Immigration Inbox: News You Can Use April 2012

U.S. Immigration:

1. FY 2013 H-1B Cap Filing Season Began on April 2, 2012 – USCIS receives approximately 25,600 cap-subject H-1B visa petitions as of April 9, 2012, almost double the number of filings received by USCIS during the same time last year. Employers should forecast this year's hiring needs and accelerate preparation and filing of H-1B petitions.

2. May Visa Bulletin Retrogression for India, China EB-2 Category – The State Department announced a retrogression of priority dates in the India and China EB-2 category to August 15, 2007 effective in the May Visa Bulletin. USCIS will continue to accept Adjustments of Status Applications with priority dates before the cut-off date in the current Visa Bulletin.

3. Department of State Amends Fees for Consular Services – The Department issued an interim final rule increasing fees for consular services for nonimmigrant visa applications, border crossing card applications, and immigrant visa applications.

4. Federal Judge Chides USCIS for Denial of 'Specialty Occupation' H-1B Petition to Market Research Analyst With Related Bachelor's Degree – The judge said USCIS' errors constituted "a litany of incompetence that presents [a] fundamental misreading of the record, relevant sources, and the point of the entire petition."

5. Business Organizations Send Letter on L-1 Issues to Obama Administration – A significant concern, the letter notes, is that an "inconsistent and improperly narrowed" definition of specialized knowledge is being used to determine which employees qualify for L-1B status.

6. Visa Interview Waiver Pilot Program Expanded to New Delhi, India – The pilot program permits consular officers to waive interviews for qualified nonimmigrant applicants worldwide who are renewing their B-1/B-2 visas within 48 months of the expiration of their previously held visa, and within the same classification as the previous visa.

7. CBP Expands Global Entry to Additional Airports – By September 22, 2012, Global Entry will be implemented at St. Paul International Airport, Charlotte Douglas International Airport, Phoenix Sky Harbor International Airport, and Denver International Airport, in addition to the 20 other airports listed.

8. DOL Issues Guidance on Transition Period for Changes to H-2B Temporary Nonagricultural Labor Certification Process – DOL issued the guidance following publication of its final rule on February 21, 2012, amending and creating H-2B regulations.

9. Eleventh Circuit Blocks Additional Portions of Alabama Immigration Law – The court ruled that Alabama may not enforce provisions barring undocumented people in Alabama from obtaining a driver's license and barring courts from enforcing contracts involving the undocumented, pending a challenge to the law by the Obama administration.

10. USCIS Releases Guidance on Maximum Period of Stay for Nonimmigrant Religious Workers – The memo outlines the procedure to be used for "recapturing" time spent outside the United States by R-1 nonimmigrants when seeking an extension of their R nonimmigrant status, and discusses the concept of recapturing for nonimmigrants.

Seyfarth Workforce Authorization Team (SWATeam)

1. USCIS Seeks Public Comment on Revisions to I-9 Employment Eligibility Verification Form – The comment period ends on May 29, 2012.

Also in this issue:

Seyfarth Immigration Events and News
 

U.S. Immigration

1. FY 2013 H-1B Cap Filing Season Began on April 2, 2012

Beginning on Monday, April 2, 2012, employers were able to file cap-subject H-1B visa petitions on behalf of workers in Specialty Occupations for fiscal year (FY) 2013, with employment starting on or after October 1, 2012.

USCIS informed participants at the stakeholder engagement hosted by the California and Vermont Service Centers in Laguna Niguel, CA, on April 5, 2012, that 22,323 cap-subject H-1B petitions have been received as of April 4, 2012. Approximately 25% of these cases are for U.S. advanced degrees. According to USCIS, the number of filings received in the first few days of the H-1B season is almost double the number of filings received by USCIS during the same time last year. According to its website, as of April 9, 2012, USCIS received approximately 25,600 cap-subject H-1B petitions.

On November 22, 2011, U.S. Citizenship and Immigration Services (USCIS) received a sufficient number of petitions to reach the statutory cap for FY 2012. USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption as of October 19, 2011.

Employers are well advised to accelerate decisions on workforce planning and hiring of high-skilled employees and prepare to file for their forecasted need as soon as possible. If this year's H-1B quota is missed, new H-1B workers (other than for lateral hires already in H-1B status and for workers exempt from the quota). For more information, please see Seyfarth's Client Alert - "H-1B Work Permit Filings: Will You Beat the Cap?".

2. May Visa Bulletin Retrogression for India, China EB-2 Category

The State Department announced a retrogression of priority dates in the India and China EB-2 category to August 15, 2007 effective in the May Visa Bulletin. USCIS will continue to accept Adjustments of Status Applications with priority dates before the cut-off date in the current Visa Bulletin. The State Department's Visa Bulletin for April did not continue the dramatic forward movement of India and China EB-2 priority dates that has been observed for the past several months. Over the last couple of weeks, there were rumblings of a possible retrogression of priority dates in the India and China EB-2 category to a 2007 priority date, effective in the May or June Visa Bulletin.

With the publication of the May Visa Bulletin reflecting an August 15, 2007 cutoff, priority dates are not expected to advance again until October 1, 2012, at the earliest, when the new fiscal year begins.

If an I-485 Application for Adjustment of Status is filed while the person's priority date is current, it will remain pending until the priority date is current again. Because the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, while the priority date remains retrogressed.

3. Department of State Amends Fees for Consular Services

The Department of State has issued an interim final rule amending the schedule of fees for consular services for nonimmigrant visa applications, border crossing card applications, and immigrant visa applications.

The rule increases from $140 to $160 the fee for processing most non-petition-based nonimmigrant visas (machine-readable visas, or MRVs) and border crossing cards (BCCs) for Mexican citizens 15 years of age and above. The rule also amends application processing fees for certain categories of petition-based nonimmigrant visas and treaty trader and investor visas (all of which are also MRVs), and amends tiered application processing fees for immigrant visas. Finally, the rule increases from $14 to $15 the BCC fee charged to Mexican citizen minors who apply in Mexico, and whose parent or guardian already has a BCC or is applying for one, based on a congressionally mandated surcharge.

The interim final rule is effective April 13, 2012. Written comments must be received on or before May 29, 2012. The rule, which includes instructions on submitting comments, is available here.

4. Federal Judge Chides USCIS for Denial of 'Specialty Occupation' H-1B Petition to Market Research Analyst With Related Bachelor's Degree

In Residential Finance Corporation v. USCIS, decided on March 12, 2012, Judge Gregory L. Frost of the U.S. District Court for the Southern District of Ohio criticized USCIS for agency's faulty analysis in denying an H-1B petition to a market research analyst with a bachelor's degree in that field.

The issue before the court was whether USCIS incorrectly concluded that a "specialty occupation" was not established. The court noted that a specialty occupation is one that requires attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. A related definition provides that a specialty occupation requires theoretical and practical application of highly specialized knowledge.

Among other things, USCIS argued that although the Department of Labor's Occupational Outlook Handbook (OOH) recognizes a baccalaureate degree as the minimum educational requirement for many market and survey research jobs, the OOH does not indicate that such a degree need be in a specific specialty directly related to market research.

In this case, the beneficiary had obtained a bachelor of science degree in marketing and finance. The record indicated that a minimum requirement for entry into the position of market research analyst is the specialized course of study in which the beneficiary had engaged.

"Perhaps most bewildering is that Defendant [USCIS] rejected the evidence that [the beneficiary] would actually be performing these job duties if hired, despite no evidence to the contrary and no other apparent reason for failing to credit the evidence on this record," the judge said.

Judge Frost continued:

Defendant continues to reject this record in favor of supporting a flawed denial. What Defendant overlooks is that the illogical leaps about which Plaintiff complains in its thorough briefing cannot be separated from the process in which Defendant engaged in its decision making. Stated simply, Defendant did a poor job of keeping the record straight and its focus on the actual inquiry involved.

The judge pointed out that USCIS expressly admitted "inexplicable errors" in its briefing, such as references to the wrong sections of the OOH, and that the agency's decision appeared to identify the proffered position incorrectly as a marketing manager rather than a marketing analyst.
Judge Frost said that these errors were not the essentially inconsequential lapses that USCIS suggested. Instead, he said, they constituted "a litany of incompetence that presents [a] fundamental misreading of the record, relevant sources, and the point of the entire petition." If USCIS wants to deny a petition that will send the beneficiary to another country after 21 years of living in the United States, the judge said, "it should afford Plaintiff and [the beneficiary] a bare minimum level of professionalism, diligence, and reasoning."

According to the court, the record indicated that a market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields, that the beneficiary had completed such specialized study in the relevant fields of marketing and finance, and that Residential Finance Corporation had sought to employ him in such a position. Judge Frost said that USCIS had "ignore[d] the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors."

Judge Frost concluded that USCIS failed to meet the "fundamental threshold for rational decision-making and has instead engaged in conduct that cannot be separated from the taint of the foregoing errors." He thus found that the denial of the petition was arbitrary, capricious, and an abuse of discretion, and ordered USCIS to grant the petition and change the beneficiary's status to H-1B nonimmigrant.

The text of the case is available here.

5. Business Organizations Send Letter on L-1 Issues to Obama Administration

Sixty-four business organizations signed a letter on L-1 legal and policy issues sent on March 22, 2012, to President Obama and the Secretaries of Commerce, Homeland Security, and State. New proposed L-1 guidance is anticipated from USCIS.

Among other things, the letter notes that it has become increasingly difficult for companies to procure visas to transfer existing employees in the United States to continue work. A significant concern, the letter notes, is that an "inconsistent and improperly narrowed" definition of specialized knowledge is being used to determine which employees qualify for L-1B status. When visas for key staff already employed in an organization are inexplicably delayed or denied, such delays or denials do not enhance compliance or enforcement and "do nothing except disrupt carefully laid business plans and create significant costs to the company and the American economy," the letter states.

The letter is available here.

6. Visa Interview Waiver Pilot Program Expanded to New Delhi, India

The U.S. Embassy in New Delhi, India, announced that the Visa Interview Waiver Pilot Program has been expanded to that post, effective immediately. Under the program, certain qualified foreign visitors who were interviewed and screened in conjunction with a previous visa application may be eligible to renew their visas without undergoing another interview.

The embassy explained that the pilot program permits consular officers to waive interviews for qualified nonimmigrant applicants worldwide who are renewing their B-1/B-2 visas within 48 months of the expiration of their previously held visa, and within the same classification as the previous visa. The pilot does not entitle any applicant to a waiver of personal appearance. Consular officers retain the authority to interview any applicant whom they determine requires a personal appearance.

The announcement is available here.

For additional details on qualifying for an interview waiver, see here.

7. CBP Expands Global Entry to Additional Airports

U.S. Customs and Border Protection is adding four airports to the list of 20 participating major U.S. airports in the Global Entry international trusted traveler program. Global Entry allows pre-approved, low-risk participants expedited entry into the United States using Global Entry kiosks located at designated airports. The program is intended for frequent international travelers, but there is no minimum number of trips to qualify.

By September 22, 2012, Global Entry will be implemented at St. Paul International Airport (Minnesota), Charlotte Douglas International Airport (North Carolina), Phoenix Sky Harbor International Airport (Arizona), and Denver International Airport (Colorado), in addition to the 20 other airports listed in the notice, which is available here.

The starting dates will be announced here.

8. DOL Issues Guidance on Transition Period for Changes to H-2B Temporary Nonagricultural Labor Certification Process

The Department of Labor (DOL) has issued guidance to provide transition procedures to ensure that employers filing H-2B applications on or after April 23, 2012, have sufficient information to file appropriately. DOL issued the guidance following publication of its final rule on February 21, 2012, amending and creating H-2B regulations.

The H-2B final rule becomes effective on April 23, 2012. The guidance is available here.

9. Eleventh Circuit Blocks Additional Portions of Alabama Immigration Law

The U.S. Court of Appeals for the Eleventh Circuit has included additional provisions of a controversial Alabama immigration law in its injunction. The court ruled that Alabama may not enforce provisions barring undocumented persons in Alabama from obtaining a driver's license and barring courts from enforcing contracts involving the undocumented, pending a challenge to the law by the Obama administration. The administration argues that immigration law and regulation is a federal responsibility. In October, the court prevented Alabama from criminalizing the failure to carry documents evidencing legal resident status and requiring schools to check children's immigration status when they enroll.

Alabama's attorney general, Luther Strange, reportedly said that he hopes that "the Supreme Court's coming decision in [a similar case from Arizona] will make clear that our law is constitutional." The Southern Poverty Law Center (SPLC) noted that several of the bill's cosponsors conflated the growth in Alabama's Hispanic population with growth in "illegal immigrants." SPLC quoted a judge's decision in December citing lawmakers' comments such as their having visited a poultry plant and seen "4-foot Mexicans in there catching them chickens."

SPLC's article on the law are available here.

An SPLC report, "Alabama's Shame: HB 56 and the War on Immigrants," recounts several of the thousands of stories received on its hotline for residents established shortly after the law took effect, including accounts of its impact on legal immigrants and even U.S. citizens. The report is available here.

10. USCIS Releases Guidance on Maximum Period of Stay for Nonimmigrant Religious Workers

USCIS released a policy memorandum on March 8, 2012, for Immigration Service Officers who adjudicate religious worker (R-1) nonimmigrant petitions for those coming to the United States temporarily to perform religious work, and their dependents. The memo outlines the procedure to be used for "recapturing" time spent outside the United States by R-1 nonimmigrants when seeking an extension of their R nonimmigrant status. The guidance applies to all R-1 petitions seeking to recapture time that are currently pending with USCIS or to new petitions filed on or after March 8, 2012.

"Recapturing" is used in the memo as "short-hand" for the period of time spent outside the United States that the worker seeks to have subtracted from his or her maximum period of stay in R-1 status, to have that period of time added back ("recaptured") when he or she requests an extension of R-1 status.

USCIS explained that the R-1 nonimmigrant classification is for those seeking to enter the United States for a period not to exceed five years solely to work as a minister or in a qualifying religious occupation or vocation. In calculating the five-year maximum period of stay, USCIS has not subtracted time in which the R-1 religious worker was traveling or residing outside of the United States following his or her initial admission in R-1 status.

USCIS noted that certain nonimmigrants who have spent the maximum period of stay authorized by their nonimmigrant classification are prohibited from having a new petition in the same status filed on their behalf until they have remained outside of the United States for a specific period of time (also known as a "limitation on admission" or "limitation on total stay"). Currently, USCIS policy guidance provides that H-1B and L-1 nonimmigrants and their dependents may recapture time spent outside of the United States when calculating their maximum period of authorized stay. USCIS said the policy of allowing recapture is intended to permit a qualifying nonimmigrant to spend the maximum permitted period of time allowed by his or her classification in the United States before he or she must spend a specific period outside of the United States to file a new petition for the same status.

USCIS said it has determined that extending the recapture policy to the R-1 nonimmigrant classification is "appropriate, and that such a policy is consistent with R-1 statutory and regulatory language and the purpose and intent of the R-1 visa classification." USCIS has further determined that the spouse or minor child of a principal who recaptures periods of time spent outside the United States toward an extension of R-1 status may receive periods of R-2 stay coextensive with that of the principal.

The USCIS memo may be an effort to settle or moot a class action lawsuit filed earlier this year that challenged the agency's prior refusal to allow R-1 religious workers to recapture time spent out of the United States. See Society of the Divine Word v. Napolitano (N.D. Ill. filed Jan. 3, 2012).

The USCIS memo is available here.

Seyfarth Workforce Authorization Team (SWATeam)

1. USCIS Seeks Public Comment on Revisions to I-9 Employment Eligibility Verification Form – The comment period ends on May 29, 2012.

USCIS invites public comment until May 29, 2012, on a revised employment eligibility verification form (I-9). Employers must complete the I-9 for all newly hired employees to verify their identity and authorization to work in the United States.

Key revisions to the form include:

• Expanded instructions and a revised layout.
• New, optional data fields to collect the employee's e-mail address and telephone number.
• New data fields to collect the foreign passport number and country of issuance. Only those authorized to work in the U.S. who have also recorded their I-94 admission number on the I-9 will need to provide the foreign passport number and country of issuance.

Until a new version is approved and posted, employers must continue to use the current version of the I-9 form, available here.

The USCIS notice, which includes a link to the revised draft form, is available here.

The Federal Register notice is available here.

Seyfarth Immigration Events and News

Recent News from Seyfarth's Immigration Attorneys

Attorney Angelo Paparelli was interviewed by CBS Radio (KNX 1070) on March 27, 2012. Angelo discussed the immigration lessons learned from a case in which a man arrested on suspicion of murdering five people in San Francisco was to be deported in 2006, and he is now staying in the United States after Vietnamese authorities failed to provide necessary travel documents. Angelo concluded that U.S. Immigration and Customs Enforcement (ICE) should focus their efforts on removing non-citizen criminals from the U.S. rather than low-level immigration violators who pose no threat. Angelo's interview is available here.

Upcoming Speaking Engagements

Seyfarth Associate Nicole Kersey will deliver a presentation titled, "Electronic I-9 Solutions: Jackpot or Crackpot?" at the National Association of Professional Background Screeners 2012 Annual Conference, to be held April 15-17, 2012 in Nashville, Tennessee.

Seyfarth Partner Angelo Paparelli will speak on April 23, 2012 to the legal department of a Fortune 500 company in the New York area on the topic "Beware the Alien Law Invasion: How Immigration Issues Permeate the Work of In-House Counsel." Angelo can be available to speak to your company's Legal or Human Resources Department on a wide array of immigration issues by contacting him through this link.

Seyfarth Senior Counsel Leon Sequeira and Associate Jason Burritt will host an April 24, 2012 Labor and Employment Breakfast Briefing on "Is Your Company At Risk?: Latest Enforcement Efforts by the Federal Government." This program will discuss the latest government enforcement efforts relating to legal work status, I-9s, and E-Verify, with a focus on the industries particularly at risk.

Seyfarth Senior Counsel John Quill will present on the topic of the PERM Labor Certification process at the Massachusetts Continuing Legal Education's (MCLE) 11th Annual Immigration Law Conference, to be held on May 18, 2012 in Boston, MA.

Recent Speaking Engagements, Liaison Activity and Advocacy

Angelo Paparelli presented at the March 16, 2012 immigration law conference at Chapman University in Orange, California. Angelo discussed issues facing undocumented Latino immigrants in a presentation titled, "Contextualizing the Immigration Debate and Making Sense of the Backlash against the Undocumented."

Angelo Paparelli met with officials of the Department of Homeland Security (DHS), Office for Civil Rights and Civil Liberties (CRCL) at a bar association liaison meeting on March 28, 2012 in Washington DC to discuss ways in which companies, individuals, nonprofit groups and bar associations can file complaints concerning potential violations of protected legal interests so that CRCL can work internally with DHS component agencies to propose new policies that might improve the legal immigration system. Information on CRCL is available here.

From left to right, lawyers Angelo Paparelli, Denise Sabagh, Cyrus Mehta and Traci Hong, Immigration Policy Chief, CRCL

In addition, Angelo Paparelli has posted several new blog entries on his Nation of Immigrators public policy blog:

Pre-Election Bipartisanship -- Except on Immigration, Where Sen. Grassley Stubbornly Obstructs

With an eye toward November and an 11% approval rating, Congress puts aside bi-partisan bickering to pass legislation such as the JOBS Act. However, Senator Chuck Grassley has been a one-man lightning rod, jolting the immigration agencies under the current and prior administration and intimidating them so that they jump to his bidding.

Musing on Immigration Liberty: If I had a son, he'd look like a DREAMer

Angelo describes his venture into the Alice-in-Wonderland-like alternative universe of Congress and the Executive branch, as he advocates for passage of the DREAM Act.

Immigration Options for DREAMers under EXISTING Law

Angelo marks the second annual "National Coming out of the Shadows Week," and the applauds the courage shown by those who publicly proclaim their undocumented immigration status. The blog post discusses possible options, some uncommon, for undocumented individuals to legalize their status and obtain work authorization.

Immigration's Private Parts Modestly Yet Shockingly Exposed

U.S. Immigration and Customs Enforcement (ICE) and the Department of State offers an eye-popping (and unflattering) view behind the veil of government data collection in the immigration space.

By: Angelo Paparelli, Gabriel Mozes, and John Quill

Angelo Paparelli is a Partner in Seyfarth's Downtown Los Angeles office. Gabriel Mozes is an Associate in the Boston and Atlanta offices. John Quill is Senior Counsel in the Boston office. If you would like further information, please contact your Seyfarth Shaw LLP attorney, Angelo Paparelli at apaparelli@seyfarth.com, Gabriel Mozes at gmozes@seyfarth.com, John Quill at jquill@seyfarth.com or any Business Immigration attorney on our website.