Seattle Immigration Lawyer Blog

On January 5, 2012, USCIS issued new draft templates for Requests for Evidence (RFE) concerning L-1 Intra-Company Transferee visas for multinational managers, executives and those with specialized knowledge. USCIS has been reviewing its policies and trying to streamline adjudications of different visa categories to insure more consistent adjudications among officers and offices. Over the last year, the agency has issued draft RFE templates and implementation policy memos in the temporary and permanent business visa categories.

RFEs are a major sore spot with attorneys and their clients. They often reflect that a) the officer did not read or ignored the evidence already submitted; b) the officer confused category requirements or misinterprets the law; c) the officer sends boilerplate information about the law and then asks for everything but the kitchen sink and d) the officer automatically suspects small businesses are engaged in fraud. RFEs create delays and are a barrier to new business start ups and job creation. Although we do not receive many RFEs in our office, discussions about the RFE problems among our colleagues in the immigration bar have been frequent, especially since the recession began. It could be due in part to some combination of USCIS hypersensitivity to protect American jobs, internal personal politics of the officers, lack of training or possibly poor preparation of applications. Whatever the reason, Director Alejandro Mayorkas is aware of the problem, though his direction may not filter down to the front line workers in his agency. In particular, our colleagues complain consistently about business adjudications at the California Service Center.

Knowing the agency's views on potential RFE requests in advance of filing can be helpful in selecting the best visa categories for a client and for preparing cases in a way that avoids receiving RFEs. The templates and memos accompanying them are posted for public comment until February 3. One of the L-1 templates concerning qualifying entity relationships was issued December 15 and is open for comment until January 17, 2012. Of particular interest is the boilerplate option that the officer must explain deficiencies in the evidence already provided when asking for more evidence. This is very important since requests often ask the applicant to "send XYZ" without explaining why or how it would be relevant, or what was wrong with previously submitted evidence on the subject. Whether the process of refining RFEs and soliciting feedback will help improve adjudications will be reflected when we can see that the officers are following the guidelines, interpreting the law correctly and moving cases quickly. Thus, it's important to make comments now before the templates are finalized.

USCIS is reporting today that the H-1B Cap count as of November 22, 2011 has been reached for Fiscal Year 2012 that expires September 30, 2012. This means that employers wanting to hire H-1B workers this year and next will have to wait until the new filing season begins on April 1, 2012 for jobs with start dates of October 1, 2012. The 65,000 cap was reached earlier this year compared to last fiscal year when it was reached in January.

Although the economy has been sluggish, employers continue to hire in some sectors. In this firm's experience, employers do not spend the time or money on the expensive H-1B process unless they cannot find qualified local talent after extensive recruitment of US workers, even though recruitment is not required for non-H-1B-dependent employers.

Employers with positions not subject to the annual 65,000 cap can continue to file H-1B petitions all year long. The 20,000 masters degree cap was reached back in October 2011. Non-cap cases include employers that are qualified nonprofit or government research institutions, and private employers with affiliations with such entities where the employee will perform the duties "at" the qualifying facility. For details on what these requirements mean, a memo from the government about cap-exempt status is posted on our firm website. See also more recent USCIS pronouncements on the subject of "affiliation."

Obviously, it makes it difficult for employers to plan for new hires needed from now through next summer. It means delayed hiring, continuing to look for US workers, planning for the April 1 new filing date, and/or consideration of other visa categories. For some employers, the H-1B cap situation is so intolerable, they ship work or jobs abroad. For employers with sensitive product or project life cycles or benchmark deadlines, the H-1B cap can be very disruptive to business growth, product development and overall hiring plans. Congress has refused to remove or increase the annual cap. However, employers who use or have considered the program know that H-1B use should be tied to the market. When employers are not hiring, H-1Bs are not used. But even in a recession, reaching the cap later in the year shows that there is still hiring in certain sectors and that H-1B visas drive innovation and expansion. Employers don't use the program when there are ample US workers because of the expense, wage and other liability requirements of the program. However, there has been sufficient growth in some sectors even during a recession, especially in IT, health care, biotech and other Science Technology Engineering and Math (STEM) sectors. According to the US Labor Department's 2010 Annual Report on Foreign Labor Certification, STEM professionals made up at least 50% of the labor condition applications required for H-1B status. The report states:

Positions in Software Engineering, Computer Systems Analysis and Programming represented nearly 40 percent of the total H-1B certified positions....Fifteen States had over 5,000 [H-1B] certified positions during FY 2010. Washington [State] had the largest increase of positions certified, up 45 percent from FY 2009.

The DOL survey shows that locally, the majority of certifications in Washington State were in Bellevue/Redmond where Microsoft and many of its vendors and suppliers are located. However, overall, outside of the Washington, D.C. area, Washington State has seen the most job growth in STEM fields compared to the rest of the country, 70% of which are in the Seattle area, according to a 2011 study by the Washington Research Council.

The export control questions on the new I-129 form for H-1B, H-1B1, L-1 and O-1 petitions go into effect this week on February 20. Having to answer the new questions was delayed so that employers could become familiar with the export control regulations. Immigration lawyers are not typically trained in the details of export controls, though we are familiar with the issue in connection with certain types of security clearances for our clients when they are abroad seeking visas. Sometimes clients subject to the Technology Alert List are delayed in getting their security clearances. Petitioners involved in technology, R&D, scientific research, aviation, arms and defense industries, biotechnology, and software development, for example, are usually familiar with the intricate export control rules as a major part of their business. For example, significant users of H and O visas are universities. There is an Association of University Export Control Officers to deal with these issues for scientific researchers.

But other H, L and O businesses involved in activities such as residential architecture, physical therapy, fashion design, elementary school education, international adventure travel, or award winning chefs, actors, writers, cellists, and other industries or occupations are not familiar at all with export controls. The export control rules are person, and therefore job duty specific, as well as country specific in some cases. Now that the questions on the form go into effect during the petition process in the U.S., all employers have to become familiar with the process before starting a visa application. Petitioners need to learn more about this burdensome requirement if they are not already familiar with them in the general course of business.

Recently, I attended a continuing education seminar on the new export control attestations as I would like to be more familiar with this area of law. One of the speakers was from the U.S. Commerce Department. When he was asked how this requirement came about, he indicated that the purpose is to get more employers "thinking about" whether the foreign nationals they hire are indeed subject to export control rules and whether they need to get licenses. However, the Commerce Department expects that only 5% of employers hiring foreign nationals through the H, L and O programs will end up being subject to the EAR or ITAR rules. Yet all the petitioners using these visa programs will be required to make the certification. Consequently, the government has chosen to burden 95% of the petitioners in the program whose offered positions to foreign nationals are most likely not subject to export controls! This increases the cost of doing business for all employers using the specified work visa categories, as they will need to hire export control experts just to confirm that checking the box "not subject" under penalty of perjury is accurate and truthful. Normally, employers look across agencies when starting businesses to determine what regulatory schemes apply to their business. Here, the U.S. Department of Homeland Security that regulates immigration matters has brought into the immigration scheme matters traditionally outside its purview, although together with the State and Commerce Departments it has established an export control center.

Employers will need to sign under penalty of perjury two new attestations on the form: that they have reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and have determined that either 1) a license is not required, or 2) that if one is required, the license has been received or the employer will prevent the foreign employee from having access to the restricted technology or data until the license application is approved. In the latter situation, the employer can still file the petition for the foreign national, but the proposed duties that involve exposure to the controlled technology or data, will have to be delayed until the license is approved. False statements carry criminal and civil penalties. There are also penalties for failure to have an appropriate license. Employers should document for their records that they did indeed consult the EAR and ITAR, and how they arrived at their conclusion that a license is not required or should be sought.

Continue reading "Export Control Rules for Work Visas Affect Many to Find a Few" »

The annual 65,000 H-1B cap has been reached as of January 26, 2011. That means for the balance of the fiscal year ending September 30, 2011, no new H-1B visas are available for employers with positions subject to the cap if they want to hire foreign talent between now and the end of September. The fact the cap was reached at all is interesting. In an earlier post, GAO Issues Significant H-1B Report , I noted that the cap has been reached every year except for 2001 to 2003 when the maximum available visas were 195,000. But in every year the maximum cap was 65,000, including this year, the cap has been reached well before the end of the fiscal year. Even in a poor economy when hiring has been slow, it has take several months to reach the cap, but several months are left when employers will be out of luck. Reaching the cap at all means there is still job growth in various sectors and that demand has exceeded the supply. Now that the cap is reached, USCIS will not accept any new applications.

Applications will be received once again beginning April 1 for jobs to begin in the next fiscal year starting October 1, 2011. This means that employers desiring to hire foreign professionals should get their hiring decisions made and applications ready in the next few weeks to be ready for receipt at USCIS on April 1.

The following people can continue to file applications now and the rest of the year as they are not subject to the cap again once already counted. Employers who need to:
* extend the amount of time a current H-1B worker may remain in the U.S.;
* change the terms of employment for current H-1B workers;
* allow current H-1B workers to change employers (unless previously exempt from the cap and transferring to a cap position); and
* allow current H-1B workers to work concurrently in a second H-1B position.

In addition, employers that are nonprofit research institutions, institutions of higher education, government research institutions, and some private sector companies "affiliated with" the preceding types of entities, can petition for foreign workers all year long and are not subject to the cap. We can help you determine whether your entity or position offered qualifies if there is any doubt. However, USCIS is scrutinizing "affiliate" positions and employers lately. Therefore, legal advice is highly recommended.

At the request of Congress, on January 14, 2011, the Government Accounting Office (GAO) issued a comprehensive and quite significant report on the H-1B Specialty Occupation program. Entitled H-1B Visa Program: Reforms Are Needed to Minimize the Risks and Costs of Current Program, the GAO study involved interviews with 34 H-1B company executives, researchers of various types, advocates for several groups, interviews with involved agencies, examination of the data on 150 of the top users of H-1B visas, analysis of available data on wages, filings, complaints and other data sources. Some of the findings and recommendations confirm the legitimate needs and complaints of employers who use or try to use the program, while other points give some credence to issues raised by critics of the program. The GAO makes several legislative recommendations for Congress and recommends actions that the Executive branch or agencies could take. It is a very long and interesting report (118 pages). It attempts to balance sufficient numbers of H-1B workers based on national economic need and a more streamlined easier to use program for employers with the need for more enforcement against abusers and better data to assess the impact on U.S. workers.

Specifically, the GAO report focuses on four main areas: 1) employer demand, 2) how the cap affects employer costs, innovation, R&D, and decisions to move work overseas, 3) worker characteristics and the impact of raising the annual 65,000 cap on visas, and 4) how well the H-1B program protects the jobs of U.S. workers.

Key Findings
From 2000 to 2009, demand has exceeded the annual cap. However, 14% of all H-1B visas issued have been for cap-exempt employees working for nonprofit research institutions and institutions of higher learning, which tend to be large organizations. Of those H-1Bs subject to the annual cap, 1% of the employers using the program accounted for 24% of the cap-counted petitions. Of those few heavy users of the H-1B program, several were headquartered in India and were staffing companies. The top origins of country of birth were India (46.9%), China (8.9%), the Philippines (3.7%), and Canada (4.3%). 40% of H-1B workers were in systems analysis and programming, 7% in higher education, and 35% were in other specialty occupations.

Of the 34 employers interviewed of various sizes in different industries, most said the H-1B program added costs to their business. Smaller companies experienced even greater costs when they were shut out of the H-1B program due to the cap being reached because it became more expensive for them to find other candidates, especially if they had to settle for less qualified applicants who were needed for short and competitive development cycles or key projects. Most companies said their access to talented labor primarily drove their decisions more than the cap did when deciding to move operations or personnel overseas. GAO reported what most H-1B users and prospective users already knew: the annual cap and resulting lottery give employers no predictability for staffing projects or ability to prioritize which employees they would want selected if only a few of their applicants make it through the lottery.

Continue reading "GAO Issues Significant H-1B Report " »

As of January 7, 2011 USCIS reports that 58,700 of the annual 65,000 allotment of cap-eligible petitions have been approved. Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master's degree or higher. Those 20,000 have now been reached.

If the annual 65,000 cap is reached in the next few weeks or months, then a new round of H-1B visas will not be available until October 1, 2011. The application window will open again on April 1, 2011. Not all positions/employers are subject to the cap. Our firm can help with analyzing whether a particular position or employer is subject to the cap. If an employer or position is not subject to the cap, then H-1Bs are available for cap exempt petitions all year long. Whether the cap is reached or not reflects whether employers are hiring and if the economy is improving. In growth years, the cap has maxed out on the first day or within the first few days of the filing season. If hiring levels are poor, then the cap is never reached or it takes much longer to be reached. Since the fiscal year started on October 1, 2010, the cap numbers reflect that there is some growth in the professional level job market despite the poor unemployment figures. H-1B employers are barred from hiring H-1B workers into positions if there were layoffs among those similarly employed within the 90 days before application or within 90 days after the H-1B worker is placed.

U.S. Citizenship and Immigration Services (USCIS) must be thinking positively that the economy will improve soon. It looks like some time next month, USCIS will publish a notice of proposed rule making for a new electronic registration system for H-1B petitions subject to the annual 65,000 cap. In "Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations", USCIS will propose a cheaper way for employers to register for cap-based H-1B visa petitions before they spend the more expensive filing and legal fees to prepare a full-blown H-1B petition. The full petition would be filed only after an employer learns it has been selected for a cap-based petition for a specific employee. The purpose of the rule is to make it easier for USCIS to manage the flood of applications in good hiring years when there is only one or a few days to file for H-1B petitions that reach the annual cap quickly. In years past, when there was a surge in hiring, the annual allotment of H-1Bs were used up in a day on April 1 or within a week or two for jobs that would begin the following October. By contrast, during the last two years when the economy has been poor and hiring has been down, the H-1B cap has not been reached until much later in the fiscal year. (Hmm, would low demand in high unemployment years and high demand in growth years reflect the need for market based numbers rather than arbitrary caps???) Typically in growth years, on April 1, USCIS receives a deluge of applications for jobs beginning the next fiscal year the following October 1. Because the applications all arrive at once, it has been impossible for the agency to determine which applications arrived first and in what order, so USCIS has resorted to a lottery. This makes an employer's ability to hire a foreign worker a matter of luck, rather than predictable need. That means employers cannot plan projects with fast turn-around times or meet deadlines with any predictability. Keep in mind that certain employers or jobs are not subject to the cap, so H-1B petitions can be filed all year long.

Until Congress fixes the cap and removes numerical limitations, or allocates sufficient numbers to meet economic need, even with an electronic registration system, there is no certainty for employers. However, the registration system will reduce the overall costs for employers who try to get an H-1B number but are not successful. It appears the registration system will have a fee of its own, but it will be substantially less than the thousands of dollars incurred to file a full application package. Moreover, the electronic registration system will be designed to identify employers who file more than one petition for the same employee for the same job so they cannot game the system. Assuming the proposed rule comes out in January, it looks like there will be a notice and comment period until March. Employers should stay tuned for publication of the notice and they should be prepared to send in comments.

Today, USCIS announced that employer/petitioners will not be required to complete Part 6 of newly revised Form I-129 until Feb. 20, 2011. Part 6 pertains to Controlled Technology and Technical Data questions. Due to the many inquiries USCIS received from stakeholders about how to answer the questions, USCIS has extended the time in which employers must be able to answer the question.

As I mentioned in my earlier post, Employers Must Know Export Control Rules When Sponsoring Employees, USCIS introduced a substantially revised I-129 form on November 23, 2010. The I-129 form is used for a number of temporary nonimmigrant business visas. Two new export control questions in Part 6 ask employers to verify under oath that they have read the various export control rules and have determined that they are or are not required to have an export license for a particular employee. The questions apply only to petitioners for H-1B, H-1B1, L-1, and O-1A visas. Today is the last day previous editions of the Form I-129, Petition for a Nonimmigrant Worker, must be postmarked. Starting tomorrow, December 23, 2010, employers must use the Form I-129 with a Nov. 23, 2010 revision date or they will be rejected. However, Part 6 with the critical export control questions will not have to be answered until February 20, 2011. The reprieve is probably more useful for employers not normally subject to export control rules because they still have to answer the questions and verify under oath that they are not subject to them. One would think that most companies normally engaged in critical technologies already know if they need export licenses in the normal course of doing business. But some start-up companies may not realize the reach of the rules into the immigration area now.

Beginning December 23, 2010, the new I-129 form goes into effect. This form is used for H-1B, H-1B1, L-1 and O-1A visa petitions concerning professional/specialty occupation, intracompany transferee, and extraordinary ability employees. A new set of questions ask the employer to certify that the employer has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and has determined that either a license is not required or that if one is required, the employer has received the license or that the employer will prevent the foreign employee from having access to the restricted technology until it has the license.

The "export" of controlled technology and technical data by foreign nationals is strictly prohibited without a license. This applies even if the company does not have other exporting activities. Technology is considered "released" for export or a "deemed export" when made available to the foreign national employee through visual inspection, when technology is exchanged orally or is made available by practice or application under the guidance of others with such knowledge. This is a particularly complicated area of law involving several enforcement organizations. Several technology lists may have to be consulted: Export Administration Regulations (EAR), Commerce Control List (CCL), International Traffic in Arms Regulations (ITAR), U.S. Munitions List (USML). The Department of Commerce Bureau of Industry and Security (BIS) administers EAR while the Department of State Directorate of Defense Trade Controls (DDTC) administers the ITAR. Any misrepresentation about the petitioning employer's liability for a license is also a violation of federal law.

Some resources for employers are Export Control Basics, Deemed Exports, ITAR rules and how to apply for a license. As a Seattle immigration lawyer, I am familiar with these work visa categories and new requirements. The export control rules have been around for awhile, but they have previously come up in our practice when preparing for visa interviews at U.S. consulates abroad where higher level security checks are run on visa applicants whose work may involve export technology issues. Periodically, my clients and colleagues in the field have experienced additional visa processing delays due to the Technology Alert List, which can trigger higher level security checks. The new forms, however, require the employer to become more involved in the issue earlier in the process, although they should be dealing with export license issues in the regular course of business if subject to the rules. Now, employers not dealing with sensitive technologies will have to know the rules because they must verify and certify under penalty of perjury that they are indeed not subject to the licensing requirements.

The H-1B cap is getting closer to reaching annual limits. As of November 26, 2010, for FY 2011, the H-1B Cap is as follows: 50,400 of the annual 65,000 allotment of cap-eligible petitions have been approved. 18,400 of the additional 20,000 U.S. masters degree exemptions have been used. If the annual caps are reached in the next few weeks or months, then a new round of H-1B visas will not be available for jobs beginning this year and next until October 1, 2011. The application window will open again on April 1, 2011. Not all positions/employers are subject to the cap. Our firm can help with analyzing whether a particular position or employer is subject to the cap. If an employer or position is not subject to the cap, then H-1Bs are available for cap exempt petitions all year long. Whether the cap is reached or not reflects whether employers are hiring and if the economy is improving. In growth years, the cap has maxed out on the first day or within the first few days of the filing season. If hiring levels are poor, then the cap is never reached. Since the fiscal year just started on October 1, 2010, the cap numbers reflect that there is some growth in the professional level job market despite the poor unemployment figures. H-1B employers are barred from hiring H-1B workers into positions if there were layoffs among those similarly employed within the 90 days before application or within 90 days after the H-1B worker is placed.

11/26/2010

A new I129 Form will be introduced and published on November 23, 2010, the same date the filing fees increase from $320 to $325.00 for the base fee, and from $1000 to $1225.00 if premium expedited processing is requested. The form is used for several non-immigrant categories including E-1/E2, E-3, H-1B, H-2A, H-2B, the expired H-2C registered nurse, H-3, L-1, O, P, Q, R and TN. On top of the base fee for each of these categories there are fraud and training fees that vary by category, employer size and other requirements. Fraud fees were increased from $750 to $2000 back in August 2010 for certain H-1B petitioning firms with 50 or more employees and 50% of the workers on H-1B and L1 visas. There is also an optional M-735 H-1B Processing Sheet to help work out which fees are due and who is subject to the annual cap (maximum annual limit on H-1B visas).

U.S. Citizenship and Immigration Services (USCIS) will accept previous editions of the I129 form for 30 days or until December 22, 2010. Thereafter, the new form must be used. Consulting counsel about which form to use in the next 30 days is advised because there could be strategic reasons to favor one form over the other in light of the new questions being asked described in more detail below.

New Features in the Final Form

A. Off-Site Work
The final general form for all categories now includes the questions whether an itinerary is attached and whether the employee will "work off-site," which has different ramifications and rules for different categories. The H supplement form includes three new questions about off-site work including that the employer certifies it will comply with off-site work rules, including payment of the appropriate wage.

B. Export Controls
The new form includes new questions about export controls, and clarifies that the questions only apply to H-1Bs, L-1s and O-1 beneficiaries. Two questions ask the petitioner to check whether or not an export control license is required for the technology or technical data the petitioner will release or will otherwise provide access to the beneficiary. The employer must certify it has reviewed Export Administration Regulations and International Traffic in Arms Regulations, and that if a license is required, the beneficiary employee will not have any access to the controlled technology or data until the license is obtained. Although we had to know something about this area before, usually in the context of consular processing of visa applications and related security checks, now immigration lawyers get to become, or work with, export control specialists since every client will need to certify that they are or are not subject to the rules. Meanwhile, it is no coincidence that these questions appear on the form at the same time the U.S. Department of Homeland Security (DHS) announced it has funded and will manage a new Federal Export Enforcement Coordination Center (Center) that will be a multi-agency law enforcement organization.

Continue reading "Revised H-1B Forms and Increased Fees Effective November 23, 2010" »