As of June 18, 2010, USCIS has received 22,900 H-1B petitions subject to the FY 2011 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 9,700 H-1B petitions subject to the FY 2011 US master’s degree cap, of which there are 20,000 visas each fiscal year.  If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap.  These numbers are still moving very slowly and it appears that we may have another year where the cap will not be reached until the end of this year or even later.

USCIS has published notice of its rule to increase immigration filing fees in the June 2010 Federal Register.  The increases average 10 percent per petition or application.  USCIS states that a comprehensive review of fees regularly occurs every two years and it is to ensure full recovery of costs and maintenance of adequate services.  It also states that it has met or surpassed its processing times goals in its 2008/2009 review.

There will be no fee for military naturalization applications.  USCIS proposes a new fee of $615 for processing civil surgeon designations.  A medical exam performed by a designated civil surgeon must accompany all applications to adjust status (Form I-485) and V status applications (Form I-539).  DHS also proposes a fee for regional service center designations under the Immigrant Investor Pilot Program.  This program, knows as the EB-5, allows foreign nationals to obtain legal permanent residency if they invest a certain level of capital and create a certain number of jobs in the US.  One aspect of this program encourages foreign nationals to invest in distinct economic “regional centers.”

USCIS proposes to increase the following fees for forms that include biometrics, including the following:  Form I-485, Application to Adjust Status, from $1,010 to $1,070; the Form I-751, Petition to Remove Conditions on Residency, from $545 to $590; Form N-400, Application for Naturalization, from $675 to $680.

While USCIS has indeed sped up its processing of many applications, including the family and employment-based Form I-485 and Form I-140, other parts of the immigration system are still woefully slow, including the PERM labor certification application run through the Department of Labor.  Also, the prodigious backlog in immigrant visa numbers is causing great stresses for foreign nationals waiting years to obtain legal permanent residency.  Immigrant visa numbers need to be increased drastically to take into account the increased demand for such numbers based on the growth of our economy and need for foreign skilled workers.  This economic slump is only temporary and soon we will be faced with a dearth of skilled workers again to fuel and sustain a strong economy.

For the first time,  a serious challenge has been leveled against the Federal Defense of Marriage Act (DOMA) through a lawsuit filed in the federal court in Boston, MA.  The plaintiffs consist of a group of same-sex married couples who are now demanding equal rights under the federal law.  The essence of their argument is that the federal government’s ability to ignore some and recognize other marriage certificates violates the Equal Protection Clause of the US Constitution as discriminatory.   The plaintiffs may have a strong case, since the federal government has never before discriminated against certain types of marriages under the domain of the states, deferring to the conflict of laws and states’ rights.

If DOMA is found unconstitutional, this would mean that a foreign national could now secure legal permanent residency based on marriage to someone of the same gender so long as the marriage was valid where it occurred.  This would be no small revolution in US immigration law and would finally bring about fairness, compassion and rationality to same-sex couples.

As of April 22, 2010, USCIS has received 16,025 H-1B petitions subject to the FY 2011 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 6,739 H-1B petitions subject to the FY 2011 US master’s degree cap, of which there are 20,000 visas each fiscal year.  If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap.  

Employers can continue to file H-1B petitions for a start date before October 1, 2011, so long as H-1B numbers are available.  However, the start cannot be more than six months in advance of the date of preparation on the Form ETA 9035 Labor Condition Application (LCA), which is filed with the Department of Labor.  The employer must file a certified LCA with USCIS in support of the H-1B petition.  Currently, the DOL is taking seven days to certify an LCA, unless it requests evidence verifying the employer’s information.    DOL has been denying many LCAs based on its inability to verify the employer’s FEIN.  This can delay the certification another two weeks.   

This past month my office has obtained approvals for a National Interest Waiver (an EB-2 immigrant visa classification) and an Outstanding Researcher Petition (an EB-1 immigrant visa classification).  What is most amazing about these approvals is how quickly they came - within one month without premium processing!  Is the economy that poor that USCIS suddenly has time on its hands to approve cases in record speed?  There always is a silver lining.

This month I was successful once more in obtaining an approval on a Form I-140 EB1-B outstanding researcher petition for a private R&D engineering company.  The applicant only had a few years of experience post-doc but the quality and originality of her work were outstanding.  She had the usual publications, presentations, citations and evidence of judging others’ work, as well as the less usual patents.  It was the quality of her recommendation letters that was critical to the petition, as is almost always the case.

USCIS announced that it will start accepting H-1B visa petition subject to the H-1B cap for Fiscal Year 2011 on April 1, 2010.  The earliest start date under this program is October 1, 2010.  There are 65,000 H-1B visa numbers available each year pursuant to the bachelor’s cap and an additional 20,000 numbers for those with a master’s degree from a US institution.  If the demand exceeds the cap, then USCIS will subject petitions received by a cut-off date to a random computerized lottery.  For those petitions that do not receive a number, USCIS will return these petitions along with the filing fees and without prejudice.

Certain petitions are cap exempt and these are for beneficiaries working at: (1) institutions of higher education or affiliated nonprofit entities, (2) nonprofit research organizations and (3) governmental research organizations.  Also, for those individuals who have been counted against the cap within the past six years, and have not departed the US for more than one year, are not subject to the cap.  These individuals include those extending or amending their status, changing employers or filing concurrent petitions.

Based on last year’s track record, during which time the cap was not reached until December 2009, and the continuing sluggishness of our economy, it is doubtful that we will reach the cap in April 2010.  However, I would not venture to bet when we do reach it.

Donald Neufeld’s, Associate Director, Service Center (USCIS) Operations, memo of January 8, 2010, providing guidance on the requisite employer-employee relationship for H-1B purposes, is utterly wrongheaded and harmful to our nation’s economy.   It seems that as our economy has crumbled, USCIS (US Citizenship and Immigration Services) and DHS (Department of Homeland Security) have made a special effort to retard the US economy’s growth and restrict innovation by resorting to deleterious, old-fashioned and prejudicial immigration policies.  Neufeld’s memo is particularly harmful in that it will restrict the competitiveness of US companies in the midst of the most challenging global marketplace the US has ever faced. 

In particular, Neufeld states that in order for there to exist a proper employment relationship for H-1B purposes, the employer must maintain control over the beneficiary employee, even at third party sites.  However, companies rely on contracting IT professionals for their projects so as to avoid high costs and flexibility to grow and streamline as necessary.  Why should H-1B employers not be allowed to contract out their IT employees to third party sites at end clients?  So long as the employer is paying the employee the prevailing wage and the employee is working in the profession designated on the H-1B petition, the employer should be able to delegate control over the specific project to the end client.  However, Neufeld’s memo prohibits such delegation of control in the situation that he calls the “Third-Party Placement”/”Job Shop.”

The US’s immigration policies need to be more liberal and expansive, allowing for creativity and innovation in the workforce so that American employers can create jobs and compete more effectively with businesses worldwide.  Why not rid of the esoteric and regulatory-laden H-1B visa, as well as the L-1 and O-1, and have one temporary working visa that allows for professionals and nonprofessionals, intracompany transferees and extraordinary ability aliens and any other assortment of workers to work in the US so long as there is employment for them (either self-employment or through another employer).  Other requirements could be worked out in terms of a prevailing wage and recruitment to protect US workers.  It’s time to think outside the box!

USCIS has announced that it will grant temporary protected status (TPS) to Haitians in the US as of January 12, 2010.  TPS allows individuals from countries facing catastrophes to remain temporarily in the US and also obtain work authorization.  In this case, Haitians will be granted TPS for 18 months.

According to USCIS, “TPS is a temporary immigration status granted to eligible nationals of a certain country (or persons without nationality who last habitually lived in that country) designated by the Secretary of Homeland Security because that country has experienced temporary negative conditions, such as armed conflict or an environmental disaster, that prevent nationals of the country from returning safely or for the country to handle their return adequately.  TPS beneficiaries are allowed to remain in the United States and can legally work for a set time period.”

USCIS will open the registration period on the date the Federal Register notice is published and will continue to accept applications for 180 days from that date. An application will be considered as being properly filed if it is postmarked on or before the last day of the registration period.  The individual must file the Form I-821 and the Form I-765 (for the work authorization).  There are also filing fees involved:  $50 for the Form I-821 TPS, $340 for the I-765 work authorization and an $80 biometrics fee for those 14 years of age or older.  If not applying for work authorization, then the I-765 and filing fee need not be filed.

The supporting documentation includes two passport-style photos, a Haitian passport or birth certificate and evidence of residing in the US since January 12, 2010, and being physically present in the US since the date of the publication of the Federal Register Notice.

USCIS offers the following guidance for those without a Haitian passport or birth certificate:  “If you do not have a Haitian passport and are unable to obtain your birth certificate from Haiti, you will need to submit secondary evidence.  This secondary evidence can be any other documentation you already have in your possession from Haiti, showing that you are a national or citizen of Haiti.  Secondary evidence can also be in the form of your baptismal certificate from Haiti, sworn affidavits from close family members providing the specific details of the date and place of your birth and how they know this information.  If any document is not in English it must be accompanied by an English translation.  The person translating the document must certify that he or she is competent in English and the foreign language from which the document is translated and that the translation is true and correct to the best of his or her ability, knowledge and belief.

If you are a person with no nationality that last habitually resided in Haiti, you must show that you are stateless.  That is, that you have no nationality at all.  You must submit a statement explaining why you are stateless.  You must also submit any documentation you may have from Haiti showing that you last habitually resided there.  If that documentation is not available, you may submit sworn affidavits from close friends and family members who have direct knowledge of your residence in Haiti. Again, any documents not in English must be accompanied by a certified English translation.”

A TPS applicant may still apply for another immigration status and his or her TPS application will not affect the applicant’s current immigration status.

A TPS applicant may apply for travel permission, advance parole, to depart the US while in TPS status.  However, one should be very careful about traveling outside the US, since prior unlawful status could trigger a 3 or 10-year bar to reentry into the US.

According to USCIS, the following indivudals are ineligible for TPS:

• A person who has been convicted of any felony, or two or more misdemeanors committed in the United States; and
• A person subject to several other criminal and security-related bars to asylum. This would include participating in the persecution of another individual or engaging in or inciting terrorist activity.