State Department Update on Visa Demand and Priority Dates

The Department of State has issued the October Visa Bulletin, reporting that priority dates in the EB-2 (advanced degree holders) India category will move only to September 1, 2004. This is particularly unwelcome news since the backlog had advanced almost three years beyond the 2004 date just a few short months ago. The Visa Office attributes this slow movement to an unexpectedly high level of EB-1 (persons of extraordinary ability and multinational managers) visa usage. (When EB-1 numbers remain unused, those numbers usually “drop down,” and become available, to individuals in the EB-2 category. However, as EB-1 usage has been high in recent months, no extra unused EB-1 numbers have been available for EB-2 use). The October Visa Bulletin further notes that EB-2 China priority dates will move to July 15, 2007, while EB-2 priority dates for the rest of the world will advance to January 1, 2012. We will continue to follow the visa availability situation closely, and will keep you apprised of updates as they become available.

Israelis Eligible for Investment Visas

In June 2012, President Obama signed into law a bill which adds Israel to the list of countries whose citizens are eligible to receive E-2 (Treaty Investor) visas. That means that E 2 status is now available to Israeli nationals who will be employed in an executive, supervisory, or essential skills position by a company that is at least 50 percent owned by Israeli nationals (provided that the company has made a substantial investment in its U.S. business). (Individuals may also qualify for E-2 status if they are the company’s principal U.S. investor, although this is a much less common scenario.) E-2 visas are normally issued for five years, and there is no limit as to how long the applicant can remain in E-2 status. Upon each entry, an E-2 visa holder is admitted for a two-year period.

Worksite Changes and Amended H-1B Petitions

Under long-standing USCIS policy, an amended H-1B petition was not required to be filed when an H-1B worker changed geographic work locations, provided 1) a new LCA was filed and certified for the new location prior to the employee’s move; 2) the LCA notices were posted at the new worksite in accordance with regulation; and 3) there were no material changes to the terms and conditions of employment. While USCIS has recently stated that it is reviewing this policy, it has not to date issued a formal policy change. Nevertheless, some USCIS adjudicators apparently think otherwise, and have decided unilaterally that a change in work location which is outside of the Metropolitan Statistical Area (MSA) listed on the original filing requires more than a new LCA.

Over the past few months, we have received troubling reports of USCIS employer site audits and (proposed) revocations of petitions in cases where the H-1B beneficiary has moved to a new worksite without filing with USCIS an amended H-1B petition with USCIS. We have asked USCIS to provide clarification on what exactly is required when an H-1B employee changes work locations. In the meantime, we advise that you file a new LCA and an amended H-1B petition prior to relocating your H-1B employee in order to avoid any potential problems.

One important exception: if your employee will be relocating to another worksite within the same Metropolitan Statistical Area (MSA) listed on the LCA and the H-1B petition (for example, moving from an office in Manhattan to one in Queens), neither a new LCA nor an amended H-1B petition is required. Rather, two new posting notices must be posted for 10 days in the new office location, and then kept in the public access file.

PERM: When In Doubt, Interview

In In the Matter of Golman Sachs & Co. (June 2012), the Board of Alien Labor Certification Appeals (BALCA) denied a PERM because the employer failed to contact applicants to determine whether they may have been qualified for the position offered. The employer had received 35 applicants for a Financial Analyst position, but did not contact any of the applicants for an interview. BALCA denied the PERM, stating that the resumes of two of those applicants merited a closer look, and noting that the employer had a duty to reach out to promising applicants to determine whether they were, in fact, qualified for the job. This case serves as a valuable reminder that your analysis of a candidate shouldn’t end just because his or her resume doesn’t explicitly meet the PERM minimum qualifications. Rather, if the resume shows a broad range of experience, education and training that raises a reasonable possibility that the applicant is qualified for the position, you are obliged to further investigate the applicant’s credentials. (This usually involves conducting a telephone or in-person interview to determine if the applicant truly is qualified for the position). While this extra investigative step takes additional time and effort, it can go a long way towards ensuring that your PERM case is ultimately approved

New EB-5 Program Office

In July 2012, USCIS announced that it will be creating a new Program Office to oversee the administration of the EB-5 Investor Program. The Office will be led by a new Chief of Immigrant Investor Programs – an official with “real-world business acumen” who will be tasked with ensuring that the EB-5 program is administered efficiently and in accordance with today’s rapidly changing business realities. In addition, a special Review Board consisting of two Supervisory Immigration Services Officers and one economist will now review every pending application for regional center designation for which a denial had been recommended, giving applicants an opportunity to discuss their cases in-person before any final adverse decision is rendered.

With over 3,000 EB-5 approvals issued in Fiscal Year 2012 – more than triple the amount issued just three years ago - EB-5 visa usage continues to grow. In order to ensure that the program continues to function effectively, it is essential that USCIS is staffed with knowledgeable professionals who understand the ins and outs of job creation, economics, and financial investments. While it remains to be seen whether the EB-5 Program Office will prove effective in meeting these staffing needs, we believe its creation is a step in the right direction.