Alerts and Updates

Recent Developments in Immigration Law

March 2008

H-1B Cap Filings

On April 1, 2008, employers may begin filing new H-1B petitions with the U.S. Citizenship and Immigration Services ("USCIS") for Fiscal Year 2009, which begins October 1, 2008. The quota or "cap" for new H-1B petitions is 65,000 per year, and of these, 6,800 visas are set aside based on Free Trade Agreements with Chile and Singapore. An additional 20,000 H-1Bs are available for beneficiaries with U.S. master's degrees. In April 2007, USCIS received several thousand petitions in excess of the cap limit on the first two days of filing and conducted a random lottery, accepting for adjudication only those petitions that were selected in the lottery. The filings are expected to be high again this year, and the USCIS is again expected to use the lottery system for allocation of H-1B approvals.

The USCIS announced that it just published an interim rule that changes the landscape of the H-1B lottery system: It will now deny petitions where it finds multiple filings for the same employee; it has extended the lottery period from two days to a five-day period during which petitions are received to be included in the consideration for the H-1B lottery; and it now plans to consider all master's degree cases first, permitting leftover numbers to be used for the allotment of "regular" H-1B petitions.

Just a reminder: the H-1B cap applies only to "new" H-1B petitions. The following H-1B petitions are not subject to the cap: extensions of stay; most petitions to change employer; petitions for foreign nationals seeking employment with institutions of higher education, nonprofit research organizations and government research organizations; and petitions for physicians who previously held J-1 status and have applied for waiver of the two-year residence requirement based on service in an underserved area. Changes of employer from an "exempt" employer to a "non-exempt" employer will likely be subject to the cap.

Employers may also wish to consider alternatives to H-1B status for temporary workers. Please consult immigration counsel regarding specific eligibility requirements and individual qualifications for specific visa categories.

Change of USCIS Policy on Adjustment of Status Applications Awaiting FBI Name Check Clearance for Longer than 180 Days

The USCIS announced in a February 4, 2008 memorandum that it has changed its policy on the adjudication of Adjustment of Status Applications pending FBI name checks for longer than 180 days. The memo states that where the adjudication of an Adjustment of Status Application has been delayed solely because of an FBI name check request that has been pending for more than 180 days, the application should be approved.

If after the approval, the FBI check reveals negative information about the applicant, the USCIS will then make a determination about whether the approval should be rescinded or whether any other action is warranted. This change in policy affected only Adjustment of Status applications and not naturalization applications.

This is welcome news for many individuals whose cases have been pending, sometimes for over a year, awaiting FBI name check clearance. The USCIS is now conducting a review of all cases that are awaiting FBI name checks, in order to adjudicate them in conformance with this policy. It may take up to 90 days from the issuance of this memorandum to see cases approved under the new policy.

USCIS Behind on Processing AR-11s Filed Online

The USCIS has indicated that it is more than three months behind in updating AR-11 address changes submitted online. In addition to submitting the required AR-11, individuals are advised to update their address with a USCIS representative by phone, at (800) 375-5283. Please have all receipt notices available when making the call so that the representative can update your address in connection with all pending USCIS applications.

Update on I-140 Immigrant Visa Petitions: When Is a Degree Equivalency Required?

The USCIS has a long history of difficulty with its decisions regarding who qualifies for the EB-2, or master's degree, classification when the individual in question requires an equivalency evaluation. Such an evaluation is required when the individual in question did not attend a four-year university, followed by a two-year master's degree program. In addition, the equivalency decision is also significant for EB-3, or bachelor's-level cases, when the individual did not attend a four-year university.

The determination of EB-2 classification is important to foreign national employees of a sponsoring company because of the difference in the long visa backlog for the ultimate grant of permanent residence in the EB-3 ("bachelor's degree" classification) and the EB-2 ("master's degree" classification).Two recent decisions illustrate the positive and negative decisions that are being released.

In one case, the individual had a three-year bachelor's degree from a university in India, followed by a two-year master's degree program. The Administrative Appeals Office ("AAO") of the USCIS reversed a finding by the USCIS Service Center, which found that the individual did not hold the required master's degree because the underlying three-year bachelor's degree was not equivalent to a U.S. bachelor's degree, and therefore the master's degree could not be considered a full master's degree program. However, the AAO found the equivalency based on 1) transcripts that showed that the master's degree program was a full two-year program, 2) the submission of extensive, multiple-degree evaluations, including two from U.S. universities, and 3) the fact that the underlying labor certification (PERM) application did state that the job required a master's degree or foreign equivalent.

In the second recent case, the Texas Service Center of the USCIS denied an EB-3 petition because this individual held a three-year degree from a foreign university. The significance of this decision is the reasoning that if "the labor certification indicates a Bachelor's degree is required, but fails to indicate that an equivalent, with elaboration on the meaning of equivalent, is acceptable, then the alien must have a Bachelor's degree or a foreign equivalent degree and the position is classified as a professional. Furthermore, a Bachelor's degree is generally found to require four years of education . . . the petition is hereby denied based on the fact that the beneficiary does not have a four-year Bachelor's degree as required by the ETA 750."

Practice Tip: If the employer is willing to hire an individual who has not attended a four-year university, be sure to define which equivalent degree or level of experience would be accepted as the equivalent of a U.S. university (master's or bachelor's) degree in the labor certification (PERM) application form.

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.