EB-3 Category Unavailable Worldwide in May Visa Bulletin
The U.S. State Department’s May 2009 Visa Bulletin reflects unavailability of visa numbers in the Employment Third Preference across all chargeability areas (meaning, all countries). There is no change in the Employment Second Preference for China and India, and the remaining chargeability areas remain current.
The State Department notes that attempts were made since the start of the fiscal year to curb visa demand and maintain it within the targeted numerical limits by initially holding and then later retrogressing priority dates. However, U.S. Citizenship and Immigration Services demand for immigrant visas in adjustment of status cases with early priority dates remained "extremely high," resulting in the unavailability of visa numbers for the current fiscal year.
Unlike a retrogression in cut-off dates which impacts only those individuals who are waiting to file an application for adjustment of status, the unavailability of visas means that individuals who are waiting to file their cases cannot, and those whose applications are currently pending must wait until visas are again available. The State Department has indicated that visa availability in the Third Preference Category will resume in October, the first month of the new fiscal year.
__________________________________________________________________________________________
New Nonimmigrant Visa Procedures in Ciudad Juarez
As of April 6, 2009, nonimmigrant visa applicants at the U.S. consulate in Ciudad Juarez will be required to obtain a separate appointment for the collection of biometric information at the Application Support Center (ASC). The ASC appointment must take place before the U.S. visa interview. Previously biometric data was collected on the day and at place of the visa interview. Ciudad Juarez is one of a handful of U.S. consular posts that have implemented the use of the new nonimmigrant visa application form, DS-160.
Foreign nationals applying for nonimmigrant visas at Ciudad Juarez need to plan one day for the submission of biometric information at the ASC and another day for the visa interview at the U.S. consulate. While the U.S. consulate plans to eventually allow applicants to schedule the ASC appointment in the morning before an afternoon consular visa interview, this option is not available at this time. Please note that the appointments do not have to take place on consecutive days.
For more information on nonimmigrant visa application procedures at the U.S. consular post in Ciudad Juarez please click here.
__________________________________________________________________________________________
Fiscal Year 2010 H-1B Petition Filings Update
Unlike the last two fiscal years when the annual H-1B cap was reached on the first day of accepted submissions, as of April 17, 2009, U.S. Citizenship and Immigration Services (USCIS) is still counting and accepting H-1B petitions toward the basic H-1B cap of 65,000. USCIS has reported that it will continue to accept advanced degree petitions (for which a separate 20,000 cap exists) to account for those cases that might later prove to be "unapprovable." USCIS will continue to provide periodic updates as petitions continue to arrive. USCIS news and websites are available on the agency's website at www.uscis.gov.
__________________________________________________________________________________________
Eliminating the FBI Name Check Backlog
In March U.S. Citizenship and Immigration Services (USCIS) announced that as of mid-February USCIS and the Federal Bureau of Investigation (FBI) had completed all name checks that had been pending for more than six months. USCIS and the FBI confirmed that they are on track to meet the May 31, 2009 milestone of completing name check requests pending longer than 90 days. By the end of June 2009, the FBI expects to complete 98 percent of USCIS’ name check requests within 30 days and to process the remaining two percent within 90 days.
At the beginning of November 2007, there were nearly 350,000 pending name check requests of which 54,000 had been pending for more than two years. Another 55,000 had been pending for at least a year. USCIS stated that a total of 6,756 pending name check requests remain. Click here for more information.
__________________________________________________________________________________________
Effect of Layoffs and Benching on H-1B Employees
Employers have downsized and reorganized their workforce to weather the current economic downturn. It is helpful for H-1B employees to understand what the law requires in the event of a change in employment terms or conditions.
Layoffs
If an employer lays off an H-1B employee, the employer must effect a bona fide termination to halt its obligation to pay the H-1B employee the wages listed in the Labor Condition Application filed with the Department of Labor (DOL). A bona fide termination has three elements: 1) notify the employee, 2) provide notice to U.S. Citizenship and Immigration Services, and 3) offer to pay the employee’s transportation cost to return to his or her home country.
There is no grace period once H-1B status ends. Strictly speaking an H-1B employee falls "out of status" as soon as the employment relationship ends. Because H-1B employees may have the option of "porting" to another employer willing to sponsor them, some employers give their H-1B employees advance notice of the termination to minimize the impact on their employees’ immigration status.
Benching
Benching is a period of time that an H-1B employee spends in non-productive status due to a decision by the employer. For example, annual plant shuts down for holidays or retooling; summer recess or semester breaks; pre-employment training; mandatory vacation; or disciplinary action are considered benching. However, a period of non-productive status due to a choice by the employee is not considered benching (e.g., extended leave to care for an ill family member, absence from work to travel). When an employer benches an employee, the employer is required to continue to pay its H-1B employee pursuant to the Labor Condition Application that the employer filed with the DOL.
Penalties
If the DOL finds that an employer has failed to pay wages to an H-1B employee as required prior to a bona fide termination or during certain periods of non-productive status, the employer may be subject to penalties, including payment of back wages, civil money penalties, and other administrative remedies as appropriate.