate documentary evidence establishing the factual basis for such a request must, of course, be provided by the petitioning company.

   Because the statutory language involving “period of authorized admission” also appears in the L-1 context, the AAO extends the decision in 06-0001 to the calculation of maximum periods of stay by L-1 nonimmigrants. Derivative beneficiaries (the spouse and minor children) of a principal alien who recaptures H-1B or L-1 periods may receive coextensive periods of stay in H-4 or L-2 status.

   The second Adopted Decision, 06-0002, involves “AC21 Portability Issue in Denial of Adjustment Application.” There, an alien sought to adjust his status to that of lawful permanent resident after his I-485 was pending for more than 180 days, pursuant to amendments to the Immigration and Nationality Act during 2000 by the American Competitiveness in the Twenty-First Century Act (“AC21”). AC21 says that an I-140 petition “shall remain valid with respect to a new job” if the beneficiary’s I-485 has been pending for at least 180 days. The catch was that the alien sought to bootstrap to his I-485 an immigrant visa qualifying petition by a second employer, after his first employer received denials of two immigrant visa qualifying petitions. His I-485 had been filed based on the second I-140 that was denied. The alien’s attorney argued that USCIS has no authority to deny a “non-frivolous” I-485 and that the alien beneficiary has a statutory right to change jobs or employers. In a decision dated January 12, 2005, the AAO disagreed.

   Citing INA 204(a)(1)(F), the AAO notes that a U.S. employer seeking to employ an alien “entitled” to immigrant classification “may file” a petition for classification. Under INA 204(b), USCIS has the sole authority to determine whether the facts stated in the petition are true and that the alien beneficiary is eligible for preference. A petition, says the AAO, does not become “valid” merely by having been filed or with the passage of 180 days. Here, the petition was filed on behalf of an alien who was not “entitled” to preference classification and was in fact denied. Thus, the petition could not be deemed “valid” under AC21 and the alien’s I-485 must be denied.
   

2. H-1B Update: Advanced Degree Visas Available; DHS Refuses to Issue Set-Aside Visas from FY2005

   Once again, we remind readers that for fiscal year 2006, the worldwide cap for initial H-1B visas is set at 58,200. An exemption to that cap is in place for up to 20,000 alien beneficiaries holding a U.S.-earned master’s or higher degree. USCIS indicates on its web site that, as of October 23, 2005, there were a total of 9,680 approved H-1B cases under the so-called “advanced degree exemption,” with 3,713 cases pending. Those numbers add up to a total of 13,393 cases against the advanced degree cap of 20,000. Thus, if all the pending cases are approvable, that would mean 6,607 advanced degree H-1B visas were still available as of October 23.

   Readers may recall that, in addition to the 58,200 visas available worldwide, 6,800 H-1B visas are reserved specifically under free trade agreements (“FTA’s) to Chile and Singapore. Under INA 214(g)(8), if the Chile/Singapore visa numbers are not used “at the end of a given fiscal year, the Secretary of Homeland Security shall adjust upwards the numerical limitation” of H-1B visa numbers for that fiscal year. Those unused numbers are to become available for “general use” for 45 days, commencing on the first day of the following fiscal year, which always falls on October 1.

   It is difficult to imagine that Chile and Singapore actually utilized all 6,800 H-1B visas during FY2005. So, with the first 45 days of FY2006 nearly gone, where are those extra visa numbers? Senators Patrick Leahy, Edward Kennedy, Arlen Specter, John Cornyn and Saxby Chambliss asked just that question in a letter to Department of Homeland Security Secretary Michael Chertoff on September 20.

   The answer, in a letter dated October 21, 2005 by Pamela J. Turner, DHS Assistant Secretary for Legislative Affairs, is that they will not be made available. Her explanation goes like this: USCIS (again) exceeded the 65,000 H-1B visa limitation for FY2005. This, she writes, is because:

   “USCIS had accepted all H-1B filings between the time the agency announced on September 2, 2004, that as of August 18, 2004, it had received 45,900 H-1B petitions, and the time that it announced that it had reached the cap on October 1, 2004, and would no longer accept petitions. Petitions poured in during the weeks leading up to the October 1, 2004, announcement, resulting in approvals in excess of the total 65,000 H-1B cap for FY 2005. The cap was reached and exceeded, without reserving Chile and Singapore numbers . Consequently, the first step of the process was not accomplished, regardless whether the H-1B1 limitation is 6,800 or a lesser number.” (emphasis added)

   “Having not reserved the numbers initially, USCIS cannot fulfill the second step of returning the unused numbers to the H-1B pool.” Her letter notes that “[t]he statute provides DHS with the authority to establish a lower set-aside than the maximum of 6,800….So, in retrospect, while USCIS did not set aside 6,800 Chile/Singapore numbers, the statutory goals of meeting the Chile/Singapore H-1B1 visa demand and timely issuing H-1B visas to business customers were met.” Therefore, the agency “does not agree that it can now issue more H-1B numbers for FY 2005.”

   Huh? Apparently the agency miscounts we have reported on for more than five years were insufficient prompts to overhaul counting methodologies within the agency. And we cannot help but note that Assistant Secretary Turner’s letter appears strangely conjures up a USCIS press release of October 1, 2004, in which the agency indicated that it had factored into its count all set-asides for Chile and Singapore . Now it is clear that the agency factored those 5,800 visas into its count by failing to comply with its statutory obligation to allocate them to the designated countries and simply arriving at a grand total that appeared to be somewhere around 65,000. Thus, the agency failed in its obligations for country-specific and worldwide allocations for issuance of new H-1B visas for FY2005, all the while presenting a façade that can only be compared to a shell game.

   So, other than the affected U.S. businesses and aliens, who cares? The DHS Office of Inspector General, for one. In a September 2005 report aptly titled USCIS Approval of H-1B Petitions Exceeded 65,000 Cap in Fiscal Year 2005 , the OIG writes that the agency “had neither the technology nor an operational methodology to ensure compliance with the precise statutory ceiling. Faced with the certainty of issuing either too few or too many approvals, it had been CIS’ explicit practice to avoid approving too few.” The OIG “believes that [recent CIS initiatives] might not be sufficient to accomplish the precision that Congress now requires, and offer[s] two recommendations” to improve agency methods. In a September 25 reply, USCIS Acting Deputy Director Robert C. Divine, writes that “[w]e…do not fully agree with the recommendations made” and that its ability to “effectively monitor workload against the cap” has already been improved. Only time, and the numbers, will tell.
   

3. DOS Visa Bulletin Warns of Slow Movement in Cut-Off Dates

   As we have reported in the past few months, predictions for availability of employment-based immigrant visas in the second and third preference categories are dismal. Readers are already aware that the Department of State (“DOS”) issues the Visa Bulletin each month to notify the public of availability of immigrant visa numbers for the coming month. On October 21, the American Immigration Lawyers Association (“AILA”) notified members that the DOS had taken the unusual step of revising its monthly Visa Bulletin for November, this time discussing, at Section D, how cutoff dates are established and prospects going forward. AILA Doc. 05102162

   The outlook is bleak. Says the DOS, “The backlog reduction efforts of both [USCIS] and the Department of Labor continue to result in very heavy demand for Employment-based numbers. The amount of cases currently being processed is sufficient to uses all available numbers in many categories. The level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date movements are likely to be slow.” (emphasis added)

   A cut-off date for the “all chargeability areas” for second preference visas worldwide may be established during the second half of FY2006, though it is too early to tell if this will be necessary. Cut-off dates are already in place for China and India in the first and second preference categories due to heavy demand, and “movement is expected to be limited until a demand pattern has been determined.”

   Heavy demand and agency processing improvements, however, are not the only reasons why priority dates have retrogressed so significantly. One other factor is that AC21, discussed above in a different context, allowed for 131,000 unused employment-based numbers from 1999 and 2000 to be used by oversubscribed countries. That one-time increase represented an approximate 40% increase in the number of employment-based immigrant visas. Therefore, things have regressed – literally – to pre-July 2001 circumstances in which cut-off dates will be in effect for many categories, for some time.
   

4. Change on the Horizon?

   All of the dire news regarding visa unavailability in the H-1B and immigrant categories can be changed – but only if Congress and the White House act. To that end, AILA has informed members that on October 25 Senator Chuck Hagel (R-NE) introduced immigration reform legislation, and that Senate leaders “affirm the Senate’s commitment to a comprehensive debate on immigration reform early next year.” In future editions, we will keep readers informed of developments along these lines.