Archive | May 2012
May 30, 2012  

H-1B Fiscal Year 2013 Cap Count – As of 05/25/2012

FY 2013 H-1B Cap Count 
Cap Type  Cap Amount  Cap Eligible Petitions   Date of Last Count
H-1B Regular Cap 65,000 48,400 05/25/2012
H-1B Master’s Degree Exemption 20,000 17,500 05/25/2012

 

May 24, 2012  

Tech firms triple their recruitment rate for H-1B workers, H-1B visa opponents find their voices again

An accurate and balanced article by Matt O’Brien of the San Jose Mercury News indicates that IT firms’ hiring of H-1B workers has tripled this year, a fact that doesn’t yet indicate a thing to Kim Berry, H-1B opponent and president of the Programmers Guild.  Mr. Berry instead quickly moves to politicize the discussion by characterizing H-1B workers as “cheaper not better,” and by referring to H-1B employers as “penny pinchers.”

Mr. Berry is either uninformed or conveniently ignoring the fact that H-1B employers can pay an initial government fee of up to $5,550.00 to file one H-1B petition on behalf of a foreign professional.  This amount does not include attorney fees or any guarantees.  Mr. Berry’s statements also do not take into consideration the many intellectual and business contributions that H-1B and ex-H-1B workers have made to better his home State of California.

Mr. O’Brien’s article includes a succinct description of President Obama and Mitt Romney’s views on the H-1B program. “Romney’s economic plan proposes raising the visa caps for highly skilled foreign workers,” while President Obama “has not articulated any major changes to the H-1B program.” The latter statement could also have read: ‘…no more major changes have been articulated beyond the near doubling of H-1B filing fees for certain firms, as implemented by this Administration’s Public Law 111-230, and the unchecked increase in unjustified denials, audits and requests for evidence issued of late by the USCIS and US Consulates.’

– Ashwin Sharma, Esq.

May 24, 2012  

USCIS Issues Precedent Appeals Decision on P-3 Nonimmigrant Visa Petition

Via USCIS

WASHINGTON—U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) today issued a binding precedent decision addressing the term “culturally unique” and its significance in the adjudication of petitions for performing artists and entertainers.

In the case at issue, the Skirball Cultural Center filed a P-3 nonimmigrant petition on behalf of a musical group from Argentina that was denied a performing artists’ visa for failing to establish that the group’s performance was “culturally unique” as required for this visa classification. Due to the unusually complex and novel issue and the likelihood that the same issue could arise in future decisions, the decision was recommended for review.

USCIS’s AAO approved the petition after its review of the entire record, which included expert written testimony and corroborating evidence on behalf of the musical group. The regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination. The decision clarifies that a “culturally unique” style of art or entertainment is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.

Precedent decisions support USCIS’s commitment to consistency in the administration of immigration benefits. This is the third precedent decision issued since late 2010. Selected and designated as precedent by the Secretary of the Department of Homeland Security (DHS), with the Attorney General’s concurrence, precedent decisions are administrative decisions that are legally binding on DHS components responsible for enforcing immigration laws in all proceedings involving the same issue.

May 23, 2012  

USCIS issues (late) notice on Temporary Delays in Issuance of I-129 Receipt Notices

Via USCIS

“Due to the high number of recently filed I-129 petitions with USCIS, customers may experience a longer than usual period of time to receive a receipt notice from USCIS. Usually, customers can expect to receive their receipt notice within 30 days of delivery confirmation. However, due to an unexpectedly high volume of I-129 petitions, it may be an additional two to four weeks before customers receive a receipt notice.

Customers who do not receive notification of receipt of an I-129 petition within 60 days of their delivery confirmation date may contact the appropriate Service Center via the email addresses listed on our Contact Us Web page. This is a temporary situation and we apologize for any inconvenience this may cause. “

May 23, 2012  

H-1B Fiscal Year (FY) 2013 Cap Count – As of May 18, 2012

FY 2013 H-1B Cap Count 

Cap Type 

Cap Amount 

Cap Eligible Petitions  

Date of Last Count

H-1B Regular Cap 

65,000 

42,000

05/18/2012

H-1B Master’s Degree Exemption 

20,000

16,000

05/18/2012

 

May 22, 2012  

USCIS Launches Online Immigration System, USCIS ELIS

Via USCIS

WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) today launched the first phase of its electronic immigration benefits system, known as USCIS ELIS. The system has been created to modernize the process for filing and adjudicating immigration benefits. 
“Today marks a significant milestone in our agency’s history,” said USCIS Director Alejandro Mayorkas. “We have launched the foundation for the web-based future of our agency and our immigration benefits system. USCIS ELIS will transform how we interact with our customers and how we manage the 6-7 million applications we receive each year.”
 
This initial launch brings the agency closer to realizing the future of immigration services. Beginning today, individuals can establish a USCIS ELIS account and apply online to extend or change their nonimmigrant status for certain visa types. Eligible individuals include foreign citizens who travel to the United States temporarily to study, conduct business, receive medical treatment, or visit on vacation. USCIS ELIS will also enable USCIS officers to review and adjudicate online filings from multiple agency locations across the country.
Historically, USCIS customers have had to apply for most benefits by mail and USCIS employees then review paper files and ship documents between offices to complete their adjudication. Today’s launch signifies an important step forward and is the first of several releases. Future releases will add form types and functions to the system, gradually expanding to cover filing and adjudication for all USCIS immigration benefits.
This important transition for America’s immigration benefits system will take time and continued dedication to fully implement. Following this first release, USCIS anticipates making adjustments and improvements in response to user feedback. This process will enable USCIS to continually enhance the user experience for both customers and USCIS employees. It will also allow the agency to smooth the transition to electronic filing over time, mindful of those individuals without computer access and the agency’s commitment to serve our diverse customer base.
Benefits of using USCIS ELIS include filing applications and paying fees online, shorter processing times, and the ability to update user profiles, receive notices, and respond to requests electronically. The system also includes tools to combat fraud and identify national security concerns. 
Mayorkas attributed today’s successful launch to the steadfast dedication of the USCIS workforce. “USCIS employees believe in the transformation of our agency from a paper-based to an online environment. It is through their vision, unwavering commitment, and hard work that we have reached this important milestone,” Mayorkas said.
Visit www.uscis.gov/uscis-elis to take a tour of the new system, learn about eligibility and the benefits of using USCIS ELIS, and find frequently asked questions.
May 1, 2012  

Information on Consulates’ use of 221(g) refusals

Section 221(g) of the INA allows consular officers to issue a temporary refusal of a visa petition in cases where an otherwise eligible visa applicant is missing a specific document, or in case where a consular officer concludes that additional security clearance measures are warranted. Consular officers utilize 221(g) to allow applicants the opportunity to supplement their applications to overcome a visa denial.  Once the deficiency is satisfied, or the concern resolved, 221(g) refusal is “overcome” and the visa may be issued.  
In practice, the following are some situations that often give rise to a 221(g) refusal: 
1. Additional support documents are required, such as proof of local employment; 
2. An applicant is employed in a field listed on the Technology Alert List and the consular officer requests a Visas Mantis Security Advisory 
Opinion (“SAO”). (Common in India, China and elsewhere where applicants are advised that their applications require “administrative processing.”) 
3. The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the statutory grounds of inadmissibility. 
4. There are no empty visa pages in the applicant’s passport, or the applicant’s photograph is of bad quality.
5. Applicant’s PIMS profile has not been updated.
A consular officer, upon refusing an application under 221(g), will commonly provide the applicant with a refusal letter.  However, it is possible that an applicant may be temporarily refused under 221(g) and not know it.  
The use of 221(g) is growing extremely common; the US Department of State has suggested that such refusals are overused by consular officers.  According to the Report of the Visa Office, in FY 2008 a staggering 589,000 221(g) refusals were issued against nonimmigrant visa applications.  About 87% of these were eventually overcome and visas were issued.
221(g) impacts subsequent visa applications because a client must indicate yes to the DS form question, “Have you ever been refused a US Visa?”.  Even a 221(g) that was caused by something as insignificant as a PIMS database issue is still considered, technically, a refusal.