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Laura J. Danielson, Chair

ldanielson@fredlaw.com
612.492.7148
Immigration

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USCIS Publishes Final Rule on Period of Admission and Extension of Stay for TNs


DHS is amending its regulations to allow an increased period of admission and extension of stay for Canadian and Mexican citizens seeking temporary entry to the United States as professionals pursuant to the TN classification, as established by the North American Free Trade Agreement (NAFTA or Agreement). This final rule increases the maximum allowable period of admission for TN nonimmigrants from one year to three years, and allows otherwise eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years instead of the current maximum of one year. This rule also grants the same periods of admission or extension to TD nonimmigrants, the spouses and unmarried minor children of TN nonimmigrants to run concurrent.

This final rule is effective October 16, 2008.

IMPORTANT: Deadline for Filing New H-1B Applications under FY 2009: April 1, 2008


On April 1, 2008, employers may file H-1B petitions for fiscal year 2009. The earliest employment start date is October 1, 2008, which is the first day of fiscal year 2009. Employers should notify us right away about any new H-1B petitions they expect to file in the next year. H-1B numbers for 2009 will run out very quickly and must all be filed on April 1. If, like last year, the number of cases received exceeds the quota, USCIS will use a random selection process for all cap-subject filings received on April 1, 2008. USCIS will reject and return all cap-subject H-1B petitions that are not randomly selected and will also return the filing fee(s).

The H-1B cap applies to new petitions filed for foreign workers that have not been counted against the H-1B cap within the past six years. Certain H-1B petitions are not subject to this cap. These include:

  • Any petitions, including amended petitions, extensions, or change of employer, filed for current H-1B workers (unless they are changing employment from a cap-exempt employer to a non-exempt employer).
  • New petitions filed for employment at institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations or government research organizations. For example, a non-profit hospital that has a residency program in affiliation with a medical school may be considered an affiliated nonprofit entity of an institution of higher education.  

It is critical that we receive your H-1B cap cases sooner rather than later. It is risky to bring them to our attention too late, as they take time to process. We are currently preparing numerous cases for the April 1 filing deadline and want to be certain that your case receives equal attention. For more information, contact your team at Fredrikson & Byron, 612.492.7658, or visit: http://www.fredlaw.com/areas/immigration/#bios.

Change in International Land and Sea Travel Document Procedures


As of January 31, 2008, U.S. and Canadian citizens ages 19 and older will be asked to present documents from one of the options below when entering the U.S. at land or sea ports of entry. Travelers who do not present one of the documents listed below may be delayed as U.S. Customs and Border Protection (CBP) officers attempt to verify their identity and citizenship.

U.S. and Canadian Citizens – Single Document Option

One of the following documents should be presented to prove both identity and citizenship:

  • U.S. or Canadian Passport
  • U.S. Passport Card (Available spring 2008)*
  • Trusted Traveler Cards (NEXUS, SENTRI, or FAST)*
  • State or Provincial Issued Enhanced Driver’s License (when available, this secure driver’s license will denote identity and citizenship.)*
  • Enhanced Tribal Cards (when available)*
  • U.S. Military Identification with Military Travel Orders
  • U.S. Merchant Mariner Document
  • Native American Tribal Photo Identification Card
  • Form I-872 American Indian Card
  • Indian and Northern Affairs Canada (INAC) Card

* Frequent Land Border Crossers — To expedite processing into the U.S., U.S. CBP recommends using one of the above asterisked documents.

U.S. and Canadian Citizens – Two Document Option

All U.S. and Canadian citizens who do not have one of the documents from the list above must present BOTH an identification and citizenship document from each of the columns below.

Identification Documents*

  • Driver’s license or identification card issued by a federal, state, provincial, county, territory, or municipal authority
  • U.S. or Canadian military identification card

* All identification documents must have a photo, name, and date of birth.

Citizenship Documents

  • U.S. or Canadian birth certificate issued by a federal, state, provincial, county, territory, or municipal authority
  • U.S. Consular report of birth abroad
  • U.S. Certificate of Naturalization
  • U.S. Certificate of Citizenship
  • U.S. Citizen Identification Card
  • Canadian Citizenship Card
  • Canadian certificate of citizenship without photo

U.S. and Canadian Citizens – Procedures for Children

Effective January 31, 2008, U.S. and Canadian citizen children ages 18 and under will be expected to present a birth certificate issued by a federal, state, provincial, county, or municipal authority.

Minnesota Government Contractors Now Required To Use E-Verify Program


Governor Pawlenty signed an executive order directing the Minnesota Department of Employee Relations, Department of Administration and Department of Employment and Economic Development to use E-Verify to confirm the employment eligibility of newly-hired employees. 

The Commissioner of Administration will implement procedures to ensure that state contracts in excess of $50,000 are given to vendors which are in compliance with federal employment verification laws including:

  1. Developing language for state contracts that requires vendors and subcontractors to certify compliance with the Immigration Reform and Control Act of 1986 in relation to employees performing work in the United States, and that the vendor and subcontractors do not knowingly employ persons in violation of the United States immigration laws.
  2. Requiring certification from vendors and subcontractors that they have implemented or are in the process of implementing the E-Verify program for all newly hired employees in the United States who will perform work on behalf of the State of Minnesota.
  3. Developing language for state contracts that allows the state to terminate the contract and/or debar the vendor if it is determined that the vendor or subcontractor has knowingly employed ineligible workers in violation of the federal immigration laws. 

E-Verify is an Internet-based system operated by the DHS in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees.

New Employment Eligibility Verification Form (Form I-9)


All employers are required to complete a Form I-9 for each employee hired in the United States. The revision seeks to achieve full compliance with the document reduction requirements of the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which reduced the number of documents employers may accept from newly hired employees during the employment eligibility verification process. The revised Form I-9 is a further step in USCIS’ ongoing work toward reducing the number of documents used to confirm identity and work eligibility. Employers should begin using this form as soon as possible. Key to the revision is the removal of five documents for proof of both identity and employment eligibility. They include: Certificate of U.S. Citizenship (Form N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (Form I-151); the unexpired Reentry Permit (Form I-327); and the unexpired Refugee Travel Document (Form I-571). The forms were removed because they lack sufficient features to help deter counterfeiting, tampering, and fraud.

Additionally, the most recent version of the Employment Authorization Document (Form I-766) was added to List A of the List of Acceptable Documents on the revised form. The revised list now includes: a U.S. passport (unexpired or expired); a Permanent Resident Card (Form I-551); an unexpired foreign passport with a temporary I-551 stamp; an unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B); and an unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer.

Employers are advised to begin using the new Form I-9 (Rev. 06/05/07), immediately, and this version will be mandatory upon publication in the federal register. Click here for a copy of The Handbook For Employers.

H-1B Filings for October 1, 2008 Already? Fiscal Year 2009? Time to Think a Whole Year Ahead!


As October 1st marks the beginning of Fiscal Year 2008, employers should start planning their H-1B petitions for Fiscal Year 2009, which starts on October 1, 2008. April 1, 2008 is the first (and possibly only!) date that employers may request H-1B numbers under Fiscal Year 2009. We recommend that you file your H-1B petition on April 1, 2008 to capture an H-1B number for Fiscal Year 2009. Last year, as many of you remember, the H-1B cap was reached on the first day of filing!

Please consider the following strategies to prepare for the H-1B filing rush on April 1, 2008:

  1. Start the recruiting and hiring process now in order to be ready to file new H-1B petitions on April 1, 2008, even though the employment start date will not be until October 1, 2008.
  2. File H-1B petitions on April 1, 2008, for any employees whose F-1 or J-1 practical training will expire before or after October 1, 2008.

The H-1B cap applies to new petitions filed for foreign workers that have not been counted against the H-1B cap within the past six years. The following H-1B petitions are not subject to this cap:

  • Any petitions, including amended petitions, extensions, or change of employer, filed for current H-1B workers (unless they are changing employment from a cap-exempt employer to a non-exempt employer).
  • New petitions filed for employment at institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations or government research organizations. For example, a non-profit hospital that has a residency program in affiliation with a medical school can be considered an affiliated nonprofit entity of an institution of higher education.

New No-Match Regulations and Safe Harbor Procedures


The Immigration and Customs Enforcement (ICE) issued a final rule on August 13, 2007, which outlines steps employers may take in order to avoid charges of “constructive knowledge” that an employee is working without authorization. These instructions provide a “safe harbor” in two specific situations: (1) an employer receives a letter from the Social Security Administration (“SSA”) that an employee’s social security number does not match SSA records and (2) an employer receives a notice from Department of Homeland Security (“DHS”) that an employee’s employment authorization documents presented in connection with completion of the I-9 form do not match DHS records. The regulation also explicitly addresses situations in which an employee requests the employer’s sponsorship of a labor certification or visa petition. Click here for more information.

USCIS Announces It Will Accept Employment-Based Adjustment of Status Applications Until August 17, 2007


U.S. Citizenship and Immigration Services (USCIS) announced that, beginning immediately, it will accept employment-based applications to adjust status (Form I-485) filed by employees whose priority dates are current under the July Visa Bulletin (Bulletin # 107). Bulletin #107 states that visa numbers are available for all employment-based categories except “Other Workers”.

On July 2, 2007, USCIS announced that it would not accept any additional employment-based applications to adjust status. USCIS made that announcement after receiving an update from the Department of State that it would not authorize any additional employment-based visa numbers for this fiscal year. After consulting with USCIS, the Department of State has advised that Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for purposes of determining employment visa number availability, and that Visa Bulletin #108 (dated July 2) has been withdrawn. USCIS will accept adjustment of status applications filed before August 17, 2007.

USCIS’s announcement today allows all employment based adjustment applicants, except those under the category of “Other Workers”, to file adjustment of status applications with USCIS through August 17, 2007. The current fee schedule will still apply to all adjustment of status applications filed under Visa Bulletin No. 107 through August 17, 2007. (The new fee schedule that becomes effective on July 30, 2007, will apply to all other applications filed on or after July 30, 2007).

New PERM Rules Require Employers to Pay Costs Effective July 16, 2007


Employers will be required to pay the costs of labor certification, including preparing, filing, and obtaining certification, effective July 16, 2007. While the employee may pay attorneys’ fees for representation or other “legitimate” costs incurred individually by him or her, an employer’s transfer to the employee of the employer’s costs is strictly prohibited. What this means is that effective July 16, 2007, an employer must incur all costs, including attorneys fees, associated with the filing of the PERM application on behalf of the employer. Prohibited payments include any type of reimbursement scheme, whether through a payroll deduction or otherwise. Non-compliance with the PERM rules can result in a debarment from the program by the Dept. of Labor. This rule does not impact CIS filings. Employers may still transfer to employees the costs of filing permanent applications with CIS, such as the I-140 and I-485 petitions. Please notify us to discuss alternatives if payment arrangements can be made before July 16, 2007.

Filing Time for ‘O’ and ‘P’ Nonimmigrant Petitions Extended


Employers May Request “O” and “P” Workers Up To One Year in Advance

USCIS is giving employers and agents more time to bring foreign workers with extraordinary abilities to the United States. Petitioners may now file “O” and “P” nonimmigrant petitions under normal processing procedures up to one year before a scheduled event, competition or performance.

The “O” nonimmigrant visa provides admission to persons with extraordinary ability in the arts, sciences, education, business or athletics, or those persons with extraordinary achievement in motion picture or television production. The “P” nonimmigrant visa provides admission to persons who are internationally recognized as athletes or entertainers, and those who perform as artists or entertainers in culturally unique programs.

DOL Publishes Final Labor Certification Rule


The Department of Labor (DOL) published a final rule, effective July 16, 2007, to “enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States.” The provisions apply to permanent labor certification applications and approved certifications filed under both the Program Electronic Review Management (PERM) program regulation, effective March 28, 2005, and previous regulations implementing the permanent labor certification program.

In general, the DOL answered commenters’ concerns about a wide variety of issues, such as increased costs and the loss of priority dates resulting from the new prohibition on substitution of beneficiaries, by maintaining that the benefits of the new provisions to the labor market and in preventing fraud outweigh the concerns of individual employers.

The rule’s major provisions include:

A prohibition on the substitution of beneficiaries. This prohibition will apply to all pending permanent labor certification applications and to approved permanent labor certifications. The prohibition does not affect substitutions approved by the DOL or Department of Homeland Security (DHS) before the effective date. It also does not affect substitution requests in progress as of the rule’s effective date. The final rule also prohibits the sale, barter, and purchase of labor certification applications and approved labor certifications.

Rationale: The rule notes that the DOL for years has allowed employers to substitute a beneficiary named on a pending or approved labor certification with another prospective employee. Historically, this substitution practice was permitted as an accommodation to U.S. employers because of the length of time it took to obtain a permanent labor certification or receive approval of the I-140. Ongoing concerns about fraud and abuse have been heightened, the DOL said, by a number of recent criminal prosecutions by the Department of Justice (DOJ) as well as recommendations from the DOJ and the DOL’s Office of Inspector General, and public comments concerning fraud received in response to the May 6, 2002, PERM notice of proposed rulemaking. One attorney filed approximately 2,700 fraudulent applications with DOL for fees of up to $20,000 per application. Many of these applications were filed for the sole purpose of later being sold to workers who would be substituted for named beneficiaries on the approved labor certifications.

One commenter asked that the rule be clarified to state that the prohibition against the sale, barter or purchase of labor certification applications and certifications does not apply to transfers stemming from legitimate corporate restructuring activities such as mergers, acquisitions, or spin-offs. The DOL said it did not intend this provision to govern corporate restructuring or internal corporate accounting and finance practices that exist independently of the permanent labor certification program. The DOL has determined that further clarification on this question is not necessary.

The DOL said its premise is that substitution in general is no longer needed, both because the new, automated system has significantly reduced processing time and because the backlog of permanent labor certification applications filed before March 28, 2005, will be eliminated by September 30, 2007. The DOL, noting that the labor market changes rapidly, maintained that it is consistent with the DOL’s obligation to protect the jobs, wages, and working conditions of U.S. workers to require that there be another labor market test whenever the job opportunity effectively changes through the unavailability of the original worker.

The DOL said it understands concerns that, as a result of this rule, H-1B nonimmigrants who, after five years of employment, are not yet the beneficiary of a permanent labor certification application might not be permitted by U.S. Citizenship and Immigration Services to further extend their H-1B status prior to obtaining permanent residence. Continuing substitution as an accommodation to “this small group of individuals, a group whose numbers and participation in the program are both speculative, is disproportionate to the adverse consequences of continuing the substitution practice,” the DOL said. The agency also noted that some commenters have suggested that because the American Competitiveness in the 21st Century Act (AC21) increased the portability of H-1B visas, allowing such nonimmigrants to change employers, substitution by these foreign workers should continue to be allowed. The DOL, however, said it sees no reason to permit one type of nonimmigrant to continue benefiting over other nonimmigrants from the practice of substitution.

Substitution has been a distinct benefit to employers and applicants in allowing them to retain an earlier priority date and apply the results of a completed labor market test. The DOL said it plans to work with the DOJ and DHS to explore appropriate circumstances under which substitution could be reinstated. “We anticipate that there may come a time when all affected agencies are satisfied that there are sufficient anti-fraud protections to alleviate the concerns motivating this rule,” the DOL noted.

A 180-day validity period for approved labor certifications. Employers will have 180 calendar days within which to file an approved permanent labor certification in support of an Immigrant Petition for Alien Worker (Form I-140). All permanent labor certifications approved on or after the effective date will expire 180 calendar days after certification, unless filed before expiration in support of a Form I-140 petition with DHS. Likewise, all certifications approved before the final rule’s effective date will expire 180 calendar days after the effective date unless filed in support of a Form I-140 petition with DHS before the expiration date.

Rationale: The DOL had considered making the validity period only 45 days, but determined that 180 calendar days provided additional time to accommodate possible delays while maintaining the integrity of the labor market test and the security of the labor certification. The DOL noted that requiring a retest of the market after the passage of 180 days is consistent with its mandate to protect the constantly shifting U.S. labor market.

Some commenters contended that the DOL’s argument that a certification grows stale with the passage of time is disingenuous, given the extremely long processing times and resultant staleness of at least some information in applications submitted years earlier. The DOL noted, however, that the final rule addresses the question of validity post-certification. “While questions of wages and recruitment are adjudicated on an individual basis as applications come up for review in our Backlog Processing Centers--independent of how long each of those applications has been pending--the Department must determine how long it will stand behind those certifications once issued, and when it is appropriate to once again test the market,” the DOL said, noting again that processing times and backlogs have been greatly reduced by PERM streamlining and the online system.

A requirement that employers pay the costs of labor certification, including preparing, filing, and obtaining certification. The beneficiary may pay attorneys’ fees for representation of the beneficiary or other “legitimate” costs incurred by him or her, but an employer’s transfer to the beneficiary of the employer’s costs incurred is strictly prohibited. Prohibited payments include, but are not limited to, employer fees for hiring the beneficiary; receipt of part of the beneficiary’s pay, whether through a payroll deduction or otherwise, as reimbursement; reducing the beneficiary’s pay for purposes of reimbursement or pre-payment; goods and services or other wage or employment concessions; kickbacks, bribes or tributes; receipt of payment from beneficiaries, attorneys, or agents for allowing a permanent labor certification application to be filed on behalf of the employer; or the payment by the beneficiary of the employer’s attorneys’ fees.

Rationale: The DOL reasoned that a prohibition against the transfer of labor certification costs from sponsoring employers to beneficiaries keeps legitimate business costs with the employer, minimizes improper financial involvement by beneficiaries in the labor certification process, and strengthens the enforceability of the bona fide job opportunity requirement.

The establishment of procedures for debarment from the permanent labor certification program. The DOL may debar an employer, attorney or agent for up to three years based on certain enumerated actions such as fraud, willful provision of false statements, or a pattern or practice of noncompliance with PERM requirements, regardless of whether the labor certification application involved was filed under the previous or current regulation. The rule extends from 90 to 180 days the period during which the DOL may suspend processing of applications under criminal investigation. The rule adds an intent requirement (“willful”) to the false information section; to be actionable, the employer must willfully provide false or inaccurate information to the DOL. The rule expands the existing provision for a right to review the DOL’s denial of an application or revocation of a certification, to encompass a right to review of a debarment action. The request for review would be made to, and in appropriate cases a concomitant hearing would be held by, the Board of Alien Labor Certification Appeals (BALCA).

Rationale: Given the breadth and increased sophistication of the immigration fraud that has been identified in the recent past, the DOL said it requires the added flexibility provided by the final rule to respond to potential improprieties in permanent labor certification filings. The DOL noted that the technological enhancements to the PERM system make it difficult to have inadvertent errors or omissions, and those few that will be made despite these enhancements still may not rise to the level of a false statement. The DOL said that this provision is not designed to impose penalties for innocent errors not in the control of the submitter but is applicable to any material inaccuracy. Although a false statement may not rise to the level of fraud, the statement may involve information or subject matter that is material to the application, the DOL noted.

With respect to the various grounds for debarment, generally, commenters expressed concerns that the rule could impose a severe penalty for relatively minor and likely inadvertent offenses. After reviewing the comments, the DOL modified the proposed rule to add in the final rule the “willful” intent requirement. The final rule also revises the provisions on failure to comply with the terms of the form, failure to comply with the audit process, and failure to comply with Certifying Officer (CO)-ordered supervised recruitment by adding a requirement that, for there to be a basis for debarment, there must be a pattern or practice of misconduct.

Clarification of the DOL’s “no modifications” policy for applications filed on or after March 28, 2005, under the PERM process. The rule finalizes with minor changes a provision in the proposed rule prohibiting modifications to permanent labor certification applications once such applications are filed with the DOL.

Rationale: The DOL said it has implemented technological changes in the PERM program to alert applicants to technical grounds for deniability, thus eliminating the need for many modifications. To comport with this clarification while ensuring due process, the DOL said, the final rule more precisely defines what evidence may be submitted with an employer’s request for reconsideration.

The DOL noted that the online application system, which features various prompts and pop-up alerts to notify the applicant of needed corrections, allows the user to proofread, revise, and save the application before submission. In the event of an inadvertent error noticed after submission, or any other need to refile, the DOL stated that an employer can withdraw an application, make the corrections and file again immediately. Similarly, if an employer receives a denial under the new system, it can choose to correct the application and file again immediately if it does not seek reconsideration or appeal.

The DOL said it recognizes that there will be situations where it may be appropriate to consider information not previously in the CO’s physical possession in order to provide appropriate evaluation of the employer’s request for reconsideration. A new provision describes the evidence that can be submitted with a motion to reconsider and clarifies the interplay with the no-modification provision. Specifically, the provision limits evidence submitted at reconsideration to documentation that the DOL received from the employer in response to a request from the CO to the employer; or documentation that the employer did not have an opportunity to present to the CO, but that existed at the time the application was filed, and that was maintained by the employer to support the application. It also provides that the DOL will not grant motions to reconsider where the deficiency that caused denial resulted from the applicant’s disregard of an online system prompt or other direct instruction.

USCIS REACHES H-1B EXEMPTION CAP FOR FISCAL YEAR 2008 - 20,000 Slots Reserved for Aliens with Master’s Degrees or Higher Exhausted


USCIS has received enough H-1B petitions requesting exemptions from the fiscal year 2008 (FY 2008) H-1B cap for “foreign workers who have earned a master’s degree or higher from a U.S. institution of higher education” to meet the congressionally mandated exemption limit of 20,000. USCIS has determined that the “final receipt date” for these exempt H-1B petitions is April 30, 2007. USCIS will reject petitions requesting a FY 2008 cap exemption for “workers with a master’s or higher degree earned from a U.S. institution of higher education” that are received on or after May 1, 2007 unless the petition is otherwise eligible for a separate cap exemption.

Cap Procedures:


In accordance with USCIS regulations, USCIS has implemented the following process for handling H-1B petitions filed on behalf of workers with a master’s or higher degree earned from a U.S. institution of higher education seeking an exemption from the FY 2008 cap:

  • USCIS has determined that as of April 30, 2007, it had received a sufficient number of H-1B petitions requesting a FY 2008 cap exemption on behalf of “foreign worker who has earned a master’s degree or higher from a U.S. institution of higher education” to reach the 20,000 limit. The “final receipt date” is April 30, 2007.
  • USCIS will subject H-1B petitions received on the “final receipt date” that request an exemption from the H-1B cap based on the worker holding a U.S. master’s or higher degree to a computer generated random selection process. USCIS will reject those filings not randomly selected and return them along with the filing fee(s) unless another basis for an H-1B cap exemption exists.
  • USCIS will reject H-1B petitions requesting this exemption for FY 2008 received on or after May 1, 2007 unless another basis for an H-1B cap exemption exists.
  • The earliest date for which a petitioner may file a petition requesting cap subject FY 2009 H-1B employment or an exemption from the H-1B cap based on the worker holding a U.S. master’s degree or higher with an employment start date of October 1, 2008, is April 1, 2008.

Petitions for current H-1B workers generally do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process H-1B petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States.
  • Change the terms of employment for current H-1B workers.
  • Allow current H-1B workers to change employers.
  • Allow current H-1B workers to work concurrently in a second H-1B position.

H-1B Final Selection Process and USCIS Clarification of Receipt Notices Dated Before April 12, 2007


USCIS announced on April 12 that it completed the computer-generated random selection process to determine which H-1B petitions subject to the congressionally mandated H-1B cap for FY 2008 would be accepted for processing. On April 3, USCIS announced that it had received enough petitions to meet the cap for FY 2008 and that it would conduct a computer-generated random selection of cap-subject petitions filed on Monday, April 2, and Tuesday, April 3. USCIS developed new procedures that enabled the agency to efficiently process cap-subject petitions.

In accordance with 8 CFR 103.1(a)(7) and standard USCIS procedure, FY 2008 cap-subject H-1B petitions were stamped to reflect the time and date of actual receipt.

On Wednesday April 4, 2007, USCIS began assigning numerical identifiers to all 123,480 cap-subject H-1B petitions property filed and received on April 2 and 3. On April 12, USCIS conducted the computer-generated random selection process to determine which petitions would be accepted for processing.

In accordance with 8 CFR 214.2(h)(8)(ii), those petitions not randomly selected, as well as any cap-subject petitions received after April 3, will be rejected.

USCIS conducted data-entry and generated (and in some cases actually issued) receipt notices for a portion of cap-subject petitions prior to conducting the computer-generated random selection process. The issuance of receipt notices prior to conducting the computer-generated random selection process had no impact on whether a petition has been randomly selected for processing. This process has caused some confusion regarding whether petitions have actually been selected for processing. USCIS provides the following explanation:

  • Some cap-subject petitions were data-entered on April 2 and 3. Fees were deposited for these petitions and receipt notices were issued. USCIS cannot invalidate these receipt notices because the fees have been deposited. Petitioners who received receipt notices dated prior to April 12, 2007 should not assume that their H-1B petitions have been accepted for processing. For cases that fall into this group, those that were not randomly chosen will be returned to petitioners and the filing fee will be refunded. Those that were accepted will be processed under the original receipt notice.
  • Some cap-subject H-1B petitions were data-entered on Wednesday, April 4 and receipt notices were generated, but not issued to petitioners. As USCIS did not deposit any of the fees submitted with these filings, these receipt notices have been voided. For cases that fall into this group, those that were not chosen will be returned to petitioners with the filing fees and those that were accepted will be issued official receipt notices dated on or after April 12, 2007.
  • Finally, a small number of cap-subject H-1B petitions, filed under premium processing, were also data-entered on April 4. In accordance with USCIS procedure, email notification acknowledging receipt of these petitions was issued to petitioners. Official receipt notices were generated, but never issued, and USCIS did not deposit any of the fees submitted with these filings. Thus, all generated receipt notices have been voided. For cases that fall into this group, those that were not chosen will be returned to petitioners with the filing fees and those that were accepted will be sent a second email confirmation of receipt and will be issued new receipt notices dated on or after April 12, 2007.

USCIS will return all petitions not randomly selected for processing, with the fee(s) to the petitioner or their authorized representative. Final notification of those petitions is expected to occur in May 2007.

USCIS continues to accept new FY 2008 cap-exempt H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees. USCIS will make a future announcement regarding the “final receipt date” for these petitions.

USCIS Reaches FY 2008 H-1B CAP


USCIS announced yesterday that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2008 (FY 2008). As of April 2, 2007, USCIS had received approximately 150,000 cap-subject H-1B petitions. USCIS will use a random selection process for all cap-subject filings received on April 2, 2007 and April 3, 2007. Initial data entry will be performed for all filings received on April 2 and April 3 prior to conducting the random selection process. Due to the high volume of filings, USCIS is unable to conduct the random selection for several weeks. All of the H-1B petitions prepared by Fredrikson and Byron were received by the USCIS on April 2, 2007 and will be included in the random selection process.

In order to fully utilize its data entry and initial processing capacity, USCIS may choose to distribute filings received at one service center to other service centers for data entry. In the event that USCIS exercises this option, petitioners may receive receipt notices or other correspondence from a service center other than the one to which the H-1B submission was sent. USCIS advises employers that there is no need for concern should that occur and that there is no need to contact USCIS.

USCIS will use the following process to handle H-1B petitions subject to the FY 2008 cap:

  • USCIS has determined that as of April 2, 2007, it had received enough H-1B petitions to reach the FY 2008 H-1B cap and has set the “final receipt date” as April 2, 2007.
  • USCIS will subject H-1B petitions received on the “final receipt date” and the following day to a computer-generated random selection process.
  • USCIS will reject all cap-subject H-1B petitions for FY 2008 received on or after April 4, 2007.
  • USCIS will reject and return along with the filing fee(s) all cap-subject H-1B petitions that are not randomly selected.

Petitioners may re-submit petitions on April 1, 2008 when H-1B visas become available for FY 2009. This is the earliest date for which an employer may file a petition requesting FY 2009 H-1B employment with a start date of October 1, 2008.

Cap-Exempt Petitions: The first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees are exempt from any fiscal year cap on available H–1B visas. USCIS does not yet know how many of these petitions it has received as those petitions are mixed with the cap-subject cases received on April 2 and 3. USCIS will make a future announcement regarding the “final receipt date” for these petitions.

Current H-1B Workers: Petitions filed on behalf of current H-1B workers do not count towards the H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States.
  • Change the terms of employment for current H-1B workers.
  • Allow current H-1B workers to change employers.
  • Allow current H-1B workers to work concurrently in a second H-1B position.

USCIS also notes that, in addition to the cap exemption for aliens with U.S. earned masters' degrees discussed above, certain H-1B petitions are exempt from the cap. Those petitions are not affected by this release.

USCIS Reaches H-1B Exemption Cap For Fiscal Year 2007


20,000 Slots Reserved for Aliens with Master's Degrees or Higher Exhausted

U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough H-1B petitions requesting "foreign workers who have earned a master's degree or higher from a U.S. institution of higher education" to meet the exemption limit of 20,000 established by Congress for fiscal year (FY) 2007. Consequently, USCIS has determined that the "final receipt date" for these exempt H-1B petitions is July 26, 2006.

USCIS Reaches H-1B Cap


U.S. Citizenship and Immigration Services (USCIS) announced June 1, 2006 that it has received a sufficient number of H‑1B petitions to meet the congressionally mandated cap for fiscal year 2007 (FY 2007). The "final receipt date" for H‑1B petitions subject to the FY 2007 annual cap was May 26, 2006. Affected H‑1B petitions received on that date will be subject to a random selection process described below. H‑1B petitions subject to the FY 2007 annual cap that are received by USCIS after the "final receipt date" will be rejected. Additional information regarding the specific number of H‑1B petitions processed is available at: www.uscis.gov/graphics/services/tempbenefits/cap.htm.

Cap and Set Asides: Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the "H‑1B cap." Under the terms of the legislation implementing the United States-Chile and United States-Singapore Free Trade Agreements, 6,800 of the 65,000 available H‑1B visas are annually set aside for the Chile/Singapore H‑1B1 program. As a result of reserving 6,800 H‑1B1 visas for FY 2007, the H‑1B cap for that fiscal year is 58,200. However, USCIS has added back to the H‑1B cap 6,100 unused FY 2006 H‑1B1 visas, for a total of 64,300, as described below.

Unused Chile/Singapore visa numbers for a particular fiscal year are to be used within the first 45 days of the next fiscal year. As FY 2007 H‑1B petitions are approved for start dates beginning no earlier than the first day of fiscal year 2007 and reasonable anticipated usage of approved H‑1B petitions for any 45-day period exceeds 8,000, USCIS has incorporated its reasonable projection based on H‑1B1 usage to date that 700 H‑1B1 visa numbers will be used in FY 2006 into the FY 2007 H‑1B cap count by adding the remaining 6,100 unused H‑1B1 visas back into that count, resulting in a total cap of 64,300 FY 2007 H‑1B visas approvable. Because unused H‑1B1 visas for FY 2006 have been already allocated in this manner, there will be no additional later H‑1B filing season to use these visas. The 6,800 visas reserved from the FY 2007 H‑1B count for FY 2007 H‑1B1 purposes are anticipated to be handled in a similar manner with respect to the FY 2008 H‑1B cap count during calendar year 2007. This allocation of FY 2006 H‑1B1 visas based upon reasonable projections of usage to the end of the fiscal year will not affect the availability of H‑1B1 visas in any way; they will continue to be fully available, with any year-end difference between actual and projected usage expected to be minimal.

Cap Procedures: In accordance with the procedures announced in the Federal Register at 70 FR 23775 (May 5, 2005) (Allocation of Additional H‑1B Visas Created by the H-1B Visa Reform Act of 2004) USCIS has implemented the following process for handling H‑1B petitions subject to the FY 2007 cap:

  • USCIS closely monitored FY 2007 H‑1B filings and used projections to determine the date on which it received the number of petitions necessary to reach the Congressionally mandated cap.
  • USCIS determined that the Congressionally mandated cap had been exceeded on May 26, 2006, the "final receipt date."
  • USCIS will subject H‑1B petitions received on the "final receipt date" to a computer-generated random selection process. This process will enable USCIS to apply the remaining number of available H‑1B visas to petitions received on that day.
  • Cap subject H‑1B petitions that are not randomly selected in the process described above will be rejected and returned along with the filing fee(s).
  • Petitioners may re-submit the petitions when H‑1B visas become available for FY 2008.
  • The earliest date for which a petitioner may file a petition requesting FY 2008 H‑1B employment with an employment start date of October 1, 2007, is April 1, 2007.

Current H-1B Workers: Petitions filed on behalf of current H‑1B workers do not count towards the Congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

  • Extend the amount of time a current H‑1B worker may remain in the United States.
  • Change the terms of employment for current H‑1B workers.
  • Allow current H‑1B workers to change employers.
  • Allow current H‑1B workers to work concurrently in a second H‑1B position.

Cap-Exempt Petitions: As directed by the H‑1B Visa Reform Act of 2004, the first 20,000 H‑1B petitions filed on behalf of aliens with U.S.-earned masters' or higher degrees will be exempt from any fiscal year cap on available H‑1B visas. For FY 2007, USCIS has received approximately 5,830 exempt petitions.

USCIS also notes that petitions for new H‑1B employment are exempt from the annual cap if the aliens will be employed at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, petitions for these exempt H‑1B categories may be filed for work dates starting in FY 2006 or 2007.

H-1B in General: U.S. businesses utilize the H‑1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. As part of the H‑1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) require U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted, while the DOL's Wage and Hour Division safeguards the treatment and compensation of H‑1B workers.

Employers Should Start New H-1B Filings under FY 2007 for Filing on April 1, 2006


On April 1, 2006, employers may file for fiscal year 2007 H-1B petitions. The earliest employment start date under an April 1, 2006  filing is October 1, 2006, which is the first day of fiscal year 2007. Despite this late start date, employers should file now for new H-1B petitions subject to the H-1B cap. It is likely that the H-1B numbers for 2007 will run out very quickly based on experience from the last few years. The cap for H-1B petitions filed under fiscal year 2006 was reached in August 2005.

In order to avoid the H-1B cap for fiscal year 2007, we recommend:

  1. Starting the recruiting and hiring process now in order to be ready to file new H1-B petitions on April 1, 2006, even though the employment start date will not be until October 1, 2006 . 
  2. Filing H-1B petitions on April 1, 2006, or soon thereafter for employees whose F-1 or J-1 practical training will expire before or after October 1, 2006.

The H-1B cap applies to new petitions filed for foreign workers that have not been counted against the H-1B cap within the past six years. Certain H-1B petitions are not subject to this cap. These include:

  • Any petitions, including amended petitions, extensions, or change of employer, filed for current H-1B workers (unless he or she is changing employment from a cap-exempt employer to a non-exempt employer).  
  • New petitions filed for employment at institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations or government research organizations.  For example, a non-profit hospital that has a residency program in affiliation with a medical school can be considered an affiliated nonprofit entity of an institution of higher education. 

H-1B Numbers for Master's Degree Holders Could Run Out Shortly; USCIS Releases Statistics on H-2Bs


H-1B numbers for those with U.S. master's degrees could run out by mid-January, according to remarks at a recent conference by a representative of U.S. Citizenship and Immigration Services. Some think they could run out even sooner as December graduates rush to file their visa applications. ABIL advises individuals and employers who wish to file H-1Bs under the master's degree cap to do so quickly. Meanwhile, U.S. Citizenship and Immigration Services released new statistics on H-1Bs under the master's degree cap. According to sources, 16,098 cases have been counted against the 20,000 cap so far (12,647 approved and 3,451 pending).

USCIS also released new statistics on H-2Bs. The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services. On May 25, 2005, U.S. Citizenship and Immigration Services (USCIS) began accepting additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act).  According to sources, 35,568 cases have been counted against the half-year cap so far in fiscal year 2006 (27,937 approved and 7,631 pending). The cutoff date for each half of the fiscal year will be whenever sufficient petitions and associated worker applications have been received to satisfy the half-year cap of 33,000 visas minus first-time beneficiaries changing status. USCIS estimated that 62 percent of approved beneficiaries will result in H-2B visas issued by Department of State. Accordingly, USCIS will cut off the first half cap at 52,000.

Click here for more on the H-1B and H-2B caps.

U.S. Citizens May File for Spouses, Children, Parents While in Canada


U.S. citizens resident in Canada who wish to file I-130 petitions on behalf of their spouses, minor children, or parents may now do so in person at the U.S. Embassy or U.S. Consulate in whose district they reside. U.S. citizens resident in Canada who wish to file I-130 petitions on behalf of brothers, sisters, or adult sons and daughters, or U.S. legal permanent residents who reside in Canada and wish to file I-130s on behalf of their relatives, should mail the petition and supporting documents to the Vermont Service Center. Click here for additional details.

Biometrics Update


U.S. Citizenship and Immigration Services (USCIS) recently informed the American Immigration Lawyers Association (AILA) that a new system for scheduling biometrics appointments has been launched under which such appointments will be scheduled by USCIS. Separate appointments are being scheduled for each application for which biometric data must be gathered because the data cannot migrate between the databases and records are kept by receipt number. AILA has asked USCIS to devise a system to allow the capture of biometrics for all related applications in a single visit.

Meanwhile, a new Department of Homeland Security (DHS) rule that went into effect in late October requires visitors from Visa Waiver Program countries to carry passports with digital photos, and fines carriers that transport people to the U.S. without the new passports up to $3,300 per violation. Click here for more information on the new requirement.

Also, DHS expects to unveil its plan early next year for upgrading the nation's biometric visitor tracking.  DHS wants to move toward collection of 10 fingerprints instead of two in the US-VISIT system, depending on available resources, according to sources.

The Department of State finalized a rule, effective October 25, 2005, that amends the passport regulations to incorporate changes related to the introduction of the electronic passport. The rule defines "electronic passport" as "a passport containing an electronically readable device, an electronic chip, encoded with the information printed on the data page, a biometric version of the bearer's photograph, a unique chip number, and a digital signature to protect the integrity of the stored information." The rule includes a damaged electronic chip as an additional basis for possible invalidation and provides for no-fee issuance of a replacement passport if an electronic chip fails. A pilot program will permit a limited number of passports to be issued and field-tested before the first issuance to the U.S. traveling public, slated for early 2006. By October 2006, all U.S. passports, with the exception of a small number of emergency passports issued by U.S. embassies or consulates, are expected to be electronic.

The European Biometrics Forum (EBF) announced the establishment of the International Biometric Advisory Council (IBAC), which will provide advice and expert opinion to the EBF and its members and partners on the most pertinent issues facing biometrics globally.  The IBAC intends to clarify issues surrounding the deployment and use of biometrics; develop a cohesive approach; enhance cooperation in Europe and globally; and advise the EBF and its partners on standards, interoperability, and privacy areas of interest.  Among expert appointees to the new IBAC is Robert Mocny, Deputy Director for the US-VISIT program.

A discussion of biometrics and their effect on international migration and the rights of individuals can be found by clicking here.

I-9 Documentation Requirements for Hiring Hurricane Victims


The Department of Homeland Security (DHS) announced that it will not sanction employers for hiring victims of Hurricane Katrina who are unable to present the required documentation under Section 274A of the Immigration and Nationality Act.

New Green Card Replacement Procedures


U.S. Citizenship and Immigration Services (USCIS) forwarded to the Federal Register today a notice announcing that starting May 31, 2005 aliens must mail applications to renew or replace Permanent Resident Cards, commonly known as “green cards,” directly to the Los Angeles Lockbox. The Lockbox is a processing facility used by USCIS to accelerate the collection of applications and petitions. Today’s announced change allows USCIS to improve the processing of Form I-90 (Application to Replace Permanent Resident Card) by electronically capturing data and images and by performing fee receipting and depositing from one central location, rather than at the local District Office, Service Center, or Application Support Center (ASC). Click here for more information.

DOJ and DOS Announce Machine Readable Passports a Requirement for VWP Travelers


The Department of Homeland Security and Department of State recently confirmed that as of June 26, 2005, all VWP travelers to the U.S. must possess machine readable passports. Travelers found to be in violation can receive substantial fines.

Additional 20,000 H-1Bs Filing Date is Deferred by USCIS and Now Includes Bachelors and Advanced Degree Holders


According to the Fiscal 2005 Omnibus Appropriations Bill, which became law in December of 2004, on March 8, 2005 a new sub-"cap" of 20,000 visas came into effect.  On March 8th, when that new cap was scheduled to take effect, the United States Citizenship and Immigration Services (CIS) issued two interpretations regarding the availability of visas that will have a significant impact on many employers and employees.  This Client Alert summarizes those interpretations.

The number of new H-1B nonimmigrants for the 2005 fiscal year (65,000) was reached on the first day of the fiscal year, October 1, 2004.  With the cap reached, employers (other than cap-exempt institutions) cannot file H-1B petitions for employees who have not previously held H-1B status until April 1, 2005, with a start date of October 1, 2005 (the first date of the 2006 cap). 

As of March 8, a separate exemption was made available for employees who received a master's or higher degree from a U.S. college or university.  This exemption covers up to 20,000 employees per fiscal year, and is for use by private employers. (Universities, nonprofit research organizations and their "affiliated" nonprofit organizations are separately exempt from the cap, without numerical limit.)  Demand for these 20,000 H-1B's is expected to be very heavy, and many employers have been preparing cases for filing as of March 8, 2005.  Employers have limited their preparation to individuals who hold Master's or higher degrees from U.S. colleges or universities, in anticipation that only such individuals would be eligible for H-1Bs as of March 8.

On March 3, CIS announced that it would not begin accepting petitions as of March 8, 2005 and stated that petitions requesting one of the new, exempt visas could only be filed once CIS published a notice in the Federal Register.  No estimated date of publication of such a notice has been provided.

We cannot advise clients as to when the Federal Register notice will be published. We, therefore, are advising clients to be prepared now so that they can file their petitions immediately after the Federal Register notice is published.

The other CIS interpretation announcement on March 8, is going to have a more profound impact on the availability of H-1B's prior to October 1, 2005. CIS stated that it will allow filing of any H-1B petition – whether or not the employee earned a U.S. Master's or higher degree. At the time that CIS allows filing for the 20,000 visas we estimate that there will not be enough to satisfy the demand for H-1Bs on behalf of U.S. graduate degree holders, and there are likely to be far more applications than approvals.

It appears that CIS is reasoning that some or all of the earlier issued 65,000 numbers for this fiscal year already went to holders of U.S. graduate degrees. The CIS position appears to be that the 20,000 cap exemption for 2005 must first be applied to any of the 65,000 visas already approved for U.S. graduate degree holders.  There are serious problems with this interpretation, which is not at all responsive to Congressional intent when this new exemption was carved out last December.

In light of these CIS announcements, we recommend all eligible H-1B cases, whether for those with bachelors or advanced degree, U.S. or foreign, that have a required or desired start date prior to October 1, 2005, be prepared immediately for filing as soon as CIS announces the filing date. It remains possible, as well, that CIS may reverse itself on its position that it will accept all types of cases, given all the problems with that position.

We will continue to monitor this issue and send out more information as soon as we have more information.

USCIS Implements H-1B Visa Reform Act of 2004


USCIS announced that the Omnibus Appropriations Act for FY 2005 has been signed, which contains provisions affecting the H-1B and L nonimmigrant visa categories. The H-1B provisions of the Act reinstitutes the American Competitiveness and Workforce Improvement Act of 1988 (ACWIA) fee and raises it to $1,500. Employers with 25 or fewer full-time employees, including any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of petitions that were previously exempt from the $1,000 fee are still exempt from the new $1,500 and $750 fee. The new $1,500 and $750 fee applies to any non-exempt petitions filed with USCIS after December 8, 2004. Please contact us to review any questions on the new fees.

The Act also creates a new Fraud Prevention and Detection Fee of $500 which MUST be paid by petitioners seeking a beneficiary's initial grant of H-1B or L nonimmigrant classification or those petitions seeking to change a beneficiary's employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exemptions from the $500 fee. The new $500 fee applies to petitions filed with USCIS on or after March 8, 2005.

Each of these fees is in addition to the base processing fee of $185 to file Form I-129, Petition for a Nonimmigrant Worker, and any premium processing fees (if applicable).

Exemption of certain aliens from numerical limitations on H-1B nonimmigrants:


The Act provides new exemptions from the annual H-1B cap. The first 20,000 H-1B beneficiaries who have earned a master's degree or higher from a U.S. institution of higher education are not subject to the annual H-1B cap of 65,000. After those 20,000 slots are filled, USCIS is required to count those cases against the cap for the remainder of the fiscal year. This provision comes into effect on March 8, 2005.

Prevailing Wage Level:


The Act requires employers to pay 100% of the prevailing wage. However, this section also mandates that where the DOL uses or makes available to employers a governmental survey to determine prevailing wage, such survey shall provide 4 levels of wages commensurate with experience, education, and the level of supervision.


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