Business Immigration Weekly June 8, 2009 MFEM Attorneys Attend AILA Annual Conference Three attorneys from Masuda Funai s Immigration Group recently attended the annual American Immigration Lawyers Association s (AILA) National Conference in Las Vegas, Nevada. The following are some highlights from the Annual Conference: The USCIS has reorganized its liaison function with its different stakeholders. Stakeholders (including AILA) will only be able to directly contact the USCIS for assistance after the attorney of record, employer or applicant first contacts the National Customer Service Center (NCSC) to submit an inquiry. If the attorney of record, employer or applicant does not receive a response from the inquiry after 30 days, the attorney, employer or applicant may then contact the specific USCIS Service Center at a special e-mail address. After allowing the service center an additional 30 days to respond to the e-mail inquiry, the stakeholder s liaison may then contact the appropriate service center directly for assistance. The USCIS did indicate that it will accept more immediate inquiries from the stakeholders in emergent situations. The USCIS Fraud Detection and National Security (FDNS) will be expanding the number of audits and site reviews that it completes. The FDNS is now contracting with independent contractors to complete random site visits on petitioners and applicants who have filed various petition types. The USCIS would not specify which petition types will be receiving greater scrutiny. However, it was indicated that the USCIS has a significant amount of funding for this new program. It is uncertain as to what will be done with the information gained during the site visits. The USCIS would not directly comment on the increased site visits by FDNS other than stating that this is a continuing part of USCIS mission to reduce and eliminate fraud in all of its programs. U.S. Customs and Border Protection (CBP) indicated it is now processing Freedom of Information Act (FOIA) requests within 20 business days. The U.S. Department of State (DOS) indicated that its MANTIS security clearances for individuals who are believed to be working on certain sensitive technologies should now processed within one month or less. The DOS stated that it recently instituted a new Security Advisory Opinion (SAO) procedure which should significantly reduce the security clearance processing time. The USCIS indicated that it has a five-phase plan for implementing filings through a lockbox and not directly through its service centers. The USCIS currently indicated that it is in Phase 2 of this five-phase plan. Ultimately, within the next three years, all petitions filed with the USCIS will be filed at a lockbox location. The USCIS indicated that Phase 3 of the plan should be implemented within the next year and will require that all Form I-129 Petitions for a Nonimmigrant Workerbe filed at a lockbox location and not through a specific service center. The USCIS indicated that it plans for all of its petition types to be within normal processing times by September 30, 2009. In late 2007, the USCIS developed a surge response plan due to the tremendous number of filings that the USCIS received in the summer of 2007. The USCIS is currently shifting petitions based upon service center capacity. The USCIS indicated that the California Service Center (CSC) has a tremendous amount of capacity and thus it has shifted more than 40,000 Form I-751 petitions to this center. The USCIS also indicated that individually filed Forms I-130 will be shifted in the future from the California Service Center to its field offices for adjudication. The USCIS has indicated that it will not be issuing transfer notices to petitioners or applicants when Masuda Funai s Business Immigration Weekly is provided as a free service of the firm regarding legal developments. It is not a substitute for legal counseling and may constitute advertising material. 2009 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved.
a case is transferred because it does not believe that the transfer will ultimately affect the beneficiary and may cause more concern than necessary. The USCIS has indicated that it will be issuing national guidance on the processing of H-1B petitions for all types of consulting companies within the next few weeks. The USCIS would not indicate what will be contained in this guidance. However, it appears that the USCIS may want to more uniformly and aggressively review H-1B petitions filed by of consulting companies. The USCIS recently issued a Memorandum providing guidance to its service centers about the processing of H-1B petitions for physical therapist, occupational therapist and other healthcare workers that require licensure. Prior to the issuance of this memorandum, the USCIS CSC was routinely denying H-1B petitions for physical therapist and occupational therapists who did not possess Master s Degrees based upon its interpretation of the U.S. Department of Labor s (DOL) Occupational Outlook Handbook. The guidance from USCIS headquarters indicated that its officers should not solely rely upon the OOH but instead should rely on state licensure requirements. For those H-1B cases that were denied prior to the issuance of this guidance, the USCIS CSC indicated that it will accept a Motion to Reopen outside of the 30 day filing window so that it can adjudicate the H- 1B petition based upon the new guidance. However, the CSC indicated that the USCIS filing fee of $585 will be required to be submitted with the motion. After many attorneys indicated that this does not seem to be appropriate because the cases were denied due to USCIS error, USCIS national headquarters staff indicated that they would review the issue again before guidance about how employers should file the Motion to Reopen. The CSC indicated that its approval rate for O and P nonimmigrant petitions is around 91%. The USCIS indicated that it will be reinstating Premium Processing for most Form I-140 petitions (excluding EB-1 Multi-National Managers and Executives and EB-2 National Interest Waivers) by the end of the summer 2009 when its Form I-140 backlog has been eliminated. The USCIS Nebraska Service Center (NSC) indicated that adjustment of status applications filed by dependent spouses who have been married for less than two years to the principal applicant must include evidence of the bona fides of the marriage with the initial adjustment of status filing. The USCIS indicated that it is currently pre-adjudicating all employment-based adjustment of status applications pending with its service centers. The USCIS stated that it has currently completed the pre-adjudication of 110,000 employment-based adjustment of status applications. The USCIS also indicated that it believes that it will complete the pre-adjudication of all its pending adjustment of status applications by the end of August. As part of the pre-adjudication process, the USCIS has requested visa numbers from the DOS Visa Office. Each year the government may issue 140,000 employment-based immigrant visas. The USCIS stated that by the end of August when its pre-adjudication has been completed, it believes that it will have requested all of the employment-based immigrant visa numbers for the next fiscal year. However, individual countries may not receive more than 7% of the available immigrant visa numbers each year. Therefore, the DOS has indicated that most of the currently retrogressed employment-based immigrant visa categories will very slowly advance during the next fiscal year. However, the USCIS indicated that there should not be a repeat of the July 2007 Visa Bulletin when all employment-based categories became available because the DOS Visa Office will now know the exact number of adjustment of status applications pending with the USCIS. A foreign national who applies for a nonimmigrant visa and who is determined to be inadmissible to the United States may apply for a nonimmigrant visa waiver. The waiver is initially reviewed by the U.S. Consulate abroad and the U.S. Consulate determines whether to recommend the approval of the waiver to the USCIS Administrative Review Office (ARO). If a waiver is recommended by the Consulate, the ARO adjudication time is normally 14 days. If the recommendation is not made, the applicant may apply for review through the DOS Visa Office. 2009 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 2
However, the Visa Office normally does not overturn a Consulate s decision. If the applicant is Canadian and thus visa exempt, the processing times through the ARO are longer. It normally takes 60 to 90 days for the ARO to review a waiver application filed by a Canadian applicant at a port-of-entry. The DOL s Wage Hour Division is increasing its number of investigators by 250 within the next year with a focus on the H-1B Labor Condition Application (LCA) program. The DOL indicated that it is concerned about the availability of U.S. workers in the PERM program due to the fact that the current unemployment rate is 9.4%. The DOL stated that it is currently subjecting petitions for a Financial Analyst in the New York area to supervised recruitment. Of those petitions subject to supervised recruitment so far, 45% have been denied, 25% have been withdrawn and 15% have been approved. The DOL is currently creating a new business line at its Atlanta National Processing Center for PERM supervised recruitment. It will begin hiring for this new line within the next 4-6 weeks and it plans to implement this new business line prior to October 1, 2009. When this new business line is created, it is assumed that the number of supervised recruitments in the PERM process will significantly increase. The DOL indicated that it is opening a new office in Washington, DC which will focus on Helpdesk requests and will be reviewing and issuing all prevailing wage determinations. The DOL stated that this office should be staffed and functioning by late fall. The DOL stated that its new icert system has been available since April 15, 2009. It stated that 3,000 accounts have already been created in the system. It stated that as of July 1, 2009, the current LCA system will be deactivated. However, the DOL will continue the current system for approximately one year so that employers can withdraw LCA applications previously filed through this system. After this system is deactivated, the DOL stated that it will provide guidance about how to withdraw previously filed LCAs. The DOL stated that the icert system will experience an outage on August 14, 2009 for enhancements to the system. One of the enhancements will be the inclusion of a withdrawal function for LCAs filed through the system. The DOL stated that eventually all foreign labor certification applications will be included in the icert system. The highest priority currently is to create a prevailing wage system within the icert system by January 1, 2010. After this functionality is introduced, the DOL will create an H-2B module in the icert system. The DOL stated that it is uncertain as to when the H-2B module will be added to the system. The DOL stated that it will be delaying the implementation of PERM processing through the icert system. The DOL stated that it is uncertain as to how long the delay of the implementation of the PERM module will be. Previously, the DOL stated that it will be rolling out the PERM functionality in September 2009. The DOL again confirmed that it will take at least seven working days for the processing of an LCA through the icert system. However, if in an LCA is pulled for additional review, there is no guaranteed processing time. One reason why an LCA may be pulled from the normal processing stream is due to the fact that an employer has filed a significant number of LCAs with the DOL and has not indicated that it is H-1B dependent. However, the DOL would not comment on which factors will automatically pull an LCA from the normal processing stream. The DOL stated that it currently has 56,000 pending PERM applications. 54% of these applications are pending for final review. 38% of the applications are pending for audit review. 6% are pending for appeals. The DOL is now including current processing times on the home page of the icert system. However, the DOL indicated that these processing time frames are based upon the latest filing date pulled by at least one of the analysts at its national processing centers. The dates do not indicate completion dates and thus there may be a three to four month discrepancy between the date on the DOL s website and the date on which some of the analysts are currently processing. 2009 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 3
The DOL stated that prevailing wage requests through the H-2B program must now be filed through the DOL s national processing center in Chicago. The DOL currently has 1,000 requests pending. The DOL has received approximately 1,400 applications. The DOL is currently taking approximately 30 days to review prevailing wage requests. When the new DOL center in Washington, D.C becomes active and prevailing wage requests are determined through the center, the DOL still would not commit to a lesser processing time. Therefore, the DOL strongly suggested that employers file prevailing wage requests as soon as possible. The USCIS stated that as of June 1, 2009, it has received 45,800 H-1B quota cases. However, the USCIS stated that it will still be reengineering the H-1B quota process for the next fiscal year even though the quota was not reached this year during the initial filing period. In the reengineering process, employers will pre-register for the H- 1B quota. The USCIS will then notify the winners of the H-1B random selection process and these employers will then submit their winning H-1B petitions to the USCIS. The USCIS is currently upgrading the Permanent Resident Card. Therefore, the processing of current Permanent Resident Cards will be delayed in the upgrade process. The USCIS indicated that the new cards may include biometric chips. The USCIS confirmed that it does not have a current time frame for the release of a regulation requiring foreign nationals with permanent resident cards without expiration dates to obtain new Permanent Resident Cards. The USCIS indicated that it will be implementing its Transformation Program within the next two years. As part of this program, employers and applicants will be filing their petitions with the USCIS on-line. The USCIS indicated that it will begin with naturalization applications. After the naturalization application process is implemented, the USCIS will then proceed to nonimmigrant visa applications. The on-line processing will require credit card payments and it will an account-based system. The government has created a Directorate of National Intelligence. Different law enforcement agencies participate in this Directorate. The DOL s Wage and Hour Division provides information about the results of its audits to this Directorate. Immigration and Customs Enforcement (ICE) can review information provided by the DOL to the Directorate with the DOL s knowledge. ICE may commence its own investigation of an employer based upon the information provided by the DOL to the Directorate. ICE is currently data mining the E-Verify system for compliance trends with employers. ICE may use information from the E-Verify system as part of an audit even if the E-Verify system subcontractors has indicated all of an employer s employees are employment authorized. The E-Verify requirement for certain federal contractors and has been postponed again until September 8, 2009. It is currently believed that within this current postponement period, the U.S. Department of Homeland Security (DHS) will modify the applicable regulation to remove the requirement that existing employees assigned to the contract must have their employment eligibility verified through the E-Verify system. It is assumed that when this requirement is removed, the government will then proceed with the implementation of the E-Verify requirement for certain federal contractors and sub-contractors. MFEM NEWS: Mr. Bob White of the Firm s Immigration Group is Appointed to the AILA Verification and Documentation Liaison Committee Mr. Bob White of the firm s Immigration Group has been appointed to the American Immigration Lawyers Association s (AILA) Verification and Documentation Liaison Committee. This committee coordinates and responds 2009 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 4
to Interior Enforcement audits and raids conducted by Immigration and Custom Enforcement (ICE), U.S. Citizenship and Immigration Service s (USCIS) Fraud Detection and National Security (FDNS) Division, the USCIS E-Verify program and the DOL s Employment Standards Administration (ESA). Due to the significant increase in the number of audits being conducted by the USCIS FDNS and the DOL ESA s Wage and Hour Division, the Committee has created a Working Group to specifically address the issues arising from the audits being conducted by these divisions. Mr. Bob White will be co-coordinating this Working Group on behalf of AILA. For more information about this or any other immigration law topic, please contact Bob White at 847.734.8811 or via email at rwhite@masudafunai.com. Weekly Immigration Updates are provided in the Immigration Group Section of our Firm s website at www.masudafunai.com. About the Immigration Group The Immigration Group of Masuda Funai provides immigration representations to publicly traded companies, privately held corporations, educational institutions, notfor-profit organizations and foreign nationals in business immigration matters. As one of the larger immigration groups in the United States, we annually file more than 2,500 petitions on behalf of approximately 275 different corporate employers from such diverse industries as automotive-related, computer consulting, machine tool manufacturing, electronics, construction and equipment, banking and financial, health care and high tech. Attorneys in the Immigration Group include: About Masuda Funai Masuda Funai is a full-service law firm representing international and domestic companies operating and investing in the United States. Our 45 attorneys located in Chicago, Schaumburg and Los Angeles counsel clients in every aspect of business, including establishing, acquiring, and financing operations; ownership, development and leasing of real estate; transfer of overseas employees to the U.S.; employment, labor, and benefits counseling and dispute resolution; intellectual property, copyright and trademark; business litigation; creditors' rights and business risk management; structuring the distribution and sale of products and services throughout the U.S.; and estate planning and administration. Kathleen M. Gaber, Chair Esther Contreras Bryan Y. Funai Colin Hara Eldon H. Kakuda Dayne Kono Stephen M. Proctor Fazila Vaid Robert S. White CHICAGO 203 North LaSalle Street Suite 2500 Chicago, Illinois 60601-1262 TEL 312.245.7500 FAX 312.245.7467 LOS ANGELES 19191 South Vermont Avenue Suite 420 Torrance, California 90502-1051 TEL 310.630.5900 FAX 310.630.5909 www.masudafunai.com SCHAUMBURG 1475 East Woodfield Road Suite 800 Schaumburg, Illinois 60173-5485 TEL 847.734.8811 FAX 847.734.1089 2009 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 5