Friday, May 24, 2013

Senate Judiciary Committee Approves Immigration Reform Bill

From, 05/22/2013

After several weeks of hearings and mark-ups, the Senate Judiciary Committee on Tuesday approved S. 744, the comprehensive immigration reform package, by a vote of 13 to 5. The bill now proceeds to the full Senate for debate, which is expected to begin next month.

The last hours of mark-up saw several amendments to the provisions of the bill affecting nonimmigrant workers. These are summarized below. 

The H-1B cap. The final version of the bill includes a higher H-1B cap baseline of 115,000 and a new formula that will allow for quota increases of 5,000 to 20,000 within a fiscal year if demand exceeds the cap and the unemployment rate for managerial, professional and related occupations is less than 4.5 percent. 

H-1B skilled worker dependency. Amendments to the bill introduce enhanced recruitment and non-displacement obligations for the “H-1B skilled worker dependent employer,” which is defined as an employer whose skilled workforce – comprising full-time equivalent employees in occupations within Zones 4 and 5 of the Labor Department’s O*NET database – is made up of 15 percent or more H-1B workers. Intending immigrants would not be included in the workforce calculation if their employer had filed permanent residence petitions for at least 90 percent of the labor certifications for which it received approvals within a given timeframe. 

Recruitment. Employers would be required to post H-1B jobs on a DOL website, engage in good faith recruitment using industry-wide standards, and offer compensation at least equal to that offered prospective H-1B nonimmigrants. DOL would be required to facilitate the posting of H-1B jobs on the websites of state workforce agencies (SWAs). H-1B skilled-worker dependent employers would be required to offer a job opening for which an H-1B worker is sought to any to any equally or better qualified U.S. worker who applies for the position. 

Non-displacement. An H-1B employer, other than one who is H-1B dependent or skilled-worker dependent, is prohibited from displacing a U.S. worker if the employer is: (1) filing an H-1B petition with the intent or purpose of displacing a specific U.S. worker from the position to be occupied by the beneficiary of the petition; (2) providing services to worksites operated by federal, state or local government employer entities that would direct and control the work of the prospective H-1B employee; or (3) a public school. H-1B skilled worker dependent employers would need to attest that they did not and would not displace a U.S. worker 90 days before or after filing an H-1B petition. For H-1B dependent employers, the non-displacement period would remain 180 days before and after filing. 

Outplacement restrictions on H-1B dependent employers. The amended bill retains the prohibition against outplacement by H-1B dependent employers, but clarifies that dependent employers who are nonprofit institutions of higher education, nonprofit research organizations or health care providers petitioning for physicians or other health care workers would not be not subject to the restrictions, though they would be required to pay an outplacement fee. 

H-1B spousal work authorization. The amended bill eliminates a provision that would have granted H-1B spousal work authorization only if the principal H-1B’s home country provided reciprocal benefits to similarly situated spouses of U.S. citizens. However, the bill allows the Department of Homeland Security, at the request of the State Department, to suspend H-1B spousal employment authorization for nationals of countries that do not provide reciprocal benefits. 

L-1B outplacement. The amendment prohibits the outplacement of L-1Bs if 15 percent or more of an employer’s full-time equivalent workforce is made up of L-1Bs, including intending immigrants. Otherwise, employers would not be permitted to outsource or outplace an L-1B unless: (1) the worker is controlled and supervised by the petitioning employer; (2) the placement is not an arrangement to provide labor for hire; and (3) the employer pays a $500 STEM education and training fee. 

Covered employers. For purposes of the H-1B dependency and skilled-worker dependency calculations, intending immigrants are not included in the calculation if their employer is a “covered employer.” The amended bill redefines covered employer to mean an employer who has filed I-140 petitions for at least 90% of current employees who were beneficiaries of applications for labor certifications that were approved during the one-year period ending six months before filing the H-1B or L-1 petition for which the number of intending immigrants is relevant. 

Adjustment of status portability. The amended bill clarifies that, for purposes of adjustment portability, approved I-140 petitions remain valid even if withdrawn by the petitioning employer, provided that the adjustment applicant has a new job in the same or a similar occupational classification. 

Adjustment filing before visa availability. Under the amended bill, a foreign national would be eligible to file an adjustment application concurrently with an immigrant petition or at a later point whether or not a visa number is available. If a visa number is not available at the time the adjustment is filed, the principal applicant would be subject to a supplemental fee of $500; dependents would not be liable for the fee. 

Effective date. The provisions of the bill would affect all petitions and applications filed on or after the date of enactment, but the H-1B recruitment and non-displacement provisions would not apply to extensions or other petitions or applications filed on behalf of existing employees. 

What Is Next for S. 744?  The Senate immigration bill has several hurdles to overcome before it becomes law. The package approved by the Judiciary Committee on Tuesday is subject to additional changes on the Senate floor. If the bill is passed in the Senate, it will need to be reconciled with legislation passed by the House of Representatives. The House is at the early stages of crafting its own immigration bill, and it is not yet clear how much it will resemble the Senate’s approach. 

USCIS: May Processing Time Reports

From, 05/22/2013

On May 21, 2013, USCIS issued updated processing time reports as of March 31, 2013 for the Vermont Service Center (VSC), California Service Center (CSC), Texas Service Center (TSC), Nebraska Service Center (NSC) and the National Benefits Center (NBC).

For CSC and VSC, the reports indicate that, on the day before H-1B cap cases were accepted, all categories of H-1Bs were being processed in 2 months.  Bear in mind that these reports do not cover any of the time period in which H-1B cap cases were being processed.

I-140 processing has picked up at TSC.  All categories of I-140 are once again being processed in 4 months, compared to nearly 5 months in the April report.  At the TSC stakeholder meeting a couple weeks ago, there was indication that more adjudicators are now working on I-140 cases.

At NSC, there has been modest movement in processing times. The processing date for EB-1 Extraordinary Ability petitions moved forward exactly one month to November 2, 2012, for a processing time of about 5 months.  Processing times have also begun to lag for EB-1 multinational executives and managers, with a processing date of November 16, 2012. This is a processing time of about 4 and a half months compared to 4 months in the April report.  On the other hand, EB-2 and EB-3 processing is back to 4 months after falling to 4 and a half months in the April report.

Employment based I-485s continue to be processed in 4 months at NSC and just over 4 months at TSC (with a November 27, 2012 processing date). NBC continues to process I-765 employment authorization applications in 3 months.

Tuesday, May 14, 2013

Senate Judiciary Committee to Debate Nonimmigrant Provisions of Reform Bill

From, 05/14/2013

Today, the Senate Judiciary Committee will begin debate and mark-up of Title IV of S. 744, the employment-based nonimmigrant section of the comprehensive immigration reform bill. The Committee will consider an array of proposed amendments concerning the H-1B and L-1 programs and the optional practical training rules for F-1 students. Mark-up of the employment-based green card proposals is expected in the coming days, though no specific date has yet been set. 

Among the key nonimmigrant amendments are proposals from Sen. Charles Grassley (R-IA) to further broaden the Department of Labor's authority to review and investigate employers’ compliance with the labor condition application (LCA) regulations and to limit post-graduate employment options for F-1 students. Sen. Amy Klobuchar (D-MN) has proposed requiring H-1B employers to post offered positions on the websites of state workforce agencies. 

Sen. Orrin Hatch (R-UT) is seeking to increase the H-1B cap baseline to 115,000, with a reformulated market escalator that would allow for just-in-time quota increases within a given fiscal year, based on immediate demand for H-1B numbers. He is also seeking more moderate restrictions on offsite placement of L-1B specialized knowledge workers, with a $500 L-1B outplacement fee. 

The markup will begin at 10:00 a.m. EDT and will be streamed live

Friday, May 10, 2013

June 2013 Visa Bulletin

EB-3 Continues to Advance Significantly

According to the State Department’s June Visa Bulletin, the EB-3 subcategory for professionals and skilled workers will advance by more than nine months for China and most other countries, to September 1, 2008. EB-3 India will advance a modest two weeks, however, to January 8, 2003. In the EB-2 category, priority date cut-offs for China will advance two months, to July 15, 2008, and will once again remain unchanged for India, at September 1, 2004. 

June 2013 Visa Bulletin, Employment-Based Categories

See the entire bulletin here:

Tuesday, May 7, 2013

US orders new visa reviews for arriving students

Associated Press, 05/03/2013 – 

“The Homeland Security Department ordered border agents ‘effective immediately’ to verify that every international student who arrives in the U.S. has a valid student visa, according to an internal memorandum obtained…by The Associated Press. The new procedure is the government's first security change directly related to the Boston bombings.

“The order from a senior official at U.S. Customs and Border Protection…was circulated Thursday [May 2, 2013] and came one day after the Obama administration acknowledged that a student…accused of hiding evidence for one of the Boston bombing suspects was allowed to return to the U.S. in January without a valid student visa.

“The student visa for Azamat Tazhayakov had been terminated when he arrived in New York on Jan. 20. But the border agent in the airport did not have access to the information in…SEVIS.

“…[H]is student-visa status was terminated because he was academically dismissed from the university.

“…Under the new procedures, all border agents…[are] expected to be able to access SEVIS by next week.

“The government for years has recognized as a problem the inability of border agents at primary inspection stations to directly review student-visa information.

“…[Also] [u]nder the new procedures, border agents will verify a student's visa status before the person arrives in the U.S. using information provided in flight manifests. If that information is unavailable, border agents will check the visa status manually with the agency's national targeting data center.

“It is unclear what impact the new procedure will have on wait times at airports and borders. Customs officials will be required to report any effect, including longer waits, on a daily basis.”

To read the full article, please click here.

H-1B Standard Processing Receipt Notices

Reports of Non-Cap I-129 Receipts Taking 30 Days or More

Universities and other cap-exempt employers are reporting Form I-129 receipts for standard processing are taking 30 days or more to arrive. This has been true for petitions filed by Georgia Tech since April. 

Please consider this delay when submitting an H-1B request to Global HR. 

Friday, May 3, 2013

New Edition of Form I-9 Becomes Mandatory

From, 05/03/2013

Beginning May 7, 2013, employers are required to use the new version of Form I-9, dated 03/08/2013, when verifying the employment eligibility of new hires. Employers who have not done so should act now to incorporate the revised Form I-9 into their compliance procedures so that they are ready to use it by May 7. 

Through May 6, employers are permitted to use the February 2, 2009 and August 7, 2009 editions of the form. 

The revised edition expands Form I-9 to two fillable pages (plus the list of acceptable documents) and provides fuller explanations of many key sections of the form. It also includes several new information fields for employees to complete. 

Thursday, May 2, 2013

State Department Selects FY 2014 Diversity Visa Lottery Winners

From, 05/02/2013

The U.S. State Department has chosen the winners of the Fiscal Year (FY) 2014 Diversity Visa Lottery (DV lottery). Foreign nationals who entered the lottery can visit the official Entrant Status Check website to learn whether they were selected to submit an application for permanent residence. 

If you entered the FY 2014 lottery, the only legitimate way to learn whether you have been selected is to visit the official website and enter the confirmation number of your entry, along with your last name or date of birth and a randomly generated authentication code. The State Department does not send direct notification to lottery winners, so beware of letters, emails or faxes that claim you have won the lottery because they are likely to be fraudulent. 

If your lottery entry was selected, the Entrant Status Check website will provide information on how to proceed with an application for permanent residence. If your entry was not chosen, the status check website will state that fact. 

Each fiscal year, the State Department makes 50,000 immigrant visas available through the DV lottery. Foreign nationals submit their lottery entries online during a designated time period. For the FY 2014 lottery, that period ran from October 2, 2012 to November 3, 2012. Individuals selected in the lottery are eligible to submit an application for permanent residence during FY 2014, which begins on October 1, 2013. 

Protect Yourself Against DV Lottery Fraud 

DV lottery fraud is common. Unscrupulous individuals set up deceptive web pages that pose as official government sites or purport to be authorized by the State Department to accept or administer lottery entries, sometimes for a very high fee. They also try to entice foreign nationals to provide personal information and money with promises of winning lottery entries. 

Take precautions to avoid becoming a victim of lottery fraud. Though you may seek legal counsel or other assistance in preparing a lottery application, be wary of commercial enterprises that claim you have won the lottery, purport to register applicants outside the official registration period or claim to be authorized by the government. No fees or personal information should be sent to a questionable individual or entity. Detailed information on DV lottery fraud is available from the U.S. Federal Trade Commission and the State Department