MASTER'S DEGREE H-1 CAP FILING UPDATES: CAP WAS REACHED FOR FY 2008. FINAL RECEIPT DATE IS APRIL 20, 2007.
USCIS announced on May 4, 2007 that it has received enough H-1B petitions requesting exemptions from the fiscal year 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.
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. Mark these dates on your calendar and consult your attorney early if you plan to file a petition for FY 2009.
ALTERNATIVES TO H-1Bs
We at the Law Offices of Curtis Pierce have been inundated by calls from HR Directors in the IT world seeking alternatives to H-1Bs. We strongly recommend that you schedule a consultation to discuss your specific case. In some instances, the L-1 can be an option for those who were not chosen in the H-1B lottery. Also, employers may consider sponsoring certain employees for Labor Certification, especially those with a master's degree who qualify for the Employment Based Second Preference category.
COMPUTER GENERATED RANDOM SELECTION PROCESS FOR H-1Bs CONDUCTED BY USCIS: WHAT HAPPENS NOW?
The lead story during the past month for those interested in immigration law has been capped H-1B petitions. For those unfamiliar with events during the month of April, the H-1B quota was exceeded on the first day of filing. Congress allotted 65,000 visas for the fiscal year 2008. The filing day for FY 2008 was April 2, 2007.
USCIS received a staggering 123,480 cap-subject petitions on April 2 and 3. This clearly indicates the inadequacy of the quota. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields such as science, engineering, and computer programming. The Department of Homeland Security and the Department of Labor require U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted, while DOL’s Wage and Hour Division safeguards the treatment and compensation of H-1 B workers.
.On April 13, 2007, USCIS announced that it conducted the computer-generated random selection process to determine which H-1B petitions, subject to the congressionally mandated H-1B cap for fiscal year 2008 (FY 2008), would continue to final processing. Yes, if you filed in a timely manner, you fate lies in the random computer selection.
The 123, 480 cap-subject petitions received on April 2 and 3 were labeled with unique numerical identifiers and selected randomly by computer. The chosen numerical identifiers were then transmitted to the appropriate service center for further processing.
USCIS did not issue receipt notices for all 123,480 petitions received on April 2 and 3. However, it did conduct data-entry and generate (and in some cases actually issue) receipt notices for a portion of cap-subject petition prior to conducting the computer-generated random selection process.
Applicants who submitted properly filed petitions that are accepted for adjudication will receive a receipt notice. All petitions not chosen will be returned with the fees to the petitioner or their authorized representative. The total process is expected to take approximately four weeks.
For the cases initially filed for premium processing, the 15-day premium processing period begins on April 12, the day petitions were selected through the random selection process.
USCIS will return all petitions not randomly selected for processing, with the fee to the petitioner or their authorized representative. Final notification of those petitions is expected to occur in May 2007. In the meantime, what can the petitioner or his attorney do? We all have to wait and rely on the randomness of the selection process.
CONFUSION OVER THE H-1B SELECTION PROCESS
If you are confused over the random computer selection process of cap-subject petitions received by USCIS on April 2 and 3, you are not alone. Has your petition actually been selected for process?
Some cap-subject petitions were data-entered on April 2 and 3, fees were deposited in connection with these petitions and receipt notices on Form I-797 were issued. If this is true in my case, should I be hopeful? Isn’t this a good sign that my petition was accepted for processing? Be cautious in your optimism. USCIS cannot invalidate receipt notices because the fees have been deposited. Petitioners who received receipt notices dated prior to April 12, 2007 cannot 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 subsequently refunded. Those that were accepted for processing will be processed under the original receipt notice.
Some cap-subject H-1B petitions were data-entered on Wednesday, April 4 and receipt notices on Form I-797 were generated, but never issued to petitioners. There is less confusion for petitions in this category. Since 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 for processing will be issued official receipt notices dated on or after April 12, 2007.
A small number of cap-subject H-1B petitions, filed under premium processing, were also data-entered on April 4. E-mail notification acknowledging receipt of these petitions was issued to petitioners. Office receipt notices on Form I-797 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 for processing will be sent a second e-mail confirmation of receipt and will be issued new receipt notices on Form I-797 on or after April 12, 2007.
USCIS WILL RETURN ALL H-1B CAPPED PETITIONS NOT RANDOMLY SELECTED
All H-1B capped petitions not randomly selected for processing by the powers that be (USCIS computers) will be returned, along with the fee to the petitioner or their authorized representative. Final notification of these 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.
ATTENTION RELIGIOUS WORKERS: PROPOSED CHANGES TO R VISAS BY USCIS. A NEW REQUIREMENT IS TO VERIFY THE LEGITIMACY OF THE PETITIONER AND THE JOB OFFER BEFORE THE VISA IS ISSUED.
April 19, 2007
USCIS is proposing significant revision to its regulations related to the special immigrant (SR/SD) and nonimmigrant (R-1) religious worker visa classifications. The proposed rule highlights ways to ensure the integrity of the religious worker program while at the same time streamlining the process for legitimate petitioners.
The Government Accountability Office (GAO) reported in 1999 incidents of fraud in the religious worker program. The report found that fraud often involved false statements by petitioners about the length of time an applicant was a member of a religious organization, their qualifying work experience, and the position being filled. The report also noted problems with the applicants making false statements about their individual qualification and plans while in the U.S.
Currently, non-immigrants may request a religious worker visa at a consular post or a port-of-entry without any prior, stateside review of the petition. One of the key changes to the regulations include an across the board petition requirement that will allow USCIS to verify the legitimacy of the petitioner and the job offer before a visa is issued or the worker is admitted to the U.S.
The rule also reduces the initial period of admission for a non-immigrant from three years to one, giving the agency an opportunity to review whether or not the terms of the visa have been met during the initial year before extending the worker’s stay in the U.S.
USCIS is proposing to amend the standard initial period of stay for nonimmigrant religious workers from three years to one. The revision gives the agency the opportunity to review whether the terms of the R-1 visa have been met.
USCIS is also proposing to add new definitions, or amend current ones, to better describe the statutory eligibility criteria. The rule streamlines the petition process by requiring an attestation and requesting less supporting evidence. The rule includes detailed interpretations of the statutory requirements and clear guidelines for supporting documentation aimed at making the process easier to understand. A few examples are below:
A definition of Denominational Membership is added to clarify how a petitioner can establish that the beneficiary is a member in the same religious denomination as the U.S. employer seeking to employ him or her.
The definition of Religious Occupation is expandedto focus on duties that “primarily, directly, and substantially relates to the religious beliefs or creed of the denomination.” Such a change distinguished between committed religious work and non-qualifying work that, while may be incident to religious duties, cannot be itself warrant classification in the religious worker category.
Ministers are defined as individual duly authorized by a religious denonmination to conduct religious worship and other duties performed by clergy. The proposal adds that the minister must be “fully trained according to the denomination’s standards.
The term Religious Denomination applies to a religious group or community of believers governed or administered under some form of ecclesiastical government.
The proposal amends the definition of Religious Vocation as one referring to a formal lifetime commitment to a religious way of life.
SHOULD FAMILY REUNIFICATION BE SACRIFICED IN FAVOR OF EMPLOYMENT IMMIGRATION?
Until recently, many of us assumed that the value of family reunification would remain the core of future immigration proposals. That is, until a summary of a White House Proposal based on the March 28, 2007 White House PowerPoint presentation was leaked. It detailed an immigration proposal that would cut family visa preferences. In other words, it would eliminate or severely restrict whole categories of family-based immigration in favor of a system that would assign potential immigrants based on age, skills, education, income and other factors. Citizens would no longer be to sponsor siblings and children over 21, and their ability to bring in parents would be severely limited.. The plan could also shut out people who have applied for family visas under current rules are waiting because of long backlogs.
Instead of increasing quotas for both employment and family based immigration, this draft proposal would sacrifice family reunification in favor of education levels and skill levels.
IMMIGRATION ITEMS OF INTEREST
UPCOMING SPEAKING ENGAGEMENTS: CURTIS PIERCE IN PARIS
Attorney Curtis Pierce will speak in France at the American Business School Paris on May 29, 2007 on American Immigration law, focusing on issues of business immigration. The program will be presented in French and will include information on E-2 investor visas and J-1 exchange visas for Europeans seeking to reside in the United States.
Mr. Pierce, who is fluent in French, lived in France in the 1990s when he taught Legal English at the Sorbonne (University of Paris 1).
The American Business School Paris is located on the right bank of Paris at 12 rue Alexandre Parodi, 75010 Paris.
The Citizen’s Almanac by USCIS, April 2007
The USCIS has published The Citizen’s Almanac to be distributed to new citizens after they take the Oath of Allegiance. The book’s purpose is to enhance the naturalization process. This resource of civic history can be appreciated by both the native born citizen and the naturalized one. The Citizen’s Almanac includes both photos and text and described the right and responsibilities of citizens; patriotic anthems and symbols of the United States; presidential and historic speeches; fundamental documents of American democracy, and landmark decisions of the U.S. Supreme Court.
The reader will find this a valuable addition to his or her library. It is useful reference material for the times when one stumbles over the lyrics of the Star-Spangled Banner, debates the Plessy v. Ferguson decision, or confuses the contents of the Declaration of Independence with the Constitution of the United States.
Memorial words and ideas that characterize of nation’s history are found within this document such as President Ronald Reagan’s “Remarks at the Brandenburg Gate”, 1987. My husband often repeats President Reagan words, “…if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization:…Mr. Gorbachev, tear down this wall!”
Update on “Crossing To Safety”: Attorney Curtis Pierce’s Client Featured on the Cover of January 2007 California Lawyer Magazine
If you haven’t read the article “Crossing Into Safety” by administrative law judge Bill Blum, the cover story of January 2007 California Lawyer Magazine, follow this link for the text.
Unfortunately, the compelling cover and interior photos of Curtis Pierce and his client, Ousmane Bathily are not available in this text only version of the story. The story summarizes the flight from the Republic of Congo made by the now 21-year old client, Ousmane Bathily. Mr. Bathily speaks Fulani (a West African language) and French. He is now living in Los Angeles and is working within the immigration court system applying for asylum and is represented by Curtis Pierce.
We at the Law Offices of Curtis Pierce have received numerous emails from readers of our newsletter who were interested in this asylum case.
On April 12, 2007. Mr. Baithily’s case was continued. The final hearing will not be for several months. We will include an update in the following newsletter.
QUOTES FROM THE CANDIDATES: BILL RICHARDSON, DEMOCRATIC GOVERNOR OF NEW MEXICO
The purpose of this feature is to highlight the position on immigration taken by the 2008 U.S. Presidential Candidates. This month we are profiling Bill Richardson, an Hispanic-American who is the governor of a border state with an enormous illegal immigration problem. At a speech at Georgetown University in December of 2006, Bill Richardson stated the importance of incorporating illegal immigrants into the mainstream:
As the California-born son of an American father and a Mexican mother, I have known immigrants all my life and I know why they come to America. And as Governor of New Mexico I have known the problem of illegal immigration all too well -- we live with this issue every day in my state.
Like it or not, these people have become part of the fabric of our economy and our culture. They have broken the law to enter our country, but they are here -- there are millions of them building and cleaning our homes and offices, picking and cooking our food, caring for our children. These men and women are here illegally, but they work hard, pay taxes, and contribute to the communities they live in.
America needs to SOLVE this problem, not tear itself apart over it.
Richardson expresses concern over the undocumented being exploited by employers who do not pay minimum wage, offer no safety standards, no over-time, no protection again and no protection against sexual harassment. He makes the point that many undocumented workers pay taxes, including Social Security and Medicare taxes. In order to find work they must either use someone else’s social Security number or make one up. Since they will never collect benefits, these illegal workers are subsidizing our Social Security and Medicare trust funds with their payroll taxes.
Richardson directly addresses the issue of the sectors of our economy relying on the labor of the undocumented while lawmakers have no serious intent of addressing the plight of these workers:
A nation of laws cannot allow millions of undocumented immigrants to live in the shadows and hundreds of thousands more to enter the country illegally every year. For decades politicians have passed laws on immigration with a wink and a nudge, with no intent of following through and making sure those laws were enforced.
For far too long, the immigration debate has been about electoral politics, not about policy. We need more honest leadership than that. We need to stop exploiting the immigration problem, and start solving it. We need to pass realistic laws and then enforce them rigorously.
Enforcement of the laws of the United States is also on the agenda of Bill Richardson. He is one of the few candidates this writer is aware of who calls for the establishment of a “fraudulent documents take force” to constantly update law enforcement and border officials on the latest fraudulent documents being marketed for entry into the United States.
Richardson is straight forward about the expectations he has of the Mexican government if the U.S. erects a wall:
The Mexicans, after all, also suffer great harm from the lawlessness at the border, from drug smuggling and the simple misery of people trying again and again to get into the United States illegally. But don't expect the Mexican government to do anything if we're going to talk about building a Berlin-style wall and deporting millions of Latinos.
Two weeks ago I met with Mexican President Calderon and he told me he is willing to do work with us to stop illegal immigration -- if the United States is willing to address the crisis honestly and realistically along with him. If we refrain from building the fence (which, as I have said, is a waste of money anyway), I believe that the Mexicans would to step in with real efforts to help us patrol the border more effectively.
Because Bill Richardson is the governor of a border state, his position on immigration is more completely developed than some other candidates. For more information, see Bill Richardson’s websites.
CONGRATULATIONS TO OUR LEGAL ASSISTANT OBDULIA VANESSA PEREZ ON HER GRADUATION FROM THE UNIVERSITY OF SOUTHERN CALIFORNIA
Congratulations to our valued legal assistant Obdulia Vanessa Perez. Vanessa is graduating in May from the University of Southern California’s Marshall School of Business with a Bachelor of Science in Business Administration, concentration in Finance. Well done Vanessa!
Processing Times
· To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.
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