I. Premium Processing for Immigrant Visa Petitions

The U.S. Citizenship and Immigration Services (USCIS) announced that on June 29, 2009, it will resume premium processing service for all types of employment-based immigrant visa petitions (form I-140) except for multinational managers and executives and national interest waiver cases. If the $1,000 premium processing fee is paid, the USCIS will adjudicate the petition within 15 days. Note that the 15-day turnaround time is solely for the I-140 petition and does not include expedited processing of accompanying applications such as the adjustment of status application or applications for advance parole and employment authorization cards.

What is the benefit of premium processing for the I-140 petition if the accompanying applications can take months and months to be adjudicated? For one thing, it’s assuring to know right away if the petition has been approved, especially in cases that leave a great deal to examiner discretion, including petitions based on “extraordinary ability.” For another, filing a case with the premium processing unit allows us to telephone the unit if a problem develops, an advantage not available for non-premium cases. Finally, in certain cases, an approved I-140 is required in order for the foreign national to remain in the United States in H-1B status beyond six years. If the H-1B worker is getting dangerously close to the end of six years in that status, an expedited approval of the I-140 might be the only way to keep him here longer.

II. Backlogs in Immigrant Visa (“Green Card”) Categories

Each month, the Department of State (DOS) publishes its Visa Bulletin, which summarizes the availability of immigrant visa (“green card”) numbers for employment-based and family-based cases. In order for a foreign national to complete his permanent residence case, a visa number has to be available; if there are more people applying for immigrant visas than the number of visas available, backlogs develop. Based on the July Bulletin and announcements made by the DOS, here’s what to expect in the near future:

  • Immigrant visas for those qualifying in the employment-based third preference category (EB-3) are unavailable and are likely to remain unavailable for the rest of the fiscal year. (An EB-3 case is usually one with an underlying PERM application that required a bachelor’s degree and fewer than five years of experience).
  • Immigrant visas for those qualifying in the employment-based second preference category (EB-2) are available, except for nationals of India and China, where the numbers retrogressed to January 1, 2000. (An EB-2 case is one with an underlying PERM application requiring an advanced degree, including a bachelor’s degree plus at least five years of experience, or a case filed for someone whose work is in the national interest.) The retrogression means that an EB-2 case can only be completed if the underlying labor certification application or immigrant visa petition was filed before January 1, 2000, a wait of more than nine years!
  • Immigrant visas for those qualifying in the employment-based first preference (EB-1), persons of extraordinary ability, outstanding researchers or professors, and multinational managers and executives, are available across the board. But maybe not for long. If demand remains heavy, there may be a wait for EB-1 numbers for nationals of India and China.

III. What Do These Delays Mean for Foreign Nationals Waiting for a Visa Number to Become Available?

Often, an employer will ask us whether it needs to extend the underlying nonimmigrant status of an employee who’s already filed his adjustment of status application and has been issued an Employment Authorization Document (EAD). For example, suppose you employ an Indian national in H-1B status. You filed his EB-3 petition in July 2007, and at that time, he concurrently filed his adjustment of status application. He has an EAD, which allows him to work for any employer in the United States, and his H-1B status has not yet expired. But come September 1, 2009, the H-1B petition is coming up for extension. Should the employer file a petition extension, or should it permit the H-1B status to expire, and continue to employ the worker on his EAD?

Although the law does not require you to extend this worker’s H-1B status, and although he can continue to work for you so long as he continues to timely renew his EAD, we think that it is more prudent for you to keep this employee in H-1B status.We explain why in the next section.

IV. USCIS Issues Consolidated Memorandum on Unlawful Presence

If a nonimmigrant remains in the United States beyond the time allotted him on his I-94 card, he may begin to accrue what the USCIS refers to as “unlawful presence.” Let’s say an H-1B worker, whose petition approval and I-94 will expire on July1, 2009, lost his job in early May. He remains in the country to find a new employer, but as of mid-July, he’s been unsuccessful. As of July 2, 2009, this person will begin to accrue unlawful presence with at least two consequences: (1) as a person who stayed beyond the period authorized on his I-94, he will have to apply for all future visas in his home country; and (2) he is removable (deportable) from the United States.

What about a foreign national who files an adjustment of status application but whose employer does not extend his underlying nonimmigrant status? Take the example given in section III: An H-1B nonimmigrant filed his adjustment application in July 2007 and has an EAD. His first period of H-1B status comes to an end on September 1, 2009. The employer does not extend the H-1B petition, but relies on the EAD to continue to employ this person.

The consolidated memorandum makes it clear that as of September 2, 2009, this person is subject to removal should his adjustment of status application be denied because he remained after the expiration of his nonimmigrant admission. This does not mean that the government will deport him. But it does mean that if his adjustment application is denied, the USCIS may commence removal proceedings against this person. But if the employer had kept this person in H-1B status, he would not be removable. For that reason alone we recommend maintaining a foreign national’s underlying nonimmigrant status while his adjustment of status application is pending.

V. Step-Up in Enforcement

Most of you are aware of that $500 “anti-fraud” fee that you have to pay when you file initial H-1B and L-1 petitions. In case you were wondering where the $500 goes, you may soon find out.

Sometime ago, the General Accounting Office issued a report in which it stated that the USCIS had no means of detecting fraud in immigration petitions. Perhaps as a result, the USCIS has stepped up its anti-fraud investigations, and is visiting thousands of worksites, unannounced, to ask questions, and perhaps review documents. Not much is known about these site visits, but several of our clients received unannounced visits from the USCIS fraud detection unit within the past year. The investigator asked questions about past and pending petition filings to make sure all of the facts were accurately stated.

Although the Bush administration focused its investigations on worksite raids, rounding up hundreds of undocumented workers, the Obama administration is concentrating its enforcement activities on audits of employers. The immigration enforcement agency, Immigration and Customs Enforcement (ICE) is pursuing this expanded agenda by conducting I-9 and Labor Condition Application audits at companies in all sectors of the economy, and the new Secretary of Labor, Hilda Solis, has pledged to vigorously pursue penalties against companies employing persons without authorization or without properly completing I-9 forms. Secretary Solis reminded the American public: “To those who have for too long abused workers, put them in harm’s way, denied them fair pay, let me be clear, there is a new sheriff in town.”

We strongly recommend that if a USCIS or ICE investigator visits your company unannounced that you not speak to him without our knowledge and assistance. Instead, you should call us immediately while the investigator is still there, or ask the investigator to contact us.We will arrange a mutually agreeable date for the investigator to return so we can be present to review the request for internal records and participate fully in the interview.

VI. New Exchange Visitor (J-1) Skills List Effective on June 28, 2009

For the first time since 1997, the DOS has revised its Exchange Visitor Skills List. The Exchange Visitor Skills List is a list of specialized knowledge and skills that a foreign country has deemed necessary to its development. If a J-1 exchange visitor comes to the United States to receive training in a skill listed on the Skills List of his country of citizenship or last permanent residence, he is subject to a requirement that after his training, he return to that country for at least two years before he can return to the United States in H or L status and before he can apply for permanent residence. (Waivers of the two-year rule are sometimes available.)

The following countries, which had been on the 1997 Skills List, were removed from the 2009 Skills List:

Afghanistan, Azerbaijan, Bahamas, Botswana, Burundi, Central African Republic, Chad, Cote d'Ivoire, Croatia, Czech Republic (removed 12/24/1997), Equatorial Guinea, Guinea, Guinea-Bissau, Hungary, Jordan, Kuwait, Lesotho, Macedonia, Madagascar, Malta, Morocco, Pakistan, Panama, Papua New Guinea, Poland, Qatar, Sierra Leone, Singapore, Somalia, Sudan, Tunisia, Uganda,Western Samoa, and Zimbabwe.

If a J-1 exchange visitor entered the United States before June 28, 2009, while his country and his skill were on the Skills List, but then as a result of the 2009 changes his country came off the List entirely, the J-1 visitor is no longer subject to the two-year return requirement. If, however, the country remains on the List, but his particular skill is removed, he is still subject to the return requirement.

The 2009 Skills List also added some countries to the Skills List that were not included in the 1997 List:

Armenia, Belize, Cambodia, Djibouti, East Timor, Eritrea, Georgia, Haiti, Kenya, Kosovo, Montenegro, Mozambique, Namibia, Palestinian Authority, South Africa, and Tajikistan.

Any J-1 Exchange Visitor who entered the United States in J-1 status before June 28, 2009 (while the 1997 List was still in effect) is governed by the 1997 list. If his country was not on the 1997 List, he will not be subject to the two-year rule. The fact that his country was added to the 2009 List will not subject him to the two-year rule. But if he changes programs or extends his J-1 stay after his country and skill were added to the List, he may then be subject to the two-year return requirement.