Roxie Bacon, former chief counsel to the USCIS, provides some interesting insight into the curent state of immigration reform and the attitude of politicians and the DHS toward immigrants in a recent editorial published in Arizona Attorney, a publication of the Arizona bar. We will certainly miss Roxie’s legal knowledge and vision in the Office of Chief Counsel. It is unfortunate that during her tenure, various forces prevented her from making more of an impact. As the Titanic found out, it takes vision and will to change course and avoid the disaster that is our current U.S. immigration policy and practices.
Last week, a Mississippi based manufacturing company, Howard Industries agreed to pay a fine of $2.5 million for a variety of I-9 and other immigration violations as part of a plea in Federal Court. This case arises from a 2008 raid. What is most interesting is that Howard was a participant in the government’s highly touted E-Verify program. Seems like the program worked really well to protect this company from liability. A panacea, it is not.
The USCIS has announced that it has reached the H-1b cap for fiscal year 2011. As such, all H-1b petitions subject to the H-1b cap are not eligible for filing until April 1, 2011 with start dates of October 1, 2011. However, there are some employers that are exempt from the H-1b cap and can file throughout the year: non-profit research organizations, governmental research organizations, institutions of higher education, and non-profit organizations “affiliated or related” to an institution of higher education.
Since the cap exemption was added to the law in 2000, some hospitals have been exempt based upon their affiliation or relation to an institution of higher education. In some cases, the affiliation has been based upon a jointly-administered program where the hospital provides clinical training for health-care workers (nurses, medical technologists, physicians, etc.) enrolled at that university.
Recently the California Service Center of the USCIS (which now has exclusive jurisdiction for all cap exempt filings) seems to be stricter in its analysis of cap exemption for hospitals.
There has not been any change in the law to prompt the strict scrutiny by the California Service Center. A few months ago, the Administrative Appeals Office ruled that a hospital that provided clinical training for nurses enrolled at an institution of higher education but was a corporation independent of the institution of higher education was not eligible for the cap exempt. However, this decision is non-precedent (applying only to that case) and not binding on the USCIS. In fact, the AAO issued an opinion four years ago that ruled just the opposite on the cap exemption issue. In that case involving a school, the AAO found that there was no legal affiliation but yet ruled that the school was exempt from the H-1b cap because it was involved in a jointly managed program for teacher-training that furthered the essential purposes of the institution of higher education
For hospitals, the uncertainty revolves around the definition of “an affiliated or related entity”. This phrase was defined by USCIS (then INS) in 1998 in response to the H-1b training fee exemption. But Congress passed the statute for the cap exemption two years later and neither Congress nor the USCIS (INS) defined that phrase. Instead, in 2006 the USCIS issued in a memo regarding the cap exemption and determined, among other things, that the same definition for fee exemption should apply to cap exemption. Under that definition, an affiliated or related organization means “a non-profit entity (including but not limited to hospitals or medical research institutions) that is connected or associated with an institution of higher education” in one of three ways: (1) through ownership or control by the same board or federation; (2) operated by an institution of higher education; or (3) attached to an institution of higher education as a member, branch, cooperative or subsidiary.
The USCIS is essentially interpreting all three of those options as requiring a legal connection between the hospital and institution of higher education. Based upon the way USCIS is currently examining cap exemption, it is important to evaluate other options. Here are a few strategies, although we recommend that you consult with your HLG attorney regarding specific strategies relevant to your case:
H-1b extensions: If an H-1b employee is working for a hospital that was previously approved as cap exempt, the hospital will need to decide whether they are going to file an extension by still claiming the cap exemption or file as subject to the cap. if the beneficiary’s status is expiring on or after October 1, 2010, the employer could file an extension on or after April 1st as a non-exempt employer. However, if the status is expiring before October 1st, the hospital may need to file the extension with the best evidence of cap exempt status. In doing so, the hospital should have a back-up plan to file another H-1b extension as cap-subject after April 1st so the employee has a fall-back option is the extension based upon cap exemption is denied.
H-1b cap-exempt moving to an cap-subject employer: if the hospital is hiring an individual who has been working on an H-1b through a cap exempt employer, the non-exempt hospital needs to wait until April 1 to file the H-1b transfer. The individual can work between the April 1st filing and October 1st based upon H-1b portability if the underlying LCA and H-1b petition for the cap-exempt employer will carry through until October 1, 2011.
F-1 student on OPT: a non-exempt hospital can employ an individual based upon optional practical training and file an H-1b subject to the cap beginning April 1st. The employee can work based upon the OPT through October 1 and then begin working pursuant to H-1b approval beginning October 1. Because of the “cap gap” rule, the employee can continue to work even after the OPT expires if the H-1b is pending and the OPT was valid at the time the H-1b petition was filed.
J-1 Physician: J-1 physicians who receive a J-1 waiver are exempt from the cap. Therefore, a non-exempt hospital filing for a J-1 physician who received a waiver of the two year foreign residence requirement can file based upon the individuals exemption; therefore, it’s not necessary for the hospital itself to be exempt from the cap.
It’s been rumored that USCIS is in the process of preparing a memo about cap exemption. Unfortunately, another memo from USCIS is not the resolution we need. What we really need is USCIS to issue a regulation — after publication in the Federal Register and an opportunity for stakeholders to comment and explain that the definition that USCIS is currently using is not consistent with how most hospitals are organized. Alternatively, we need Congressional action to further define cap exemption.
USCIS has announced that it reached the H-1b cap on Wednesday. USCIS has stated that Wednesday, January 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011. The USCIS will return all cap-subject petitions received on Thursday or later.
New H-1b’s can be filed beginning April 1st, with effective start dates of October 1, 2011.
USCIS is reporting that as of Friday, January 21, 2011, approximately 2200 H-1B visas remained available from the 2011 Cap Count. If you have something to file, do so immediately. We strongly believe the visas may run out by the end of the week.
For those interested in how USCIS handles the last few visa cases accepted at the end of a cap, this is our understanding of what they do. Once USCIS reaches a point at which it believes it will run out of visas by the end of a given day, it then accepts every visa case filed that day. All visa petitions received after the final day are returned to the petitioners. USCIS then figures out exactly how many visas are left, and holds a mini-lottery to distribute all of the visas among the petitions received on the final day.
For example, if 213 petitions are received on the final day, and USCIS then determines only 56 visas are actually available, a lottery is held to determine which of the 213 petitions received on the final day are given visas.
Unfortunately, since we do not know when the final day is going to be, it is extremely important that you file any case you have ASAP.
Finally, all USCIS filing fees for any case filed but not accepted are refunded in full. Which means that any of the 213 cases in the example above which does not receive one of the 56 visas also receives all of its filings fees back.
The USCIS is very near to reaching the H-1b cap. As of Friday, the USCIS had receipted 60,700 H-1b petitions. That leaves only 4,300 cap-subject petitions available for this fiscal year. It is expected that the cap will be reached before the end of this month.
The USCIS has released their I-485 Inventory Report of pending cases as of January 2011. The USCIS I-485 Inventory Report displays the total number of pending adjustment of status applications, per preference category, priority date and per country. The USCIS also issued separate charts for India, China, Mexico and the Philippines as those countries historically have higher demand for visas and reach their yearly quota.
The Inventory Report shows a total of 44,475 EB2 cases and 127,493 EB3 cases. However, the breakdown by country is most interesting:
|EB2 (2nd Preference)||EB3 (3rd Preference)|
Also, the breakdown by priority date shows 2007 as the first year where the number of EB2 and EB3 cases are almost equal (15,918 EB2 cases and 16,711 EB3 cases). This compares to a disparity of 18,850 EB2 cases to 37,412 EB3 cases with 2006 priority dates and a huge disparity of 774 EB2 cases to 29,567 EB3 cases with 2005 priority dates.
Keep in mind that the world-wide level for employment-based green cards is at least 140,000 per year. The breakdown by country and category is significant because the first preference, second preference and third preference categories each get 28.6% of the overall limit and there is a per-country limit of 7% of the overall total. Any unused numbers from a category trickle down to the next lower category and across the countries in that category.
The I-485 Inventory Chart can not be used as a sole basis for predicting visa availability. Instead, one must also consider the NVC Inventory Report (last issued in the Fall 2010), the pending I-140 cases categorized by country and priority date, the approved I-140 cases since summer 2007 (the last time of full visa availability) categorized by country and priority date, and to a lesser extent, the number of pending PERM cases categorized by country and priority date (although that inventory is less important because it will contain more recent priority dates since 2009).
However, when coupled with the other reports, here are a few conclusions:
1. Philippines should move forward much more rapidly than India, China and all other categories. Although the NVC inventory chart from the fall 2010 showed the Philippines with the highest number of EB3 cases (44,903) that includes an accumulation of many years of cases. For example, a vast majority of EB3 Philippines are professional nurses which don’t normally qualify for H-1b but get to bypass the PERM labor certification process. Thus, the NVC inventory number for the Philippines would include most approved I-140’s. Furthermore, the low number of EB2 Filipino cases provides for more visa numbers to trickle down to the EB3 Filipino category.
2. Within a few years we may begin to see less disparity between EB2 and EB3 cases. Last quarter the USCIS reported that they had approximately 60,000 cases that have “upgraded” from EB3 to EB2. That means the EB3 line will eventually be less clogged, while the EB2 category will become more clogged – although EB2 should continue to fair better than EB3, it may not be with such a wide disparity.
3. There are better days in the long-term for visa availability. The visa backlog continues to suffer from the high volume of filings in the early to mid 2000’s due to a booming economy, 245i filings that were backlogged at the state level, the implementation of the PERM system, backlog reduction efforts on I-485 cases around 2005-2006, and the influx of filings in the summer of 2007 (“visagate”). However, the number of filings at the Department of Labor and USCIS has significantly decreased in the last two years. What’s the result? Once we get passed the hurdle of the 2003-2007 cases, we should begin to see a significant improvement in processing times.
The U.S. Consulate in Mumbai, India had errneously reported that for the month of February 2011, the EB-2 Category for India will become current.
While this would be extremely good news for many of our clients patiently waiting for their dates to become current, this visa bulletin is wrong.
The U.S. Department of State’s official February 2011 Visa Bulletin can be found here. EB-2 India shows a priority date of May 8, 2006.
All other PDs are listed below:
EB-2 China: 07/01/2006
EB-3 All Other: 04/01/2005
EB-3 China: 01/01/2004
EB-3 India: 02/22/2002