Alerts and Updates

Recent Developments in Immigration Law

May 2007

United States Citizenship and Immigration Services Updates

USCIS Announces H-1B Cap Has Been Reached

As reported in our previous Alert, on April 3, 2007, U.S. Citizenship & Immigration Services (USCIS) announced that, due to extreme demand, the H-1B cap for Fiscal Year 2008 was reached. Annually, 65,000 new H-1B visas are made available, with an additional 20,000 H-1B visas made available to holders of U.S. master's degrees or higher.

Per regulation, on April 12, 2007, USCIS conducted a random selection process to determine which petitions will be accorded an H-1B visa number among those received on April 2 and April 3, 2007. USCIS estimates that it received approximately 150,000 cap-subject H-1B petitions on April 2, the first day filings opened for FY2008. USCIS also estimates that as of April 18, 2007, of those petitions, approximately 18,000 are to be applied to the master's degree cap of 20,000, which would indicate that there still may be H-1B visa numbers available to those beneficiaries who hold a U.S. master's degree or higher.

As a result of this unprecedented demand for H-1B visa numbers, a significant number of H-1B petitions that were filed on the first and second days of availability will be rejected now that the random selection process is completed.

USCIS has also announced that, for those cases filed under the premium processing option, the 15-day premium processing period for cap-subject H-1Bs will not begin until after the random lottery has selected the petitions for processing.

USCIS Announces H-2B Cap Has Been Reached

On March 23, 2007, USCIS announced that a sufficient number of H-2B petitions had been received to reach the H-2B cap for the final six months of FY2007. As such, USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2007.

Petitions for both current and returning H-2B workers do not count toward the cap. In order to count as a "returning worker," the worker must have been counted against the H-2B numerical cap between October 1, 2003, and September 30, 2006.

In addition, USCIS will continue to process petitions filed to extend the stay of a current H-2B worker; change the terms of employment for a current H-2B worker and extend their stay; and allow current H-2B workers to change or add employers and extend their stay.

USCIS Announces Timeline Extension for Filing "O" and "P" Petitions

On April 11, 2007, USCIS announced it would be giving employers more time to bring foreign workers with extraordinary abilities to the United States. Employers can now file "O" and "P" petitions under normal processing procedures up to one year before a scheduled event, competition or performance. Before this change, petitions could only be filed six months in advance of an event, which often meant that case processing was not completed by the time the foreign worker was needed.

Update on Delays in Interim Employment Authorization Documents (EADs)

USCIS has announced a procedure to allow the issuance of interim EADs in certain situations. By regulation, if an EAD request has been pending at a Service Center for more than 90 days, USCIS is required to issue an interim EAD. For many years, interim EADs were issued by local CIS offices; however, this practice was eliminated in the summer of 2006. Since that time, applicants for EADs have had no means by which to apply for an interim EAD if their application takes more than 90 days.

The Vermont Service Center (VSC) has advised that if an EAD is delayed beyond 90 days, an applicant should schedule an infopass appointment at his local CIS office to request an interim EAD. Upon the applicant's request, the local CIS office will contact VSC. VSC will then review the applicant's file to determine if the EAD application can be adjudicated. In instances where the EAD application can be immediately adjudicated, an EAD will be issued. If the application cannot be immediately adjudicated, an interim EAD will be issued.

Transfer of Adjustment of States' Applications under Bi-Specialization Procedures

USCIS has announced that it is presently in the process of transferring some applications for Adjustment of Status (Forms I-485) which are currently pending with the California and Vermont Service Centers. Accordingly, applications pending with the California Service Center are in the process of being transferred to the Nebraska Service Center, while applications pending with the Vermont Service Center are being transferred to the Texas Service Center.

Applicants and their attorneys do not need to take any steps to effectuate the transfer; USCIS will transfer cases in accordance with internal procedures. Applicants and/or their attorneys will be issued a transfer notice when a case is transferred. USCIS has indicated that cases will still be processed in accordance with their original file date, rather than the transfer date. The transfer will include cases subject to visa retrogression and security checks.

Department of State Updates

Filing of I-130 Petitions Abroad Resumes

New procedures were recently implemented by the Department of State (DOS) and USCIS to permit consular offices abroad to resume accepting I-130 petitions. U.S. citizens who live abroad may resume filing I-130 petitions with an American embassy or consulate in countries where there is no USCIS international office. USCIS international offices will continue accepting I-130 petitions from U.S. citizens who live in the country where the USCIS office is located.

In addition, consular and USCIS offices abroad will also accept petitions from individuals who do not live overseas if:

  • There is a true emergency situation, such as life and death or health and safety, or
  • It would be in the national interest to allow overseas filing, such as in the processing of petitions filed by U.S. military stationed overseas who are pending imminent transfer order.

If an individual has resided outside the U.S. for at least six months, DOS will consider that individual to reside abroad for purposes of filing.

Department of Labor Updates

RIR Conversion Update

Earlier this year, the Department of Labor (DOL) announced a procedure permitting employers and/or their attorneys to contact the DOL to request to convert a labor certification currently pending with the Backlog Elimination Center (BEC) as a traditional recruitment (TR) case to a reduction in recruitment (RIR) case. This would allow employers to conduct recruitment at their own initiative, rather than under the direction of the DOL.

Many employers and attorneys reported that they did not receive any response from the DOL regarding their request to convert a labor certification. As a result, the DOL recently announced that the BECs have a list of cases for which employers and/or attorneys have confirmed that they submitted RIR Conversion Request emails, but have not received any type of response.

The BECs will review each case on their list and will provide the employer and/or attorney with the information and instructions to continue the case, which could include proof that an original email was sent to the BEC within the "Hold Harmless" window. In situations where additional time is necessary for the employer to take actions, the BEC will provide a deadline for response. It is possible that some RIR Conversion Requests may be denied, at which point the case will continue to be processed as a TR case.

Legislative Update

Comprehensive immigration reform has been receiving a lot of attention. March and April have been very active both in Congress and in the Administration. The STRIVE (Security Through a Regularized Immigration and Vibrant Economy) Act was introduced in the House by Representatives Luis Gutierrez (D-Ill.) and Jeff Flake (R-Ariz.), and cosponsored by a bipartisan group. It is a hefty 700-plus-page bill, much of which was taken from the Senate Bill that was passed last year. It includes tougher enforcement, both border and interior, and regularization of undocumented immigrants currently living and working in the United States. Certain enforcement certification provisions must be met before any new worker or legalization programs can be implemented.

Although the STRIVE Act contains a good framework for addressing temporary workers and legalization of the undocumented, it raises due process concerns such as expanded removal procedures, expanded immigration-related crimes such as document fraud and drunk-driving violations and enhanced penalties. It places new burdens on businesses that require all employers to use an electronic employment verification system as well as increased employer and employee penalties (civil and criminal) for work authorization violations. It creates a new "H-2C" guest worker program with an initial cap of 400,000 and a path to permanent residence and legalization for the undocumented who can prove unlawful physical presence prior to June 1, 2006. Individuals would need to return to their home country ("touchback") before they could be eligible. Also included are changes to the H-1B program creating new exemptions from the Cap, increased employment-based immigrant visas, AgJobs Act, and the Dream Act.

White House and Administration officials floated a number of proposals that include many of the same provisions as the STRIVE Act, but are more restrictive and punitive, with higher fines and application fees. They also met behind the scenes with members of Congress to try to reach a compromise that would meet Republican concerns. The President is supportive of strong enforcement, but he also supports temporary workers and legalization, in contrast to the conservatives. To date, the Senate has not introduced a bill. Senators Kennedy (D-Mass.) and McCain (R-Ariz.) were expected to introduce a bill, but this has not happened reportedly because of Senator McCain's presidential aspirations and concerns about appealing to his conservative base. The Senate is in the process of trying to reach a consensus for a bipartisan bill. Senator Harry Reid (D-Nev.), the Majority Leader, has scheduled the last two weeks of May for full Senate floor debate on immigration, even though there is no Senate bill.

For Further Information

If you have any questions about this Alert or would like more information, please contact one of the attorneys in our Immigration Law Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.