June Visa bulletin contains no surprises

Posted by admin on May 14, 2012 in Green Cards

As expected, the June Visa Bulletin, recently released by the Department of State, made EB2 for India and China unavailable. All EB3 categories continued their snail-like pace forward. There was also a warning that cut-off dates for the EB1 category and the EB2 category for all other countries may be necessary before the end of this fiscal year.

H-1b cap count passes 50% mark !

Posted by admin on May 9, 2012 in Visas - H-1b, L-1, E, O, TN

Most people are now predicting that the H-1b cap will be hit before the end of the month so please make sure you accelerate the filing of any cap subject petitions. We will continue to keep you updated as numbers are released.

Federal Court Charges USCIS H-1b examiner with Incompetence !

Posted by Cadence Moore on April 29, 2012 in Visas - H-1b, L-1, E, O, TN

On March 12, 2012, the United States District Court for the Southern District of Ohio: Eastern Division issued a decision on specialty occupations in Residential Finance Corporation v. U.S. Citizenship and Immigration Services. In this case, Residential Finance Corporation submitted an H-1b petition on behalf of Geza Rakoczi. It hoped to hire him as a market research analyst. The Beneficiary graduated from Franklin University and has a Bachelor of Science degree in marketing and finance. USCIS denied the petition and concluded that there was no specialty occupation involved in the position. It reached this decision after reviewing the Occupational Outlook Handbook classification for market and survey research jobs. USCIS concluded that these positions do not have a specific specialty requirement because the handbook does not include a specific specialty requirement. Instead, the handbook only mentions that a bachelor’s degree is the minimum requirement. Consequently, USCIS stated that there was no specialty occupation involved. The Southern District of Ohio corrected USCIS by stating that the “record indicates that a minimum requirement for entry into the position of a market research analyst is the specialized course of study in which Rokoczi engaged.” Furthermore, the court noted that USCIS’s reasoning and behavior “constitute[ed] a litany of incompetence that presents fundamental misreading of the record, relevant sources, and the point of the entire petition” and suggested that USCIS “should afford Plaintiff and Rokoczi a bare minimum level of professionalism, diligence, and reasoning.”

Why Can’t Our Broken Immigration System be Fixed ?

Posted by MikeHammond on April 21, 2012 in US Immigration Policy

I’ll be the first to admit that many of the immigration issues facing our country are highly complex and highly debatable as to solutions however, there are other issues with solutions that seem as plain as the nose on your face so why can’t those be fixed ? A Stanford Law School professor, Mariano-Florentino Cuellar, has just published an interesting article in the UC Irvine Law Review trying to answer this very question. I know that most of my readers, like me, normally only read articles as long as a comic strip but, make an exception and read this if you are a political junkie or just plain curious.

More support for pro-business immigration policies

Posted by MikeHammond on April 16, 2012 in US Immigration Policy

Recently, the Harvard Business Review published an article discussing the battle to retain US educated international STEM grads and the need for improved US immigration policies to enhance US businesses trying to retain this talent as opposed to the current climate, where US immigration policy often forces STEM graduates to offer their talents overseas.

Does the Jobs Act Passage Signal Hope for Work Visa Legislation ?

Posted by MikeHammond on April 9, 2012 in US Immigration Policy

In a surprising development, both parties in Congress stopped campaigning, posturing, and fighting long enough to actually enact legislation designed to create US jobs and spur development via the passage of the Jobs Act.  At least one entrepreneur supporter/venture capitalist, Steve Case,  believes that there is a connection between a legal immigration policy that welcomes entrepreneurs and highly skilled immigrants and new U.S. jobs growth  and he has the facts to back up his argument.  He also believes that the same arguments which resulted in bi-partisan support for the Jobs Act, may be persuasive enough to pass reforms in the legal immigration system. In his way stands Senator Grassley, the staunchest opponent of legal immigration, who like my 2 yr. old grandson, loves the word No ! However, Senator Grassley does like new jobs so there is hope that he will be able to move past his anti-immigrant leanings and support legal immigration reforms.  Also, standing in the way are groups that want the issue of illegal immigration tied to legal immigration to more easily enact a type of amnesty or pathway to citizenship. Whether Mr. Case is able to overcome these major obstacles and achieve any meaningful reform is yet to be seen but, the mere fact that he is talking about it, can only be seen as positive.

Major U.S. Employers Urge President Obama on L Visas

Posted by MikeHammond on April 7, 2012 in US Immigration Policy

Recently, the U.S. Chamber of Commerce, along with a number of large U.S. employers urged President Obama to restore the L visa program. They charge that the changes in the application of the law by the USCIS and the US Consulates in India have gutted a program that promoted international business and spurred U.S. job growth.  The fact that the denial rate of L visas has increased over 300% in the past few years with NO change in the legislation or regulatory scheme is alarming.  They claim that the change in the application of existing law is politically motivated and being driven by Senators Grassley and Durbin and these efforts have resulted in an increase in outsourcing of U.S. jobs and an impediment to IT job growth in the U.S.

First Update on the Number of H-1b Cap-Subject Petitions Received

Posted by Cadence Moore on April 6, 2012 in Visas - H-1b, L-1, E, O, TN

The California Service Center and the Vermont Service Center held a joint stakeholder engagement in Laguna Niguel, California on April 5^th, 2012.  At this event, USCIS announced that 22,323 cap-subject H-1b petitions were received by USCIS as of April 4^th, 2012.  Of this number, 25 percent were submitted as advanced degree cases.  As many readers might remember, 20,000 H-1b visas are available for individuals qualifying with an advanced degree and 65,000 visas can be used for all other H-1b cases. The number of cases received towards the H-1b cap should alert employers who are still considering whether to file H-1b cap cases to take action.  The amount of cases received in this initial period for FY 2013 is almost twice the number received last year at this time. Employers should expect that the H-1b cap will be exhausted on a much earlier date than what occurred in the last few years. As always, the Hammond Law Group is happy to answer any questions about the H-1b process.

EB2 Dates have already retrogressed :(

Posted by MikeHammond on March 31, 2012 in Green Cards

We knew it was too good to last and finally, the announcement has come. The DOS has confirmed that as of March 23^rd, all available EB2 numbers for India and China for the current fiscal year have been exhausted. I-485 applications may continue to be filed as long as your priority date is current pursuant to the April Visa Bulletin and EAD and Advance Parole applications will continue to be processed however, cases can not be approved and permanent residency can not be granted until visa numbers are once again available. The DOS previously announced that the priority dates would retrogress to August 15, 2007 effective May 1^st. As a practical matter, for purposes of adjudication (approval), the priority date has already retrogressed to Aug 15, 2007 however, for purposes of filing, the priority date will remain May 1, 2010. For many people, there remain several advantages to filing your 485 even though it can’t be adjudicated including: issuance of EAD cards for yourself and family members, issuance of advance parole travel documents for yourself and family members, flexibility afforded under AC21, elimination of the reliance on an H-1b visa and avoid the need for the ordeal of visa stamping. For IT staffing companies, there is a great incentive to encourage employees to process 485’s because in most cases, it eliminates the need for an H-1b and all of the restrictions and costs that accompany it. The DOS has published a nice document explaining how the allocation system and priority dates work in case you are curious.

H-1b cap filings Update

Posted by Cadence Moore on March 29, 2012 in Visas - H-1b, L-1, E, O, TN

In 2008, 163,000 H-1b cap petitions were received by USCIS between April 1^st and April 7^th for fiscal year 2009.  Since only 65,000 new H-1bs can be approved in any fiscal year, USCIS faced the problematic situation of determining which cases should be adjudicated and which should be returned.  USCIS used a random selection process (also known as a lottery) to choose which cases to review and rejected any cases that were not selected.  As a result of this predicament, the Department of Homeland Security issued new regulations.  If more than 65,000 cap-subject H-1b petitions are received within the first five business days after the first date that cap subject petitions can be submitted, USCIS will conduct a random selection process to determine which cases will be considered.  Those selected will be adjudicated.  All other cases will be returned with their applicable fees. What this regulation means as a practical matter, is that a case received on Thurs April 5^th, is treated the same as if it was received on Mon. April 2^nd.

 While we do not expect the H-1b cap to be reached between April 2^nd and April 6^th for FY 2013, this information should be kept in mind as employers determine when they plan to file new cap-subject petitions.