Immigration Insights (February 2010)

February 28, 2010Articles

H-1B Cap Season in Full Swing for April 1st Filings

On April 1, 2010, U.S. employers may again file H-1B (specialty occupational professional) work visa petitions soliciting U.S. Citizenship and Immigration Services ("USCIS") approval that will be effective on October 1, 2010, the first day of the next federal year. The H-1B visa category, which includes a total of 85,000 "slots" per fiscal year, reached its limit for FY2010 on December 21, 2009.

Although the FY2010 cap was not reached during the first week of April 2009 as it had been in recent years, this is still an important time for employers to consider filing H-1B cases for FY2011. Filing early will best secure H-1B status for new hires and changes of status for existing employees who have time-limited work authorizations, such as L-1 intracompany transferees.

H-1B status is valuable for those employees who will be sponsored for permanent resident (green card) status because they may be eligible for extensions of H-1B status beyond the usual limit of six years. Given the considerable delays in the government's handling of permanent resident cases, the extended ability to maintain work authorization in the H-1B category is particularly valuable.

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PERM Labor Certification Processing Times Updated

The U.S. Department of Labor (DOL) updates its processing or adjudication times for PERM labor certification applications usually each month on its website. Employers and employees can check this website to gauge where DOL's processing stands in relation to PERM labor certification cases already filed. As of January 31, 2010, DOL was processing regular, unaudited labor certification cases that were filed in April 2009. The standard processing time for regular unaudited labor certifications remains steady at approximately 10 months. For audited cases, DOL is deciding cases that were submitted in December 2007, which remains unchanged since last month and which increases the audited case processing time to approximately 25 months.

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Foreign Nationals Entering the U.S. Via Newark International Airport

U.S. Customs and Border Protection (CBP) has informed stakeholders of a new policy at Newark's Liberty International Airport affecting returning H-1B, L-1, and other employment-based visa holders. CBP is now conducting random checks to determine admissibility of those visa holders. Based on that initial screening, the primary CBP officer may decide to send the visa holder to secondary immigration inspection. The visa holder could then face a choice of withdrawing his or her application for admission or being subjected to expedited removal by the U.S. government.

For H-1B and L-1 nonimmigrants who must travel outside the U.S., we recommend advance preparation for their return and inspection by CBP, including:

  • a complete review of the sponsoring employer's "petition" previously filed on the employee's behalf

  • familiarity with the petition's contents, including the stated position title, job duties, work location, and compensation

  • carrying evidence to support admissibility including (but not necessarily limited to) a recent employment confirmation letter from the petitioner/employer and a recent earnings statement
Additionally, for returning permanent residents (green card holders), the Newark port of entry has adopted a policy that a permanent resident with a post-1998 conviction may be detained. Exceptions to the detention policy may be made for humanitarian reasons. The permanent resident will be released after 24 hours if CBP cannot obtain a copy of the conviction documents. Permanent residents with post-1998 convictions should seek advice of legal counsel before traveling abroad and returning through any U.S. port of entry.

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Department of State Proposes Changed Fees for Consular Services

The Department of State (DOS) has published a list of proposed changes to the current fees for consular services. One significant change includes an increase from $355 to $720 for immigrant visas for employment-based permanent resident (green card) applications. This is a 103% increase in the fee. Curiously, the comparable fee for family-based permanent resident (green card) applications remains unchanged. At this stage the fee increases are just proposals, but most proposals of this kind eventually go into effect with very few changes.

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March 2010 Visa Bulletin -- EB-2 and EB-3 Categories Advance

The U.S. State Department (DOS)’s March Visa Bulletin reflects some movement in the permanent resident or “green card” Employment Second Preference (EB-2) and Third Preference (EB-3) categories. The EB-2 all chargeability category remains current, the cutoff date for EB-2 India advances one week to February 1, 2005, the cutoff date for EB-2 China advances six weeks to July 8, 2005. The EB-3 all-chargeability and China categories advance over two months to December 15, 2002, and the cutoff date for EB-3 India advances one week to July 1, 2001. The Employment First Preference category remains current across-the-board.