If you are looking for more information on the AG report which was recently released (refer to our post from 1-4-2012) please read the blog post by our friend, Angelo Papparelli, which ILW.com recently ran.
The DOS released the Feb Visa Bulletin and the priority dates for EB2 India and China moved forward by a full year to Jan 2010. The rapid movement over the past several months is due to reports from the USCIS of fewer than expected 485 filings. Future retrogression remains likely if the number of I-485 filings increases. All EB3 categories saw snail like movement forward and the predictions are for more of the same.
On Jan 12th, Mike Hammond will be one of the speakers for a webinar event being sponsored by TechServe Alliance . The topic will be “Utilizing H-1Bs within Your Contingent Workforce: Understanding the Changing Landscape” The webinar is offered to TechServe members only.
As recently reported at www.thedaily.com, the OIG released a report detailing that many rank and file USCIS examiners have faced pressure and even threats of job loss and demotion if they did not follow the policies and instructions of their supervisors including Director Mayorkas. The commentary suggested that those practices were horrible when, in fact, they should’ve been asking the question; “why should rank and file examiners think that their personal interpretations of the law be relevant ?” Rank and file examiners should follow the law, nothing more and nothing less. The complaints of the “culture of no” which many immigration practitioners and employers believe is pervasisve at the USCIS Service Centers, are derived from rank and file examiners who want to be policy makers and legislators instead of performing their jobs as tasked. I applaud the pressure that USCIS HQ is putting on examiners and suggest that more is warranted.
In spite of claims by protectionists (read Senator Grassley), the facts support a claim that immigrants contribute in a major way to US job growth. The NFAP released a recent study touting said facts. Now if only my copy to Senator Grassley’s staff would be read instead of being used as litter box filler, maybe we could see some rational pro business, pro job growth immigration bills get fair consideration.
We knew it couldn’t last and we are sad to report that the US Consulates in Canada have now joined their brethren from Posts in India and Manila in determining that it is their duty as red-blooded Americans to re-adjudicate every issue in an H-1b petition before issuing a visa. The US Consulates are re-adjudicating issues relating to itinerary requirements, Labor Condition Applications, short-term placement rules, employer-employee relationship, the rule of control and supervision created by the Neufeld policy memo, and the validity of employment contracts to name their favorite topics. Attached is the latest emailbeing sent by the US Consulate in Ottawa to end clients (or at least who it perceives to be end clients). The practice of re-adjudication of petitions previously approved by the USCIS is not supported by the regulations but, is being done under the guise of fraud prevention. Errors in interpretation and/or mis-application of DOL and USCIS regulations and case precedent go unchallenged since US Consulates enjoy the protection provided by the doctrine of non-reviewability. It is time for Congress to re-examine this doctrine and allow employers and foreign nationals who are wrongfully denied a visa to go into a Federal Court and obtain redress. Only with the threat of an impartial judge reviewing their actions will the US Consulates stop the witch hunts and follow well-established law and procedure.
In the January Visa Bulletin released by the DOS, EB2 numbers for India and China moved ahead over nine months making priority dates current for all of 2008 and before. It is interesting to note the Bulletin’s comments on the relatively few new I-485′s that have been filed in recent months in spite of the rapid forward movement of dates. I bet if they go ask anyone who had a vacation planned but then cancelled in the summer of 2007, they could explain it to them.
Many people are wondering what caused the H-1b cap to be reached so much more quickly this year. Information that the cap would be met in November, two and a half months earlier than past years, caused many employers to scramble to submit petitions. At the Hammond Law Group, we believe that there are several reasons why the cap was reached at an earlier date. Perhaps most obviously, IT industry groups, such as TechServe Alliance, have noted consistent increases in hiring throughout this year. As a result, many IT organizations submitted an increased number of H-1b petitions this year for foreign workers who they hoped would fill these positions. In addition, the U.S. Consulates in India are denying a large amount of the L-1 visas. By decreasing the amount of L-1 visas available to Indian personnel, many organizations have resorted to using the H-1b visa to ensure that their personnel are able to enter the United States and work. Finally, Department of Homeland Security Secretary Napolitano and U.S. Citizenship and Immigration Services Director Mayorkas announced on August 2, 2011 that foreign entrepreneurs could use non-immigrant and immigrant visas to obtain status in the United States. It is possible that a number of H-1b visas were absorbed by foreign entrepreneurs. While all of these reasons likely contributed to the quick rate at which the H-1b visas were used up, we believe that the high rate of denials of the L-1 visa at U.S. Consulates in India and the increased hiring occurring in the IT industry caused the cap to be reached at an earlier date.
In what has become a holiday tradition, a government agency has announced a fee increase. This time the DOS has published a new schedule for fees applicable to visa issued at Consular posts. If only we could be assured that the Post would apply the law, paying increased fees would not be so bad but, alas, that is but wishful thinking on our part and as likely to happen as Santa coming down a chimney delivering presents !
Last night, the U.S. House of Representatives passed H.R. 3012, the Fairness for High-Skilled Immigrants Act by an overwhelming vote of 389-15. This bill would change the way employment-based (EB) green cards are allocated by eliminating the per country quotas. If the bill becomes law, it will equalize the waiting times for employment based permanent residence, which would result in significant advancement in EB green card availability for India and China. Unfortunately, it would also create retrogression for persons from other countries, specifically those in the EB2 category, who now enjoy a “current” status. The seven percent limit per country would be eliminated by 2015. Instead of separate queues for each country in each employment based green card category, there would be eventually be a single queue for each employment-based green card category.
Until 2015, per-country limits on green cards would still exist, but a certain number of immigrant visas would be immediately allocated to India and China and away from other countries. As a result, priority dates for India and China would quickly advance in the EB-2 and EB-3 categories. However, for other countries EB-2 could retrogress and EB-3 could see further retrogression. By 2015, the EB-2 and EB-3 categories would all be backlogged, but there would be a single priority date for all countries in each category.
Although, certainly not a perfect solution, this bill is a step in the right direction and corrects one glaring defect in the employment based green card system. It is hoped that the positive reaction that this bill received in the House would motivate other immigration bills including: special treatment for STEM and Schedule A occupations, an overall increase in the level of employment based immigration, the elimination of counting dependents toward the overall EB quota, a re-capture of unused immigrant visa numbers from prior fiscal years, and/or a market based approach to the H-1b quota. As this bill is considered by the Senate, it is hoped that further positive amendments could be added.
The bill will not become law until it passes the Senate and is signed by the President. We expect the Senate to take up this bill soon however, no time table has been set. We will keep you updated as developments occur.