H1B Visa Lawyer Blog

October 7, 2009

USCIS Issues Information Collection on Form I-290B

The United States Citizenship and Immigration Services (USCIS) has extended information collection for Form I-290B, Notice of Appeal or Motion until November 30, 2009.

During this period, USCIS will be evaluating whether to revise Form I-290B.

Members of the public are encouraged to submit comments and/or suggestions to USCIS, especially comments regarding the estimated public burden and associated response time.

Written comments and suggestions from the public and affected agencies should address one or more of the following four points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
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October 7, 2009

USCIS Issues Information Collection on Form I-129F

by Kellie N. Lego

The United States Citizenship and Immigration Services (USCIS) has extended information collection for Form I-129F, Petition for Alien Fiance(e) until November 30, 2009.

During this period, USCIS will be evaluating whether to revise Form I-129F.

Members of the public are encouraged to submit comments and/or suggestions to USCIS, especially comments regarding the estimated public burden and associated response time.

Written comments and suggestions from the public and affected agencies should address one or more of the following four points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
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October 7, 2009

USCIS Extends Information Collection for Form I-140

by Kellie N. Lego

The United States Citizenship and Immigration Services (USCIS) has extended information collection for Form I-140, Immigrant Petition for Alien Worker until October 28, 2009.

During this period, USCIS will be evaluating whether to revise Form I-140.

Members of the public are encouraged to submit comments and/or suggestions to USCIS, especially comments regarding the estimated public burden and associated response time.

October 6, 2009

LATEST UPDATE – FY 2010 H-1B Cap Count

by Kellie N. Lego

On October 1, 2009, the United States Citizenship and Immigration Service (USCIS) updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of September 25, 2009, 46,700 H-1B cap subject nonimmigrant visa petitions have been accepted by USCIS. The Service has advised that they will continue to accept petitions until the cap is reached.

Additionally, the Service has reported that they received 20,000 advanced degree H-1B petitions. Although the limit on advanced degree petitions is 20,000, past experience has tended to show that not all petitions received are approvable.

October 5, 2009

USCIS Office of Fraud Detection & National Security Commence H-1B Assessment Program: Site Visits

by Kellie N. Lego

In an effort to detect, deter and combat immigration benefit fraud and strengthen efforts in ensuring benefits are not granted to those who threaten national security or public safety, the United States Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) have commenced an assessment of the H-1B nonimmigrant visa program. As part of the assessment program, FDNS officers collect information during site visits to verify information pertaining to petitions that are pending and already approved.

The FDNS consists of approximately 650 individuals, including Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. FDNS has also contracted with multiple private investigation firms to conduct site visits on behalf of FDNS.

These visits by FDNS officers are unannounced and may take place at the employer’s principal place of business and/or the H-1B non-immigrant’s work location (end client site). FDNS Officers do not need a subpoena for the site visit because the regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However, USCIS will provide an opportunity for an Employer to address any adverse or derogatory information that may result from these types of site visits. An employer may request that counsel be present; however FDNS will not reschedule the visit just for counsel, therefore, if requested, counsel can be present via telephone for the site visit.

During a site visit, the FDNS Officer will ask questions to verify information contained in a specific immigration petition. They will have a copy of the petition, ask to speak with the employer’s representative (the one who signs immigration forms), and will ask questions regarding the employer’s business, locations, number of employees, and the number of H-1B petitions previously filed. They may also request to review company’s tax returns, quarterly wage reports, among other documents to verify that the Employer is a bona fide business entity. Additionally, the Officer may ask questions regarding the H-1B non-immigrant’s title, job duties, work location and salary; and may ask to review the non-immigrant’s most recent pay stub and Form W-2. FDNS Officers may also inquire about the Employer’s Immigration Counsel.

After interviewing the employer’s representative, the FDNS Officer may request a tour of the facility, take photographs, and may even request to interview the H-1B beneficiary. The Officer will then ask the beneficiary similar questions to the ones asked of the Employer’s representative: the beneficiary’s job title, job duties, responsibilities, employment dates, position location, requirements for the position, academic background, previous employment experience, current address, and information about family members (husband/wife and/or children). Additionally, the Officer may ask a colleague of the beneficiary similar questions about the beneficiary.

Typically, these H-1B site visits last for less than an hour after the walk thru, documentation gathering and interviews are complete.
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October 2, 2009

Updated Administrative Appeals Office Processing Times

by Kellie N. Lego

The Administrative Appeals Office (AAO) Processing Times were released on October 1, 2009 with processing dates as of October 1, 2009

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

October 1, 2009

BALCA upholds denial of Labor Certification – Job Order Placement Period Insufficient

by Kellie N. Lego

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Financial Manager.”

The employer filed an application for LC which was accepted for processing on April 12, 2007. Form 9089 provided that the State Workforce Job Order had a start date of February 5, 2005 and an end date of February 13, 2005. The CO thereafter denied certification on several grounds, one being that the Job Order was not placed for a period of 30 days as required by the governing regulations.

PERM Regulation 20 C.F.R. § 656.17(e)(1)(i)(A) controls and it provides that an employer must place a job order with the SWA serving the area of intended employment for a period of 30 days for professional occupations. The start and end dates of the job order entered on the application shall serve as documentation of this step.

September 30, 2009

Q&A with USCIS regarding Pending Employment Based I-485 Petitions

by Kellie N. Lego

Do you have questions about the status of your pending Employment Based I-485 Petition?

Hopefully the Q&A created by the USCIS will help ease your frustration and answer some of your questions.

Following the Q&A are I-485 Employment Based Inventory Statistics, which provide an explanation as to how to interpret them. The Inventory Statistics are categorized by Country and Priority Date.

September 29, 2009

BALCA upholds denial of Labor Certification – Notice of Posting Inadequate

by Kellie N. Lego

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Specialty Cook/Italian.”

The employer filed a LC which was accepted for processing on June 13, 2006. Thereafter, the CO issued an audit notification letter requesting among other documents, the Employer’s Notice of Filing. The employer submitted its Notice of Filing, yet the Notice failed to provide the CO’s address or any other means of contacting the CO. As such, the CO issued a denial letter.

PERM Regulation 20 C.F.R. § 656.10(d)(3) controls and it provides that the Notice of Filing must (i) State that the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity; (ii) State that any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor; (iii) Provide the address of the appropriate Certifying Officer; and (iv) Be provided between 30 and 180 days before filing the application.

September 28, 2009

LATEST UPDATE – FY 2010 H-1B Cap Count

by Kellie N. Lego

On September 24, 2009, the United States Citizenship and Immigration Service (USCIS) updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of September 18, 2009, 46,000 H-1B cap subject nonimmigrant visa petitions have been accepted by USCIS. The Service has advised that they will continue to accept petitions until the cap is reached.

Additionally, the Service has reported that they received 20,000 advanced degree H-1B petitions. Although the limit on advanced degree petitions is 20,000, past experience has tended to show that not all petitions received are approvable.