As of November 22, 2011, the allotment of 85,000 H-1B work visas for Fiscal Year 2012 (which includes 20,000 visas reserved for those receiving advanced degrees in the US) has been exhausted.  Thus, any H-1B petitions received by CIS after November 22, 2012 will be rejected, with all paperwork and filing fees returned to the filing party.

In the meantime, petitions involving workers that are otherwise exempt from the cap will continue to be accepted, including petitions to:

• extend a current H-1B worker’s status in the U.S.;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in a second H-1B position.

Also exempt from the H-1B cap are prospective workers for various types of not for profit petitioning entities, such as institutions affiliated institutions of higher learning.  In the meantime, most parties interested in pursuing a petition for a new H-1B worker are left having to gear up for April 1, 2012, the first day an H-1B petition can be filed for fiscal year 2013, which starts on October 1, 2012.

PUBLISHED November 23, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

For most government agencies, including Department of Homeland Security’s Citizenship and Immigration Services (CIS), fiscal year 2012 starts on October 1, 2011.  Starting on that date, U.S. employers are able to benefit from a new crop of foreign workers who are issued H-1B work visas.  As early as April 1, 2011, interested employers and foreign workers have had an opportunity to start the process of accessing the annual supply of 85,000 visas – with 65,000 visas in the general supply and 20,000 reserved for U.S. graduate school degree holders – with workers then becoming eligible to commence employment in the U.S. as of October 1, 2011.

As of this writing, the supply of 20,000 visas specifically allotted for US educated advanced degree holders has been exhausted.  However, employers seeking to petition this class of worker still will have an opportunity, as CIS will dip into the general supply of 65,000 to accommodate such a request.  To date, however, the general supply of 65,000 has dwindled down to approximately 20,000.   Based on the increased demand shown for H-1B visas for the current fiscal year (as compared to demand in recent years), I would not be surprised if the general supply of H-1B’s is exhausted by mid-December, 2011, if not sooner.

As a reminder, H-1B visa eligibility is generally premised upon a bona fide job offer in a “specialty occupation” (where the attainment of a university degree is usually required), and the prospective employee must possess a degree or experiential equivalent in the field at issue.  Also, positions with a government agency or not-for-profit organization affiliated with an institution of higher learning (e.g. university) are among the type of jobs that are not subject to the H-1B cap described above.  Further, the H-1B visa cap does not impact those who already have an H-1B visa and are otherwise eligible to extend their status or change H-1B employers.

PUBLISHED October 23, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

CIS has announced new filing locations for a variety of petitions and applications, including:

For I-129F – Petition for Alien Fiance – Now to be filed at:

US CIS, P.O. Box 660151, Dallas, TX 75266

For I-140, Immigrant Petition for Alien Worker – Now to be filed at one of three locations, depending on the basis of the filing and/or proposed location of employment:

a) US CIS P.O. Box 660867, Dallas, TX 75266

b) US CIS, Nebraska Service Center, P.O. Box 87140, Lincoln, NE 68501-7140

c) US CIS, Texas Service Center, P.O. 852135, Mesquite, TX 75185

For I-539 – Application to Extend/Change Nonimmigrant Status – Now to be filed at one of several locations:

a) With some exceptions, most I-539 applications, including applications to extend visitor/tourist (B-1/B-2) status, or to change to F-1 student status, are to be sent to:

US CIS, P.O. Box 660166, Dallas, TX 75266

b) Most dependents of work visa holders are to have their applications to extend their status filed along with the principal applicant’s extension request at either:

•  US CIS California Service Center, P.O. Box 10539, Laguna Niguel, CS 92607-1053 or
• US CIS Vermont Service Center, ATTN: I-539, 75 Lower Welden Street, St. Albans, VT 05479

For certain other, less common, classifications, a different filing address may be applicable. For these addresses, as well as all express mail or courier addresses for the above filings, log on to the US CIS website at www.uscis.gov

PUBLISHED August 4, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

Published: June 26, 2009

Expedited processing, or “Premium Processing,” allows for processing of certain immigration petitions in 15 calendar days or less with the payment of an additional filing fee of $1000. In the past, Premium Processing had been available for most types of I-140 immigrant worker petitions, but eventually Citizenship and Immigration Services (USCIS) discontinued the program for I-140′s for a variety of logistical reasons. Effective June 29, 2009, however, Premium Processing for most I-140 petitions is back on again.

Who files an I-140 petition?
In most cases, it is a petition filed by an employer on behalf of a foreign worker, whether in the U.S. or abroad, to facilitate the worker’s U.S. permanent residence. Usually the I-140 petition must be supported by an approved labor certification application (commonly known as a “PERM application” these days) wherein the employer has documented the unavailability of U.S. workers and the U.S. Department of Labor has “certified” the results. Most PERM applications are filed on behalf of workers in the Employment-Based Third Preference, (EB-3), including certain professionals, skilled workers, and unskilled workers.

I-140 petitions that do not require approved labor certifications include petitions:

• on behalf of Registered Nurses and Physical Therapists (EB-3, “Schedule A”),
• on behalf of aliens of “extraordinary ability” (EB-1, with “self-petitions” accepted), and
• on behalf of “outstanding researchers and professors” (EB-1).

Premium Processing for I-140 petitions in all of the above categories has been reinstated. Premium Processing has NOT been reinstated for I-140 petitions for:

a) certain advanced degreed or “exceptional ability” foreign nationals performing work in the “national interest,” as well as
b) managers and executives of multinational companies are being transferred to the U.S.

Practically speaking, Premium Processing will only be beneficial to employers and employees qualifying under employment-based visa categories with visa availability, such as EB-1 or EB-2 classifications (which include advanced-degree professionals, aliens of “extraordinary ability,” “outstanding” researchers/professors, with the exception of EB-2 workers from China and India). That is because no matter how quickly the I-140 petition is processed, it becomes a “hurry up and wait” scenario for workers in the EB-3 category (including RN’s and PT’s), where the employment visa line has become prohibitive. As a  result, no matter how fast the I-140 is approved, the worker still ends up waiting three, four or even five-plus years for immigrant visa availability and the issuance of the permanent resident card.

However, with each new month comes a new Visa Bulletin from the U.S. Department of State, and visa availability in all employment and family based preferences is updated. So, at the start of any given month, particularly October 1 – when the federal government’s fiscal year begins – significant progress in visa availability for any of the preference categories is possible.

PUBLISHED June 26, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

US lawful permanent residents renewing their Permanent Resident Cards by way of direct mailing of Form I-90 (as opposed to online filing) should pay attention to two important changes.

Firstly, I-90 applicants are now instructed to file their supporting documentation when submitting their application, as opposed to only presenting it when appearing for their post-filing biometrics appointment – as was the procedure previously in place.

Second, all I-90 applications are now to be filed with the following US CIS lockbox:

USCIS
P.O. Box 21262
Phoenix , AZ 85036

or if by courier/express mail:

USCIS
ATTN: I-90
1820 Skyharbor Circle S , Floor 1
Phoenix , AZ 85034

PUBLISHED April 29, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

Foreign nationals seeking to obtain permanent resident status in the U.S. by way of a job offer are usually subject to a process wherein the employer must document the unavailability of ready, willing and qualified U.S. workers to fill the position at issue. The process is initiated by way of an online application, known as PERM, submitted by the employer to the U.S. Department of Labor (DOL). The application is straightforward in its language and lay out, yet complex in its regulatory underpinnings. At the heart of the application is the employer’s attestation that good faith efforts to recruit for the position have been made (e.g., newspaper ads, internet postings, etc) in the previous 6 month period – an attestation that is subject to U.S. Department of Labor audit. And it is in this context where the role of legal counsel becomes so vital, where an employer must feel secure – in case of audit – that their recruiting records fall within regulatory requirements outlining what constitutes a good faith effort at recruitment.

In recent months the U.S. Department of Labor launched well publicized audits of clients of several high profile law firms across the U.S. and most recently issued a “restatement” of their view of the role of counsel in the PERM process. The DOL initiative involves audits of all applications filed by the various law firms due to suspicions that these law firms played too large a role in the recruitment process and in scrutinizing the job applications and resumes received in response to the employer’s recruitment efforts.

At least one of the firms fought back and sued the Department of Labor for what it saw as the unfair singling out of their firm and clients since the actions of their attorneys, according to the lawsuit, were entirely within the realm of permissible and appropriate counsel in the PERM context.

It appears that what was at the root of the DOL’s concern was law firm activity in playing a significant role in the preliminary review of job applicants seeking to fill the job that was the subject of the PERM application. Such a prominent role by an attorney at that early stage of the process was thought to be improper and too great a departure from how an employer would ordinarily go about recruiting for a position. As the restatement sets forth: ” the employer, and not the attorney or agent, must be the first to review an application for employment and must determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for the positions for which labor certifications are not file”.

In response to the lawsuit, the Department of Labor looks to have softened their stand a bit. In their “restatement”, the DOL takes a step at formally recognizing that the rules governing the PERM process are anything but simple, and that the procedures used by an employer to comply with the PERM rules in carrying out their recruitment and scrutiny of applicants are not necessarily “normal” or typical. Thus, according to DOL, it would not be unreasonable to seek legal counsel in addressing certain legal questions such as, what would constitute a lawful basis to reject a particular candidate for a position that is the subject of a PERM application. The DOL, in that regard states, “attorneys may … provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations and policies”.

For the complete text of the DOL’s policy statement, see http://www.foreignlaborcert.doleta.gov/pdf/PERM_Guidance_Final_082908.pdf

PUBLISHED September 5, 2008 - “IMMIGRATION LAW FORUM”
Copyright © 2007-2008, By Law Offices of Richard Hanus, Chicago, Illinois

Unless the worker has a Master’s Degree or equivalent AND generally, is in lawful immigration status (if in U.S.), the answer is NO. The discussion below is mainly a response to the common misconception that quick PERM processing necessarily means quick permanent residence/green card processing.

Firstly, what is PERM? PERM stands for PROGRAM ELECTRONIC REVIEW MANAGEMENT, and is the online application for alien labor certification – an application filed with the U.S. Department of Labor by an employer to facilitate U.S. permanent residence on behalf of a worker. In sum, as set forth in the application, the employer attests to their good faith efforts to recruit U.S. workers for a particular position and that those efforts failed to yield qualified candidates.

The type of recruitment activities required varies with the position at issue. For professional type positions, the mandatory recruitment steps consist of two (2) print ads in a newspaper of general circulation for the city at issue, a 30-day job order with a federal job bank, a Notice of Filing to be posted onsite, as well 3 additional steps from the following list:

1) job fair, 2) employer’s web site, 3) other job search website, 4) on-campus recruitment, 5) trade/professional organization ad, 6) private employment firm, 7) employer’s referral program with incentives, campus placement office, 9) local and ethnic newspapers and 10) Radio/television ad.

For ordinary (non-professional), skilled/unskilled positions, a similar recruitment plan must be employed, although the “3 additional steps” need not be taken.

The U.S. Department of Labor will review the application and will generally issue one of the following responses within 10 to 90 days: 1) an approval, 2) a denial – due to some substantive or technical error in the application, or 3) a notice of audit, with the U.S. Department of Labor stating its intention to review all recruitment activities attested to, and the results of those activities.

Pursuant to regulations, and given the nature of the attestations included in the application, employers must maintain a file documenting their efforts to recruit for the position, and how each of the candidates submitting resumes or applications fell short of the stated requirements for the job. However, it is only in the event of an audit that these efforts will ever be reviewed by a government official.

After a PERM application is approved – and again, that may take only 10 to 90 days, steps 2 and 3 of the immigration process still have to be completed.

Step 2: I-140 – Immigrant worker petition filing with CIS. This filing, among other requirements, involves proving the financial stability of the petitioning employer, and the employee’s qualifications to fill the position. Processing time is usually 90 to 180 days.

Step 3: Permanent residence processing via adjustment of status (for those already in the U.S.) or consular processing (for those residing overseas). This is where the big wait takes place since the parties do not reach this step until “visa availability” is established. For most workers, who are categorized as Employment Based Third Preference or “Other Workers”, the wait between steps 2 and 3 is approximately 3 years. For those qualifying for the Employment Based First or Second Preference, by virtue of their “extraordinary abilities” or graduate university degree (or equivalence), there is no wait between steps 2 and 3 – (excluded from the discussion are Chinese and Indian nationals who are subject to longer waits due to visa demand from these countries). Thus, cases that qualify for EB 1 or 2, may get completed in less than 1 year. Those that do not, may involves processing times of 3 or 4 years, or more.

Additional notes: if the worker is in the U.S., he/she will be eligible for adjustment of status only if they are in lawful immigrant status, OR if out of status, they are covered under Section 245(i) (where, in general, they had been the subject of a family-based or employment based petition or labor certification application submitted prior to April 30, 2001).

Lastly, the above discussion does not pertain to many other types of workers, including registered nurses, physical therapists, religious workers, and international corporate managers/executives, professional athletes – all of whom are included in separate immigration categories and subject to different rules.

The new, expedited online labor certification procedure known as Program Electronic Review Management (“PERM”) has been implemented, and immigration law practitioners across the US are starting to see results.

As background, labor certification is the first step in most job based permanent resident (green card) filings, with employers being required to document that U.S. workers are unavailable to perform the job at issue. With PERM, employers submit their filing online with the U.S. Department of Labor and pledge that they have taken steps to recruit for the position at issue, but that their efforts have not yielded results. Such recruitment steps include advertisements in newspapers and/or periodicals, online job postings and listings in state unemployment office databases – and the requirements for any particular filing will vary depending on the nature of the position at issue.

Unlike the conventional labor certification program previously in effect, there is no contemporaneous governmental supervision of the recruitment steps or scrutiny of the accuracy of the recruitment results. Instead, all PERM filings are subject to after-the-fact audit, with employers being threatened with sanctions should the information provided in their online filings be found to be false.

In a PERM filing, an employer outlines his recruitment efforts over a 6 month period, and within 14 to 90 days, the employer can expect to receive a decision on their application. In the early stages of the PERM program, not unexpectedly glitches in the governmental software program have led to a few processing problems. Those glitches are slowly but surely being addressed, and it seems PERM may eventually live up to its promise of being an efficient and effective tool for employers and their foreign workers.

Most foreign nationals seeking U.S. permanent residence, or a “green card”, typically acquire their status by way of a petition of a U.S. relative. The second most common avenue toward permanent resident status, however, is a job offer by a U.S. employer – and the rules governing the processing of employment based immigrant filings are about to change.

For most employment based immigration filings, U.S. Department of Labor (DOL) approval of a labor certification application is required. With its approval, the DOL is confirming that the employer has satisfactorily proven that a test of the U.S. labor market revealed that U.S. workers are unavailable to fill the position at issue. And usually, the test of the labor market took place by way of a recruitment effort (usually consisting of print advertisements in local papers) that was supervised and intensely scrutinized by local state employment agencies such as Illinois’ Department of Employment Security. And because the traditional labor certification process has historically been riddled with delays (3 + years processing times) and complications, a proposal to simplify and streamline the procedure is awaiting final implementation.

Essentially, the supervised recruitment period will be eliminated as will the involvement of the local state employment agency, leaving the employer to conduct its own unsupervised, good-faith labor market test during the 6 month period prior to submitting their filing directly with the U.S. Department of Labor. In most cases, employers will be required to back up their assertions regarding the unavailability of U.S. workers by maintaining evidence that during the 6 month period in question at least 2 print ads were placed in newspapers or magazines appropriate for the position. Employers will also be required to document that alternative means of recruiting such as job fairs, Internet, and/or employment agencies were also employed.

Employers will not be required to submit documentation regarding these recruitment efforts when submitting their labor certification request, only their basic assertions to the effect that U.S. workers are unavailable. Instead, they will be required to maintain a file containing details of their unsuccessful recruitment efforts, including copies of all ads, resumes and applications received, as well as applicant evaluation reports. Of course, this file will be subject to government audit in the event DOL may call into question the assertions set forth in the labor certification application.

Although this procedure has yet to be formally implemented, one unquestionably positive feature of the pending proposal is the promise of just a 21-day processing time, a timetable that certainly is an improvement from the 3 + years commonly faced by applicants. More details regarding this proposal will be featured in this column once implementation is finalized.

Without a U.S. family member to commence an immigration process, many individuals in the U.S., regardless of their status, must resort to an employment-based immigration filing as a vehicle toward achieving U.S. permanent residence, or “green card” status. And aside from nurses, physical therapists, religious workers, multinational corporate executives or managers, most such applicants must institute a process called “labor certification”, where a sponsoring employer must document the unavailability of U.S. workers to perform the position the foreign worker seeks to fill. In most cases, the labor certification process, if successful, will yield a green card in 3 1/2 to 5 years. However, under new rules implemented by the U.S. Department of Labor, a procedure to shorten the wait considerably is now available.

The “conventional” labor certification process in the Chicago area starts with the filing of an Application for Alien Labor Certification with the Illinois Department of Employment Security’s (IDES) Alien Certification Unit. It usually takes IDES anywhere from 16 to 24 months to contact the sponsoring employer to commence the “advertising stage” of the process, where instructions are given to the employer to place an advertisement in a specified publication for a specified period of time. Although the ad invites interested parties to apply for the position, it is the hope of the sponsoring employer and foreign worker that no U.S. applicant will possess the necessary experience or qualifications to fill the position at issue.

After the employer files his report detailing the results of the recruitment stage with IDES, the file is then transferred to the U.S. Department of Labor, where processing will continue for a period ranging from 6 to 16 months.

If the filing is approved, the parties will proceed with the final 2 stages with the Immigration & Naturalization Service, the I-140 immigrant worker petition and Adjustment of Status filing. Processing time for the I-140 petition is approximately 3 to 6 months, and for the Adjustment of Status filing, 12 to 24 months.

Alternatively, it has always been the case that a sponsoring employer can institute a “Reduction in Recruitment” (“RIR) labor certification filing, where the employer conducts his own advertising over a 6 month period (at least 3 print ads in major publications and notice posted in the workplace) and submits the results of his efforts when initially submitting the Alien Labor Certification filing. If all of the paperwork is in order, the filing is immediately forwarded to the U.S. Department of Labor for the next stage of processing. The result: the parties need not wait for the go-ahead from IDES to commence the advertising stage as is the case in “conventional” labor certification filings and perhaps as many as 12 to 20 months waiting time can be avoided.

What about those cases where a conventional labor certification filing has already been submitted (for example, those filed prior to April 30, 2001 to secure 245(i) eligibility)and the parties are now waiting out the 16 to 24 month period to be informed by IDES that they can commence the supervised advertising stage? Is it too late to proceed with an RIR type of case?

Under rules recently implemented by the U.S. Department of Labor, most conventional cases can now be converted to RIR, and without the parties losing the benefit of their earlier filing date. Specifically, those wishing to avail themselves of this new rule, merely need to reference their earlier filing receipt when submitting their new RIR filing, and request that the earlier filing be converted to an RIR case. Again, at least 1 year of waiting will be subtracted from the process.

Given the complex web of rules and regulations governing the labor certification process, however, it is advisable to hire an attorney experienced in such cases to represent your interests. Otherwise, all of the waiting and expenses may lead to a dead end.